Kerala

StateCommission

CC/15/122

WILSON KUNJU K - Complainant(s)

Versus

VICE CHAIRMAN DLF SOUTHERN TOWNS PVT LTD - Opp.Party(s)

V V SURENDRAN

21 Feb 2019

ORDER

 

 

 

KERALA STATE CONSUMER DISPUTES REDRESSAL

COMMISSION  VAZHUTHACAUD, THIRUVANANTHAPURAM

 

C.C. 122/2015

 

   JUDGMENT DATED:21.02.2019

 

PRESENT : 

 

HON’BLE JUSTICE S.S. SATHEESACHANDRAN  : PRESIDENT

 

SMT. BEENAKUMARI.A                                          : MEMBER

 

 

Wilson Kunju.K,

S/o Chandapillai Kunju Kunju,

Morothu House, Style Vilas Road,

Kakkanad P.O, Kochi-682 030.                                           : COMPLAINANT

 

(By Adv: M/s V.V. Surendran & Others)

 

            Vs.

 

1. DLF Southern Towns Pvt. Ltd.,

R/by it’s Vice Chairman,

DLF Registered Office, 1-E,

Jhandewalan Extension,

New Delhi-110 055.

                                                                                                : OPPOSITE PARTIES

2. The General Manager Marketing,

DLF Southern Towns Pvt. Ltd.,

Opp. Doordarsan Kendra,

Sea Port Airport Road, Kakkanad,

Kochi-682 030.

 

(By Adv: M/s Menon & Pai)

 

                                                               

                                                JUDGMENT

 

HON’BLE JUSTICE S.S.SATHEESACHANDRAN – PRESIDENT

 

          Complaint filed u/s 17 of the Consumer Protection Act for short “the Act”.  Complainant a former employee of first opposite party – company engaged in building and property development  booked for an apartment in one of its projects, namely, New Town Heights Apartment Project, at Kakkanad, Kochi.  The above project was launched by opposite parties during 2009 and since the real estate market was dull at that time, according to complainant, opposite parties offered considerable discount to its staff members to promote and influence them to join the project.  Complainant was offered a residential apartment in the above said New Town Heights Apartment Project at a concessional rate.  The main concession was discount offered by opposite parties, 30% of the price in the form of three deferred instalment payments based on duration of service put in the company i.e. 10% on completion of 3 years and 20% on completion of 5 years.  At that time complainant had put in about 2 years of service and before completion of the project he was expected to complete the required length of  service in the company.  Attracted by the concession of discount provided complainant booked one apartment in the project, having 1593 square feet super area, and made advance payment of Rs.4,00,000/0 (Rs.Four lakhs) on 17.12.2009. A sale agreement was executed on 31.1.2010 fixing the terms and conditions and the payment plan forconstruction linked instalments, and, time for completion for construction was stipulated as 36 months from the date of agreement subsequently a supplementary agreement was executed on 22.1.2010 modifying  certain terms and stipulations in the previous agreement providing compensation for delayed delivery at Rs.10/- per square feet of super area.  The agreement provided option for down payment and advance payments.  In accordance with the payment schedule given complainant has to pay a sale value of Rs.34,62,722/- (Rs.Thirty four lakhs sixty two thousand seven hundred and twenty two) as against a total sale value of Rs.49,12,610/- (Rs. Forty nine lakhs twelve thousand and six hundred and ten), after discount of Rs.14,49,888/-, with such amount payable in 11 instalments besides the booking advance.  Out of the instalments, first 9^th and 10^th, each for Rs.4,83,296/- (Rs.Four lakhs eighty three thousand two hundred and ninety six), are deferred payments, ie the first to be  waived on 02.01.2011, completion of 3 years service and the 9^th and 10^th payments to be waived on completion of 5 years of service.  Complainant had also been offered rebate equivalent of interest at 10% per annum for advance payment and rebate of 9% for down payment.  He was also offered referral rebate at Rs.50/- per square feet on the  basic price of his apartment.  Persuaded by the offers complainant remitted a sum of Rs.25,00,000/- (Rs. Twenty five lakhs) on 16.02.2010 as advance payment availing a housing loan from a bank. By making such advance payment he was entitled to rebate credit of Rs.1,94,347/ (Rs.one lakh ninety four thousand three hundred and forty seven).  Correspondence and statements furnished by opposite parties acknowledged the rebate accrued on advance payment.  Complainant thereafter remitted a sum of Rs.40,000/- (Rs.forty thousand) on 01.11.2011 and making such payment complainant had remitted all instalments in advance except the deferred payments and the last payment in which referral rebate, lump sum payment, discounts etc are to be adjusted.  In May, 2011 complainant fell ill of colon cancer and had to undergo a major surgery and chemotherapy.  Though complainant decided to continue in service of first opposite party, he was asked to quit from service with a threat of dismissal if he failed to do so voluntarily.  He was promised that his resignation from service would not deprive him of service benefits admissible and also the housing discount offer agreed upon.  Under threat of dismissal complainant was compelled to resign when there was hardly 7 months left to complete the stipulated period of 5 years service.  According to complainant, his resignation caused by threat of opposite parties has to be treated as termination for denying him his 20% discount in the apartment booked.  After he left service opposite parties made demands for instalment payment with service tax and also sum due towards delayed payments as if complainant was a defaulter they were responded sending replies that no such amount is due from him. Still the complainant subject to his objections and under protest remitted a sum of Rs.5,00,000/- on 22.10.2012 and Rs.Rs.5,13,000/- (Rs. Five lakhs thirteen thousand) on 03.11.2012.  Receipt issued by opposite parties show that they had appropriated Rs.52,990/- (Rs.fifty two thousand nine hundred and ninety) towards delayed interest contrary to what was stated in the demand notice.  Complainant has actually paid a total amount of Rs.39,70,000/- (Rs.thirty nine lakhs seventy thousand) and he has to his credit a sum of Rs.2,04,980/92 (Rs.two lakhs four thousand nine hundred and eighty and paid ninety two) for early rebate and Rs.79650/- (Rs.seventy nine thousand six hundred and fifty) as referal rebate.  Payment made by rebate due would show the opposite parties had recovered a total sum of Rs.42,54,630/90 (Rs.forty two lakhs fifty thousand and six hundred and thirty and paise ninety only) as against the sum of Rs.34,62,722/- (Rs.thirty four lakhs sixty two thousand seven hundred and twenty two) due for payment from him.  Opposite parties had demanded and realised excess amount from complainant and still the project has not been completed.  According to complainant, even if 20% discounts on completion of 5 year service is found not allowable to him since he had resigned from service, still, no amount is due and recoverable from him.  Asserting that he is entitled to full discount on the  same value, referal rebate, lumpsum payment discount he has filed complaint for delivery of possession of apartment completing the project and for refund of excess amount of Rs.7,91,908/90 realised from him with compensation for delayed delivery of property and deficiency in service.

