KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
VAZHUTHACAUD, THIRUVANANTHAPURAM
APPEAL No. 273/2020
JUDGMENT DATED: 16.01.2023
(Against the Order in C.C. 176/2018 of CDRF, Idukki)
PRESENT:
HON’BLE JUSTICE SRI. K. SURENDRA MOHAN : PRESIDENT
SRI.T.S.P. MOOSATH : JUDICIAL MEMBER
SMT. BEENA KUMARY. A : MEMBER
SRI. RADHAKRISHNAN K.R. : MEMBER
APPELLANTS:
- Sunitha Jose @ Sunitha Aji, Managing Partner, Agees Group, 31/204, Unnichira, Idappalli, Kochi. 682024.
- Sunitha Jose @ Sunitha Aji, Apartment No. 302, Kanjanjanga apartment, Palarivattam, Kochi- 682025.
- Aji. E, Kochuparambil, Managing Partner, Agees Group, Apartment No. 302, Kanjanjanga apartment, Palarivattam, Kochi. 682025.
- Aji. E, Kochuparambil, Kochuparambil Veedu, Vazhithala P.O.
(By Adv. C. R. Suresh Kumar)
Vs.
RESPONDENTS:
- Beena Jose @ Beena Joseph, Punnolil House, Njarackad, Kadavoor P.O, Kothamangalam, Pin. 686671.
- Joseph John Punnolil, Punnolil House, Njarackad, Kadavoor P.O, Kothamangalam, Pin. 686671.
(By Adv. K. G. Mohandas Pai)
JUDGMENT
SRI. RADHAKRISHNAN K.R.: MEMBER
This is an appeal filed under section 41 of the Consumer Protection Act 2019 against the order in C.C. No. 176/2018 passed by the Consumer Disputes Redressal Commission, Idukki (District Commission for short).
2. As per the order dated 29.11.2019 the District Commission directed the opposite parties to refund the entire amount of Rs. 18,50,513/- received from the complainants, with 18% interest per annum from 31-07-2009, the date of agreed delivery of the flat, till realisation. Opposite parties are further directed to pay compensation of Rs. one lakh and litigation cost of Rs. 10,000/- to the complainants within 30 days of receipt of a copy of the order, failing which the amount shall carry 12% interest per annum from the date of default, till its realisation.
3. The brief details of the complaint are as under:
The complainants are husband and wife. They booked a flat having 1569 square feet area in the 9th floor of the apartment named “Value View” constructed by the opposite parties in Olamattom Kara in Thodupuzha Village. The agreed price of the flat was Rs. 22,26,554/- + Rs. 1,25,000/- for car parking. The opposite party agreed to complete the construction on or before 31-07-2009 and the amount was payable in various instalments as per the agreement dated 30-03-2007. An amount of Rs. 18,50,513/- was paid by various instalments upto 31-07-2009. The flat was not completed and delivered within the time agreed by the opposite parties. There is a clause in the agreement which provides for payment of interest @ 18% if the flat is not delivered as agreed. Hence the complainants filed this complaint claiming interest at the rate of 18% for Rs. 18.5 lakhs for 108 months with compensation of Rs. 4 lakhs and legal expenses of 5,000/- .
4. According to the opposite parties who entered appearance and filed version, the complainants did not pay the amount in full as per the agreement and so they have also failed to comply with the terms of the agreement. They submitted that the complaint was filed long after the date agreed for completion of the flat. Hence the complaint was time barred. According to them they are not liable to pay interest and hence they prayed for dismissal of the complaint.
5. Complainant was examined as PW1 and documents P1 and P2 were marked on their side. There was no evidence on the side of the opposite parties. On the basis of the evidence adduced the District Commission passed the impugned order. Aggrieved by the said order the opposite parties have filed this appeal.
6. Heard both sides and perused the records.
7. The learned counsel for the appellant submitted that the complaint was barred by limitation as it was filed nine years after the proposed date of delivering the flat and that they did not pursue the matter for all these years. It was further submitted that the District Commission exceeded its authority by allowing the complaint and directing them to repay the amount paid with 18 % interest. The complainants have not prayed for refund of the amount paid for purchase of the flat. Their prayer is only for interest for the alleged delayed period of 108 months. The complainants are not eligible to claim the interest as they have also not performed their part of the agreement by paying the full amount of the flat as agreed ie. Rs. 24,26,554/-. The appellants had also suffered loss because of the non-payment of the balance amount by the respondents. The delay in completion of the construction was due to sudden change in the socio economic factors in the society and non-availability of certain materials. The delay was beyond their control and as the respondents are also equally responsible by non-payment of the balance amount. They prayed for setting aside the order of the District Commission.
