KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION

VAZHUTHACAUD, THIRUVANANTHAPURAM

APPEAL No.593/2018 & APPEAL No.655/2018

JUDGEMENT DATED: 13.12.2023

(Against the order in C.C.No.400/2012 of the CDRF, Thrissur)

PRESENT:

A 593/2018

APPELLANTS:

(by Adv. B.A. Krishnakumar)

Vs.

RESPONDENT:

(by Advs. M.R. Rajendran Nair & Suja Madhav)

A 655/2018

APPELLANT:

(by Advs. M.R. Rajendran Nair & Suja Madhav)

Vs.

RESPONDENTS:

(by Adv. B.A. Krishnakumar)

Common Judgement

SRI. AJITH KUMAR   D.  :  JUDICIAL MEMBER

          Both these appeals arose from the order of the Consumer Disputes Redressal Forum, Thrissur (the District Forum for short) in C.C.No.400/2012.  As per the order dated 21.07.2018, the District Forum had allowed the complaint and directed the opposite party to hand over possession of the apartment after completing the entire work within one month from the date of receipt of the copy of the order.  A further direction was also made to pay a sum of Rs.1,00,000/-(Rupees One lakh only) as compensation and Rs.10,000/-(Rupees Ten Thousand only) as costs of the proceedings.  An alternate relief was also granted in favour of the complainant that in the event the opposite party did not hand over possession of the apartment, the complainant would be entitled to get back Rs.16,00,000/-(Rupees Sixteen Lakhs only) along with interest @9% per annum from the last date of payment.

          2.       The opposite parties had filed appeal number A 593/2018 challenging the order of the District Forum. The complainant also filed A 655/2018 challenging the adequacy of the alternate relief granted by the District Forum.  Since both appeals arose from the same order they are disposed of by this common judgement.

3.       The averments contained in the complaint in short are as discussed below :

On 28.07.2016 the complainant had entered into an agreement with the opposite parties to purchase ¹/₄₄ undivided share of the petition scheduled property and get an apartment constructed in the fourth floor with a plinth area of 1082 sq.ft  including car parking area and the total consideration was fixed as 60,00,000/-(Rupees Sixty Lakhs only).  The consideration was inclusive of the stamp duty, registration and other charges.  The opposite parties had assured that they had obtained approval of the scheme for the construction of apartment complex in the name as “Top Builders”.  The property is described as A Schedule and the other amenities are shown as B Schedule.

 4.      The complainant had entered into the agreement with a view to provide this apartment as a gift to her elder son at the time of his marriage which was decided to be solemnised on 08.07.2012.  As per the stipulation in the agreement the opposite parties had to complete the work and give possession of the apartment on or before 20.01.2008 but they never completed the construction.  The complainant had paid the entire sale consideration as stipulated in the karar.  The complainant was constrained to pay the entire amount on account of the compulsion of the opposite parties.  But they never completed the work and handed over the building and did not execute the title deed in favour of the complainant.  On 16.03.2012 the complainant had caused issuance of a lawyer notice but there was no response from the side of the opposite parties.  The conduct of the opposite party in not complying with the stipulation in the agreement to hand over possession of the apartment amounts to deficiency in service and unfair trade practice.  Hence the complaint.

5.       The opposite parties entered appearance and filed version by refuting the allegations contained in the complaint.  But the execution of the karar and the payment made by the complainant were conceded.  According to them, the complainant had purchased the apartment for commercial purpose as she had other properties and she has been staying in another residential house.  They denied the averments in the complaint that the apartment was agreed to be purchased as a gift to the elder son of the complainant.  The opposite parties further denied the pleading with respect to the payment of the entire amount as stipulated in the agreement.  According to them, the construction was already over and they were ready to give possession of the same to the complainant and also to register the deed of the property.  But the complainant did not comply with the stipulations in the karar.  So the opposite parties are at liberty to cancel the agreement and to sell the apartment to third parties.

    6.   According to the opposite parties, there is no negligence or deficiency in service on their part.  They further contended that the complainant has got efficacious remedy by filing a complaint before the appropriate authority. She has no right to file a complaint before the Consumer Commission.  The opposite parties would seek for the dismissal of the complaint.

7.       On the side of the complainant her Power of Attorney Holder / husband was examined as PW1.  Exhibits P1 to P5, P6 series, P7 series and P8 were marked.  The opposite party had examined their Manager as RW1.  R1 was also marked on their side.  The opposite parties had challenged the order of the District Forum by stating that the finding of the District Forum that construction of the flat was not completed is based on no evidence.  According to them the District Forum ought to have accepted the contention advanced by the opposite parties that they had completed the construction.  They also assailed the finding of the District Forum that the complaint is barred by limitation as the same has been filed beyond the period of two years from the date of occurrence of the cause of action.  They also raised a contention that the complainant ought to have approached a Civil Court for the relief.

8.       Inadequacy of the alternate relief awarded is the challenge raised by the complainant.

 9.      Heard both sides.  Perused the records received from the District Forum.  Execution of the karar is not disputed by the opposite parties.  Exhibit P1 is the agreement executed on 28.07.2006.  The entire amount covered by Exhibit P1 has been paid by the complainant.  The receipts evidencing the payment are endorsed in Exhibit P1.  The receipt of the amount is also not disputed.  According to the opposite parties the payment was delayed which fact is denied by the complainant.  The learned counsel appearing for the complainant had drawn our attention to the third page of Exhibit P1.  Payment schedule is incorporated in the third page of the karar.  Payments are contemplated at various stages.  The 1^st payment of Rs.4,00,000/-(Rupees Four Lakhs only)  had to be paid on the date of the karar.  The subsequent payment of Rs.4,00,000/-(Rupees Four Lakhs only) was to be made on or before the completion of the structure.  The third payment of Rs.4,00,000/-(Rupees Four Lakhs only)had to be made on or before registration.