          2.  Opposite parties filed a joint version contending that Complainant is not a consumer and that the agreement entered by parties provided for resolution of disputes through arbitration and as such the complaint is not maintainable. Disputing the claim of the complainant that he was persuaded to join the apartment project with the offer of rebate, discount etc promised it is contended that he joined the project voluntarily after understanding the terms and conditions and its excellent prospects.  According to the employee housing discount policy, the discounts are applicable only for the employee who remain in service for the stipulated period of 5 years from the date of application for discount.  Complainant understanding the terms and conditions of the discount policy applied for the discount on 18.12.2009 but he failed to complete the stipulated period of 5 years  service with opposite party and as such he is not eligible for discount.  Similarly to get enhanced penalty compensation provided under the supplementary agreement, allottee has to comply with the payment schedule, which the complainant failed to honour.   Eligibility of discount being governed by terms and condition of discount policy, it is contended that admissions in the communication of Executive Vice-President regarding the discount is not binding and further the Vice-President was not empowered to waive or relax any conditions of the policy for any employee.  Claim of the complainant that he was offered rebate for advance payment, rebate for down payment and also referral rebate is denied by opposite parties.  Disputing the case of complainant that he was compelled to resign from service after he became a cancer patient it is contended that he voluntarily resigned from service.  The complainant was under the service of Government of Kerala and taking long leave from his department, he had joined the opposite party company.  Since his department declined the extension of further long leave, according to opposite parties, complainant resigned from service of the opposite party.  Complainant was a defaulter and for the payments due from him, opposite parties has issued demand notice and all allegations to the contrary are contended as baseless.

          3.  No oral evidence was adduced by both parties.  On the side of complainant Ext.A1 to A28 were exhibited and for opposite parties B1 to B4 were exhibited.  Both sides also filed statement of accounts setting forth rival claims against one another over the amount which is due to them from the other.

          4.  We heard counsel on both sides.  The following points emerged for consideration:

          (1)  Is not the complaint maintainable?

          (2)  Has the Opposite parties committed deficiency in service in               completing the construction of apartment as undertaken in the             agreement executed with the complainant?

          (3)  Reliefs, if any, allowable to the complainant?

