KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

VAZHUTHACAUD, THIRUVANANTHAPURAM

APPEAL No. 69/2021

JUDGMENT DATED: 19.12.2022

(Against the Order in C.C. 112/2019 of CDRF, Palakkad)

PRESENT:

HON’BLE JUSTICE SRI. K. SURENDRA MOHAN    : PRESIDENT

SRI.T.S.P. MOOSATH                                                       : JUDICIAL MEMBER

SRI.RANJIT. R                                                                   : MEMBER

SMT. BEENA KUMARY. A                                              : MEMBER

SRI. RADHAKRISHNAN K.R.                                        : MEMBER

APPELLANT:

M/s Manjooran Housing Development Co. Pvt. Ltd., J & R Complex, First Floor, Adjacent to Muthoot Honda, N.H. Road, Mamangalam, Palarivattom, Cochin-25 represented by its Managing Director Joy Jo Manjooran.

    (By Advs. George Cherian Karippaparambil & S. Reghukumar)

                                                Vs.

RESPONDENTS:

1. Vinod Gopalakrishnan, Shreyas, Thenidukku, Paruvaserry, Palakkad-678 686.

2. Sreeja Vinod, Shreyas, Thenidukku, Paruvaserry, Palakkad-678 686.

                             (Party in person)

JUDGMENT

HON’BLE JUSTICE SRI. K. SURENDRA MOHAN : PRESIDENT

The opposite party in C.C. No. 112/2019 is the appellant.  The appellant is aggrieved by an order dated 30.10.2020 of the Consumer Disputes Redressal Forum, Palakkad (District Forum for short), allowing the complaint.  As per the order of the District Forum, the appellant has been directed to refund an amount of Rs. 4,10,000/- to the complainants who are the respondents herein, with interest thereon @ 10% per annum from 27.08.2010 till realization.  A further amount of Rs. 2,05,000/- together with Rs. 16,794/- being the interest paid by the respondents to the State Bank of India, Vadakkancherry Branch has also been directed to be returned.  In addition, an amount of Rs. 15,000/- is directed to be paid as compensation and an amount of Rs. 5,000/- as costs. 

2.  The appellant is a builder.  The respondents had jointly entered into an agreement with the appellant on 01.09.2010 for the purchase of a residential apartment described as 4A3 having a built up area of 820 sq.ft. on the 4^th floor of an apartment complex by name ‘Rowan Park’ along with a covered car park and a right to the use of common amenities provided in the tower and 1/220 undivided rights over the land having an extent of 115 cents in survey No. 399/7 part 401 in Kakkanad Village for a total sale consideration of Rs. 20,50,000/-.  The sale price was payable in 10 instalments linked to the progress of the construction as specified in the contract agreement.  An amount of Rs. 4,10,000/- representing 20% of the total cost of the apartment was paid by cheque No. 050341 of the Bank of India and cheque No. 449841 of the South Malabar Gramin Bank, both dated 27.08.2010.  A housing loan of Rs. 19,60,000/- was negotiated and sanctioned by the State Bank of India, Vadakkancherry Branch on 08.03.2011.  An amount of Rs. 50,000/- was incurred by the respondents to meet the incidental expenses at various stages of finalization of the bank loan.  A tripartite agreement between the builder, Bank and the respondents was executed on 05.02.2011.  As per the agreement, the amount was to be paid to the builder periodically on the basis of the progress in the construction.  Accordingly, an amount of Rs. 2,05,000/- was paid by the bank directly to the builder on 08.02.2011. However, the appellant did not complete the construction as stipulated in the contract agreement within 36 months from the date of the agreement.  The construction ought to have been completed and the apartment handed over to the respondents by September 2013, which was not done.  In the above circumstances, the bank closed the loan account of the respondents on 03.12.2013.  The loan amount of Rs. 2,05,000/- transferred by the bank to the builder directly as stated above was repaid by the respondents along with an amount of Rs. 16,794/- charged by the bank as interest on 10.12.2013.  Thus the respondents had to pay a total amount of Rs. 2,21,794/- to the bank.  A lot of correspondence followed between the parties regarding repayment of the amounts received from the respondents but, nothing materialized.  It was in the above circumstances that the respondents approached the District Forum with the complaint, seeking return of the amounts due to them. 

3.  The complaint was admitted by the District Forum and notice was issued to the appellant.  The appellant had received notice but did not appear or file version.  Therefore the appellant was set ex-parte. 

