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Lakshmi Muraleedharan v/s Vasanth Apartments & Constructions (P) Ltd. & Others

    O.P. No. 118 of 1999

    Decided On, 04 August 2000

    At, Kerala State Consumer Disputes Redressal Commission Thiruvananthapuram

    By, MEMBER

    For the Petitioner: S. Reghukumar, Advocate. For the Opposite Parties: None.

Judgment Text

L. Manoharan, President

1. On filing the version by the opposite parties it is submitted by the learned Counsel for the opposite parties that the question of maintainability of the complaint has to be heard as a preliminary point. Accordingly the matter was posted for the said purpose.

2. It is submitted by the learned Counsel for the opposite parties that the complaint is not maintainable, as a criminal case is pending with respect to the transaction and when such is the position a simultaneous proceedings under the Consumer Protection Act, 1986 with regard to the construction of the flat in question is not maintainable. The learned Counsel also sought to maintain that as per the various clauses in the contract entered into between the complainant and the opposite parties no cause of action could arise and on that ground also the complaint is not maintainable. On the other hand the learned Counsel for the complainant relying on the decision of the National Commission in II (1991) CPJ 639 (NC)=1991 (2) CPR page 633, Punjab National Bank, Bombay v. K.B. Shetty, as well as the decision of this Commission in 2000 (1) CPR page 342, and the decision of the Supreme Court in 1999 (5) Supreme Court Cases 696, maintained that pendency of the criminal cases cannot be a bar to entertain a complaint filed on the basis of deficiency of service. As regards the argument that no cause of action could have arisen in view of the various clauses in the agreement dated 25.6.1996, it was submitted that the various clauses in the agreement since has to be construed in the context of the attending circumstances so as to reveal the intention of the parties to the agreement, the said question could be finally adjudicated only after evidence is recorded. He also maintained that a plain reading of Clause (2) of the agreement along with Clause (11) thereof would indicate that the complainant was bound to deliver the apartment in 24 months and the obligation of the opposite party to pay the whole amount could arise only when the flat was ready for delivery.

3. It is submitted by the learned Counsel for opposite parties complaint was filed before the Judicial 1st class Magistrate, Mavelikkara which was referred to the police under Section 156(3) of the Cr.P.C. The police registered a crime as Crime No. 215/99 and after investigation the police has filed a charge sheet for quashing which the opposite parties moved the High Court which is pending. Here the relief sought is on the basis that as per the agreements the opposite parties did not perform their part of the contract and, therefore, the complainant is entitled to the return of the amount paid by him under the contract. Though demand was made for the same the opposite parties did not comply that the demand which the complainant alleges would constitute deficiency in service. Here the question involved being only deficiency of service as stated above and also unfair trade practice, we do not consider, in the circumstance, mere filing of a charge sheet by the police should constitute a bar. The Consumer FORA could take cognizance of a case concerning of unfair trade practice as well as deficiency in service.

4. As regards the case that the complainant himself has committed breach of the agreement, it should be noted that the complainant’s case on the other hand is the opposite party has committed breach of the contract. An interpretation of the various clauses in the agreement has to

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be made in the context of the evidence regarding as to how the parties understand the agreement if there is ambiguity in the clauses of the agreement. We consider, in the circumstance, the said part of the argument has to be left open to be considered after the recording of evidence. In the above view the O.P. is posted for evidence to 22.9.2000. Order passed.