DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION ERNAKULAM
Dated this the 27th day of January 2024
Filed on: 05/03/2022
PRESENT
Shri.D.B.Binu President
Shri.V.Ramachandran Member
Smt.Sreevidhia.T.N Member
C C. No. 145/2022
COMPLAINANTS
- Linto Thomas, S/o.Thomas P.V., Pereppadan H., Paduvapuram P.O., Palissery, Ernakulam-683 576, currently residing at Villa No.24, Palm Village Near Puthya Road, Neericode P.O., Ernakulam-683 511.
- Athira T.J., W/o.Linto Thomas, Pereppadan H, Paduvapuram P.O., Palissery, Ernaulam-683 576, currently residing at Villa No.24, Palm Village Near Puthya Road, Neericode P.O., Ernakulam-683 511.
-
OPPOSITE PARTIES
- Jewel Homes Pvt. Ltd., 2nd floor, Casagrante Building, Opp. TVS Showroom, Deshabhimani Junction, Kaloor, Cochin-682 017, rep. by its Managing Director, Mr.P.A.Jihas.
- P.A.Jihas, Jewel Homes Pvt. Ltd., S/o.P.K Abdul Rahiman, Door No.CC 35/423-B, Jewel Nest, Eroor Vasudev Road, Vasanth Nagar, Palarivattom P.O., Edappally South Village, Ernakulam-682 025
- Shemeena Jihas, Jewel Homes Pvt. Ltd., W/o.P.A.Jihas, Door No.CC 35/423-B, Jewel Nest, Eroor Vasudev Road, Vasanth Nagar, Palarivattom P.O., Edappally South Village, Ernakulam-682 025
(o.ps rep. by Adv.Babu Karukapadath, M/s.Karukapadath Law Chambers, 1st Floor, Empire Building, Near High Court, Opp. Central Police Station, Ernakulam-682 018)
F I N A L O R D E R
Sreevidhia T.N., Member
- A brief statement of facts of this complaint is as stated below:
As attracted by the advertisement of the opposite party, the complainants had entered into a contract with the opposite party for purchasing a residential apartment for a total sale consideration of Rs.49,00,000/- with a super built up area of 1180 square feet (a three bedroom apartment) located in the 15th floor of the apartment as 15E. Out of the said consideration of Rs.4900,000/- an amount of Rs.46,64,000/- towards the construction cost of the apartment and the rest towards the value of the undivided share. The opposite parties were supposed to complete the construction of the said apartment by December 2018. Two agreements were signed by the complainants with the opposite parties on 15.03.2018 and 12.10.2018. The agreement dated 15.03.2018 was a construction agreement”. As per the agreement for construction, the 2nd party (complaints) entered into an agreement for purchase of 1180/91000 undivided share in 19.549 Ares (48.306 cents) in Re Survey No.664/3 block 5 of Thrikkakara North Village for the purpose of constructing an apartment in the said property on the fifteenth floor of the building marked as E15 for a total consideration cost of Rs.46,64,000/-.
The complainant had also entered into another agreement with the land owners for purchase of undivided share in the landed property in which the building complex of 97 apartments with 17 floors were proposed to construct.
The time fixed for completion of project was December 2018 as per the construction agreement.
The handing over was to take place within another four months. It is clearly incorporated into the agreement for construction.
The opposite parties have already collected an amount of Rs.44,24,300/- from the complainants. The opposite parties have not taken any steps to complete the project and thereafter handover the same. On account of the delay in the construction of work the complainants have sustained serious damages. Since the construction of the apartment was not completed within the time limit, the complainants had to take a house on rent. The rent that thas been already paid by the complainants from December 2018 to February 2022 coms to Rs.570,000/-. The complainants have paid the amount to the opposite party by availing bank finance from PNB Housing Finance Ltd. The amount paid as interest to PNB Housing Finance Ltd is calculated tentatively at Rs.12,74,650/- as on 10.02.2022. The complainant states that even today the opposite parties are not in a position to state with precision as to the date as which they can completed the project and handover the same.
