KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
VAZHUTHACAUD, THIRUVANANTHAPURAM
APPEAL NO. 464/2017
JUDGMENT DATED:05/01/2023
( Appeal filed against the order in CC.No. 571/2015, DCDRC, Ernakulam)
PRESENT:
HON’BLE JUSTICE SRI. K. SURENDRA MOHAN : PRESIDENT
SMT. BEENAKUMARI. A : MEMBER
APPELLANT:
Joseph Sebastian M.D, S/o M.S. Davis, Muzhamgumthara House,
Kothad P.O, South Chittoor P.O, Kadamakkudy village,
Kanayannoor Taluk, Ernakulam District, Pin. 682 027.
(By Adv. K.V. Jayadeep Menon & Adv. T.P. Ramesh Thengumpillil )
Vs.
RESPONDENTS:
1. M/s. Windy Hills, Gap Road, Munnar- Thekkady
High way, Chinnakanal P.O, Pin. 685 618, Project Office at 38/2175-B, 1st floor, Plakkatt colony, Kaloor- Kadavanthara road, Ernakulam,
Pin. 680017 rep. By Leslie John peter, S/o P.P. Xavier, Pidiyencheril House,
Perumanoor Desom, Elamkulam village, Kanayannoor Taluk, Ernakulam District, Pin. 682015.
2. Leslie John Peter, S/o P.P. Xavier,
Pidiyencheril House, Perumanoor Desom, Elamkulam Village,
Kanayanoor Taluk, Ernakulam District, Pin. 682 015.
(By Adv. Manu Roy & Adv. R. Suja Madhav for Respondents 1 &2 ) )
JUDGMENT
HON’BLE JUSTICE SRI. K. SURENDRA MOHAN : PRESIDENT
This is an appeal filed against the order dated 24-01-2017 of the Consumer Disputes Redressal Forum, Ernakulam in CC.No. 571/2015. The complainant is the appellant before us. As per the order appealed against, the complaint has been allowed in part permitting the complainant to recover an amount of Rs. 2,00,000/- from the respondent/ opposite party and relegating the appellant to his remedy before a civil court, for the rest of his claims. The parties shall be referred to herein , in accordance with their status before the District Commission.
2. According to the complainant , he was enticed to enter into an agreement for the purchase of an apartment having a super built-up area of 610 sq.ft . It has been indicated as apartment number 61 E . The total consideration agreed upon was Rs. 12,90,762/-. Accordingly, an amount of Rs. 1,00,000/- was paid as advance . The opposite party had agreed to convey proportionate share of the immovable property also to the complainant, along with the apartment. An amount of Rs. 2,00,000/- was to be paid at the time of registration of the land . Rs. 4,00,000/- was to be paid on completion of the roof slab. A further amount of Rs. 4,00,000/- was to be paid on completion of the construction. The balance amount of Rs. 1,90,762/- was to be paid for the fixtures and fittings in the bath rooms , Kitchen etc . The appellant paid Rs. 1,00,000/- on 21-01-2007 . Thereafter, 1/10 undivided share in the land was transferred in the name of the complainant. He had availed a loan from M/s. HDFC Bank Limited, Kochi to pay the purchase price of the apartment . The construction was to be completed within 6 months from the date of the agreement and possession was to be handed over within 30 days of completion of the construction. The amount raised through bank loan was to be paid directly to the opposite party by the bank. Accordingly the opposite party received the entire sale construction, that was agreed to be paid. However, even as on the date of filing the complaint, 24-08-2015, the apartment had not been handed over. Eight years have passed in the meantime. The complainant had to pay interest at the rate of 11.25% to the bank for the loan availed by him. It was alleged that the omission of the opposite party to complete the apartment amounts to a serious deficiency in service. The complainant therefore sought for refund of the amount paid by him together with compensation, costs and other reliefs.
3. Notices issued to the opposite parties were returned unserved. Therefore service of notice was completed by effecting paper publication . The opposite parties were set exparte and the complaint was proceeded with by the District Forum.
4. The complainant filed proof affidavit and produced 10 documents. The documents were marked as Exbts. A1 to A10. After the close of evidence the matter was heard.
5. The District Commission found that non-delivery of the apartment in terms of Exbt. A8 agreement amounted to deficiency in service. As a consequence of the delay in completion of the apartment, the complainant was also compelled to pay interest on the loan availed by him, at the rate of 11.25% per annum. Therefore the District Commission held that the complainant was entitled to an amount of Rs. 2,00,000/- as compensation. However, since the receipts produced evidenced payment of only an amount of Rs. 3,12,500/-, it was held that the proper remedy of the complainant was to file a suit before the competent Civil Court. This appeal is against the said order.
6. This appeal was admitted and notices were issued to the respondents herein. On receipt of notice, the respondents entered appearance through Advocates Manu Roy and R. Suja Madhav.
7. According to the counsel for the appellant/ complainant the records relating to the loan availed by him from the HDFC bank could not be produced before the District Forum at the time of trial becuase the loan had not been closed at that time . Subsequently, the loan has been closed and evidence for payment of the entire amount is now in his possession. The counsel seeks another opportunity to place and prove his case before the District Commission. It is pointed out that substantial amounts have been lost by him in his effort to purhcase a house of his own, which is the cherished dream of every individual. According to the learned counsel , the compensation awarded is also grossely insufficient, considering the mental agony and hardship that he had to undergo.
8. We have considered the contentions advanced before us anxiously. Copies of the documents relating to the loan transaction of the complainant with the HDFC bank handed over to us by the counsel show that the loan was closed only on 18-04-2018. Therfore, it was not possible for the appellant to have produced the documents relating to the loan transaction before the District Commission at the time of trial. Since the documents are crucial for the appellant to establish his case, we are satisfied that a remand of the complaint for the purpose of fresh disposal is necessary in this case. Only the District Commission would be in a position to let in the additional evidence sought to be produced in the form of documents and to take necessary steps for having them properly proved. Since even according to the District Forum there was deficiency in service on the part of the opposite party, the reliefs to which the appellant is entitled would have to be worked out afresh. We are also not satisfied that it was proper on the part of the District Forum to have relegated the matter to the Civil Court after having found that there was deficiency in service on the part of the respondent herein. The District Forum therefore ought to have decided whether any amount was due to the appellant on an evaluation of the evidence adduced by him. Instead, the District forum has ignored the appellant’s oral testimony in this case without even considering the weight of its evidentiary value, which was not proper. In the above view of the matter, we find that the appellant is entitled succeed.
This appeal is accordingly allowed. The order dated 24-01-2017 of the Consumer Disputes Redressal Commission, Ernakulam in CC. No. 571/2015 is set aside. The District Forum shall take up C.C.No. 571/2015 afresh, grant an opportunity to the complainant to adduce additional evidence and finally dispose of the matter after affording an opportunity to be heard to both parties. This being, a complaint of the year 2017, an effort to finally dispose of the same expeditiously shall also be made.
Send back the records of this case to the District Commission immediately.
JUSTICE K. SURENDRA MOHAN : PRESIDENT
BEENAKUMARI. A : MEMBER
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