Kerala

StateCommission

CC/11/6

Joseph Menaak - Complainant(s)

Versus

The MD,M/s Shwas Homes Pvt Ltd - Opp.Party(s)

S.S.Kalkura

24 Feb 2015

ORDER

KERALA STATE CONSUMER DISPUTES REDRESSAL

COMMISSION  VAZHUTHACAUD, THIRUVANANTHAPURAM

CC. NO.06/11

 

JUDGMENT DATED:24.02.2015

 

PRESENT : 

JUSTICE SHRI. P.Q. BARKATHALI                        :  PRESIDENT

SHRI.V.V. JOSE                                                                   : MEMBER

Joseph Menaak,

S/o N.M. Joseph,                                       

Nedumparambil House,

Mission Quarters, Thrissur,                                             : COMPLAINANT

R/o by his power of attorney.

 

(By Adv: M/s Kalkura)

 

            Vs.

 

1. M/s Shwas Homes Pvt. Ltd.,

Near Kaniampuzha Bridge,

Vytilla, Kochi R/by its

Managing Director,

M/s Shwas Homes Pvt. Ltd

Near Kaniampuzha Bridge,

Vytilla, Kochi.

2. Sreeni Parameswaran,

M/s Shwas Homes Pvt. Ltd.,

Near Kaniampuzha Bridge,

Vytilla, Kochi.

 

 

3. C.B.Sreejith, Director,

Marketing Executive,

M/s Shwas Homes Pvt. Ltd.,

Near Kaniampuzha Bridge,                                             : OPPOSITE PARTIES

Vytilla, Kochi.

 

 

 

4. Shaji Ayyappan,

Director,

Sreeni Parameswaran,

M/s Shwas Homes Pvt. Ltd.,

Near Kaniampuzha Bridge,

Vytilla, Kochi.

Kanayannur Taluk,

Ernakulam, Cochin-682 020.

 

5. Director,

M/s Shwas Homes Pvt. Ltd.,

2^nd floor, G-363, Georg Technology,

Arcade, K.C.Joseph Road,

Panampilly Nagar,

Kochi-36.

 

(OP1 & 2 BY Adv: Sri.R.Narayan)

 

JUDGMENT 

JUSTICE SHRI. P.Q. BARKATH ALI    : PRESIDENT

This is a complaint filed under section 15 of the Consumer Protection Act by the complainant claiming refund of the amount paid by him to the opposite parties and compensation for the deficiency of service on their part.

2.      The case of the complainant as detailed in the complaint in brief is this:-

Complainant is a doctor practicing in Oman for more than 15 years and represented by his letter of authority John Ignatious.  Opposite parties are M/s Shwas Homes Private Limited represented by its Managing Director.  Complainant was allotted 4 bed room villa flat No.48 type A in the project ‘the Lounge’ started by the opposite parties near Nedumpassery Airport, Ernakulam.  Necessary agreements were entered into between the complainant and the opposite parties.  Total consideration fixed was Rs.59,80,000/- and the agreement was to complete the construction on or before March 31, 2007.  Complainant has paid Rs.2,00,000/- as advance on March 03, 2007 and paid Rs.6,97,000/- on May 15, 2007.  But the opposite parties have not even started the construction or handed over the villa to the complainant.  Therefore complainant claimed Rs.8,95,000/- paid by him, Rs.5,00,000/- for mental agony, Rs.4,50,000/- towards interest and Rs.10,00,000/- towards loss suffered by him.

3.      First opposite party is M/s Shwas Homes Private Limited, Kochi represented by its Managing Director.  Second and fourth opposite parties are its Directors.  Third opposite party is the Director Marketing Executive.  Fifth opposite party is another Director.  They in their version contended thus:-  It is true that they have started the project ‘the Lounge’ and entered into an agreement with the complainant.  But due to the acquisition of the plot by coast guard, they were forced to abandon the project.  They have offered the applicant to allot a plot in their other projects.   It is also true that complainant paid Rs.2,00,000/- on 17.03.2007 and Rs.6,97,000/- on 15.5.2007 which opposite parties are prepared to return.  Further complaint is barred by limitation.

