PBEFORE THE CONSUMER DISPUTES REDRESSAL FORUM, ERNAKULAM.
Dated this the 29th day of September 2012
Filed on : 24-03-2011
Present :
Shri. A Rajesh, President.
Shri. Paul Gomez, Member.
Smt. C.K. Lekhamma, Member
C.C. No. 169/2011
Between
Mr. Mohan Chandra, : Complainant
S/o. Aravindakshan, (By Adv. George Cherian
Res. at Souparnika, Karippaparambil, Karippaparambil
Vandana layout, Puthur, Associates, HB.48, Panampilly
Palakad, Nagar, Kochi-682 036)
And
1. Mr. Saidu Mohammed Nazeer, : Opposite parties
S/o. Yousef, res. at Mukkada (By Adv. K.S. Sajeev Kumar)
house, rep. by his power of
Attorney Sri. Althaf M Y,
S/o. M.B. Yahia, Director.
2. Mutif Builders and Developers
P Ltd., Door No. X1-237-A29,
4th floor, Hayath Tower,
Near Juma Masjid,
Padamugal, Kakkanad,
Kochi-682 021.
O R D E R
A Rajesh, President.
The facts of the case leading to this complaint are as follows:
The complainant is a non resident Indian. The opposite parties are builders and developers. The complainant entered into an agreement for construction of a flat and a sale agreement for the undivided share in the property with the opposite parties in their project by name ‘Green Meadows’ on 18-10-2007. The total construction cost agreed between the parties was Rs. 23,44,075/- and the agreed date of handing over the possession of the flat was 30-12-2009. The complainant paid an amount of Rs. 1,50,000/- on the date of agreement. The complainant had been making the payments as per payment schedule in the agreement. Meanwhile the complainant availed a housing loan from HDFC Ltd to partly fund the sale consideration. During this period the 2nd opposite party had collected 2 instalments of the payment directly from the bank without informing the complainant. Thereafter the loan was closed and the complainant was paying the opposite parties directly till May 2009. Till May 2009 the complainant had made a total payment of Rs. 22,65,554/- to the 2nd opposite party. In spite of repeated requests the opposite parties failed to hand over the possession of the flat to the complainant. While so on 11-11-2011 the opposite parties issued a letter to the complainant demanding Rs. 4,51,458/- after deducting an amount of Rs. 1,10,000/- as discount for the delayed period of construction. The complainant is not liable to pay any amount to the opposite parties. Thus the complainant is before us seeking the following reliefs against the opposite parties.
i. to execute the sale deed with undivided share in the property without realising any charge.
ii. To complete the remaining work and to handover the possession of the flat.
iii. To pay a compensation of Rs. 2 lakhs for the mental agony suffered by the complainant and the deficiency in service on the part of the opposite parties.
iv. To pay a compensation of Rs. 2,10,000/- for loss of rental income
v. To pay Rs. 25,000/-being the costs of the proceedings.
2. The version of the opposite parties is as follows:
The transaction involved in the complaint does not come under the provisions of the Consumer Protection Act, and the complaint is not maintainable in the Forum. The complainant and the opposite parties entered into two agreements. Since there were certain omissions with regard to the stipulation a fresh agreement dated 21-03-2010 has been executed between the complainant and the opposite parties. The complainant has purposefully concealed the aforesaid fact in the complaint. The total sale consideration was Rs. 25,94,075/- inclusive of the parking facility. The opposite parties have received an amount of Rs. 25,65,554/-. The complainant agreed to pay the balance sale consideration of Rs. 3,12,880/- (inclusive of VAT) with the registration charges at the time of registration of the sale deed. The date of completion was 31-12-2009 extendable for a further period of 6 months. There has been some delay in completing the construction however the same had been completed on 15-04-2011. The opposite parties have received 2 instalments from the Bank in accordance with the authorization made by the complainant with the Bank. The opposite parties are ready and willing to execute the sale deed with the undivided share to the complainant provided the complainant pays the balance amount as stated above. There is no deficiency in service on the part of the opposite parties as claimed by the complainant.
