DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION ERNAKULAM
Dated this the 31st day of May, 2023
Filed on: 23.10.2020
PRESENT
Shri.D.B.Binu President
Shri.V.Ramachandran Member Smt.Sreevidhia.T.N Member
C.C. No. 344/2020
COMPLAINANT
Maria Goretty Pereira, W/o Joseph Antony Pereira Chungath House, Varapuzha Landing P.O Varapuzha, Ernakulam District, Pin -683517
(By Adv.T.J.Lakhmanan, 2nd Floor, Megha Arcade, Power House Road, Kochi-18)
VS.
OPPOSITE PARTIES
- Southern Investments Pvt Ltd Montieth Court No.65, Montieth Road, Egmore, Chennai-600008 Rep by its Managing Director.
2. Ajith Thomas Abraham, Managing Director, Southern Investment Private Limited No. 3 B, Willow Crest, 186" main road, R.A Puram,
Chennai-600 028.
F I N A L O R D E R
D.B.Binu, President.
1) A brief statement of facts of this complaint is as stated below:
The complaint was filed under Section 12 (1) of the Consumer Protection Act, 1986. The brief facts, as averred in the complaint, are that the opposite parties on 27-02-2017 issued a booking letter to the complainant and thereby allotted villa No. 14 to her in their project called Hest Hill Village, Kalamaserry. On 23-05-2017 the opposite party again issued an allotment letter to the complainant and thereby allotted Plot No. 14 in their above-mentioned project to the complainant. In the said letter itself, the opposite parties stated that a sum of Rs. 46,16,341/- is due to the complainant as of 3. It is submitted that to this date the opposite party has not started any construction or developments in the so-called villa project and has not even executed any sale deed in favour of the complainant with regard to the allotment which they have made. On 30-05-2018 and on 25-06-2018 the complainant issued lawyer notice to the opposite parties requesting them to register the allotted plot in favour of the complainant, but to this date, the opposite parties are not ready to fulfill their assurance. Since the opposite parties are not started any development work in the so-called villa project, the complainant is not interested in the said project and she is entitled to get back the amount due to her interest from the opposite parties. The above said action on the part of the opposite parties clearly amounts to unfair trade practice and deficiency in service on their part. The complainant had suffered great Mental Agony and hardship due to the action of the opposite parties and she is entitled to get adequate compensation from the opposite parties. The complainant had approached the Commission seeking an order directing the opposite parties to refund Rs.46,52,405/- to the complainant towards the amount paid for the villa project along with interest from 25-04-2017 till realization, to pay a sum of Rs.2,50,000/- as compensation for the deficiency in service and unfair trade practices committed by the opposite parties, the mental agony and hardship suffered by the complainant and the cost of the litigation.
2) . Notice
Notices were issued from the Commission to the opposite parties, but the notices were not served. The commission had allowed serving notice to the opposite parties by paper publication. Even after the paper’s publication, the opposite parties have not entered their appearance before the commission and have not filed their versions. Consequently, the opposite parties are set ex-parte.
4). Evidence
The complainant had filed a proof affidavit and 5 documents that were marked as Exhibits-A-1- to A-5.
Exhibit A-1: Letter Dated 27-02-2017 issued by the opposite parties to the complainant
Exhibit A-2: Letter dated 25-04-2017 issued by the opposite parties to the complainant.
Exhibit A-3: Allotment Letter Dated 23-05-2017 issued by the opposite parties to the complainant.
Exhibit A-4: Copy of Lawyer Notice dated 30-05-2018 along with the postal receipt.
Exhibit A-5: Copy of the lawyer notice dated 25-06-2018 along with the postal receipt.
5) The main points to be analysed in this case are as follows:
i) Whether the complaint is maintainable or not?
ii) Whether there is any deficiency in service or unfair trade practice from the side of the opposite parties to the complainant?
iii) If so, whether the complainant is entitled to get any relief from the side of the opposite parties?
iv) Costs of the proceedings if any?
6) The issues mentioned above are considered together and are answered as follows:
As per Section 2 (1) (d) of the Consumer Protection Act,1986, a consumer is a person who buys any goods or hires or avails of any services for a consideration that has been paid or promised or partly paid and partly promised, or under any system of deferred payment. The complainant had produced a copy of the Allotment Letter Dated 23-05-2017 issued by the opposite parties to the complainant (Exhibit A-3). This document revealed that the complainant had paid the requisite consideration for the product to the opposite parties. Therefore, we are only to hold that the complainant is a consumer as defined under the Consumer Protection Act, of 1986 (Point No. i) goes against the opposite parties.
