State Consumer Disputes Redressal Commission
Sanjeev Rao Bhuvanendra vs M/S Jain Constructions Ltd on 28 April, 2016
Daily Order KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION, VAZHUTHACAUD, THIRUVANANTHAPURAM C.C.NO.79/2013 JUDGMENT DATED 28/4/2016 PRESENT: SMT. A. RADHA : MEMBER SHRI. K. CHANDRADAS NADAR : JUDICIAL MEMBER SMT. SANTHAMMA THOMAS : MEMBER COMPLAINANT: Sanjeev Rao Bhuvanendra, S/o. P. Bhuvanendra Rao, Nagarjuna Pearl Bay Apartments, A Block 14-C, Puthiya Road, Kadavanthara, Kochi-682 020. (By Advs: G.S. Kalkura & Others) Vs OPPOSITE PARTIES: M/s. Jain Housing and Constructions Ltd., No.11, Somasundaram Street, T. Nagar, Chennai-600 017. - Rep: by its Managing Director. M/s. Jain Housing and Constructions Ltd., G-361, Main Avenue, Panampilly Nagar, Kochi-682 036 - Rep: by its authorized signatory. M.J.Louiz, Mokadayil House, Karithala Desom, Elamkulam Village, Metalex Road, Kochi-682 020. Sunitha Elizabeth George, Mokadayil House, Karithala Desom, Elamkulam Village, Metalex Road, Kochi-682 020. Indira Louiz, Mokadayil House, 39/1059, Karithala Desom, Metalex Road, Kochi-682 020. (By Advs: Vinod Jabar & Girija Vallabhan.P.M) JUDGMENT
SMT. A. RADHA : MEMBER This complaint is filed under section 17 of Consumer Protection Act claiming refund of advance sale consideration with interest, compensation and cost of proceedings.
2. Allured by the pamphlets, brochures and advertisements of the opposite parties, bonafide believing the representation that they intend to start the project under the name "Jains Tufnell Park" the complainant entered into an agreement of sale with 1st opposite party on 31/5/2008. As per the agreement the opposite parties undertook the construction of flat No.5127 in Block No.5 in the 12th floor admeasuring 1005 sq.ft built up area and 186 sq.ft of common area with common terrace and covered car parking in the apartment complex. The construction work has to be completed within 36 months with a grace period of 3 months and to hand over the possession to the complainant. The complainant paid the entire consideration during August 2008 and issued receipt to that effect. The non-completion of apartment, the complainant would be entitled @ Rs.6/- per sq.ft per month. The opposite parties defaulted the terms of agreement. It came to the knowledge of the complainant that the work could not complete even in 2014. Several loans availed for the payment of sale consideration and even now interest is being paid to the bankers. The opposite parties had to complete and hand over possession within 36 months from August 2008 or with a grace period of 3 months which comes due on 31/10/2011. It has come to know that no construction work has taken place and thereafter issued notice to comply the terms of agreement. To the surprise of the complainant on personal visit to the project spot it is realized that no construction of the project could finalize before 2015. The complainant incurred heavy financial loss and unable to invest money in any other project. The increased cost of living, cost of material etc. curtailed the complainant to any other construction project. The complaint is filed to refund Rs.33,66,535/- paid as sale consideration, Rs.2 Lakhs as compensation for mental agony, Rs.25 Lakhs as interest @ 15% for the amount from 1/8/2008 till refund of the amount, Rs. 5 Lakhs towards escalation of land value and rent, Rs.1,72,000/- as compensation as per the clause 14 of Agreement. The act of opposite parties amounts to deficiency in service and alleges unfair trade practice.
3. The opposite parties 1 and 2 filed version admitting the agreement entered into between the complainant and opposite parties. The apartment is under construction. It is contended that due to some disputes and differences between the contractor there had obstruction in the work and the delay was beyond the control of the opposite party. Clause 22 of the Agreement dated 1/8/2008 deals with the delay situation and there is no wilful delay on the part of opposite party. There is no deficiency in service on the part of opposite parties and the complaint does not come within the purview of the Consumer Protection Act and no consumer dispute arises in this case. The complainant is not entitled for any reliefs prayed for and the opposite parties constructed the apartment with required quality, standard and amenities.
4. On the basis of the pleadings in the complaint ad the contentions raised in the version, the issues raised for consideration are:
1) Whether there is deficiency in service and unfair trade practice on the part of opposite parties?
2) Whether the complainant is entitled for compensation?
3) Reliefs and costs.
5. The evidence consists of the proof affidavit filed by the complainant and the complainant was examined as PW1 and documents were marked as Exbts.A1 to A6 & C1 & C1(a). The opposite parties filed proof affidavit and examined as DW1.
