Kerala

Idukki

CC/176/2018

Beena Jose - Complainant(s)

Versus

Sunitha Jose - Opp.Party(s)

Adv.K M Sanu

29 Nov 2019

ORDER

DATE OF FILING : 27.9.2018

IN THE CONSUMER DISPUTES REDRESSAL FORUM, IDUKKI

Dated this the 29^th day of November, 2019

Present :

SRI. S. GOPAKUMAR PRESIDENT

SMT. ASAMOL. P MEMBER

CC NO.176/2018

Between

Complainants : 1. Beena Jose @ Beena Joseph,

Punnolil House,

Njarackad, Kadavoor P.O.,

Kothamangalam – 686 671.

2. Joseph John Punnolil,

Punnolil House,

Njarackad, Kadavoor P.O.,

Kothamangalam – 686 671.

(Both by Adv: K.M. Sanu)

And

Opposite Party : 1. Sunitha Jose @ Sunitha Aji,

Managing Partner,

Ajees Group,

32/204, Unnichira, Edappally,

Kochi – 682 024.

2. Sunitha Jose @ Sunitha Aji,

Appartment No.302,

Kanjunjunga Appartments,

Palarivattom,

Kochi – 682 025.

3. Aji E. Kochuparambil,

Managing Partner,

Ajees Group,

Appartment No.302,

Kanjunjunga Appartments,

Palarivattom,

Kochi – 682 025.

4. Aji E. Kochuparambil,

Kochuparambil House,

Vazhithala P.O.

(All by Advs: T.G. Ragesh

& Anu Alias)

 

 

 

 

(cont.....2)

- 2 -

 

O R D E R

 

SRI. S. GOPAKUMAR, PRESIDENT

 

Case of the complainant is that :

 

The 2^nd complainant is the wife of the 1^st complainant and she is working abroad. The complainants are desired to purchase one flat from the 1^st opposite party. Opposite parties are doing the business of constructing and selling villas and flats in the name of Valley View. By attracting the advertisements of opposite parties, complainant approached them and entered into an agreement of purchasing one flat having 1569 sq.ft in the 9^th floor of the building, for an amount of Rs.22,26,554/-. As per the agreement, opposite party offered to hand over the flat after its completion on or before 31.7.2009. On believing their words, the complainants happened to pay Rs.3,26,760/- as advance amount to the opposite parties on 28.4.2008. For the balance amount, the complainant availed a housing loan from HDFC bank. As per the agreement between the parties, out of the total purchase amount, 40% shall be paid at the time of starting the work of the building and 10% when the completion of foundation of the building and further 10% each when the completion of the construction of 1^st, 3^rd, 5^th and 8^th floors and 5% at the time of completion of the roof of the building. The balance amount of 5% shall be paid before 15 days of the transferring of the flat to the complainant in its finished stage. The parties further agreed that, if the complainant fails to pay the amount as agreed, he is bound to pay 18% interest for that amount.

 

The amount, when the complainant availed from HDFC bank, deposited in his account, with his consent to withdraw it by the opposite party at each stages which is mentioned in the agreement.

 

Eventhough the opposite parties agreed to hand over the flat to the complainant within 31.7.2009, opposite parties failed to do so. When the complainant approached the opposite parties for this, the opposite parties evaded from transferring the ownership of the flat with some lame excuses. The opposite parties withdrawn an amount of Rs.18,50,513/- from the account of the complainant in different stages and it is evident from the bank statement of account. But the opposite parties failed to hand over the flat as per the agreement within the stipulated period and the complainants are regularly approaching the opposite parties from 2009 onwards. When the complainant

(cont.....3)

- 3 -

realised that, opposite parties are playing fraud, he directed the bank authorities not to permit the opposite party from further withdrawal. Eventhough from 2009 onwards, the complainants are regularly approaching the opposite parties to get the flat as per the agreement, opposite parties failed to hand over the possession of the agreed flat in its finished stage and the work of the building is not completed by the opposite party till now. Opposite parties are delaying the finishing of the building without any valid reason. Now there is a long delay of 108 months in delivery of the possession at the time of filing this complaint. Alleging deficiency in service against the opposite parties in delaying 108 months for delivery of possession, complainant approached the Forum and filed this complaint for getting reliefs such as to direct the 1^st opposite party to repay the amount received by them as per the statement of account along with 18% interest and compensation and cost.

 

Upon notice, opposite parties entered appearance and filed detailed reply version by admitting the agreement for sale of a flat and the acceptance of amount as stated in the complaint. Opposite parties further contended that eventhough the promise of the opposite parties for handing over the flat as per the agreement was on 31.7.2009, complainant had not raised any complaint against the opposite parties till April 2018. Hence the petition is barred by limitation. Since the complainants were aware about non-performance of their part, they kept silent and did not file any complaint before any authorities.

 

Opposite party further contended that the non-delivery of the flat was due to the non-performance of the complainants' part of contract and the opposite parties are not liable for that. The opposite parties are suffered a loss of Rs.8 lakhs due to the non-performance of the terms of the contract by the complainants. Hence there is no deficiency in service or any unfair trade practice from the part of the opposite parties and they are not liable to compensate the complainants.

 

Opposite party further contended that, the complainants were liable to pay the payments above Rs.25000/- for electric connection and other payments which occurred to a total of Rs.6.5 lakhs has not been paid by the complainants. Moreover, as per the contract after the completion of 10^th floor, the complainant were duty bound to pay the next instalment, which they did not do from 2019 onwards. Thereafter the 1^st complainant had attended the meeting of the building owners which decided to improve the life and KV of the generator, so far the complainants have not paid any singly pai for that purpose. Hence the complainants are not entitled to claim neither under this Act nor under any other Act. (cont.....4)

- 4 -

Evidence adduced by the complainant by way of proof affidavit and documents. Complainants were examined as PW1 and agreement dated 30.3.2007 and statement of HDFC bank are marked as Exts.P1 and P2 respectively. From the opposite side, except the reply version, no oral or documentary evidence adduced.