          5.  Point No.(1):-  Opposite parties have disputed the status of complainant as a consumer under the Act and also the jurisdiction of the Commission to entertain the complaint contending that the agreement executed between the parties specifically provide for reference to arbitration for resolving the disputes between them relating to construction and completion of the  apartment project.  Complainant, a former employee of first opposite party, is admittedly a buyer of apartment of opposite parties in a project launched by them namely New Town Heights Apartment Project in Kakkanad.  He has filed the complaint alleging deficiency in service on various grounds by opposite parties in the construction and completion of the project.  There is no merit in the challenge canvassed that he cannot claim status of a consumer under the Act and in fact that challenge raised was not pursued and pressed into service by opposite parties in hearing.  So far as the challenge raised over the jurisdiction of the commission to entertain the complaint on the premise that the agreement entered by the parties provides for reference to arbitration for resolving the disputes, it need only be stated that the arbitration clause in the agreement of the parties would not bar the empowerment of forum or commission to entertain a complaint involving a consumer dispute.  Section 3 of the Act emphatically states that such empowerment conferred on the forum/commission to entertain a consumer complaint is in addition to the right enjoyed by a party to ventilate his grievance before any other forum established by law. Further more opposite parties have no case that before filing of complaint any reference was made to arbitration for resolving the disputes arising between the parties in terms of the agreement.  When such be the case it has only to be stated that the challenge raised questioning the jurisdiction of the Commission to entertain the complaint is devoid of any merit.  Point is found accordingly.

          6.  Point NO.(2):-  So far as deficiency in service imputed against opposite parties in completing the construction of project within the stipulated period, which was fixed as 36 months from the date of agreement, other than the counter allegations raised over delayed payment the opposite parties have not offered any explanation.  Construction was evidently not completed even on the date of filing of complaint i.e. 9.9.2015 before this Commission.  Previously before approaching this Commission complainant had filed the complaint before the District Forum, Ernakulam and his complaint numbered as CC.No. 211/2013 on the file of that Forum was later returned since the valuation exceeded its pecuniary jurisdiction.  In the version filed before this Commission opposite parties have not stated anything about completion of construction, but, later Ext.B1 copy of occupancy certificate issued by Municipal Engineer of Thrikkakara Municipality was produced to show that work had been executed in accordance with the permit and the building/tower of pole structure is fit for occupation/use.  That certificate is dated 8.6.2015.  Then opposite parties have not  claimed nor advanced any case that the construction of the project was over at least before the date mentioned in Ext.B1 certificate. Ext.B1 certificate cannot be given any value or significance.  Even assuming that the construction was over in 2015 where there is no explanation from opposite parties for the delay in completing construction beyond the stipulated period of 36 months from the date of agreement i.e. 22.1.2010 the inescapable conclusion follows that opposite parties have committed deficiency in service.

          7.  Complainant in his complaint has sought for issue directions to opposite parties to complete construction of apartment booked by him and also for payment of compensation from them on various counts.  However, later complainant has confined his relief for refund of the amount paid him with amounts in the credit of his account, both of them with interest and compensation.  Complainant has filed a statement of account claiming a sum of
Rs.39,70,000/- (Rs.Thirty nine lakhs seventy thousand) as the amount remitted and a sum of Rs. 7,68,087.92/- (Rs.Seven lakhs sixty eight thousand and eighty seven and paise ninety two) as the amount in credit, thus, a total sum of Rs.47,38,087/92 (Rs.Forty seven lakhs thirty eight thousand and eighty seven and paise ninety two).    The above sum is claimed with interest at 18% and also with compensation from opposite parties. As against the above statement opposite parties have filed two statements, the first one showing the final statement of account in the name of complainant and the second one the sum due as delayed interest from him.  Opposite parties under the final statement of accounts claims balance sum of Rs.20,90,850/35 to them and Rs.1,55,928/- to the Owners Welfare Society of the New Town Heights Apartment Project, from the complainant.  In the statement on delayed interest opposite parties have claimed a sum of Rs.6,28,194/99 (Rs.Six lakhs twenty eight thousand one hundred and ninety four and paise ninety nine).

