KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

VAZHUTHACAUD, THIRUVANANTHAPURAM

C.C. No. 102/2018

JUDGMENT DATED: 25.07.2023

PRESENT:

SRI.D. AJITH KUMAR                                                     : JUDICIAL MEMBER

SMT. BEENA KUMARY. A                                              : MEMBER

COMPLAINANTS:

1. Thulasidharan T., S/o Thankappan Achari, ‘Aiswarya’, Amaravila, Thiruvananthapuram-695 122.

2. Anitha S.R., W/o Thulasidharan T., ‘Aiswarya’, Amaravila, Thiruvananthapuram-695 122.

(By Adv. Narayan R.)

                                                Vs.

OPPOSITE PARTIES:

1. M/s Heera Constructions (P) Ltd., Corporate Office, Heera Park, M.P. Appan Road, Vazhuthacaud, Thiruvananthapuram-695 014 represented by its Managing Director.

2. Abdul Rasheed @ A.R. Babu, Managing Director, M/s Heera Constructions (P) Ltd., Heera Golf Links Road, Kowdiar, Thiruvananthapuram-695 003.

(By Adv. A. Santhosh Kumar for OPs 1 & 2)

3. Greenwood Homes and Resorts, represented by its Managing Partner K.K. Mathai, S/o Kunju Ninan, Alumoottil House, Pidavoor, Pathanapuram, Kollam-689 695.

4. K.K. Mathai, S/o Kunju Ninan, Managing Partner, Greenwood Homes and Resorts, Alumoottil House, Pidavoor, Pathanapuram, Kollam-689 695.

5. K. Mamachan, Partner, Greenwood Homes and Resorts, Alumoottil House, Pidavoor, Pathanapuram, Kollam-689 695.

6. Dr. S. Habeeb, S/o Sikandar, Partner, Greenwood Homes and Resorts, 522 B, 1^st Main Road, Sasthri Nagar, Adayar, Chennai-600 020.

7. T.G. Gopinathan, S/o T.A. Govindan, 4/212, M.G. R. Road, Palavakkam, Chennai-600 041.

(By Adv. V. Ajakumar for OPs 3 to 7)

JUDGMENT

SMT. BEENA KUMARY. A : MEMBER

          The complainants are husband and wife.  The complaint relates to deficiency in service and unfair trade practice on the part of the opposite parties in not completing construction and handing over to the complainants an apartment booked with the opposite parties by the name and style ‘Heera Four Pillars’ in spite of paying huge amounts, more than 85% of the total agreement value.  The opposite parties 1 & 2 are builders, while opposite parties 3 to 7 are having absolute ownership, possession and enjoyment of the property where the builders proposed to construct Heera Four Pillars.  The opposite parties 3 and 4 had entered into a joint venture agreement with the opposite parties 1 & 2 for the construction of a building project by name Heera Four Pillars.  Opposite parties 3 and 4 were partners and co-adventures in the building/apartments to be constructed by the 1^st and 2^nd opposite parties.  Attracted by the offers made by the opposite parties of an apartment project launched in the name and style Heera Four Pillars at Killippalam in Thycaud Village the complainants decided to purchase an apartment in the said flat complex.  Accordingly an apartment having 1145 sq.ft. in the 5^th floor bearing No. 5B of Tower IV in Heera Four Pillars was allotted to the complainants.  The total agreed value of the apartment was to be Rs. 49,80,375/- inclusive of one car parking slot.  Additional charges inclusive of KSEB, KWA, reticulated gas connection video door phone were also proposed by the opposite parties.  Thus the gross price of the apartment was Rs. 54,72,978/-.  However, the additional charges were to be paid only after completion of the apartment.  At the time of booking the complainants had paid an amount of Rs. 11,00,000/-.  On the same day another amount of Rs. 9,00,000/- was also made through a post-dated cheque dated 15.06.2014.  The said amount too was encashed by the opposite parties in due course. On 03.07.2014 the agreement for sale and construction was entered into between 1^st complainant and opposite parties 1 & 2 whereby opposite parties promised to finish construction within 36 months from the date of agreement with a grace period of additional 6 months.  That is under any circumstances, the apartment was to be completed and sale deed was executed by 03.01.2018.  The original document is with opposite parties 1 & 2. For the purchase of the apartment 1^st complainant availed a loan of Rs. 40,00,000/- from SBI, Kowdiar Branch.  On 11.07.2014 another amount of Rs. 22,00,000/- was also paid to the opposite parties.  Between July 2014 and August 2015 an additional amount of Rs. 9,67,091/- was also paid to the opposite parties.  That is by August 2015out of the total  amount of Rs. 49,80,375/-, an amount of Rs. 42,67,091/- was paid by the complainants to the opposite parties.  That is more than 85% of the agreement amount was paid by the complainants.  But the work did not go ahead as scheduled.  Contrary to what was assured the opposite parties unilaterally began to move away from their assurance.   The project was never on track.   Whenever the complainant used to contact the opposite parties they would pacify the complainants that the apartment would be handed over to them at the earliest.  But there has been no manifest work done in the apartment complex since September 2015.  The work has virtually come to a standstill.  On 18.01.2017 another e-mail was issued by the opposite parties assuring delivery of the apartment by last quarter of 2017.  However these words also prove futile.   There was never any action on the words stated.  The opposite parties contacted the complainants and stated that work can be proceeded with only after the registration of the apartment into their names by the opposite parties 3 to 7.  Accordingly, an amount of Rs. 6,000/- was paid by the complainants as registration charges.  But the work on the entire project has now come to a standstill.  On 30.06.2018 the opposite parties sent an e-mail acknowledging their delay of 15 months.  They wanted another 15 months period from September 2018 to make the apartments occupational.  The complainants did not believe the words of the opposite parties.  The complainant now fear that the project has become dead still and that the opposite parties have no intention to honour their commitments.   Being partners, joint venturers and co-adventurers, the opposite parties 3 to 7 too are jointly and severally liable with the opposite parties 1 and 2 in the failure to finish construction and hand over possession and execution of the sale deed of the apartment bearing No. 5 B in Tower 4 of Heera Four Pillars.  Further registration charges too have been collected by the opposite parties.  The action of the opposite parties tantamount to unfair trade practice and deficiency of service as defined in the Consumer Protection Act, 1986.  Under these circumstances the complainants have approached this Commission to seek redressal of their grievances. 