8. The learned counsel for the respondent submitted that the flat should have been completed and handed over before 31-07-2009 as per the Ext P1 agreement. The balance amount was not paid as there was no progress in the construction of the flats. The matter was continuously followed up with the appellants. They were not at all cooperating by completing and handing over the apartment even after the date of agreed completion. Hence there is a continuing cause of action and so the complaint is not barred by limitation. The order of the District Commission is as per the terms of the agreement (Ext P1) entered into between the parties. Hence they prayed for dismissal of the appeal with costs.
9. We have examined the contentions on both sides and carefully perused the records. This is a case where the flat was not delivered even after the lapse of more than 9 years from the agreed date of handing over the flat. There are various decisions of the appellate courts highlighting the fact that those who book a flat cannot wait for unlimited time. So long as the flat is not fully constructed and handed over in time, the person who booked the flat has the right to approach the appropriate forum for redressal of his grievances. Hence we do not find any merit in the contention of the appellants that the complaint was barred by limitation.
10. Another contention of the appellant is that they are directed to refund the full amount paid with interest which is not a prayer in the complaint. Clauses 12 and 19 of the agreement dated 30-03-2007 (Exbt. P1), which are relevant in this regard, are re-produced below:
“12. The builder shall construct the said apartment together with all facilities aforesaid and try the utmost possible to finish the work on or before the 30th day of July 2009 and possession will be handed over within 30 days after completion provided the entire amount due to the builder and the owner from the purchaser shall be paid by the purchaser to the builder and the owner respectively. However any delay due to any act of God or due to any statutory regulations or non availability of building materials or any other reason beyond the control of the builder shall result in the extension of the said stipulated period of construction. “
“19. In case of any dispute the only right of purchaser is to receive back the instalments paid for the undivided share in the land and for construction of the said apartment after deducting 10% as aforesaid and the purchaser shall not interfere with or obstruct the construction but if the terms of the contract are not carried out by the builder on account of the default of the builder without any default on the part of the purchaser then the builder shall be liable to pay all the amounts received from the purchaser together with compound interest at the rate of 18% per annum from the respective dates of payment. “
11. From the clause 12 it is clear that the appellants are supposed to complete the construction and deliver the flat before 31-07-2009. The appellants are not able to prove that the inordinate delay in the completion of the project was due to any act of God or due to any statutory regulations or non availability of building materials or any other reason beyond the control of the builder. As per clause 19 they are liable to refund the amount with 18% interest if there is a default on the part of the builder.
12. Following observations made by the Hon’ble National Consumer Disputes Redressal Commission (NCDRC) in M/s Association PF flat Buyers in SRS Royal Hills Project and Ors Vs M/s SRS Real Infrastructure Ltd and Anr { 2022(4) CPR 515 (NC) } is relevant in this case: “In the instant case, there is an inordinate delay in handing over the possession of flat by OPs. OPs have failed to fulfil their contractual obligations of completing the construction and delivering the possession of flats to the buyers as per provisions of FBA(s) signed with them. OPs have not even bothered to enter appearance , file written statement/evidence etc, to contest the case, counter the facts as pleas taken by the complainant, or appraise this Commission about the status of the said project/it’s likely completion date etc. The Buyers cannot be made to wait for an indefinite time and suffer financially. Hence, the buyers in the present circumstances have a legitimate right to claim refund along with fair delay compensation/interest from the OPs”. In this case there is a clear deficiency on the part of the appellants /opposite parties in not honouring the commitments/fulfilling the contractual obligations as per the agreement. Hence we concur with the finding of the District Commission that there is deficiency in service on the part of the appellants/opposite parties.
13. Though there is no specific prayer for refund of the amount paid, the District Commission has ordered to refund the entire amount paid by the respondents/complainants with interest. We observe that District commission has exercised its authority to mould the reliefs considering the pleadings of the parties, evidence adduced and the circumstances of the case. The District commission ought to have stated these facts in the order passed by them. However there is no illegality and hence we do not find any error in this order of the District Commission.
14. We are of the view that the interest of 18% awarded by the District Commission on the refund amount of Rs. 18,50,513/- is on the higher side. Hence we reduce the same to 12% interest per annum. So the order passed by the District Commission is to be modified to that effect.
In the result, the appeal is partly allowed and the order dated 29.11.2019 in C.C. No. 176/2018 of the District Commission is modified by reducing the interest on the refund amount of Rs. 18,50,513/- from 31-07-2009 from 18% to 12% per annum. In all other aspects the order passed by the District commission will remain/stand intact. There is no order as to costs.
The appellants have deposited an amount of Rs. 25,000/- towards statutory deposit at the time of filing the appeal. The respondents/complainants are permitted to obtain release of the said amount on filing proper application. The balance amount due shall be paid by the appellants/ opposite parties within one month from the date of receipt of a copy of this order failing which the respondents / complainants are at liberty to initiate appropriate proceedings for executing the order.
JUSTICE K. SURENDRA MOHAN : PRESIDENT
T S P MOOSATH: JUDICIAL MEMBER
BEENA KUMARY. A : MEMBER
RADHAKRISHNAN K.R.: MEMBER
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