DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION ERNAKULAM
Dated this the 28th day of January 2023
Filed on: 21/06/2016
PRESENT
Shri.D.B.Binu President
Shri.V.Ramachandran Member Smt.Sreevidhia.T.N Member
C.C. No. 348/2016
COMPLAINANTS
(1) Manoj K.Mathew, S/o.K.I.Mathew, Kaniyamparambil House,
Puthenangady P.O., Koottayam Village, Pin-686 001.
(2) Mrs. Jasmi Manoj, W/o.Manoj K. Mathew, Kaniyamparambil House,
Puthenangady P.O., Koottayam Village, Pin-686 001.
(Adv. George Cherian Karipparambil, Karipparambil Associates, H.B.48,
Panampilly Nagar, Kochi 682 036)
Vs.
OPPOSITE PARTIES
(1) M/s.Maruti Habitat and Realtors India Pvt. Ltd., XXIX/2720, Vaishnavi, Prashanthi lane, Poonithura Village, Ernakulam, Kochi-682 317, represented by Managing Director, Sri.V.Venketeswaran.
(2) Sri.V.Venketeswaran, S/o.late P.S.V.Iyer, Managing Director, M/s.Maruti Habitat and Realtors India Pvt. Ltd., XXIX/2720, Vaishnavi, Prashanthi lane, Poonithura Village, Ernakulam, Kochi-682 317.
(3) Smt.Girija Venkatesh, W/o.V.Venketeswaran, W/o.V.Venketeswaran, Director, M/s.Maruti Habitat and Realtors India Pvt. Ltd., XXIX/2720, Vaishnavi, Prashanthi lane, Poonithura Village, Ernakulam,
Kochi-682 317.
(4) Rajesh Memana, S/o.Sreedharan Nair Mambattavalappil, Director, M/s.Maruti Habitat and Realtors India Pvt. Ltd., Sreelakshmi, XXV/578, Govt. Sanskrit-College Road, Tripunithura, Ernakulam, Pin-682 301
(Adv.T.J.Lakhmanan, Mega Arcade, Power House Road, Cochin-18)
(5) Sankarasubbaaiyer Gopal, S/o.sankarasubba Aiyer, Director, M/s.Maruti Habitat and Realtors India Pvt. Ltd. AR 7, Maruthi Kailas, North Fort Gate, Tripunithura, Ernakulam, Kochi-682 301
(6) Sunil Surendran, M/s.Maruthi Habitat And Realtors India Pvt. Ltd., Diamond District, Bangalore East, Bangalore, Karnataka, Pin-560 008
(7) K.S.Pradeep, S/o.Vasumathy Amma, Krishna Kripa, Kankirakattu, Thiruvankulam P.O., Ernakulam, Pin-682 305
(8) K.S.Bindu, D/o.Vasumathy Amma, Krishna Kripa, Kankurakattu, Thiruvankulam P.O., Ernakulam, Pin-682 305
F I N A L O R D E R
V.Ramachandran, Member
1) A brief statement of facts of this complaint is as stated below:
The complainants are residing in Sharjah, as part of their employment. The 1st opposite party company is engaged in the construction of residential apartments and villas. The 2nd opposite party is the Managing Director of the 1st opposite party and the opposite parties 2,3,4,5 and 6 are the promoters and directors of the 1st opposite party company of the apartment project named “Maruti Palace View”.
Lured by the advertisements of the opposite parties the complainants had entered into an agreement on 22.12.2008 with the 7th and 8th opposite parties for purchasing 1.54% of undivided interest in the land in the total area of land of 63.680 cents for a total consideration of Rs.50,000/-. The opposite parties simultaneously has entered into an agreement on 22.12.2008 for construction of apartment Type A on the 16th floor of the Maruti’s Palace View’. The aforesaid agreements were executed on 22.12.2008.The complainants had initially paid Rs.25,000/- as booking charges with the opposite parties. Thereafter complainants have paid Rs.5 lakhs as per cheque No. 236055 dated 22.09.2008 drawn on State Bank of India, Kottayam Branch. The 1st opposite party had issued receipt No.144 dated 22.09.2008 for Rs. 5 lakhs. Further the complainant had entered into another agreement with the opposite party for purchase of an apartment of Type C on 7th floor of Maruti’s Medows for an amount of Rs.27,13,000/-, for which they have paid an initial amount of Rs.25,000/- and an amount of Rs.5 lakhs by way of cheque No.041977 dated 22.09.2008 drawn on ING Vysya Bank Ltd. Kottayam Branch. Thus the complainants had paid a total amount of Rs.10,50,000/- to the opposite parties for both the apartments as described above.
Subsequently, the complainants were shocked when came to know that the opposite party had not taken any effort to complete the construction of the apartment as promised by them. Further, they have not done any work as promised regarding common amenities of club house, swimming pool, kids play area, badmiton court, landscaped area, party area etc... The complainants stated that there is serious deficiency of service from the side of the opposite parties and therefore the complainants have suffered a lot of loss and damages. Due to the unfair trade practice, the complainants have lost an opportunity to possess an apartment. Therefore, the complainants approached this Commission seeking for issuing direction to the opposite parties to refund the amount of Rs.10,50,000/- paid by them along with 11% interest from 22.09.2008.
