DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION ERNAKULAM

       Dated this the  22^nd day of June 2023  

                       Filed on: 01/01/07/2016

PRESENT

Shri.D.B.Binu                                                                            President

Shri.V.Ramachandran                                                               Member Smt.Sreevidhia.T.N                                                              Member

C C No. 379/2016

COMPLAINANT

Subramaniam J, S/o.S.Jayaraman, 2D, Door No. XXVII/355C4, ‘Lalitharam’, Thekkumbagaom, Tripunithura

(By Adv.S.Vaidyanathan, Door No. 39/4237, Vijaya Nivas, Ravipuram Road, Kochi-682 016)

Vs.

OPPOSITE PARTIES

1. M/s.Padmapoorna, 21/472-F, Polothil Arcaed, Status-Kalikkotta Road, Tripunithura-682 301
2. Sivaprasad Thampuram, S/o.E.M Madhusoodanan Namboothiri, Proprietor, M/s.Padmapoorna, residing at Eedoop Palace, Near Narayana Apartments, Opp. Kallikkotta Palace, Tripunithura, Pin -682 301

(o.p 1 and 2 rep. by Adv.Madhusoodanan S., Door No.XX/966 (D), Opp. Mini Civil Statin, Main Raod, Tripunithura-682 301, Ernakulam)

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:

This complaint is filed by Sri.Subramaniam J., praying for issuing direction to the opposite parties to complete the construction of the remaining work in the apartment and other reliefs on the following grounds:

The complainant states that the opposite party had printed and published multi coloured brochures and made vide publicity in all vernacular daily’s  and other media that they are engaged in the development of land and construction of multi-storied residential and commercial apartments under the Project “Lalitharam”, Tripunithura.  Lured by the advertisement, the complainant had engaged into an agreement with the opposite party. The 2^nd opposite party approached the complainant and canvased the complainant for purchasing the apartment. Accordingly, the complainant and the opposite party engaged into an agreement and the complainant decided to purchase the apartment No. 2D  in the 2^nd floor of the building complex having a super built up area of 1085 sq.ft. along with car parking in ‘Lalitharam’.   The sale agreement was executed between the complainant and the 1^st opposite party and also an agreement for construction between the complainant and the 2^nd opposite party on 23.02.2012.  As per the agreement for sale there was a condition that the 1^st opposite party has agreed to sell and the complainant and his wife had agreed to purchase 1/25^th undivided share of the 36 cents of land in survey No.225/3, 225/4 in Thekkumbagaom village together with right to construct flat ‘SD’ in the 2^nd floor and together with right to use common area and common facilities for a consideration of Rs.1 lakh.  As per the construction agreement the 2^nd opposite party agreed to construct the apartment in the 36 cents of land in survey No. 225/3, 225/4 in Thekkumbagaom village in the south east corner of 2^nd floor marked as S D including the cost of the car park for a sum of Rs.25,46,000/-.  The payment schedule was also provided in the agreement for construction.  The 1^st opposite party had agreed to complete the construction work on or before 31.12.2012.  The complainant further states that believing the words of the 2^nd opposite party the complainant had paid the following amount on different dates as mentioned below:

Thus, the complainant had paid the total amount of Rs.26,46,000/- to the 2^nd opposite party (statement of accounts is copied as such and amount workout by the complainant is shown as such).

Subsequently, the opposite party had retracted from their assurance offered to the complainant and had not completed the construction work as promised.  The complainant states that the possession of the apartment was handed over only on 01.07.2014 and the property was registered in the joint name of the complainant and his wife only on 07.08.2014.  The building was to be completed on or before 31.12.2012 and the complainant had paid entire amount as per the agreement for sale and agreement for construction.  It is further stated by the complainant that the opposite had not provided the following amenities like rain water harvesting, room for security guard, room for recreation, incinerator waste disposal, apart from minor items like provision of Towel Rod, Soap Dish, Exhaust Fan etc.  The opposite party had not provided lift as assured.  Eventhough the complainant informed the opposite party about all these difficulties and short comings and non-fulfilment of conditions as laid down between the complainant and the opposite party regarding purchase of the flat, the opposite party had not responded to it.  As a result of this, the complainant had to stay in a rental building in another flat and huge amount was paid by the complainant as rent to the building owner of the flat and also a very huge amount was paid towards loan repayment etc. to the Bank as EMI (Equated Monthly Instalment).