On 28.08.2020, the complainants send a lawyer notice to the opposite parties. The legal notice sent to the 2nd opposite party was delivered on 01.09.2020 but there was no response from the opposite party. Then the complainants decided to withdraw from the sale and construction agreement executed with the 2nd opposite party.
The complainants states that the opposite parties have committed unfair trade practice by misrepresenting the fact that they had the required permission to construct the building as mentioned in the sale agreement. Hence the complainants approached the Commission seeking orders directing the opposite parties
- to return the investment amount Rs.44,24,300/- with interest @18% per annum from the date of payment.
- to pay compensation of Rs.25,00,000/- towards the damages and mental agony caused to the complainants on account of the breach committed by the opposite parties.
- to pay Rs.50000/- towards cost of the proceedings.
2) Notice
Notice was issued to the opposite parties from this commission on 19.04.2022.
Upon notice the opposite parties appeared through counsel (Notices sent to the opposite parties 1 to 3 seen served on 27.04.2020). The opposite parties counsel prayed to place the complaint before Adalath on 29.07.2022 conducted by the District Commission. Matter not settled at the adalath on 29.07.2022 and then referred to Adalath on 26.08.2022 and on 29.09.2022. But the matter was not settled at the adalath conducted by the Commission.
On 20.09.2022 the opposite parties filed their version along with a petition to accept the version as I.A 354/2022. Complainant filed objection on the I.A. Heard the I.A. The opposite party’s counsel stated that the documents relating to the subject matter and the disputes which were raised by the complainants can only be cross checked with available documents and pleased to extent the time for filing version and to receive the version on file.
Based on the judgment of the Hon’ble Supreme Court of India in New India Assurance Co. Ltd Hilli Multipurpsoe cold storage I A 354/2022 filed by the opposite party is dismissed. The version filed by the opposite parties beyond the statutory period can’t be taken into consideration and the 1st opposite parties 1 to 3 are set as ex-parte in the matter.
3) Evidence
Evidence in this case consists of the unchallenged proof affidavit filed by the 1st complainant and the documentary evidence filed by the complainant No. 1 which were marked as Exbt.A1 to A18. No other evidence.
Heard.
4) The issues came up for consideration in this case are as follows:
- Whether any deficiency in service or unfair trade practice is proved from the side of the opposite party towards the complainant?
- If so, reliefs and costs?
For the sake of convenience the issues mentioned above are considered together.
It is averred in the complaint that the delivery of the apartment was not given to the complainants till the date of filing of the complaint. We have perused the documents filed by the complainant.
Exbt.A1- Construction agreement dated 15.03.2018.
Exbt.A2- Unregistered agreement for sale dated 15.03.2018.
Exbt.A3- Registered agreement for sale dated 12.10.2018.
Exbt.A4- offer letter issued by the 2nd opposite party detailing the payments dated 15.03.2018
Exbt.A5 - Receipt of registration dated 07.01.2018 for Rs.300,000
Exbt.A6 – payment receipt dated 16.02.2018 for Rs.1,00,000/-
Exbt.A7 – payment receipt dated 17.03.2018 for Rs.33,94,100/-.
Exbt.A8- payment receipt dated 27.07.2020 for Rs.6,30,000/-.
Exbt.A9- lawyer notice dated 28.08.2020.
Exbt.A10 – Building permit issued by the Municipal Counsel, Kalamassery to the opposite parties for the construction of the building dated 25.06.2013.
Exbt.A11- Revised building permit dated 09.07.2015.
Exbt.A12 – Renewed building permit dated 28.10.2016
Exbt.A13-Renewed building permit dated 05.12.2019
Exbt.A14- Building Plan (4th to 14th floor and the terrace) approved by the Municipal Counsel, Kalamassery.
Exnt.A15- Statement of the housing loan availed by the complainants to pay the amount of the opposite parties.
Exbt.A16- copy of insurance taken by the complainant.
Exbt. A17 – letter from the bank asking to submit the sale deed at the earliest.
Exbt.A18- E-mail communication from the bank regarding the delay in construction and Revision in rate of interest.