Learned counsel for the complainant submitted that the opposite parties issued a booking letter to the complainant on 27/02/2017 and thereby allotted villa No. 14 to me in their project called "Hest Hill Village'. Kalamassery and the said booking letter dated 27/02/2017 issued by the opposite parties to the complainant (Exhibit A-1). On 23/05/2017, the opposite parties again issued an allotment number to the complainant, intimating about the allotment of plot No. 14 to the complainant in their above-mentioned project, and in their said letter, the opposite parties had clearly stated that a sum of Rs. 46,16,341/- was due to the complainant from them. Thus, the said admission on the part of the opposite parties themselves proved that they have received a consideration of Rs. 46,16,341/- from the complainant and allotted plot No. 14 having an extend of 4.7 cents to the complainant (Exhibit A-2).
The opposite parties issued a letter dated, 25/04/2017 to the complainant in which they had intimated that as per their accounts, an amount of Rs. 46,52,405/- was the amount due on, 25/04/2017 (Exhibit A-3). The opposite parties have not started any constructions or developments in the so-called villa project so far and have not even executed any sale deed in, the complainant’s favour with regard to the allotment of land, which they have assured. The above said action of the opposite parties clearly amounts to a deficiency in service and unfair trade practice on their part. The complainant has suffered great mental agony and hardship due to the above-mentioned action of the opposite parties. The opposite parties failed to perform their part, the complainant had issued a lawyer's notice on 30/05/2018 to the opposite parties and thereby requested them to register the allotted plot in the complainant’s name. But to this date, there is no response from the opposite parties (Exhibit A-4). It is submitted that again the complainant had sent another lawyer's notice on 25/06/2018, to the opposite parties and requested the registration of the plot in favour of the complainant. But to this date, there is no positive action from the side of the opposite parties (Exhibit A-5). The notices were issued from this Commission through paper publication, the opposite parties have not entered appearance before this Commission and accordingly, this Commission made them ex-parte. The opposite parties are not disputing the complainant’s pleadings and to this date, no rival contentions have been made before this Commission from the side of the opposite parties. Thus, it is clearly proved that the opposite parties are admitting the complainant’s pleadings.
The complainant has filed the Proof Affidavit and 5 documents all in support of his case. But the opposite parties did not make any attempt to appear in the case and participate in the above proceedings before this commission and did not make any attempt to file their versions.
The opposite parties’ conscious failure to file their written version in spite of having received the Commission’s notices to that effect amounts to an admission of the allegations levelled against them. Here, the case of the complainant stands unchallenged by the first and third opposite parties. We have no reason to disbelieve the words of the complainant. The Hon’ble National Commission held a similar stance in its order dated 2017 (4) CPR page 590 (NC).
The opposite parties have inadequately performed the service as contracted with the complainant and hence there is a deficiency in service, negligence, and failure on the part of the opposite parties in failing to provide the complainant’s desired service which in turn has caused mental agony and hardship, and financial loss, to the Complainant.
We found the issue Nos. (II), (III) and (IV) 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, hardships, financial loss, etc. due to the negligence on the part of the opposite parties.
In view of the above facts and circumstances of the case, we are of the opinion that the opposite parties are liable to compensate the complainant.
Hence the prayer is partly allowed as follows:
- The opposite parties shall refund Rs.46,52,405/- to the complainant towards the amount paid for the villa project along with interest @5.5% from 25.04.2017 (Date of payment) till the date of realization.
- The opposite parties shall pay Rs.1,00,000/- as compensation for the deficiency in service and unfair trade practices committed by the opposite parties and the mental agony and hardship suffered by the complainant.
- The opposite parties shall also pay the complainant Rs.10,000/- towards the cost of the proceedings.
The opposite parties be jointly and severally liable for the above-mentioned directions which shall be complied with by the Opposite Parties within 30 days from the date of the receipt of a copy of this order failing which the amount ordered vide (ii) above also shall attract interest @9 % from the date of receipt of a copy of this order till the date of realization.
Pronounced in the Open Commission this the 31st day of May 2023.
Sd/-
D.B.Binu, President
Sd/-
V.Ramachandran, Member
Sd/-
Sreevidhia.T.N, Member
Forwarded by Order
Assistant Registrar
APPENDIX
Complainant’s Evidence
Exhibit A-1: Letter Dated 27-02-2017 issued by the opposite parties to the complainant
Exhibit A-2: Letter dated 25-04-2017 issued by the opposite parties to the complainant.
Exhibit A-3: Allotment Letter Dated 23-05-2017 issued by the opposite parties to the complainant.
Exhibit A-4: Copy of Lawyer Notice dated 30-05-2018 along with the postal receipt.
Exhibit A-5: Copy of the lawyer notice dated 25-06-2018 along with the postal receipt.
C.C.No.344/2020
Order dated 31.05.2023