          Aggrieved by the above reasons the complainant approached the Commission seeking for issuing orders to the opposite party are as follows:

(a)To complete the construction of the remaining work in the apartment.

(b)To repair the defects mentioned in Schedule- ‘B’

(c)To direct the opposite parties to pay an amount of Rs.1,31,400/-paid by the complainant as additional EMI. 

(d) An amount of Rs.35,000/-being the costs of the sun shade construction, lintel and balcony grills.

(e) to pay an amount of Rs.30,000/- for the mental agony and Rs.1 lakh for the completion of the common amenities.

2)       Notice

Notice was sent to the opposite parties and the opposite parties appeared and filed their joint version.

3. Version of the opposite parties 1 and 2.

The opposite party denied all the averments in the complaint.  The consolidated substance of total version filed in para wise reply from 1 to 30 is as follows:

Immediately after denying all the allegations levelled by the complainant against the opposite party, the opposite party stated that it was the complainant who approached the opposite party and the opposite party had not made any false representation either to the complainant or to anybody.  The 2^nd opposite party had only assured the complainant and others that the work shall utmost finish on or before 31.12.2012 unless otherwise restricting the first party from completing the work due to reason/causes beyond the control of the 1^st opposite party.  There has been no specific assurance with regard to provision for additional facilities of lift and roof top truss etc.  The complainant had never induced by the opposite parties to purchase the apartment.  There has been no retraction from completing the project from the part of the opposite party due to labour problems and due to the frequent complaints from the side of the Residents’ Association and individuals and also due to the delay occurred from Tripunithura Municipality, the time had lagged and as a result of which the work could not have completed within the specific period of time.  It is further stated that 2^nd complainant is unexpectedly became unwell and owing to a series of major ailments and due to the emotional stress caused to him in the matter.  It is also submitted that there had occurred much delay on the part of the local body in issuing the completion certificate without which it was not feasible to hand over possession to the purchasers.  Above mentioned series of incidents had caused some delay in handing over the building to the complainant in time as recorded. The building was completed on 09.05.2014 and the building possession was handed over on 01/07/2014.   The completion certificate was issued by the local body on 16.07.2014 and upon satisfying the registration formalities the Sale Deed was executed by the land owners in the joint name of the complainant and his wife on 07.08.2014.  There was also been variation in the time and amount of payment at the instance of almost all the purchasers due to one or more reason and therefore the 2^nd opposite party had to run around among the purchasers in order to ensure part payments as per the agreement.   There was no co-operation from the side of the purchasers to effect payments. In fact some of the dwellers started to occupy their respective apartments even before handing over or getting their documents and began to start interior and modification works.  The averment made by the complainant that he had communicated defects in the building on 27.09.2014 is absolutely wrong.  There is no wilful latch from the part of the opposite party in completing the building.   The arguments of the complainant that he had given partially constructed building is false since no local body shall issue certificate of completion without getting it completed.  The opposite party had never assured that they would construct sunshade or balcony since these are not a part of a plan.  The opposite party had never asked the complainant to do the work by himself and bear the costs.    There was not even a provision for lift in the agreement and the opposite party had raised a lot of such arguments to defeat the allegations framed by the complainant against them.

4)       Evidence

          We have gone through all the documents filed from either side.  The complainant filed documents which are marked as Exbts.A1 to A16 and no evidence from the side of the opposite parties.

          Exbt.A1 is a brochure.  Exbt.A2 is an agreement for sale.  Exbt.A3 is an agreement for construction.  Exbt.A4 is a Sale Deed for registration in which the property was registered in the joint name of the complainant and his wife only on 07.08.2014.  Exbt.A5 is a true copy of receipt for payment of Rs.1 lakh.  And Exbt.A6 is also true copy of the receipt of payment.  Exbt. A7 is an email sent to the opposite party by the complainant and Exbt.A8 is the details of work to be completed.  Exbt.A9 is a copy of the complaint filed before the Assistant Commissioner of Police, Thrikkakara.  Exbt.A10 is a rent agreement.  Exbts.A11, A12, A13 are the some receipts of payment of maintenance charges done by the complainant. Exbt.A14 is a copy of bank statement and Exbt.A15 is also the copy of loan account statement issued by Axis Bank.  Exbt.A16 is a copy of an email communication of the opposite parties dated 30.04.2015.