3. The complainant was examined as PW1 and Exts. A1 to A15 were marked. Power of Attorney of the 1st opposite party was examined as DW1 and Exts. B1 to B3 were marked on the side of the opposite parties. Heard the counsel for the parties.
4. The points that arose for consideration are as follows:
i. Whether the complainant is a consumer?
ii. Whether the complainant is entitled to get the sale deed of
the flat with undivided share in the land executed without any
charges.
iii. Whether the opposite parties are liable to pay a
compensation of Rs. 2,00,000/- and loss of rental income of
Rs. 2,10,000/- together with Rs. 25,000/- being the costs of
the proceedings.
5. Point No.i. ‘Housing Construction’ is a service as contemplated in section 2 (1) (o) of the Consumer Protection Act. The Hon’ble Appex Court in Lucknow Development Authority Vs. Balbir Singh II (2004) CPJ 12 (SC) further in Gaziabad Development Authority Vs Balbir Singh 11 (2004) CPJ 12 (SC) reiterated the same. This point deserves no consideration absolutely since with due respects to the contention otherwise. Established law can not be looked at askance for ones unfounded aspirations.
6. Point No. ii. The following issues are undisputed between the parties.
a. On 18-10-2007 the complainant and the opposite parties
entered into Ext. A1 agreement for sale of 1/48th undivided
share in the land where the construction of the flat was.
b. On the same day the complainant and the opposite parties
entered into Ext. A2 agreement for construction of a flat in
the 6th floor of the apartment complex of the opposite parties
by name Green Meadows.
c. The total cost of the flat as per Exhibit A2 was
Rs. 23,44,075/-.
d. The opposite parties agreed to finish the construction work
on or before 31-12-2009.
e. The complainant paid the following amounts to the opposite
parties towards the sale consideration of the flat
Sl. No. | Date | Exhibits | Amounts in rupees |
1 | 05-10-2007 | A4 | 54,006 |
2 | 18-10-2007 | A5 | 4,40,069 |
3. | 19-10-2007 | A6 | 1,00,000 |
4 | 31-10-2007 | A7 | 2,54,148 |
5 | 29-12-2007 | A8 | 2,59,407 |
6 | 04-07-2008 | A9 | 2,59,407 |
7 | 23-10-2008 | A10 | 4,68,814 |
8 | 02-04-2009 | A11 | 1,29,703 |
9 | 12-05-2009 | A12 | 3,00,000 |
10 | 25-06-2009 | A13 | 1,00,000 |
11 | 16-11-2010 | A14 | 25,000 |
12 | 16-11-2010 | A15 | 1,75,000 |
Total 25,65,554 |
7. The complainant contented that Ext. B1 is only a parole agreement entered into between the parties only for the purpose of availing loan from the Bank and the terms and conditions as per Ext. A1 and A2 still subsisting. According to the opposite parties for the sake of substantiation the complainant and the opposite parties entered into Ext. B1 agreement dated 21-03-2010 in furtherance of Ext. A1 and A2 agreements. Further the opposite parties contended that the complainant is liable to pay Rs. 4,51,458/- in tune with Exbt. B1 agreement and they have demanded the same by issuing Ext. A3 letter dated 11-11-2010.
8. Ext. A3 letter dated 11-11-2010 issued by the opposite parties to the complainant reads as follows:
“With further reference to our discussion regarding the above matter, the following decisions are made:
Total Amount due from you | 5,61,458.00 |
Discount given for the delayed period | 1,10,000.00 |
Balance Amount Due before Registration | 4,51,458.00 |
Out of this, you will make the payment of Rs. 2,00,000/- (Rupees Two Lakhs only ) on 13-11-2010, Rs. 1,00,000/- (Rupees One Lakh only) on the day of Registration. The Registration is planned on or before 18th November, 2010. For the balance amount of Rs. 1,51,458/- (Rupees One Lakh Fifty One Thousand Four Hundred Fifty Eight only) you have to give Post dated cheque of date within 30 days from the date of Registration. The work of the Flat will be completed within this time”.