4.      The authorized representative of the complainant was examined as PW1 and Exts.A1 to A9(a) were marked on his side.  On the side of the opposite parties DWs 1 and 2 were examined and Exts.B1 to B9 were marked.

5.      The following points arise for consideration:-

1. Whether there was any deficiency of service on the part of the opposite parties?
2. What are the reliefs the complainant is entitled to?

6.      It is admitted that complainant entered into an agreement with the opposite parties for allotment of a villa in the project, the Lounge started by the opposite parties and he paid Rs.8,95,000/-, but the opposite parties were forced to abandon the project due to the acquisition of the property for the purpose of construction of quarters for the coast guard.

7.      Thus there is clear deficiency of service on the part of the opposite parties and they are bound to repay the amount received from the complainant.  They are also liable to pay compensation to the complainant. In the circumstances we are of the view that interest at the rate of 12% per annum from May 15, 2007 would be reasonable.

In the result complaint is allowed in part.  Opposite parties are directed to pay Rs.8,95,000/- to the complainant with interest at the rate of 12% per annum from the date of payment ie 15.5.2007 till realization.  As we have awarded interest at the rate of 12% per annum no separate compensation is awarded.  Complainant is also entitled to a cost of Rs.5000/- in this complaint.

 

JUSTICE P.Q. BARKATHALI:  PRESIDENT

 

V.V. JOSE : MEMBER

 

 

APPENDIX

COMPLAINANT’S WITNESS

PW1           : Sri. Joseph Menaak

COMPLAINANT’S EXHIBITS

Ext.A1        : Pamphlet issued by the first respondent.

Ext.A2        : Temporary receipt dated:17.03.2009 for Rs.2,00,000/-.

Ext.A3        : Allotment letter dated:30.03.2007 issued by the OP.

Ext.A4        : Temporary receipt dated:17.03.2009 for Rs.6,97,000/-.

Ext.A4(a)   : Receipt No.630 dt:31.3.2007 issued by the OP for Rs.2,00,000/-.

Ext.A4(b)   : Receipt No.630 dt:4.4.2007 for Rs.2,00,000/-.

Ext.A4(c)   : Receipt No.144 dt:15.5.2007 issued by the opposite party for Rs.6,96,000/-.

Ext.A4(d)   : Receipt No.144 dt:16.5.2007  issued by the OP for Rs.6,97,000/-.

Ext.A5        : Copy of lawyer notice dt:13.06.2009 issued on behalf of the complainant.         

Ext.A6        : Copy of LAR No.59/2010 of Additional Sub Judge, North Paravur.

Ext.A7        : CC.No.375/10 of CDRF, Ernakulam.

Ext.A8        : Copy of Appeal Memorandum of State Commission, Thiruvananthapuram.

Ext.A9        : Copy of Appeal no.801/11 of State Commission, Thiruvananthapuram.

Ext.A10      : Copy of Sale deed No.14419, dt:21.02.2012.

Ext.A10(a): Copy of Sale deed No.14420, dt:21.02.2012

OPPOSITE PARTIE’S WITNESS

DW1           :Affidavit of second OP

DW2           :Sri. Rajesh Kumar.S

OPPOSITE PARTIES EXHIBITS

Ext.B1        : Copy of stay against the construction of Bldg.

Ext.B2        : Copy of Bldg. permit receipt.

Ext.B3        : Copy of acknowledgement

Ext.B4        : The prohibitory order dt:04.09.2007.

Ext.B5        : Copy of the letter dt:13.12.2007 of District Collector.

Ext.B6        : Copy of anticipatory bail order in Criminal MC.No.1604/2009 of Sessions Court, Ernakulam.

B7 series   : Bldg. plan and estimate details.

Ext.B8        : Copy of counter affidavit filed by the 4^th respondent. Of WP(C) No.29363/07.

Ext.B9        : Tax receipt of Mystic Winds Project.

 

 

JUSTICE P.Q. BARKATHALI:  PRESIDENT

 

V.V. JOSE : MEMBER

 

 

VL.