10.     On going through the payment schedule it cannot be stated that the payment was delayed.  So there is no substance in the argument advanced by the counsel for the opposite party that delay had occurred in making payments.  Exhibit P2 to P4 are the receipts evidencing the payments made by the complainant.  After paying the entire amount the complainant had caused issuance of a lawyer notice requesting the opposite party to hand over the apartment.  A copy of the above notice is marked as Exhibit P5.  Exhibit P6 series are the postal receipts and Exhibit P7 series are the acknowledgement cards.  Exhibit P8 is the work progress report.  Exhibit P8 does show that certain items of works were not completed.

11.     The complainant has got a specific case that even after receiving the entire amount covered by Exhibit P1, the opposite parties had declined to fulfill the stipulations contained in the agreement in completing the construction and handing over possession of the same to the complainant.  As per the stand taken by the opposite parties, it could be seen that they had completed the construction of the Villa and it was ready to hand over to the complainant. According to the opposite parties, there is no evidence made available to the District Forum by the complainant to substantiate her contention that the construction of the apartment was not completed.  As long as the burden is on the part of the complainant to prove the failure on the part of the opposite parties in completing the construction, no deficiency in service could be charged against them.  Here assertion is made by the opposite parties that construction of the apartment is already completed.  When a person asserts a particular aspect, the burden is always upon such party.  It is the burden of the opposite parties to take out a Commission and establish that they have completed the construction of the apartment and it is ready to hand over to the complainant.  No steps have been taken by the opposite parties to prove that they have performed their part of the contract and hence deficiency in service could be attributed against them.  The conduct of the opposite party in not responding to the notice issued by the complainant is significant.  If the stand taken by the opposite party that the construction was already completed and ready to hand over possession of the apartment, one would expect the opposite party to intimate the complainant in response to Exhibit P5 that the apartment is ready for handing over.  The failure on the part of the opposite party to respond to Exhibit P5 is a clear indication that the construction of the apartment was not completed as claimed in the version filed by the opposite parties.  The plea of limitation will not sustain as the opposite parties had refused to hand over possession of the apartment though they had received the entire consideration as agreed in Exhibit A1.

12.     The legal position in this regard has been settled by the Apex Court in a ruling reported in Latha Construction and Other Vs. Dr. Rameshchandra Ramniklal Shah 2001 SCC 586.  Apex Court, by interpreting Section 24(A) of the Consumer Protection Act, 1986 had observed that if the parties under the agreement are not disputing the karar the builder is under an obligation to provide a flat to the complainant and deliver possession thereof to them. On failure to do so a continuing cause of action arises.  So the plea of limitation as contended in the version filed by the opposite party is found unsustainable. 

          13.     The opposite parties had raised another contention that the transaction alleged in the complaint is commercial in nature and so a complaint under the Consumer Protection Act is not maintainable.  In this connection, a ruling of the Apex Court reported in Sanjay Bai Vs. Vipul Ltd & Anr. 2019 KSC 6500 is beneficial.  It was in respect of a complaint alleging  execution of the agreement of four flats booked by the complainant.  Complaint was dismissed on the ground that booking of the flats was intended for commercial purposes.  The Apex Court had interpreted the legal position that even if an individual has booked four flats, that by itself cannot be taken as a circumstance to understand that the same was made for commercial purpose.  Here there is a specific recital in the complaint that the complainant had entered into an agreement for the purchase of the flat to be given to her elder son as a gift at the time of his marriage.  There is absolutely no evidence to come to a conclusion that the purchase of the flat was intended for a commercial purpose.  But on the contrary, there is specific pleading that the proposed flat was intended to be given as a gift to the elder son in connection with his marriage.  So the contention raised by the opposite party that the purchase was effected for commercial purpose is also found unsustainable. 

          14.     The evidence on record would convincingly establish that the opposite parties had declined to complete the construction of the Villa and hand over possession of the said premises to the complainant after receiving the entire consideration.  The conduct of the opposite party in this context is a clear case of deficiency in service and unfair trade practice. The District Forum had appreciated the evidence in its correct perspective. It had reached a logical conclusion on the basis of the materials on record.  We do not find any reason to interfere with the order passed by the District Forum.  The appeal filed by the opposite party lacks merits and it is liable to be dismissed.

          15.     The complainant would contend that the rate of interest awarded in the alternate relief is inadequate.  The District Forum had directed the opposite parties to refund Rs.16,00,000/-(Rupees Sixteen Lakhs only) and to pay 9% interest.  According to the complainant the District Forum ought to have awarded a higher rate of interest by taking into account of the hike in the land value and the construction cost of the apartment.  The learned counsel for the complainant would also submit that the compensation awarded by the District Forum is inadequate. We have gone through the complaint.  In fact, the complainant never claimed an alternate relief.  The relief sought for is only to direct the opposite parties to hand over possession of the apartment and for due registration of the undivided share of the landed property in favour of the complainant.  Though no default clause was incorporated in the complaint, the District Forum was inclined to mould an alternative relief. The rate of interest awarded by the District Forum @ 9% appears to be reasonable.  So we do not find any reason to make any modification in respect of the rate of interest awarded by the District Forum. The District Forum had already awarded Rs.1,00,000/-(Rupees One Lakh only) as compensation which is the claim raised by the complainant in the complaint.  So the challenge raised by the complainant regarding the inadequacy of the interest and the compensation awarded by the District Forum is found as devoid of any merits.  So the appeal filed by the complainant is also liable to be dismissed. 

          In the result, both the appeals are dismissed.  The order passed by the District Forum is confirmed.  Parties shall bear their respective costs.

SL