4.  The respondents filed proof affidavit and marked Exts. A1 to A5 documents. After the close of evidence, the complainants were heard.

5.  On a consideration of the evidence, the District Forum found that the case of the respondents was proved by the evidence on record.  Therefore, the complaint has been allowed, as stated above. 

6.  According to Adv. George Cherian Karippaparambil who appears for the appellant, the order of the District Forum is wrong, unsustainable and liable to be set aside.  It is contended that, it was due to non-receipt of notice that the appellant had not appeared before the District Forum.  The person who was in charge of the affairs of the company had left their service.  Consequently, the notice received from the District Forum was not brought to the attention of the appellant.  The counsel therefore vehemently contends that the order of the District Forum may be set aside and the case be remanded for fresh disposal. 

7.  The 1^st respondent who has appeared in person vehemently opposed the contentions of the appellant.  According to him, the attempt of the appellant is only to protract matters with the object of not returning the money paid by the respondents.  Since the appellant had not filed version despite receipt of notice from the District Forum, it is not permissible in law to provide any further opportunity to contest the case.  According to the 1^st respondent, the case pleaded in the complaint has been proved to the hilt by the evidence on record.  It was for the said reason that the District Forum had allowed the complaint.  There is no infirmity in the order of the District Forum that justifies an interference with the same in appeal.  Therefore, he seeks dismissal of the appeal. 

8.  We have considered the contentions advanced before us, anxiously.  Ext. A1 is the original agreement entered into between the parties.  It is clear from the terms of the agreement that the appellant had undertaken to construct and hand over possession of the apartment described as 4A3 on the 4^th floor of the apartment complex by name ‘Rowan Park’.  The total cost agreed upon was Rs. 20,50,000/-.  The apartment is fully described in Schedule B of Ext. A1 agreement.  The construction of the apartment was to be completed within a period of 36 months from the date of the agreement.  Pursuant to the agreement, the respondents had paid a total amount of Rs. 4,10,000/- on 27.08.2010.  Ext. A2 series receipts issued by the appellant evidence payment of the said amount.  The balance sale consideration was raised by the respondents by availing a home loan from the State Bank of India.  For disbursement of the said loan amount, a tripartite agreement Ext. A4 was entered into between the appellant, State Bank of India and the 1^st respondent. As per the terms of the said agreement, the loan amount was to be disbursed directly to the builder periodically, depending on the progress of the construction.  Accordingly, an initial amount of Rs. 2,05,000/-was paid by the bank to the builder.  Since there was no progress in the construction, the loan was closed by the bank in December 2013.  The amount of Rs. 2,05,000/- had to be repaid by the 1^st respondent with interest, as evidenced by Ext. A5 bank statement.  Thus, the complainants have proved the paymentsmade by them to the appellant by the evidence on record.  It is not in dispute that the appellant had not completed the construction of the apartment as agreed in Ext. A1 agreement.  The complainants had to go through a lot of hardships and mental agony as a consequence of the misdeeds of the appellant.  Their conduct amounts to deficiency in service and unfair trade practice as found by the District Forum.  Therefore, the order of the District Forum is only to be confirmed. 

9.  Though the counsel for the appellant has made a fervent appeal for a remand of the case to the District Forum for fresh disposal after affording an opportunity to the appellant to file version and to adduce evidence, we are not inclined to do so.  The appellant has admittedly omitted to file version within the statutory time limit though they had received notice from the District Forum.  According to the dictum of the Apex Court in New India Assurance Co. Ltd. Vs. Hilli Multipurpose Cold Storage Pvt. Ltd. (2020)5 SCC 757. The proper course to be adopted in such a case is to declare such opposite party ex-parte and to proceed to decide the case on the basis of the evidence produced by the complainant.  The procedure adopted by the District Forum is exactly in accordance with the dictum of the Apex Court.  To accede to the request of the counsel for the appellant would also cause grave injustice to the respondents who have been suffering mental agony and hardships for more than a decade now. 

In the facts and circumstances of the case, we find that the compensation awarded and the costs ordered to be paid are only reasonable and require no modification.  The order of the District Forum is therefore confirmed.  This appeal is accordingly dismissed with costs fixed at Rs. 5,000/-.

JUSTICE K. SURENDRA MOHAN  : PRESIDENT

                                                             T.S.P. MOOSATH  : JUDICIAL MEMBER

                                     RANJIT. R                : MEMBER

                                                                                                                BEENA KUMARY. A         : MEMBER

jb                                                                                                            RADHAKRISHNAN K.R.  : MEMBER