2.  Opposite parties 1 & 2 entered appearance, but they did not file version.  Hence they were set ex-parte.   Opposite parties 3 to 7 filed version.  The contentions raised by the opposite parties are that the complaint against 3 to 7 is not maintainable.  It is the settled position of law that land owners of a joint venture project are not liable to a consumer who has entered into a contract with the builder for purchase and construction of a flat.  The land owners who have allowed a developer to develop their land under a specific contract is not rendering any service to the customer or the builder and against them no complaint is maintainable before a Consumer Forum.   The complainants have not paid any amount to opposite parties 3 to 7 and no reliefs can be claimed against them.  They further stated that they are not aware of the details of the contract allegedly entered into with the complainants and opposite parties 1 & 2 and they are not parties to the said contract and they have no privity of contract in respect of the alleged contract.  They stated that they are totally unnecessary parties in this complaint and they are impleaded with the sole intention of harassing them.  Hence they prayed for dismissal of the complaint against them. 

          3.  1^st complainant has filed proof affidavit for himself and for and on behalf of 2^nd complainant and Exts. A1 to A12 series are marked from their side.  Opposite parties 3 to 7 did not adduce any evidence and not turned up to cross examine the complainant. 

4.  The following points arise for consideration:

1. Is the complaint maintainable?
2. Is there any deficiency in service or unfair trade practice on the part of the opposite parties as alleged in the complaint?
3. If so, reliefs and costs.

5.  Point (i):- The complaint is against the opposite parties for the delay in construction and handing over of the apartment against the terms and conditions of the agreement executed between the complainants and opposite parties 1 & 2.  The complainants have paid an amount of Rs. 42,67,091/- out of the total amount of Rs. 49,80,375/- to the opposite parties 1 & 2 within the specified period.  But the opposite parties did not take any steps to complete the project.  Date of agreement was 03.07.2014.  As per the terms of the agreement the opposite parties will hand over the building within 36 months from the date of agreement with a grace period of additional 6 months.  But till the date the project was not completed.  These are the facts of the complaint.  Hence the complaint is maintainable before this Commission on the ground that there is deficiency in service and unfair trade practice on the side of the opposite parties.

6.  But in this case opposite parties 1 & 2 and the complainants are the parties in the agreement.  The complainants have paid the entire amount to opposite parties 1 & 2.  Opposite parties 3 to 7 have no role in this dispute.  Hence the case against opposite parties 3 to 7 is not maintainable. 