          8.   After closing the evide4nce and hearing the counsel on both sides since it was noticed from the version of opposite parties that the complainant while continuing in government service availing leave had joined the service of opposite parties and also, on perusal of records, that he has not produced any receipt evidencing payment of Rs.25,00,000/- (Rs.Twenty five lakhs) in lumpsum towards construction as alleged in the complaint the case was reopened for further hearing.  Thereupon learned counsel for complainant produced copy of  the receipt evidencing payment of Rs.25 lakhs, the original of which was initially filed before the District Forum and that form part of records of the case.  Additional proof affidavit of complainant with some additional documents were also produced.  Additional documents produced were received on file accepting them as Exts.A19 to A28.  Perusing Exts.A25 and A26 Orders issued by his Department and Ext.A27 Government order, we are satisfied that during the relevant period he was working with opposite party/construction company he had been enjoying leave without allowance sanctioned by Government.  Though the government order would show that leave without allowance had been sanctioned for continuing foreign employment, nothing has been produced or brought to our notice to hold that leave sanctioned prohibited the complainant from taking employment with another employer within India.  Since no challenge or defence has been raised by opposite party that employment of the complainant with them after availing leave from government service violated  any service rules or was without sanction from government, we find no further enquiry thereof is warranted in the case.  Complainant has produced copy of the letter sent by him to HDFC LTD for releasing Rs.25 lakhs towards part of construction cost to opposite parties. Ext.A21 is that letter.  Acknowledgment of cheque for a sum of Rs.25 lakhs from complainant is also evidenced by Ext.A22 issued by opposite parties.  Producing the above documents complainant has given satisfactory explanation for the payment of Rs.25 lakhs in lump sum to opposite parties and also that his foreign employment with opposite parties was presumably with permission from the government sanctioning leave without allowance for the period applied for.

          9.  The records produced by complainant would show that he had paid an advance amount of Rs.4,00,000/0 (Rs. Four lakhs) evidenced by Ext.A2 receipt, a sum of Rs.25,00,000/- (Rs. Twenty five lakhs) evidenced by Exts.A21 and A22, a sum of Rs.40,000/- (Rs.Fourty thousand) under Ext.A14, a sum of Rs.5,00,000/0 (Rs.Five lakhs) on 26.10.2012 evidenced by Ext.A25, a sum of Rs.5,30,000/- (Rs.Five lakh thirty thousand) on 5.11.2012 evidenced by Ext.A26 and thus a total sum of Rs.39,70,000/- (Rs.Thirty nine lakhs seventy thousand) towards construction cost of the apartment.  In addition to the above amounts he has claimed a sum of Rs.2,04,985.92/- (Rs.Two lakhs four thousand nine hundred and eighty five and paise ninety two) and Rs.161/- (Rs.one hundred and sixty one) as early payment rebate, which are acknowledged as paid towards construction under Ext.A11 and A14 receipts respectively by opposite parties.  Having regard to the terms and conditions of Ext.A6 agreement and also the above mentioned receipts we are satisfied that early payment rebate claimed by complainant and acknowledged by opposite parties has to form part of the total sum paid for construction of the apartment and thus the total sum paid by him comes to Rs.41,74,985.92/- (Rupees Forty one lakhs seventy four thousand nine hundred and eighty five and paise ninety two).  In addition to the above he has claimed a sum of Rs.79,650/- (Rs.Seventy nine thousand six hundred and fifty) as referral rebate @ Rs.50/- from the account of Simi George who according to him booked for an apartment in the project at his instance.  According to the Complainant when on his reference an apartment is booked by a person he is entitled to a rebate of Rs.50/- per square feet on the base price of his apartment and the person who booked the apartment on his reference would also be eligible for a rebate of Rs.50/- per square feet on the base price of his apartment. A letter issued by opposite party acknowledging the reference and payment of rebate is canvassed in the statement of account by the complainant to claim referral rebate of Rs.79,650/- (Rs.Seventy nine thousand six hundred and fifty).   We find that letter has not been produced in the present case, but it forms part of the records received from the forum where he filed his complaint earlier which was numbered as CC 211/2013 and later returned for want of pecuniary jurisdiction.  The letter would also show such referral rebate has to be adjusted  in the last instalment due on the cost of  construction.  Where the contractual agreement entered by the parties over the construction of the apartment has not been fulfilled and the amount of referral rebate, if any, is to be given credit of or  to be adjusted to the last instalment due, we find the claim canvassed by complainant is not acceptable.  Since he continued in the service of the opposite party and completed three years one instalment due that was for a sum of Rs.4,83,296/- (Rs.Four lakhs eighty three thousand two hundred and ninety six) was given credit to him and that amount should also form part of the cost paid for construction of apartment, is the case of complainant.  Discount so provided is to be adjusted towards the instalment due on a particular date and on that date he continued in service is the basis of the claim of complainant to have such discount.  The fact remains before completion of the project, whatever be the reasons thereof, he has ceased to be an employee of opposite party.  The discount was provided towards deferring of an instalment payable on the apartment considering his status as an employee in the opposite party cannot be claimed by him as sum paid towards the value of the apartment where he had ceased to be an employee before completion of construction of the project.  Sum of discount which is provided as a deferred payment of instalment cannot be claimed by him as sum paid towards value of the apartment when before the completion of the project he resigned from service of opposite parties.  So the total sum paid by him towards the value of the apartment can be only the sum of Rs.39,70,000/- (Rupees. Thirty nine lakhs seventy thousand) and the rebate of Rs.2,04,985.92/- + Rs.161/-, and the total sum is Rs.41,75,147 (39,70,000+Rs.2,05,147)/-(Rupees. Forty one lakh seventy five thousand and one hundred and forty seven) 

