BEFORE THE CONSUMER DISPUTES REDRESSAL COMMISSION ERNAKULAM.

                               Dated this the 28^th day of December 2023.

          PRESENT:

Shri. D.B.Binu                                                 President

Shri.V.Ramachandran                                      Member

          Smt. Sreevidhia T.N                                         Member

 C.C. No.712/2016

Complainant

T.K.Kurian, S/o.T.K.Kurian, Flat No.2 A, KG Oxford Symphony, Kalavath Cross Road, Palarivattom, Cochin-682 025

(by Adv.S.Abhilash & Sreekanth, Himas Complex, Kombara Juntion, Cochin-18)

Vs.

Opposite parties

1. Sunitha M.Nichani, A903-Purva Atria, 56/3, 3^rd Main, I Block, RMM, 2 STG, aswathi Nagar, Dollars Colony, Banglore, Pin-560 094

(o.p1 rep. by Adv.Lal K Joseph, Adv.Luxy J.A., Kolliyil Building, Mullessri canal Road, Ernakulam)

2. Amit P. Kinger, No12, Bank Street, Kilpauk, Chennai-600 010
3. Ramesh Lal Narian Das Chawla, Manager, Oxford Sympkony, Kalavath Cross Road, palrivattom, Kochi-682 025
4. M/s.Kishor Kumar Gokaldas & Associates, Kalavath Cross Road, Palarivattom, Kochi-682 025

(ops 2 to 4 rep. by Adv.Philip J.Vettickattu, Philip J Vettickattu, Mathew & Mathews, High Court Road, Kochi-31)

O R D E R

V.Ramachandran, Member

This complaint is filed by T.K Kurian, K.G Oxford Symphony, Kalavath Cross Road, Palarivattom alleging deficiency of service and unfair trade practice from the side of the opposite parties. 

The gist of the complaint is as follows:

The complainant in response to an advertisement in Malayala Manorama daily visited directly the premises of the opposite party wherein the 4^th opposite party was constructing a residential complex in the name and style ‘KG Oxford Symphony’.  At the time of the visit, it seemed that almost all the works of the residential complex were completed.  In the office room set up by the 4^th opposite party, the complainant met with the 3^rd opposite party and upon enquiry informed the complainant that all the flats were sold out and there is nothing remaining for direct sale from the builders.  He also informed that one of the flats owned by the 1^st opposite party is for sale and if the complainant is interested he will pursue further with the 1^st opposite party for the purpose of sale.  The 3^rd opposite party at once informed that the key was with him and he will show the flat to the complainant and accordingly upon seeing the flat, which is almost completed, the complainant expressed his willingness to purchase the flat.  Thereafter, the 3^rd opposite party contacted the 1^st opposite party over phone and after negotiations both the parties agreed for a sale and the total sale consideration was fixed as Rs.31,00,000/-

          It is submitted that an agreement for sale of the flat 2 A in KG Oxford Symphony was executed on 09.02.2012 and the period for executing sale deed was fixed as 30.04.2012.  An amount of Rs.13,00,000/- was paid on 09.02.2012 and another Rs.13,00,000/- was paid on 28.03.2012.  It is also informed that the complainant is ready with the balance amount of Rs.5,00,000/- and he is ready and willing to execute the sale deed at any point of time thereafter.

          It is submitted that after receipt of Rs.13,00,000/- on 28.03.2012 the 1^st opposite party issued a letter on 29.03.2012 to the complainant stating that no objection certificate for the residential complex, KG Oxford Symphony has not been received so far from the Corporation of Kochi and therefore it is not possible to register the sale deed.  The 1^st opposite party issued the above letter after receipt of second payment made by the complainant and thereafter upon making enquiry the complainant have got information that there is a case pending against the 4^th opposite party alleging violation of Kerala Municipal Building Rules.  It is pointed out that the opposite parties are well aware that at the time of entering into the agreement with the complainant, there is a case pending and the property of the 1^st opposite party intended to sell to the complainant is not free from encumbrance.  In order to pursue the sale the opposite parties 2 to 4 made false statements regarding the completion of the residential complex and thereby cheated the complainant.