Point No.1:- The agreement entered into between the complainant and opposite parties for the purchase of the project "Jain Tufneel Park" is an admitted fact. The construction of Flat No.5/27 in Block No.5 in the 12th Floor admeasuring 1005 sq.ft built up area with 186 sq.ft common area with terrace has not completed within 36 months or within the extended period of 3 months. The entire consideration of Rs.33,66,535/- paid in August 2008 and as per clause 22 of the Agreement, the complainant is entitled for Rs.6/- per sq.ft per month and the construction of apartment has to be completed within 31/7/2011. So far the apartment was not handed over to the complainant. On personal enquiry and as per the Commission Report, Exbt: C1, it is clear that the apartment is not ready for occupation till now. Complainant produced Exbt: A1, the Power of Attorney to conduct the case by his wife. Exbt: A2 is the copy of Memorandum of Agreement between the opposite party and the complainant regarding the purchase of undivided share in scheduled property. Copy of Agreement for sale is marked as Exbt:A3. A copy of statement of account showing the details of payment done to the opposite party is marked as Exbt: A4. The acknowledgment of receipt and copy of communications are marked as Exbt: A5 & A5(a). It is clear from documents that the opposite parties received the entire sale consideration. It is in evidence that the opposite parties had not complied the agreement as per the terms and conditions where as the payment is made in full by complainant. The report of the Commissioner (Exbt: C1 and C1(a) is in favour of the complainant. The apartment was not complete and not received the completion certificate from the Corporation/Municipality till now and we find deficiency in service on the part of opposite parties and is entitled for compensation. Though there had an offer to hand over the apartment, nothing came out true. The points No.1 and 2 are in favour of the complainant.
6. The complainants availed loan for payment of sale consideration and had to pay interest against the loan amount. As per Clause 14 of the Agreement dated 1/8/2008 (Exbt: A2) the delay in completion of the apartment the complainant is entitled for Rs.6/- per sq.ft per month from the proposed date of completion ie. 31/10/2011 and the complainant claimed for Rs.1,72,000/-. Complainant is not in a position to secure similar apartment at present for the same price due to the increase in land value, building materials and construction cost. The complainant is entitled for interest for the invested money. The complaint is filed for Rs.67,38,535/- under various heads to be recovered from the opposite parties. It is clear from evidence that construction has not completed. We find that complainant suffered mental agony due to the non-completion of the apartment evidenced by Exbt:C1(a) after payment of entire sale consideration and it is to be compensated. There is no case for the opposite parties that they have completed the construction of apartment as per the agreement in the prescribed time limit. We would like to point out that after investing huge sum of money with the opposite parties the complainant was left in dark and had to approach this commission for a remedy and incurred expenses for conducting the case. We fix the cost of proceeding as Rs.25,000/- to be paid to the complainant. We are not awarding separate compensation as the complainant claimed compensation of Rs.1,72,000/- for the delay in completion of apartment as per the terms of agreement. We are of the firm view that there is deficiency in service on the part of opposite parties and opposite parties are liable to refund the amount received as sale consideration from the complainant with interest.
In the result, we partly allow the complaint as follows:-
The opposite parties are directed to refund Rs.33,66,535/- (Rupees thirtythree lakhs sixtysix thousand five hundred and thirtyfive only) to the complainant with interest @ 9% p.a till realization; An amount of Rs.1,72,000/- (Rupees one lakh seventytwo thousand only) towards compensation as per Clause 14 of the Agreement; Rs.25,000/- (Rupees twentyfive thousand only) as cost of proceedings.
7. The complainant shall surrender his rights to the opposite parties as to the undivided share of the property on receipt of the amount and the expenses of transactions, if any, is to be met by opposite parties.
The order shall be complied with, within a period of 30 days from the date of receipt of the copy of the order. Failure to comply this order will entitle the complainant to recover interest @ 12% from the date of this order to the entire amount till realization.
A. RADHA : MEMBER
K. CHANDRADAS NADAR : JUDICIAL MEMBER
SANTHAMMA THOMAS : MEMBER
Sa.
APPENDIX
Complainant Witness:
PW1 - Sobitha S Naik
Opposite parties Witness:
DW1 - Collen Petriz
Exhibits for the Complainant:
A1 - 21/3/2014 - The Power of Attorney.
A2 - 1/8/2008 - Agreement of construction.
A3 - 1/8/2008 - Agreement for Sale Deed.
A4 - 29/8/2008 - Statement of accounts.
A5 - Copies of E-mail communication.
A6 - 14/5/2013 - Lawyer's notice.
Court Exhibits:
Advocate Commissioner's Report.
A. RADHA : MEMBER
K. CHANDRADAS NADAR : JUDICIAL MEMBER
SANTHAMMA THOMAS : MEMBER
KERALA STATE CONSUMER
DISPUTES REDRESSAL
COMMISSION, SISUVIHAR LANE,
VAZHUTHACAUD
THIRUVANANTHAPURAM.
C.C.NO.79/2013
JUDGMENT DATED 28/4/2016
Sa.