7.  The complaint is maintainable only against opposite parties 1 & 2, i.e; the purchaser and promoter of Heera Four Pillars.  On 11.07.2014 the complainants had paid Rs. 22,00,000/- to the opposite parties, receipt for that amount is marked as Ext. A5.  As per Ext. A6 complainant had paid another Rs. 9,67,091/- to the opposite parties.  That is by August 2015 out of the total amount of Rs. 49,80,375/-an amount of Rs. 42,67,091/- was paid by the complainants to the opposite parties.  But the project was not completed since the opposite parties have not taken any steps to complete the work, as per the terms of the contract of agreement.  Exts. A7, A8 and A9 are the e-mail communication between the complainant and opposite parties.  As per the demand of the opposite parties the complainant had paid Rs. 6,000/- towards registration charges.  But they did not execute the sale deed. 

8.  In these circumstances the complainants have no other way except to file this complaint for the redressal of their grievances.  The complainants have successfully proved their case with ample evidence.  They have filed Exts. A1 to A12 series documents.  These documents proved the entire payments made by the complainants to the opposite parties 1 & 2.  Nowhere in the documents the names of the other opposite parties are mentioned.  The complainant paid the amounts within time.  But the opposite parties did not do the work as per the terms and conditions of the agreement thereby the complainants have suffered so much mental agony and financial loss.  There is unfair trade practice and deficiency in service on the part of opposite parties 1 & 2. 

9.  Points (ii) & (iii): Both these points are considered together for the sake of convenience.  The case of the complainants is that as per an agreement dated 03.07.2014 marked as Ext. A4 in these proceedings entered into between the 1^st and 2^nd opposite parties and the 1^st complainant.  The opposite parties agreed to construct and hand over possession of an apartment in the project by name ‘Heera Four Pillars’ at Killippalam, Thycaud Village.  Accordingly, an apartment having an area of 1145 sq.ft. in the 5^th floor bearing No. 5 B of Tower IV in Heera Pillars was allotted to the complainants.  The total agreed value of the apartment was to be Rs. 49,80,375/-inclusive of one car parking slot.  Copy of booking and allotment letter dated 29.05.2014 is marked as Ext. A1.  The complainant had paid Rs. 11,00,000/- on 29.05.2014 and that receipt is marked as Ext. A2.  On the same day the complainant had paid another amount of Rs. 9,00,000/- and that receipt is marked as Ext. A3.  As per the agreement the apartment was to be completed and the sale deed to be executed by 03.01.2018.

10.  It is not in dispute that the apartment has not been completed yet.  As per Ext. A4 agreement possession of the apartment was to be given before 03.01.2018.  Though more than 5 years have elapsed the opposite parties have not honoured their commitments.  In view of the above, the contention of the complainants that they are entitled to recover the amount paid by them with interest is fully justified. 

11.  It was the desire of the complainants to own a house of their own was declined by the act of the opposite parties.  It was to satisfy the said desire of the complainants that they had parted with such a huge amount, raising part thereof through a bank loan also.  The mental agony at losing their hard earned money and at the same time being unable to acquire their dream house cannot be trivialized.  Therefore the complainants shall be entitled to compensation for their sufferings which we fix as Rs. 3,00,000/-.

In the result, the complaint is allowed as follows:

1. The opposite parties 1 & 2 are directed to pay the complainants the amount of Rs. 42,67,091/- received from the complainant with 9% annual interest from 24.08.2015 from the date of total payment till the date of realization.
2. The opposite parties 1 & 2 are directed to pay Rs. 6,000/- to the complainant with 9% annual interest from 28.10.2017 till the date of realization.
3. The opposite parties 1 & 2 are directed to pay Rs. 3,00,000/- as compensation towards the mental agony and hardships suffered by the complainants.
4. The opposite parties 1 & 2 shall further pay an amount of Rs. 10,000/- as costs of the litigation. 

All the above amounts shall be paid within a period of one month from the date of receipt of the judgment, failing which all the amounts shall carry interest @ 9% per annum. 

            AJITH KUMAR  D. : JUDICIAL MEMBER

                                                                        BEENA KUMARY. A         : MEMBER                  

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C.C.No.102/2018

APPENDIX

1. COMPLAINANT’S WITNESS :

2. COMPLAINANT’S DOCUMENTS:

3. OPPOSITE PARTY’S WITNESS:

4. OPPOSITE PARTY’S DOCUMENTS:

AJITH KUMAR  D. : JUDICIAL MEMBER

 BEENA KUMARY. A  : MEMBER