 

Heard both parties.

 

The point for consideration is whether there is any deficiency in service from the part of opposite parties and if so, for what relief the complainant is entitled to ?

 

The POINT :- We have gone through the records and have considered the arguments advanced by both the parties. It is an admitted fact by the complainants that the 1^st complainant raised the amount of purchasing the flat by way of housing loan and executed an agreement between the parties on 30.3.2007. At the time of final arguments, we asked the counsel for the opposite party as to when they would deliver he possession of the flat in favour of the complainants. While answering this question, he could not clarify the position. He argued that he will have to seek instruction from his client. We have waited for a pretty long period for settling the matter and it is apparent that the opposite parties are not in a position to hand over the flats to the complainant in near future, eventhough there is a delay of nearly 10 years. One perusing the Ext.P1 agreement, it is seen that the flat was booked on 30.3.2007 and as per Ext.P2 bank transaction statement, complainant paid a total amount of Rs.18,50,513/- to the opposite party for the construction purpose. When the complainant realised that opposite party is playing fraud and opposite parties are failed to perform the condition of the agreement, he instructed the bank authorities to stop further payment. The receipt of Rs.18,50,513/- and Ext.P1 agreement is admitted by the opposite parties.

 

on the other hand, the learned counsel for the opposite parties vehemently argued that the delay in delivery of the flat is caused due to the non-performance of certain agreement conditions on the part of the complainants. Eventhough opposite parties raised such a defence, no plausible evidence is produced by them before the Forum for substantiating their contention. Moreover, opposite parties has not a case that the alleged flat is ready for delivery and it is intimated to the complainant by writing. So the contention of non-performance of agreement conditions on the part of the complainant cannot be sustainable, since lack of any evidence to fortify it.

(cont.....5)

- 5 -

The learned counsel for the opposite party further argued that after the stipulation of agreement period, that is, 31.7.2009, complainant has not raised any complaint against the opposite party till they approaching this Forum in the month of April 2018 and hence this complaint is barred by limitation. This question is specifically answered by the opposite party in their version that evenafter the agreed period, complainant approached the opposite parties for handing over the flat in its finished nature or else the complainant demanded the payment back. But the opposite party delayed or prolonged the matter of delivery in some reasons or in some lame excuses. From 31.7.2009 onwards, complainant is approaching the opposite party for getting back his money or getting possession of the building. This agreement was raised merely for the sake of cavil. It is now well settled that unless or until the complainants get the possession of the flat, they have get continuous cause of action. This view finds support from the Hon'ble National Consumer Redressal Commission reported in Raghava Estate Ltd. Vs. Vishupuram Colony Welfare Association (Special Leave to Appeal Civil) No.35805 of 2012 decided on 7.12.2012.

 

The next submission made by the counsel for the opposite party was that the complaint is not maintainable as the matter should have been referred to an Arbitrator as per the clause inserted in the agreement. The agreement is also devoid of force because, as per section 3 of the Consumer Protection Act, the complainant can avail the alternative remedy. The new Act has no application to this case.

 

On going through the entire materials in the case, the Forum found that all the arguments on the part of the opposite party are bonafide of merits. Even in the written submission made by the opposite party, there is not even an inkling as to when the flats could be given. It is an admitted fact that there is a huge delay in handing over the possession to the complainants. Nobody can say for sure that the complainant would get the flat during the life-time. Justice delayed is not only justice denied, it is also justice circumvented, justice mocked and the system of justice undermind. The Apex Court in a number of authorities has rejected the contract to this extent. The opposite party is utilising the hard earned money of the complainant for about 10 years. The opposite parties have succeeded to farther their own next that is, to make perfect for one-side, often to expenses of others. The 'Fabian Policy' adopted by the opposite parties have benefited them a lot. Not only the prices of land have since increased but the price of a rupee has come down.

 

 

(cont.....6)

- 6 -

On the basis of the above discussion, the Forum is of a considered view that the complainants cannot wait for the possession of the flat in abeyance. The opposite parties have failed to prove with any documentary evidence that they were forced to delay for the reason mentioned in the written version. Since, there is inordinate delay in handing over the possession, therefore the complainant are entitled to get the refund of the amount. We direct the opposite parties to refund the entire money received from the complainants, that is Rs.18,50,513/- with 18% interest per annum from 31.7.2009, the date of agreed delivery of the building, till realisation. Opposite parties are further directed to pay compensation of Rs.1 lakh and litigation cost of Rs.10000/- to the complainants within 30 days of receipt of a copy of this order, failing which the amount shall carry 12% interest per annum from the date of default, till its realisation.

 

Pronounced in the Open Forum on this the 29^th day of November, 2019

 

 

Sd/-

SRI. S. GOPAKUMAR, PRESIDENT

Sd/-

SMT. ASAMOL. P, MEMBER

 

 

 

APPENDIX

Depositions :

On the side of the Complainant :

PW1 - Joseph John.

On the side of the Opposite Party :

Nil.

Exhibits :

On the side of the Complainant :

Ext.P1 - agreement dated 30.3.2007.

Ext.P2 - statement of HDFC bank.

On the side of the Opposite Party :

Nil.

 

Forwarded by Order,

 

 

SENIOR SUPERINTENDENT