9. It is pertinent to note that the complainant paid Rs. 2 lakhs as demanded in Ext. A3 to the opposite parties on 16-11-2010 which goes to show that the complainant was aware and agreeable to the terms and conditions in Ext. B1 agreement. As per Ext. B1 the price of the flat agreed between the parties was Rs. 25,94,075/-. Admittedly the complainant paid and the opposite parties received a sum of Rs. 25,65,554/- from the complainant as on 16-11-2010. So the complainant is contractually and legally liable to pay the balance amount of Rs. 28,521/- (Rs. 25,94,075 – Rs.25,65,554) towards the balance sale consideration of the flat not repudiated. In addition to the above amount indisputably the complainant is liable to pay the statutory charges, taxes and other expenses as per clause 3 of Ext. B1 agreement.
10. Point No.iii. At the out set as per Ext. A2 the opposite parties agreed to complete the construction of the apartment on or before 31-12-2009. The same figure appeared in Exbt. B1 which was executed on 21-03-2010. Even admittedly by the opposite parties there is delay in handing over the possession of the apartment for reasons not stated or unexplained. Ext. B4 occupancy certificate issued from Thrikkakara Municipality would show that the apartment is fit for occupation/use with effect from 01-09-2011. However DW1 the witness for the opposite parties deposed before this Forum that electricity and water connection to the complainant’s flat was yet to be received on 19-04-2012 the date of his deposition. The acceptance without proof to the contrary goes to show that the disputed flat is not in a habitable condition as of that date. Nothing is forthcoming on the part of the opposite parties as to the reason why the delay in contruction has been caused. In the absence of evidence either oral or documentary, we are of the firm view that the opposite parties have failed in their duty and are liable positively to pay compensation to which the complainant is entitled to squarely. The complainant claimed rent value of Rs. 15,000/- per month from 31-12-2009 to the actual date of delivery of the flat which he could have gained which for reasons beyond his control he had lost. For which the opposite parties are reasonably liable which squarely proves the bonafides of the contentions of the complainant. His grievances adequately being redressed prayer for compensation is not necessarily called for justifiably. However this Forum has no cause to differ as to an inference that the complainant has had been put to legal consequences which entails monitory consequences which has to be accounted for justifiably. The costs of the proceedings we award at Rs. 10,000/- .
11. In the result, we pass the following order.
i. The opposite parties shall take immediate steps to register the apartment in question in the name of the complainant provided the complainant pays the amounts as directed above.
ii. The opposite parties shall pay Rs. 15,000/- per month to the complainant from 31-12-2009 to the date of actual delivery of possession of the flat to the complainant.
iii. The opposite parties shall also pay Rs. 10,000/- to the complainant towards costs of the proceedings.
The above said order shall be complied with within a period of one month from the date of receipt of a copy of the order.
Pronounced in the open Forum on this the 29th day of September 2012
Sd/- A Rajesh, President.
Sd/- Paul Gomez, Member
Sd/- C.K. Lekhamma, Member.
Forwarded/By Order,
Senior Superintendent.
Appendix
Complainant’s exhibits :
Ext. A1 : Copy of agreement for sale
A2 : Copy of agreement
A3 : Copy of letter dt. 11-11-2010
A4 : Copy of receipt 05-10-2007
A5 : Copy of receipt dt. 18-10-2007
A6 : Receipt dt. 19-10-2007
A7 : Receipt dt. 30-10-2007
A8 : Receipt dt. 29-12-2007
A9 : Receipt dt. 04-07-2008
A10 : Receipt dt. 29-10-2008
A11 : Receipt dt. 02-04-2009
A12 : Receipt dt. 12-05-2009
A13 : Receipt dt. 25-06-2009
A14 : Receipt dt. 16-11-2010
A15 : Receipt dt. 16-11-2010
Opposite party’s Exhibits : :
Ext. B1 : Copy of agreement dt. 21-03-2010
B2 : Copy of letter dt. 11-11-2010
B3 : Copy of letter dt. 06-01-2011
B4 : Copy of occupancy certificate
dt. 03-11-2011
Depositions :
PW1 : K. Mohan Chandra
DW1 : Althaf M.Y.