2) Notice
Upon notice from this Commission, the opposite parties appeared before the Commission. The version of the opposite parties are summed up together and the main points raised as contentions by the opposite parties are as follows:
3) Version of the opposite parties
The opposite parties denied the allegations made by the complainants and stated that the complainants had booked 2 apartment at its initial stage and requested them to cancel the booking of the 2nd apartment. The work of the apartment could not be completed for want of materials and labourers. The opposite parties contended that the complainant had failed to pay, the required amount in time and made gross default of payment as agreed by the complainant which is one of the reasons for non completion of the flat. The complainants are not possessed the flat and seek for refund of money which shall not fall under the purview of the Consumer Protection Act. Above all, in view of Section 8 of the Arbitration and Conciliation Act, 1996, the complaint was relegated to exhaust the contractual remedies as provided in the agreement instead of approaching the Consumer Commission. These are the main allegations and contentions taken by the opposite parties in their version.
4) Evidence.
The complainant produced Exbt.A1 to A9 documents which are marked. The complainant is examined as PW1. No oral or documentary evidences from the side of the opposite parties.
5) The following are the main points to be analysed in this case:
(1) Whether the complainant has experienced any deficiency of service or unfair trade practice from the side of the opposite party?
(2) If so, whether the complainant is entitled to get any reliefs?
(3) costs of the proceedings?
On verification of the documents produced by the complainant and as per Exbt.A1 it is very clear that the complainant had entered into an agreement dated 22.12.2008 with the opposite parties for purchasing 1.54 of undivided interest in the land in the total area of land of 63.680 cents for a total consideration of Rs.50,000/-. As per Exbt.A2 it can be seen that the complainant had entered into an agreement with the opposite party on 22.12.2008 for purchasing of an apartment of Type C on 7th Floor of Maruthi’s Meadows in Re.Sy.No.129/17. The complainant had initially paid Rs.25,000/- as booking charges to the opposite parties Thereafter they have paid Rs.5 Lakh as per cheque No.236055 dated 22.09.2008 drawn on State Bank of India, Kottayam Branch. The opposite party had issued receipt No.144 dated 22.09.2002 for Rs.5 lakhs which is evident from Exbt.A3. Exbt.A4 goes to show that the complainant had paid an amount of Rs.5 lakhs as per cheque No.041977 dated 22.09.2008. Thus a total amount of Rs.10,50,000/- was paid by the complainant to the opposite parties. Exbt.A5 is the e-mail communication sent by the complainant to the opposite parties on 18.09.2008. Exbt.A6 is the Deed of agreement executed between the complainant and the opposite parties on 22.12.2008. Tripartite agreement was executed between the complainant and the opposite parties on 22.12.2008 which is evident in Exbt.A7. Exbt.A8 is the progress of work with photographs sent by the opposite parties to the complainant through e-mail dated 16.03.2009. Exbt.A9 are the photographs of the work site of Maruti Palace view.
The allegations of the opposite parties is that the consumer complaint is not maintainable before this Commission. Moreover, the opposite party had not produced any such agreement to show that the consumer complaint is not maintainable before the Commission to prove that is there arbitration clause etc and documentary evidences as proof executed between the complainant and the opposite party. There is serious deficiency in service and unfair trade practice on the part of the opposite parties and the complainant had suffered losses and damages.
Hence taking into consideration the evidences adduced by the complainant point No. (1) is proved in favour of the complainant.
Hence point No. (2) is also decided accordingly. Therefore the following orders are issued.
ORDER
(1) The opposite parties shall pay an amount of Rs.10,50,000/- (Rupees Ten lakh Fifty Thousand only) to the complainants being the amount paid by the complainants on various dates to the opposite parties for the construction of apartment as promised.
(2) The opposite parties shall pay an amount of Rs.10,000/- to the complainant as compensation for the deficiency of service caused to the complainant.
(3) An amount of Rs.5,000/- shall be given by the opposite parties to the
complainant being the cost of proceedings.
The opposite parties shall have to pay interest @ 7.5% to the complainants if not paid within 30 days from the date of receipt of a copy of this order till the date of payment in the case of amount ordered as per clause (1) and (2) above.
Pronounced in the Open Commission on 28th day of January 2023.
Sd/- V.Ramachandran, Member
Sd/-
D.B.Binu, President
Sd/-
Sreevidhia.T.N, Member
Forwarded by Order
Assistant Registrar
Appendix
Complainant’s Evidences
Exbt.A1 : copy of agreement entered between the complainant and the opposite parties dated 22.12.2008
Exbt.A2 :: copy of agreement between the complainant and the opposite parties dated 22.12.2008.
Exbt.A3 :: copy of receipt No.144 dated 22.09.2002
Exbt.A4 :: The complainant had paid an amount of Rs.5 lakhs as per cheque No.041977 dated 22.09.2008.
Exbt.A5 :: copy of e-mail communication sent by the complainant to the opposite parties on 18.09.2008.
Exbt.A6 copy of the Deed of agreement executed between the complainant and the opposite parties on 22.12.2008.
Exbt.A7:: Tripartite agreement was executed between the complainant and the opposite parties on 22.12.2008
Exbt.A8:: is the progress of work with photographs sent by the opposite parties to the complainant through e-mail dated 16.03.2009.
Exbt.A9 :: are the photographs of the work site of Maruti Palace view.
Depositions :;
PW1 : Mrs. Jasmi Manoj