As per Exbt.A1, construction agreement, Clause 5 the 1st party (opposite party) shall construct the apartment together with all facilities and try the utmost possible to finish the work or on before December 2018 and possession will be handed over within 120 days after completion provided the entire amount due to the 1st party from the 2nd party.
Payment schedule as described in the page 4 clause 1 of the construction agreement was as follows:
On booking (07/02/2018) Rs.3,00,000/-
On agreement (15/03/2018) Rs.35,00,000/-
On or before (01/04/2018) Rs.3,00,000/-
On or before (01/05/2018) Rs.1,20,000/-
On or before (01.06.2018) Rs.100,000/-
On or before (01.07.2018) Rs.100,000/-
On or before (01.08.2018) Rs.100,000/-
On or before (01.09.2018) Rs.50000/-
On or before (01.10.2018) Rs.50000/-
On or before 01.12.2018 Rs.44000/-
……………………..
Total Rs.46,64,000/-
As per Exbt.A5, the complainant No.1 had paid Rs.300,000/- (Rupees Three Lakh only) as booking of the apartment in the 15th floor having an area of 1180 sq. ft in the project Pristine Greens of M/s.Jewel Homes Pvt. Ltd.,
As per Exbt. A6 – the opposite parties had received an amount of Rs.100,000/- (Rupees One Lakh only) from the complainant on 16.02.2018 on account of payment against Flat No. E 15 in Block No. (Block No.not assigned at that time) of Jewel Pristine Greens Project at Kalamassery. The complainant had paid an amount of Rs.33,94,100/- (Rupees Thirty three Lakh Ninety Four thousand and one hundred only) on account of payment against flat No. 5E to the opposite party on 17.03.2018.
On 27.07.2020, the opposite party had accepted Rs.6,30,200/- (Rupees Six Lakh thirty thousand and two hundred only) from the complainant.
The complainants had paid Rs.37,94,100/- to the opposite party as on 17.03.2018. the total amount paid by the complainants to the opposite party as on 27.07.2020 was Rs.44,24,300/- (Rupees Forty Four Lakhs Twenty four thousand three hundred only). The opposite parties had misled and misrepresented the fact that they had the required permission to construct the building as mentioned in the construction agreement. The remaining amount to be paid to the opposite party is less than Rs. 5 lakhs. The complainants averred that the opposite party has not taken any steps to complete the project.
As per Exbt.A11, the Building permit obtained from Municipal Council, Kalamassery the opposite parties had obtained permission to construct upto 14th floor and a terrace floor only. The building permit was obtained on 09.07.2015 which means that at the time of execution of the two agreements the opposite party has agreed to handover the apartment No.15 E in the 15th floor of the apartment project. From the available documents it is clear that the opposite parties had not taken any steps to complete the construction of the apartment within the stipulated time. The opposite parties had not obtained permission to construct the offered building at the time of execution of the two agreements. Hence the complainants decided to withdraw from the sale agreement. The opposite parties were keep on extending the project completion date every time. As per Exbt.A13 the opposite party had obtained permission from Panchayat Secretary, Kalamassery to extent the time limit for the above construction work up to 25.06.2023.
The Commission upon hearing the complainants and on examination of the documents filed by the complainants observed that the opposite parties have committed unfair trade practice towards the complainants by misrepresenting the fact that they had the required permission to construct the building as mentioned in the agreements.
In this case, the opposite parties 1 to 3 appeared and filed version on 20.09.2022. But the version was not filed within the statutory period and hence cannot be taken upto consideration. According to the definition under Section 2 (II) of Consumer Protection Act, 2019 deficiency means any fault, imperfection, short coming or inadequacy in the quality, nature and manner of performance which is required to be maintained by or under any law for the time being in force or has been undertaken to be performed by a person in pursuance of a contract or otherwise in relation to any service and includes
- Any act of negligence or omission by such person who causes loss or injury to the consumer
and
(II) deliberate withholding of relevant information by such person to the consumer.