It is sad to submit that believing the words of the opposite parties, the complainant sold his house at Kaloor and thereafter forced to stay in a rented house.  At last on the basis of a regularization scheme introduced by the Government of Kerala, the 4^th opposite party paid huge penalty and regularized the illegal construction.  In the meantime the opposite parties 2 to 4 informed the complainant that they will keep everything ready by April 2015 and he will be able to start his residence from April 2015.  Accordingly the complainant, upon believing the words of the opposite parties 2 to 4 moved into the residential apartment and to his utter dismay realized that there is no other occupants in the flat since the same was not having a no objection certificate and electric and water connection.  The commercial electric connection and water connection granted at the time of construction was used for providing such facility to the complainant.  The work, construction, sanitary, painting, paving of tiles etc were not completed and the workers moving all around the complainant during his stay at the residential complex.  All schedule and brochure were not given and all requests by the complainant were turned down by the opposite parties 2 to 4.

The opposite parties 2 to 4 were failed to provide drinking water to the complainant and only supplied 20 liter can to the complainant.  The passenger lift meant for the building was not commissioned and the complainant has to depend on the stair cases.  KSEB connection to individual flats were not provided.  No generator wsa provided and it is hereby pointed out that the complainant and his wife’s life in the purchased flat was terrible for a period of 17 months from April 2015.  Now also there are works to be completed such as external paining, waste management, KWA water connection, Sewage treatment plant etc. The car parking space was not marked and not properly provided and handed over to the occupants.  It is also submitted that even after handing over of possession to the occupants no association was formed and handed over the deposits already collected by the 4^th opposite party for that purpose.  No meeting of the occupants were convened by the opposite parties 2 to 4 and also not handed over the administration to the occupants of the flat.

In this regard it is submitted that the complainants on various occasions approached the opposite parties 2 to 4 and requested the completion of the remaining works so as enjoy peaceful living in the flat purchased by him.  All such enquires and requests of the complainant were either not answered or turned down by the opposite parties 2 to 4.  Finally the complainant requested the 1^st opposite party who has sold the property to the complainant for sorting out the difficulties faced by the complainant.  The same is also not answered and she informed that she has nothing to do with the facilities which were not provided by the builder and it is only the responsibility of the builder to provide such facilities as per the brochure and being a purchaser of the property she is also stood in the same footage as of the complainant.  The complainant further issued a notice to the 1^st and 4^th opposite parties pointing out all the difficulties faced by him ever since the purchase of the property and the 1^st opposite party never cared to issue any reply to the letter but the 4^th opposite party issued a letter through 2^nd and 3^rd opposite parties denying all the contents of the letter issued by the complainant.  Thereafter the complainant issued a legal notice to the 1^st to opposite party which also not replied by the 1^st opposite party.  Therefore seeking for issuing direction to the opposite parties to pay an amount of Rs.9,51,912/- along with interest for the payment made by the complainant as early on 09.12.2012 to the complainant and to direct the opposite parties for payment of Rs.10 lakhs for delaying in delivering the flat to the complainant.

2)       Notice

          Upon notice from this Commission the opposite parties 1 to 4 appeared and filed their version. 

3) Version of the opposite parties

          The version of the opposite parties are taken together as follows:

          The opposite parties had not advertised in any newspaper for sale of the apartment.  It is understood that the complainant had approached the staff of the 4^th opposite party with intention of purchasing a flat and when pointed out that there was no apartment for sale in tune with the requirements, he made enquiries on his own and approached the opposite party offering to purchase her apartment.  Her husband being retired senior navy personnel and reasonably well placed financially, 1^st opposite party was in no necessity for such a sale.  The 1^st opposite party was also keen to honour the mutual commitments and promises exchanged with the builder as a result of likely delay in project for reasons beyond the control of builder. But inspite of same, that he had visited the apartment complex and was very much impressed by the quality of construction, facilities, location and reputation of builder and citing difficulties in maintaining an apartment from our place at Bengalure, complainant by his words had convinced this opposite party to sell the apartment to him.  Opposite parties 2 to 4 had no role in the sale transaction at any stage, except for the fact that upon knowing of the proposal, they  had tried to convince the complainant not to proceed with the sale at that stage, but with no result. 

