At, Kerala State Consumer Disputes Redressal Commission Thiruvananthapuram
By, THE HONOURABLE MR. T.S.P. MOOSATH
By, JUDICIAL MEMBER
By, THE HONOURABLE MR. R. RANJIT
By, MEMBER & THE HONOURABLE MRS. A. BEENA KUMARI
For the Complainant: S.J. Raja Prathap, Advocate. For the Opposite Parties: D. Radhakrishnan, Advocate.
Ranjit R: Member
The case of the complainants, in brief, is that complainants and opposite parties 1 & 3 construction company entered an agreement on 11.12.2010 for purchase of a two bed room apartment with No. B-1602 on the 17th level of the apartment having approximately 906 sq. ft built up area out of proportionate super built up area of 1062 sq. ft along with undivided share of 340.52 sq. ft. in 0.32 Ares in resurvey No. 317/1-2 out of total area 40.48 Ares at Attipra village, Kazhakkuttom for a total sale consideration of Rs. 26,84,524/-. As per the agreement complainants have to make payment in installments and thus they paid a total sum of Rs. 10,25,119/-. Since opposite parties failed to start construction of the flat in time as agreed the balance amount was not paid by them. Opposite parties have completed the structural work of 7th floor alone. Opposite parties have promised the completion of the building on or before December 2012 as per the agreement, but they have abandoned the construction. Many letters and e-mails were sent by the complainant for completion of the work or to refund the amount. Opposite parties undertook that they will complete the project before December 2015. But nothing was materialized and hence complainant demanded refund of the amount during September 2016. Since opposite parties 1 & 3 have not refunded the amount they filed the complaint praying for the following reliefs. To pass an order directing the opposite parties to refund amount of Rs. 10,25,119/- with 12% interest, with compensation of Rs. 5,00,000/- and cost. 2nd opposite party is the Branch Manager of 1st opposite party.
2. On receiving the complaint opposite parties entered appearance, but even after several postings they did not file version.
3. Complainant has filed his evidence by way of affidavit supporting the allegations made in the complaint. Complainant produced 11 documents and they were marked as Exts. P1 to P11. Ext. P1 is the agreement dated 11.12.2010 entered between the complainants and 1opposite parties 1 & 3. Ext. P2 is the e-mail letter dated 26.11.2012 sent by complainant to opposite party. Ext. P3 is the e- mail letter dated 02.07.2014 sent by opposite party to complainant. Ext. P4 is the e- mail letter dated 04.09.2014 sent by opposite party to complainant. Ext. P5 is the e- mail dated 26.02.2015 sent by opposite party to complainant. Ext. P6 is the whatsapp message sent by complainant and its reply dated 13.09.2016. Ex. P7 is the registration form in which receipt of booking amount of Rs. 50,000/- is reflected. Ext. P8 is the receipt dated 03.02.2012 showing payment of Rs. 2,14,761/-. Ext. P9 is the receipt for Rs. 4,02,679/- dated 20.05.2011. Ext. P10 is the receipt dated 10.12.2010 for Rs. 3,57,679/-. These receipts show that the complainant has paid total amount of Rs. 10,25,119/-. Ext. P11 is the brochure of the apartment complex.
4. Since there is no contra evidence before us we are inclined to accept the proof affidavit filed by the complainant. The proof affidavit filed by the complainant reaffirmed the allegations made in the complaint. Thus it stands true that despite having received a substantial amount of sale consideration ie; an amount of Rs. 10,25,119/- the opposite parties have failed to deliver possession of the apartment within the stipulated time. Since they have not completed the project and hand over the apartment to the complainants as per agreement, we have no hesitation in concluding that opposite parties have committed deficiency of service and also indulged in unfair trade practice.
5. Clause 17 of the agreement states “ That in the event of any delay in the completion of the construction of Apartment and in the delivery of the possession of the apartment by reason or non-availability of steel, cement etc. or by reason of war, civil commotion etc. or due to any act of God or due to any difficulty arising from any Government Ordinances, legislation or notification by the Government or local authority, etc. the promoter shall not be held responsible but however the promoter assures the allottee that the construction would be completed within 30 months from the date of this agreement and that the delivery of possession will be made over to the allottee within that period. If the delivery of possession is delayed beyond grace period of six months from the date of the due to reasons for which the promoter is alone to be blamed, for the willful delay of the work the promoters shall pay interest at Rs. 2 per sq. ft. per month for the total built up area of the apartments/flat. This benefit is available only if the allottee paid all the installments on or before the due dates”.
6. On reading the above noted clause of the deed of agreement it can be seen that it will attract only in case in which delay is for a reasonable period and it has occurred because of unfavourable circumstances. This clause would not apply in case where builder after receiving the substantial portion of the amount failed to take steps to complete the construction in time. In the instant case the opposite parties have not shown any circumstance or reason which prevented them to complete the construction and to deliver the possession to the complainant within the stipulated period.
7. The learned counsel for the complainant submitted that the opposite parties 1 & 3 have abandoned the work, and hence he is only seeking prayer for refund of the amount deposited with compensation and cost.
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Thus, in our view, opposite parties 1 & 3 are liable to refund the money received from the complainant with 12% interest. In the result, complaint is partly allowed with following directions. (1) Opposite parties 1 & 3 shall refund the amount of Rs. 10,25,119/- to the complainant within one month from the date of receipt of this order along with compensation by way of 12% interest from December 2015, the agreed date of handing over of the apartment till realization of the amount. (2) Opposite parties shall pay a sum of Rs. 10,000/- as cost of litigation to the complainant.