State Consumer Disputes Redressal Commission
K.K.John vs C.V.Philipose on 20 March, 2015
Daily Order KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION SISUVIHARLANE VAZHUTHACADU THIRUVANANTHAPURAM CC.NO.56/2012 JUDGMENT DATED :20.03.2015 PRESENT SRI.K.CHANDRADAS NADAR : JUDICIALMEMBER SMT.SANTHAMMA THOMAS : MEMBER COMPLAINANT K.K.John, S/o.K.C.Koruthu, Parackal House, Mundamala.P.O Puramattom, Mallappally,Thiruvalla Taluk, Pathanamthitta District (By Adv.Sri.Abraham Varghese Kadavil) Vs RESPONDENTS 1. C.V.Phillipose & Sons, Cross Junction, Thiruvalla, Pin - 689 101 2. John.C.P Managing Director, C.V.Philipose & Sons, Cross Junction, Thiruvalla,Pin - 689 101 3. Anitha.C.P W/o.John.C.P Managing Director CV Philipose and Sons Cross Junction,Thiruvalla Residing at Chandraviruthil House, Kulakkadu, Thiruvalla, Pin - 689 101 4. Abraham.M.Thomas, General Manager, C.V.Philipose Sons Valuparampil House, P.C.Kavala, Payipad, Changanassery,Pin - 689 101 5. Ancy Thomas, Accountant, C.V.Philipose Sons, Jojo Bhavan, Kuttappuzha.P.O Thiruvalla,Pin - 699 103 (Deleted) 6. CVP Realtors (P) Ltd, Cross Junction, Thiruvalla 7. John.C.P Managing Director, CVP Realtors (P) Ltd, Cross Junction, Thiruvalla, (OP4 by Adv.Narayan.R) JUDGMENT
SRI.K.CHANDRADAS NADAR : JUDICIAL MEMBER This is a complaint filed u/s 17 of the consumer protection Act. The allegations in the complaint in brief are the following. The first opposite party is a private limited company engaged in the construction and sale of flats and shop rooms at Thiruvalla. The other opposite parties are responsible for the management of day today affairs of the company and are in charge of the business of the company. Attracted by the advertisements of the opposite parties, the complainant paid an amount of Rs.12,50,000/- to opposite parties 2 & 3 on 22.03.2004 and entered into an agreement to purchase Flat No.IX A of CVP Parliament Square Annex B having 1474 sq.ft area on the ninth floor along with the undivided share in 20 cents of land in Re.survey no.198/5 of Thiruvalla village. The opposite parties agreed to complete the construction and hand over possession of the same by December 2005. The complainant invested his retirement benefits and savings in the project of the opposite parties as she was eager to own residence of her own. But contrary to the promise the opposite parties set new time limit for completion of construction and delivery of possession of the flat on several occasions. There is a condition in the agreement that if the project fails opposite parties would refund the invested amount with 12% interest. The complainant came to know that the opposite parties had diverted the funds collected from the investors of this project to another project of the CVP Group of Companies and so the project failed to take off, thus, cheating the complainant. The opposite parties failed to complete the construction and deliver possession of the flat to the complainant. Thus the opposite parties committed deficiency in service. There was no response to the legal notice sent by the complainant on 02.04.2012. Hence the complainant seeks refund of Rs.12,50,000/- with interest at the rate of 12% per annum till realization along with compensation of Rs.5,00,000/- towards mental agony caused to the complainant and compensation towards the hike in cost of flats due to inflation.
2. Only the fourth opposite party filed version the other opposite parties remained exparte. The contentions of the fourth opposite party are the following. Allegations of criminal nature such as cheating are beyond the purview of the jurisdiction of the consumer commission. The agreement is seen entered into between the complainant and CVE Realtors (P) Limited represented by its Managing Director. The said company is not a party to this complaint. . Instead the complainant has made another concern run by the second opposite party as the first opposite party. Hence there is non joinder and misjoinder of parties. The complaint is barred by limitation as the agreement is dated 22.03.2004 and agreement was to hand over possession of the flat by December 20005.
3. The complainant has no locus - standi to institute the complaint against the fourth opp.party as there is no priviity of contract between them. There was no promise representation or under taking given by the 4th opposite party and no consideration was received by him from the complainant. He is a total stranger to the whole proceedings. The fourth opposite party was an employee of the first opp.party and was never associated with the CVP Realtors (P) limited. He had worked with the first opp.party from March 2000 till November 2009. The complaint is liable to be dismissed as against him.
4. Alternatively it is contended that to the best of the knowledge at the fourth opposite party K.M.Jacob, a close relative of the complainant herself was the general manager of CVP Realtors (P) limited. The fourth opposite party at no time had contact with the complainant nor did he collect money from her. He had resigned from the office of the first opposite party in 2009 because of non payment of salary and is now leading a retired life in his home town. He has initiated action against opposite parties 2 & 3 to realize the arrears of salary due to him. The complainant herein had filed case before the CDRF, Pathanamthitta against the opposite parties including the fourth opposite party as CC.No.01/2013. In that proceedings the CDRF, pathanamthitta has exonerated the fourth opposite party holding that he is only an employee. The circumstances under which the complainant invested amount in this project is not known to him. The complainant is not entitled to realize any amount from the fourth opp.party. There was no deficiency in service on his part.