          There is no truth or merit in the allegations that there was concealment of facts, misrepresentation and cheating committed on complainant by any of the opposite parties.  On the other hand it was the complainant who had shown keenness in purchasing a residential apartment in the very same building and undue haste in rushing through the formalities of sale even after intimations from this opposite party and the builder that there would be some delay in completion of the project due to certain unforeseen events and illegal obstructions made by some neighbours and greedy officials and beyond their control.  There was never any misrepresentation, breach of promise, violation of contract, deficiency in service or restrictive trade practice on their part.   It is also most unfair to blame them for the unexpected delay due to reasons beyond their control and to raise demands for matters beyond their permissible and statutory limits.

          The complainant was not involved in any direct transaction with the builder and the opposite party who had made the original purchase being convinced with the genuine reasons for the so called delay, had acknowledged same and willing to wait till completion of project within the extended time.  Same was also communicated to the complainant from the very beginning and he was also convinced and amenable for the same and the sale had taken place in such circumstances.  The opposite party also understand and convinced that the builder had opted for the regularisation scheme offered by authorities and had pumped in additional funds of their won, not because of any actual irregularity or mistake committed by them, but with an earnest desire of an earlier completion of the project and with good intention of providing early delivery of apartments to their customers.  The complainant being a subsequent purchaser and who could make any claim only by stepping into shoes of this opposite party and on condition that he would honour the mutual promises and commitments agreed upon by this opposite party, has absolutely no right to make wild allegations and raise demands based on fancied claims against the opposite party or the builder.

          Inspite of intimations and thereafter a communication in writing as to the likely delay in project and for the reason the opposite party may not be justified in further proceeding with the sale or rushing through its formalities, it was the keen interest and undue hurry of complainant in making payments that had compelled the opposite party for an early execution of sale deed.  Complainant was fully aware and moreover put to notice as to the actual situation and inspite of the same the sale has taken place, solely on his insistence and without any compulsion from anyone.  So much, so, there are absolutely no bonafides in the anxiety and concern now raised by complainant and he himself is to blame for whatever the consequences or inconvenience, if only any, pursuant to the sale.  There is also nothing within personal knowledge or belief of the opposite party to raise allegations of any nature against the builder, when they have fulfilled their promise to limits possible within their personal and statutory limits and even provided additional facilities to apartment owners, apart from what was originally promised in the original agreement with them.

          The complainant has moved in after the facilities as promised at that point of time being provided at the apartment and there are no merits in the allegation to the contrary.  Allegations that complainant was not provided with  necessary infrastructure and facilities at the time when you shifted to the apartment and even thereafter are also not correct.  Whether the complainant had moved to a rented accommodation after disposing his earlier property and the reasons for that are not known to the opposite party.  It is also not clear that when the apartment was ready with facilities as offered on that particular point of time and fit for occupation and enough amenities available, why the complainant has opted to move to a rented accommodation.  The opposite party believes that the same was because the complainant was not having real intention to occupy the apartment and had at that time the intention for resale of same for a profitable price, but changed mind realising that more profit could be made if he delays the sale further.  It may also be noted in the context that the market price of the apartment now is thrice the amount of sale consideration paid to me by the complainant.  The opposite party is also made to understand that the complainant also entertained some doubt that since the 1^st opposite party and her family was reluctant for the sale, if the deed is not executed at the earliest or if something unfortunate happens to the 1^st opposite party, the transaction would not materialise, jeopardising his investment plans.  The opposite party was also much irritated by such unfair thoughts and comments by the complainant, which also promoted her to execute the sale deed at the earliest. 

          It was upon the desire and insistence of complainant that 3^rd opposite party agreed to act as recipient for payments on behalf of the 1^st  opposite party The said person or other opposite parties had no role in the transaction and one of the same had acted on behalf of either complainant or this opposite party in the transaction.  It is also incorrect, the statement that the 1^st opposite party is a relative of the opposite parties 2 to 4.

