JINS DIVAKARAN Vs. KALPAKA BUILDERS PVT. LTD

JUDGEMENT

(1.) A complaint filed under sec.12 of the Consumer Protection Act.

(2.) The case of the complainant is as follows;- The complainant is a resident of Thrissur District and working at Doha, Qatar. The opposite party is a company incorporated under the Companies Act, 1956, engaged in the business of constructing flats, apartments and villas. On the basis of the publicity given by the opposite party regarding construction of apartment by name "Katticaren J.M.J. Residency", the complainant intended to purchase an apartment in the said apartment building and he booked the apartment marked as J.13D. in 13th Floor having an area of 1640 sq.feet. He paid Rs. 50,000/- as advance and booked the aforesaid flat. The total sale consideration of the said apartment was fixed at Rs. 36,97,399/- with Owners Association deposit of Rs. 25,000/- and Rs. 1,25,000/- towards K.S.E.B connection charges, cabling cost and KWA charges. The complainant approached I.C.I.C.I. Bank for housing loan for purchase of the aforesaid apartment and informed the opposite party his intention to avail housing loan for the purpose of purchasing the apartment. It was also agreed to pay the entire consideration for the said apartment by availing the Housing loan. As per the request of the public Relation Officer of the opposite party the complainant has also paid Rs. 50,000/- on 29.10.2007. A total amount of Rs. 1 lakh was paid by the complainant to the opposite party for the said purchase of apartment J 13D in 13nth Floor of the Katticaren JMJ residency. The communications between the complainant and the opposite party would also reveal the fact regarding the oral agreement for purchase of the said apartment. On 19.2.2007, the opposite party sent E mail dated 17.12.2007 stating the booking of the flat stands cancelled. The complainant informed the opposite party regarding the non acceptance of the E- mail. The I.C.I.C.I bank sanctioned the loan on 7.1.2008 and the complainant has also informed the opposite party about the loan sanctioned by the bank. But the opposite party had not taken any steps to give the flat to the complainant. The opposite party was interested to avoid the complainant and to effect the sale of the said flat to some body else on higher amount. Subsequently the opposite party sent a cheque for Rs. 91,640/- to the complainant without the consent of the complainant. The entire works of the building was not completed and so the complainant could not approach the Hon?ble Forum for getting an order directing the opposite party to give the flat to the complainant. The complainant filed a suit before the Munsif Court, Ernakulam, as O.S. 486/08 for injunction restraining the opposite party from alienating the said flat to 3rd party during the completion of the work of the building. In the said suit, the complainant was examined and the Asst. Manager (marketing) of the opposite party was examined. On examination of the Assistant Manager on 26.9.2008, it was revealed that the construction work of the building was almost complete. Thus, the said suit was not pressed for availing proper remedy in the matter. The complainant is a consumer and the opposite party is service provider. The opposite party has adopted unfair and deceptive business practice. There is deficiency in the service of the opposite party. The complainant suffered loss and damages. So the complainant prayed for directing the opposite party to hand over the apartment 13 D in Katticaren JMJ Residency comprised in survey No. 281/ 2, 277/7, and 2180/1 of Ernakulam Villas in Kanayannoor Thaluk, to the complainant by receiving an amount of Rs. 38,47,399/- with other reliefs and cost of the complainant.

(3.) Notice was issued to the opposite party and they entered appearance and filed written version contending mainly as follows. The complainant paid an advance amount of Rs. 50,000/- and booked the apartment No. J. 13D in the 13th floor of the apartment by name JMJ Residency. He also paid a further sum of Rs. 50,000 by way of part payment. The complainant was given payment schedule and the draft agreements. The complainant was bound to execute the said agreements within 3 weeks of the booking of the flat. The complainant failed to pay the amounts as per the payment schedule given to him. The opposite party repeatedly requested the complainant to execute the agreement and to pay the amounts as per the payment schedule. But he did not agree to comply with the requests made by the opposite party. He disregarded the instruction of the opposite party with respect to purchase of the apartment. The opposite party had no other go but to cancel the booking. The complainant was informed of the cancellation. The complainant had given prior information about the intention of the opposite party to cancel the booking for the apartment. The opposite party had even given extension of time as required by the complainant. But the complainant failed to pay the amount as per the payment schedule, even after getting the time extended. The suit filed was dismissed as not pressed. The suit was not pressed after adducing evidence from both the sides. In fact, there was no cause of action for the complainant to file the present complaint. There was no deficiency in service or unfair or deceptive trade practice on the part of the opposite party. In fact, the complainant is not a consumer as defined in the C.P. Act. The opposite party returned the amount paid by the complainant after deducting the tax at source and the said amount was received by the complainant. The present complaint is filed with Malafide intention. Hence the opposite party prayed for dismissal of the complainant with their cost.