R. Ranjit : Member
Complaint is filed by the complainant under section 12 of the Consumer Protection Act. The facts as per the amended complaint is that:-
2. The complainants 1 and 2 are husband and wife who are NRIs residing at Newyork. They are represented by their Power of Attorney in the complaint. First opposite party is a Private Limited Company engaged in the business of construction of buildings, Villas and apartments and other infrastructures in the name and style “Kristal Infrastructure Limited”. Second opposite party is its Chairman, 3rd opposite party is its Managing Director and opposite parties 4 to 8 are the other Directors of the company. The complainant on 27.11.2007 had booked an apartment No.1803 on the 8th floor having approximately 1273.83 Sq.Ft. of built up area in the project proposed to be constructed by the opposite parties in 114.454 cents of land owned by them, in Survey No.119/1, 119/2, 119/3, 119/6 and 119/7 of Vazhakkala Village, Thrikkakara in the name and style of ‘Kristal Emarald’. The complainant paid an amount of Rs.1,00,000/- as token advance and also paid Rs.5000/- as booking fee. On 10.1.2008 complainant entered into an agreement with the first opposite party represented by his Managing Director, 3rd opposite party for the purchase of the aforesaid flat. The total consideration agreed is Rs.32,90,000/- and the period of construction as per the agreement is 20 months from the date of commencement. It was also assured that the construction will commence within one week from the date of agreement. They also promised that in case of delay the company will compensate the complainants. Believing their words the complainant paid the instalments as specified in annexure to the agreement. They paid an amount of Rs.3,98,500/- on 7.1.2008, Rs.4,85,000/- on 14.3.2008, Rs.2,00,000/- on 2.2.2009, Rs.1,37,000/- on 14.2.2009, Rs.1,00,000/- on 9.2.2010, Rs.2,00,000/- on 24.2.2010, Rs.29,000/- on 24.2.2010, Rs.3,29,000/- on 31.8.2010 and Rs.3,29,000/- on 3.6.2012. Thus the complainants have paid a total amount of Rs.23,08,000/- as on June 2012. Eventhough the assured period of 20 months as promised by the opposite party in the agreement is over by October 2009,they did not complete the construction and the construction works are going on at snail pace manner. The complainant enquired about the progress of the construction with the opposite party and they informed that the construction will be completed within the stipulated time and will be handed over as promised. Since the opposite parties do not complete the construction as agreed, the complainants and other customers who booked the apartments formed a group in the form of an association. They made several meetings and correspondence with the opposite parties, but nothing was forth coming. Meetings were held on 6th of April 2011 and January 2012. In the meetings the opposite parties assured that the project will be completed on December 2013 and accordingly as per the terms of the discussions in the meeting the complainant paid a further amount of Rs.2,29,000/- on 6.3.2012. But the opposite parties did not complete the work as assured by them. Again on 22.8.2013 the 4th opposite party assured that construction will be completed by January 2014 and assured to pay compensation for the delay at Rs.2,60,752/-. They neither completed the construction nor complied with their assurance that they would pay compensation. The acts and omissions on the part of the opposite party is a clear case of deficiency of service and hence the complaint is filed before this Commission praying for refund of Rs.2,08,000/- with 18% interest till realization and also compensation of Rs.5,00,000/- for the deficiency of service and Rs.5,00,000/- for mental agony and Rs.1,00,000/- towards incidental expenses and costs. Initially the complainant had filed this complaint with a prayer for directing the opposite parties to complete the work as per the agreement and to hand over the apartment after completing all statutory formalities. Later the prayer was amended and the above prayer was incorporated.
3. On admitting the complaint notices were issued to the opposite parties. As service could not be affected after repeated attempts, substituted service by paper publication was affected. Even then, the opposite party failed to appear before this Commission and hence they were set exparte.
