BEFORE THE CONSUMER DISPUTES REDRESSAL FORUM,

ERNAKULAM.

Date of filing : 22/12/2009

Date of Order : 31/12/2011

Present :-

Shri. A. Rajesh, President.

Shri. Paul Gomez, Member.

Smt. C.K. Lekhamma, Member.

C.C. No. 668/2009

Between

And

O R D E R

A. Rajesh, President.

1. The case of the complainant in brief is as follows :

The complainant booked a flat in the apartment project of the opposite party named “Galaxy Clifford”. Consequent to the booking, an agreement for construction and a sale deed were entered into between the complainant and the opposite party on 13-01-2007 and 03-03-2007 respectively. As per the agreement, the opposite party was to construct the flat on or before 31-08-2008. However, the revised payment schedule of the opposite party was accepted by the complainant on condition that the construction of the flat would be completed before February 2009 in which they failed. The complainant had taken loan from H.D.F.C. Bank to pay the money and has been paying huge sums to the bank. Thus, the complainant is before us seeking the following reliefs against the opposite party :

1. To adjust an amount of Rs. 21,604/- per month from August 2008 till the date of delivery of possession of the flat.

2. Top consider a revision in the water and electricity connection charges as against the irrational amount of Rs. 1.65 lakhs as stated in the final bill.

3. To make a written delivery commitment of the flat.

4. To pay an amount of Rs. 10,000/- per month from August 2008 onwards.

5. To pay a compensation of Rs. 8 lakhs.

2. The version of the opposite party :

The complainant is not a consumer as per the provisions of the Consumer Protection Act. As per Clause 18 of the agreement entered into between the complainant and the opposite party, Civil Courts in Ernakulam alone have jurisdiction to entertain the dispute, if any between the parties. The opposite party is ready and willing to hand over the flat to the complainant, if he makes the final settlement of the bill as per the revised payment schedule. As per the revised payment schedule accepted by the complainant, he had to pay Rs. 6,16,495/- on or before 28-02-2009. The delay in construction was caused due to the reasons beyond the control of the opposite party. The complainant has no cause of action against the opposite party. The opposite party requests to dismiss the complaint.

3. The complainant was examined as PW1 and Exts. A1 to A4 were marked on his side. No oral evidence was adduced by the opposite party. Exts. B1 to B7 were marked on their side. The expert commissioner's report was marked as Ext. C1. Both sides filed argument notes. Heard the learned counsel for the parties.

4. The points that came up for consideration are :-

1. Whether the complainant is a consumer?

2. Whether the complainant is entitled to get an amount of Rs. 21,604/- per month from August 2008 till delivery of the possession of the flat?

3. Whether the complainant is to pay Rs. 1,65 lakhs towards water and electricity charges?

4. Whether the opposite party is liable to make a written delivery commitment of the flat?

5. Whether the complainant is entitled to get a sum of Rs. 10,000/- per month as rent from August 2008?

6. Whether the complainant is entitled to get a compensation of Rs. 8 lakhs from the opposite party?

5. Point No. i. :- Section 2 (1) (o) of the Consumer Protection Act contemplated that 'housing construction' is a service under the purview of the Consumer Protection Act. The Hon'ble Apex Court in Lucknow Development Authority Vs. M.K Gupta III (1994) CPJ 7 (SC) and in Ghaziabad Development Authority Vs. Balbir Singh II (2004) CPJ 12 (SC) in a considered view has categorically sustained the contention that this is a case maintainable in this Forum squarely.

6. The parties are in consensus on the following issues :

1. The complainant and the opposite party entered into Ext. B4 agreement dated 19-01-2007 for the construction of flat No. G4 in the apartment complex by name 'Galaxy Clifford' Block No. 2 of the opposite party.

2. The total construction cost of the flat was Rs. 21,06,495/- evidenced by Ext. B4.

3. The date of completion of the flat was on 31-08-2008 evident from Ext. B4.

4. Both the parties agreed to postpone the delivery and acceptance of the completion date from 30-08-2008 to February 2009 evident from Ext. B6 dated 08-03-2008.

5. During the pendency of this complaint, the complainant took possession of the flat in question on 16-05-2011.

7. The opposite party vehemently contended that as per Ext. B6 revised payment schedule, the complainant had to pay Rs. 6,16,495/- on or before 29-02-2009 in which the complainant failed. Further, they contended that the basic cause for delay was the non-receipt of the No Objection Certificate from the Kerala State Pollution Control Board and the Kerala Fire and Rescue Service Department, though application for the same were submitted in time. It is further contended that as per Clause 22 of Ext. B4 agreement, if there occurred any delay in completion of construction due to the reasons beyond the control of the opposite party, such period shall be excluded in calculating the period of completion and delivery of possession.

8. At the instance of the complainant, an expert commissioner was appointed by this Forum to ascertain the present condition of the flat. The report of the expert commissioner was admitted in evidence as Ext. C1 without demur. The expert commissioner visited the flat on 13-09-2010 and as on that date the flat of the complainant was not in a habitable condition and 3 more months were required to complete the construction fully. Having at the outset agreed to complete the construction on 31-08-2008 and further mutually agreed to postpone the date of completion to February 2009, the opposite party took more than a year to complete the same. The opposite party failed to prove or did not adduce any evidence to substantiate the contention that they were not able to complete the construction in time for the reasons beyond their control.

9. According to the complainant, he took the possession of the flat during the pendency of the complaint in this Forum, since his landlord directed him to shift from his erstwhile residence. There is no reason to disbelieve the reasons stated by the complainant especially so, because the opposite party has not challenged the same. The complainant contended that due to the delay in handing over the possession of the flat, he had to incur expenses towards rent and to suffer financial loss. But nothing is on record to substantiate the same. However considering the entire evidence in this case, the complainant has had to suffer lot of mental agony and some financial loss due to the delay in handing over the possession of the flat which has not evidently been raised before us. Though, there is no yardstick to quantify the loss sustained by the complainant for his own reasons and his silence on the issue, we think that a compensation of Rs. 1,00,000/- is enough to abate the agony of the complainant.

10. The points that the complainant has raised is :

1. that he shall be awarded an amount of Rs. 21,604/- per month from August 2008 till delivery of possession of the flat, there is nothing before us to substantiate the same rejected.

2. the 2^nd point has been met squarely since the complainant has paid the amount towards water and electricity charges.

3. the 3^rd point did not arise since he has already taken possession of the flat.

4. The 4^th point is already been considered in the order and calls for no further consideration.

5. The 5^th point has already been answered.

11. In the result, we partly allow the complaint and direct that the opposite party shall pay a compensation of Rs. 1,00,000/- (Rupees One lakh only) to the complainant for the reasons stated above.

The order shall be complied with, within a period of one month from the date of receipt of a copy of this order.

Pronounced in the open Forum on this the 31^st day of December 2011.

Sd/- A. Rajesh, President.

Sd/- Paul Gomez, Member.

Sd/- C.K. Lekhamma, Member.

Forwarded/By Order,

Senior Superintendent.

A P P E N D I X

Complainant's Exhibits :-

Opposite party's Exhibits :-

=========