          The demand of the complainant for return of sale consideration and damages with interest is most unjustified and illegal and not legally binding on the opposite party.  The complainant has not incurred any loss or damage, whatsoever be the nature, and never put to any difficulty or inconvenience due to any act of the opposite party.  There is also no legal or reasonable basis for such claims being raised by the complainant.  Not only that the clams are legally unsustainable and devoid of merit or cause of action, the much delayed claims are also unenforceable as being barred by limitation.  How and under what basis  a vendee could demand back the sale consideration form vendor of a legally valid sale without even any challenge against the deed or even a case that the sale is bad or to be set aside, is also a pertinent question to be answered by the complainant.  No such relation as between a dealer and consumer exist between complainant and the 1^st opposite party and no complaint under Consumer Protection Act would lie or maintainable against her.

          Above that the 3^rd opposite party had stated that the 3^rd opposite party is not a trade or service provider and there is no deficiency of service and unfair trade practice from their side.  The 3^rd opposite party is only working as Manager under 4^th opposite party and had not received salary from December 2016 to date and prayed to exempt him from the opposite party array since the 3^rd opposite party do not have any privity of contract with the complainant.  The Commission upon perusing the complaint, version and also deposition of PW1 given in box and also after perusing Exbts. A1 to A13 produced from the side of the complainant analyse the matter as follows.

4)       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)

On verification of the complaint and version, it is seen that the complainant had approached the opposite party in search of a flat and he was informed that one of the flat owned by the 1^st opposite party is left behind for the sale.  All the other flats were sold and therefore the complainant contacted the 1^st opposite party over phone and the 1^st opposite party agreed to execute sale for a consideration of 31,00,000/- (Rupees Thirty one lakhs only) and the complainant had paid an amount of Rs.26 lakhs as agreed mutually being the cost of the flat and there was a balance of Rs.5 lakhs and on 28.03.2012.  The complainant paid the 2^nd instalment of 13 lakh and then only he came to know that there was the case pending against the 1^st opposite party for alleging violation of Kerala Municipal Building Rules.  The opposite parties had not disclosed this fact to the complainant and had not executed the sale deed as promised by the opposite parties and therefore, the opposite parties had committed deficiency of service and unfair trade practice towards the complainant and the complainant had proved it with the support of Exbt.A3 which is a letter sent to the complainant by the 1^st opposite party.  Therefore, point No. (i) is found in favour of the complainant and therefore the following orders are issued. The complainant do not have a complaint that the flat has not been handed over by the opposite party but only that there occurred delay in handing over the flat and hence the complaint is decided accordingly.

1.  The opposite parties shall pay an amount of Rs.one lakh to the complainant as compensation for the delay in handing over the flat as promised.
2. An amount of Rs.10,000/- shall be paid as cost of the proceedings to the complainant.

Pronounced in the Open Commission on 28^th day of  December 2023.

                                                                                       Sd/-

                                                                   V.Ramachandran, Member

Sd/-

                                                                     D.B.Binu, President

                                                                                      Sd/-

                                                                     Sreevidhia T.N., Member

                                                                Forwarded by Order

Assistant Registrar

APPENDIX

Exbt.A1       :: copy of agreement

Exbt.A2       :; copy of letter dated 07.02.2012

Exbt.A3       :; copy of letter dated 29.03.2012.

Exbt.A4       ::.copy of brochure

Exbt.A5       :: copy of building plan

Exbt.A6       :: copy of letter dated 28.01.2015

Exbt.A7       :: copy of letter dated 26.11.2025

Exbt.A8       :: copy of letter dated 01.08.2016

Exbt.A9       :: copy of letter dated 24.08.2016

Exbt.A10      ::…………………………………

Exbt.A11      :: copy of lawyer notice

Exbt.A12      :: copy of complaint lodged by the complainant before the sub inspector of police, Palarivattom.

Exbt.A13      :; copy of sale deed.

Depositions  :

PW1            :: T.K.Kurian

Date of despatch   :

By Hand      ::        By Post