Thus we are of the opinion that the opposite parties had committed deficiency in service by not taking any steps to complete the project and thereafter to hand over the same. The opposite parties have not performed as per clause 5 of the agreement. Hence deficiency of service is proved from the side of the opposite parties. Under these circumstances the complainants the complainants counsel sent a lawyer notice to the opposite party. The lawyer notice to the 2nd opposite party was delivered on 01.09.2020. But there was no response from the opposite parties.
In Haryana Urban Development Authority Vs SumanDevi (2010) the Hon’ble Supreme Court held that the buyers are entitled to seek a refund of the entire amount paid, along with interest and compensation if the possession is not delivered within the stipulated time. The court emphasized that the builder has a contractual obligation to deliver possession on time and that any delay constitutes a deficiency in service.
In view of the above facts and circumstances of the case, we are of the opinion that the opposite parties are liable to refund the entire amount paid by the complainants and are liable to compensate the complainants.
We find the issues (1) and (2) are found in favour of the complainant for the serious deficiency in service that happened on the side of the opposite parties. Naturally the complainant had suffered a lot of inconvenience, mental agony, pain, hardships, financial loss etc. due to the deficiency in service on the part of the opposite parties.
Hence the prayer in the complaint is allowed as follows:
- The opposite parties shall refund the entire amount paid by the complainant for the purpose of the residential apartment 15 E bearing the project Pristine Greens of Jewel Homes ie., the opposite parties shall refund Rs.44,24,300/- (Rupees Four lakhs Twenty Flour Thousand and Three Hundred only) to the complainant along with 7% interest. The interest shall be calculated from the date of last payment ie., 27.07.2020 onwards.
- The opposite parties shall also pay an amount of Rs.5,00,000/- (Rupees Five Lakhs only) as compensation for the mental agony, pain and other hardships suffered by the complainant.
- The opposite parties shall also pay Rs.50,000/- (Rupees Fifty Thousand only) as cost of the proceedings to the complainant.
The above order shall be complied by the opposite parties within 30 days from the date of receipt of a copy of this order. If the opposite parties are failed to comply the order within 30 days the amounts specified in order (1) and (2) will accrue interest @9% per annum. The interest will be calculated from the dated of filing of the complaint 05.03.2022.until the date of realization.
Pronounced in the open commission on this 27th day of January 2024.
Sd/-
Sreevidhia.T.N, Member
Sd/-
D.B.Binu, President
Sd/-
V.Ramachandran, Member
Forwarded/by Order
Assistant Registrar
uk
APPENDIX
Complainant’s evidence
Exbt.A1- Construction agreement dated 15.03.2018.
Exbt.A2- Unregistered agreement for sale dated 15.08.2018.
Exbt.A3- Registered agreement for sale dated 12.10.2018.
Exbt.A4- offer letter issued by the 2nd opposite party detailing the payments dated 15.03.2018
Exbt.A5 - Receipt of registration dated 07.01.2018.
Exbt.A6 – payment receipt dated 16.02.2018 for Rs.1,00,000/-
Exbt.A7 – payment receipt dated 17.03.2018 for Rs.33,94,100/-.
Exbt.A8- payment receipt dated 27.07.2020 for Rs.6,30,000/-.
Exbt.A9- lawyer notice dated 28.08.2020.
Exbt.A10 – Building permit issued by the Municipal Counsel, Kalamassery to the opposite parties for the construction of the building dated 25.06.2013.
Exbt.A11- Revised building permit dated 09.07.2015.
Exbt.A12 – Renewed building permit dated 28.10.2016
Exbt.A13-Renewed building permit dated 05.12.2019
Exbt.A14- Building Plan (4th to 14th floor and the terrace) approved by the Municipal Counsel, Kalamassery.
Exnt.A15- Statement of the housing loan availed by the complainants to pay the amount of the opposite parties.
Exbt.A16- copy of insurance taken by the complainant.
Exbt. A17 – letter from the bank asking to submit the sale deed at the earliest.
Exbt.A18- E-mail communication from the bank regarding the delay in constitution and Revision in rate of interest.
Opposite party’s evidence : Nil
Date of Despatch :: By Hand: By post