          10.  We have already found that there was deficiency in service on the part of opposite parties in completing the project and handing over of the apartment to the owners.   Period of completion of construction was 36 months from the date of agreement i.e. 22^nd January, 2019.  Long thereafter opposite parties have obtained Ext.B1 occupancy certificate dated 8.6.2015 from the Local Authority showing that apartment has been completed and fit for occupation would not absolve them from deficiency in service over the delay in completing the project.  No explanation has been given by opposite parties for the delay in completion  of project after collecting substantial sums in advance from the apartment owners.

          11.  Opposite parties have to refund the sum of Rs.41,75,147/- (Rupees. Forty one lakhs seventy five thousand and one hundred and forty seven) collected towards the construction of the apartment from the complainant with 8% interest on such sum from 22^nd January, 2013, the date on which three year period for construction of apartment dated 21^st January, 2010 was over.  Point found accordingly.

          In the result, complaint is partly allowed directing opposite parties to refund a sum of Rs.41,75,147/- (Rupees Forty one lakhs seventy five thousand and one hundred and forty seven) with 8% interest from 22.1.2013 to the complainant within one month from the date of receipt of a copy of the judgment.  Failing which complainant can take steps for executing the order in accordance with law.  Opposite parties shall also pay cost of Rs.20,000/- (Rs.Twenty thousand) to the complainant.

 

 

JUSTICE S.S. SATHEESACHANDRAN  : PRESIDENT

 

 

 

BEENAKUMARI.A     : MEMBER

 

 

APPENDIX

COMPLAINANT’S WITNESS

Nil

COMPLAINANT’S EXHIBITS

Ext.A1        :Copy of E communication dated:23.12.2009.

 

Ext.A2        : Copy of agreement.

 

Ext.A3        : Copy of supplementary agreement.

 

Ext.A4        : Copy of letter and the payment schedule.

 

Ext.A5        : Copy of the receipt for remittance.

 

Ext.A6        : Copy of the same.

 

Ext.A7        : Copy of representation dtd:6.6.2012

 

Ext.A8        : Copy of E communication dated:5.6.2012.

 

Ext.A9        : Reply dated:6.6.2012

 

Ext.A10      : Said E communication dtd:6.7.2012.

 

Ext.A11      : Reply dated:7.7.2012.

 

Ext.A12      : E communication dtd:8.8.12.

 

Ext.A13      : Reply dtd:10.8.12.

 

Ext.A14 & 15:  Receipts

 

Ext.A16      : E communication dtd:27.11.2012 protesting the appropriation of payment.

 

Ext.A17      : True office copy of notice

 

Ext.A18      : Their reply setting forth untrue and untenable contentions  dtd:10.1.13.

 

Ext.A19      : True copy of the allotment letter dtd:23.12.2009.

 

Ext.A20      : True copy of the communication dtd:21.12.2009.

 

Ext.A21      : True copy of the letter dated 6.2.2010 issued by the complainant to M/s Housing Development Finance Corporation (HDFC)

 

Ext.A22      : True copy of the acknowledgement of cheque dtd:18.2.2010.

 

Ext.A23      : True copy of the statement of account dtd:28.10.2011.

 

Ext.A24      : True copy of the  demand letter dtd:25.10.2011.

 

Ext.A25      : True copy of the order issued to the complainant by the Executive Engineer dtd:29.5.2006.

 

Ext.A26      : True copy of the forwarding letter dated:8.4.2011.

 

Ext.A27      : True copy of the order dated:23.7.2012.

 

Ext.A28      : True copy of the letter from Department of Oncology dated:31.12.2018.

 

OPPOSITE PARTIES WITNESS

Nil

OPPOSITE PARTIES  EXHIBITS

Ext.B1        :Copy of   Occupancy Certificate, dated:8.6.2015.

 

Ext.B2        : Copy of delayed interest and payment statement of complainant.

 

Ext.B3        : Copy of customer ledger of  Pradeep Estate Pvt. Limited.

 

Ext.B4        : Copy of norms of Employee Housing Discount Policy Guidelines.

 

 

 

 

JUSTICE S.S. SATHEESACHANDRAN  : PRESIDENT

 

 

 

BEENAKUMARI.A     : MEMBER

 

 

VL.