5. Based on the contention of the fourth opp.party CVP Realtors (P) limited was subsequently impledaded as the sixth opp.party and its managing director already on party array as second opp.party was impleaded as the seventh opp.party. Both of them also remained exparte. The fifth opp.party was deleted from the party array. Based on the contentions of the fourth opp.party the following points arise for determination
1. Whether the complaint is barred by limitation ?
2. Whether the fourth opp.party is in any way responsible and whether there was deficiency in service on his part?
3. What are the reliefs if any to be granted to the complainant?
6. The complainant gave evidence as PW1.. Exts. A1 to A5 were marked on her side. Though the fourth opp.party was present at the time of recording evidence, he did not depose before the commission. No document was marked on his side.
Arguments were heard.
Point No.1
7. Ext.A2 agreement is dated 20.03.2004. As per Ext.A2 entered into between the complainant and the CVP Realtors (P) Limited, a private limited company represented by Mr.C.P.John, the agreed construction was to be completed by December 2005. The complaint is filed on 28,.09.2012. It is based on these facts the contention is raised that the complaint is barred by limitation. But it is the specific case of the complainant that the opp.parties got the time for completion of the construction extended on several occasions and lastly on 25.09.2011. This allegation is not refuted even by the fourth opp.party. Then it can not at all be contended that the complaint is barred by limitation. The point is found accordingly.
Point Nos. 2 & 38. As already mentioned based on the contention that Ext.A2 agreement is between the complainant and CVP Realtors (P) Ltd, the said private limited company is impleaded as sixth opp.party and its managing director who is already on the party array as second opp.party is impleaded as the seventh opp.party. The first opp.party is CV Philipose and Sons represented by the very same C.P.John as the managing director. It can be seen from Exts.A1 & A1 (a) that the complainant has paid a total amount of Rs.12,50,000/- on 22.03.2004 as per Ext.A2 agreement. Ext.A1(a) receipt is issued in the name of CVP Group of Companies for Rs.1,60,000/- and Ext.A1(a) receipt is issued for CVP Realtors (P) Limited the sixth opp.party company for Rs.10,90,000/-. So it is quite obvious that the consideration was received not only by the sixth opp.party / but also by the first opposite party company. It is evident from the contentions of the fourth opp.party itself that both the companies are run by the same group of persons and in the name CVP Group of companies and that the same persons have floated the two companies. So it is idle for the fourth opp.party to contend that no consideration was received by the first opp.party concern. The further contention is that he was only an employee of the first opp.party. In the complaint the fourth opp.party is impleaded as the general manager of CV philopse and sons and as already seen from Ext.A1 part of the consideration for the transaction was received in the name of the first opp.party. There is absolutely no evidence to indicate that the fourth opp.party was only an employee of the first opp.party. Admittedly, he was with the first opp.party till December 2009 and by that time the cause of action for the complainant had already accrued. So we are of the view that the 4th opp.party is equally liable to the complainant.
9. As to the reliefs to be granted the complainant is certainly entitled to refund of Rs.12, 50,000/- with interest at the rate of 12% per annum from the date of complaint till date of realization. It is also true that the complainant had suffered mental agony due to the delay in the construction of her dwelling apartment and in the meanwhile inflation has happened. The inflation is to some extent offset by the interest that is being awarded, However the complainant is entitled to reasonable compensation which we fix as Rs.3,00,000/-. The points are found accordingly.
In the result, the complaint is allowed as follows. The opposite parties are directed to pay to the complainant Rs.12,50,000/- with interest at the rate 12% per annum from the date of complaint till date of payment along with Rs.3,00,0000/- (Rupees. Three Lakhs) towards compensation and Rs.10,000/- towards costs within one month from the date receipt of copy of this order K.CHANDRADAS NADAR : JUDICIAL MEMBER SANTHAMMA THOMAS : MEMBER APPENDIX List of witness for the complainant PW1 - K.K.John Exibits for the complainant Ext.A1 - Receipt dated 22.03.2004 for the payment of Rs.12,50,000/-
and the original agreement dated 22.03.2004 Ext.A2 - Receipt dated 22.03.2004 for the payment of Rs.12,50,000/-
and the original agreement dated 22.03.2004 Ext.A3 - Copy of legal notice dated 03.04.2012 Ext.A4 - Postal receipts dated 03.04.2012 Ext.A5 - Notices returned unclaimed K.CHANDRADAS NADAR : JUDICIAL MEMBER SANTHAMMA THOMAS : MEMBER Be/ KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION SISUVIHARLANE VAZHUTHACADU THIRUVANANTHAPURAM CC.NO.56/2012 JUDGMENT DATED :20.03.2015 BE/