4. Power of attorney holder of the complainants filed affidavit in lieu of chief examination for and on behalf of the complainants. He has also produced 15 documents which were marked as Exts.P1 to P15. Original sale agreement executed between the complainant and first opposite party is marked as Ext.P1. The original receipts dated, 29.11.2007 acknowledging the payment of Rs.1,00,000/- is marked as Ext.P2. Receipt acknowledging payment of Rs.3,98,500/- dated January 8,2008 is marked as Ext.P3, Receipt dated 5.4.2008 acknowledging payment of Rs.4,85,000/- is marked as Ext.P4, Receipt dated:2.2.2009 acknowledging payment of Rs.2,00,000/- and scanned copy of receipt for Rs.1,37,500/- dated 4.2.2009 is marked as Ext.P5 and P5(a). Receipt acknowledging payment of Rs.1,37,500/- dated 4.2.2009 is marked as Ext.P6. Receipt acknowledging payment of Rs.1,00,000/- dated 9.02.2010 is marked as Ext.P7. The receipt for Rs.2,00,000/- dated 24.2.2010 is marked as Ext.P8. Receipt dated.24.2.2010 acknowledging the payment of Rs.29,000/- is marked as Ext.P9. Receipt acknowledging the payment of Rs.3,29,000/- dated 31.8.2010 is marked as Ext.P10. Receipt acknowledging payment of Rs.2,29,000/- dated 6.3.2012 is marked as Ext.P11. Receipt acknowledging payment of Rs.1,00,000/- dated 9.3.2012 is marked as Ext.P12. Lawyer’s notice dated 5.11.2012 issued by the complainant to the opposite parties is marked as Ext.P13. Reply notice dated 30.1.2013 issued by the opposite party to the complainant is marked as Ext.P14. Copy of the power of attorney executed by the complainant is marked as Ext.P15.
5. The complaint was originally filed before the Consumer Disputes Redressal Forum, Ernakulam as CC.288/14 and the District Forum returned the complaint holding that it had no pecuniary jurisdiction to entertain the complaint. Hence the complaint was re-presented before this Commission.
6. Since there is no contra evidence before us. We are inclined to accept the proof affidavit filed by the power of attorney of the complainant. As per Ext.P1 sale agreement opposite party agreed to construct the building and give possession to the complainant within 20 months. Ext.P2 to P12 proves the payment of Rs.23,08,000/- towards the construction by the complainant to the first opposite party company. It is proved that inspite of having received the substantial amount of Rs.23,08,000/- the opposite parties have failed to complete and deliver possession of the apartment to the complainant. In the absence of any explanation, and failure of the opposite party to deliver the possession of apartment within time, we have no hesitation in concluding that the 1st opposite party have committed deficiency of service and also indulged in unfair trade practice.
7. As regards to the compensation, clause 16(i) and (ii) of the agreement states as follows:-
16(i) That in the event of any delay in commencement of the project due to fore majeure, statutory/judicial implications or any act/s of God, change in Government rules & regulations from time to time, or due to any difficulty arising from any Government Ordinances, legislation or notification by the Government or local authority, etc, and for reasons beyond the control of the first party, or for the non-availability of steel, cement etc. or by reason of war, civil commotion, etc. FIRST PARTY shall not be held responsible.
(ii) THE FIRST PARTY assures the SECOND PARTY that the construction would be completed within 20 months from the date of the commencement and that the delivery of possession will be made over to the SECOND PARTY within that period. If the delivery of possession is delayed beyond grace period of five months from the commencement date, due to reasons for which the FIRST PARTY alone is to be blamed, for the willful delay of the work the first party shall pay compensation of Rs.2/-. per Sq.Ft. per month for the total built up area of the apartments/flat. This benefit is available only if the SECOND PARTY paid all the instalments on or before the due dates.”
8. On reading the above noted clause of deed of agreement, it can be seen that it will attract only the case in which delay is for reasonable period and it has occurred because of unavoidable circumstances.
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This clause would not apply in this case wherein the builder after receiving the substantial amount fails to take the steps to complete the construction in time. In the instant case opposite parties have not shown any circumstances or reason which prevented it to complete the construction and deliver the possession to the complainant within the stipulated period. Thus in our view opposite parties are liable to refund the amount received from the complainants with 10% interest. In the result the complaint is allowed with the following directions. 1. Opposite parties shall jointly and severally refund the amount of Rs.23,08,000/- to the complainant within one month from the date of judgment along with compensation by way of interest at the rate of 10% from October 2009, the agreed date of handing over the flat till realization. 2. Opposite parties are directed to pay a sum of Rs.25,000/- as costs of litigation to the complainant.