          There is no evidences from the side of the opposite parties and there no cross examination is conducted from either side. 

 5)      The following are the main points to be analysed in this case:

(i)      Whether there is any deficiency in service or unfair trade practice from the side of the opposite parties to the complainant?

ii)       If so, whether the complainant is entitled to get any relief from the side of the opposite parties?

(iii)     Costs of the proceedings if any?

5)       Point No. (i)

     We have gone through the complaint, version, evidences produced from the complainant and also on the facts and circumstances of the case, the Commission upon a considered view into the overall aspects of the case had examined certain points in detail.  Among which mainly the one is that the complainant had not moved the Commission to get the appointment of an Expert to inspect the flat of the complainant and to prepare the details of statement to evaluate the works done, completion of flat, remaining work to be completed in the building, the amount or cost required for completion of the apartment etc. etc.., during the time at which the complaint was filed or in any near date the cause of action occurred in 2012 and handing over of the building also had taken place in 2014.  Already one decade is elapsed since the date of handing over and therefore the Commission cannot at present evaluate or assess the quantum of works to be completed if any left behind during that period even if the arguments of the complainant is taken into face value.

     The complainant had not produced any documents including photographs to prove or substantiate his case that he had received an incomplete building, and especially at the circumstances, at which the opposite party had taken a stand that the local body had issued them the completion certificate.  The complainant had not moved the Commission to examine the local body in box which issued a completion certificate to the building.   At this stage, it is also pertinent to note that without material evidences and merely by taking into consideration the oral submissions the Commission cannot come to an inference that the building was incomplete even at the time of filing the complaint.  There is an argument put forth by the opposite party that due to different reasons including that the delay in getting payment from buyers, the work had been prolonged.  All the other arguments of the opposite party had not been taken by the Commission for want of proof.  But the Commission cannot go simply by shutting its eyes that the date of completion as promised by the opposite party and stated by the complainant is on or before 30.12.2012 and the complainant himself had produced a schedule of payment from which it can be seen that the amount of Rs.1,17,693/- Rs.1,87,500/-, Rs.1,46,000/-, Rs.50,000/- etc which are paid only after 31.12.2012 ie., on 09.01.2013, 09.04.2014, 1^st January 2013 etc.  From which it can be seen that the amount was paid to the opposite party for completion, after the date agreed for completion by the opposite parties.

Eventhough the Commission verified all the documents, and in the absence of the report of the Expert Commissioner evaluating the completion or non-completion of work which had to be completed during 2014 could not reach into an inference or conclusion now and therefore the facts cannot be ascertained and hence other allegations like complainant had stayed in rental flat etc. had not been taken into consideration and as a result of which point No. (i) is found against the complainant and therefore we have not evaluated point No. (ii) and (iii) and the final resultant outcome is that the complaint itself is dismissed.

  Pronounced in the Open Commission this 22^nd day June  2023.

Sd/-

V.Ramachandran Member

                                                                                      Sd/-

                                                                   D.B.Binu President

                                                                                                                                                                                                                                                                                                                                                                                                                                                Sd/-

                                                                   Sreevidhia T.N., Member

                                                                                                                                Forwarded by Order

                                                                             Assistant Registrar

APPENDIX

Complainant’s Evidence

Exbt.A1       : copy of brochure. 

Exbt.A2       :: is an agreement for sale. 

Exbt.A3       ::is an agreement for construction. 

Exbt.A4       :: is a Sale Deed for registration in which the property was registered in the joint name of the complainant and his wife only on 07.08.2014.

 Exbt.A5      :: is a true copy of receipt for payment of Rs.1 lakh. 

 Exbt.A6     is also true copy of the receipt of payment. 

Exbt. A7 is an email sent to the opposite party by the complainant

Exbt.A8 is the details of work to be completed. 

Exbt.A9 is a copy of the complaint filed before the Assistant Commissioner of Police, Thrikkakara. 

Exbt.A10 is a rent agreement. 

Exbts.A11, A12, A13 are the some receipts of payment of maintenance charges done by the complainant.

Exbt.A14 is a copy of bank statement and

Exbt.A15 is also the copy of loan account statement issued by Axis Bank.  Exbt.A16 is a copy of an email communication of the opposite parties dated 30.04.2015.

Opposite party’s Evidence      : Nil