KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

VAZHUTHACAUD, THIRUVANANTHAPURAM

APPEAL No. 211/2023

JUDGMENT DATED: 20.04.2023

(Against the Order in C.C. 348/2016 of CDRC, Ernakulam)

PRESENT:

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

SRI. AJITH KUMAR D.                                                    : JUDICIAL MEMBER

SMT. BEENA KUMARY. A                                              : MEMBER

SRI. RADHAKRISHNAN K.R.                                        : MEMBER

APPELLANTS:

1. M/s Maruti Habitat and Realtors India Pvt. Ltd., XXIX/2720, Vaishnavi, Prashanthi Lane, Poonithura Village, Ernakulam, Kochi-682 317, represented by its Managing Director, V. Venkateswaran.

2. V. Venkateswaran, Managing Director, M/s Maruti Habitat and Realtors India Pvt. Ltd., XXIX/2720, Vaishnavi, Prashanthi Lane, Poonithura Village, Ernakulam, Kochi-682 317.

3. Girija Venkatesh, Director, M/s Maruti Habitat and Realtors India Pvt. Ltd., XXIX/2720, Vaishnavi, Prashanthi Lane, Poonithura Village, Ernakulam, Kochi-682 317.

                           (By Adv. Denny Varghese)

                                                Vs.

RESPONDENTS:

1. Manoj K. Mathew, S/o K.I. Mathew, Kaniyamparambil House, Puthenangady P.O., Kottayam-686 001.

2. Jasmi Manoj, Kaniyamparambil House, Puthenangady P.O., Kottayam-686 001.

3. Rajesh Memana, Director, M/s Maruti Habitat and Realtors India Pvt. Ltd., XXIX/2720, Vaishnavi, Prashanthi Lane, Poonithura Village, Ernakulam, Kochi-682 317.

4. Sankarasubbaaiyer Gopal, Director, M/s Maruti Habitat and Realtors India Pvt. Ltd., XXIX/2720, Vaishnavi, Prashanthi Lane, Poonithura Village, Ernakulam, Kochi-682 317.

5. Sunil Surendran, Director, M/s Maruti Habitat and Realtors India Pvt. Ltd., XXIX/2720, Vaishnavi, Prashanthi Lane, Poonithura Village, Ernakulam, Kochi-682 317.

6. K.S. Pradeep, Krishna Kripa, Kanjirakattu, Thiruvankulam P.O., Ernakulam-682 305.

7. K.S. Bindu, Krishna Kripa, Kanjirakattu, Thiruvankulam P.O., Ernakulam-682 305.

JUDGMENT

SRI. AJITH KUMAR D. : JUDICIAL MEMBER

This is an appeal filed by the opposite parties 1 to 3 in C.C. No. 348 of 2016 before the District Consumer Disputes Redressal Commission, Ernakulam (District Commission for short).

2.  The District Commission as per the order dated 28.01.2023 directed the appellants and other opposite parties to pay the complainants Rs. 10,50,000/- being the amount received by the opposite parties, to pay Rs. 10,000/- as compensation and Rs. 5,000/- costs.

      3.  The complainants are the respondents 1 & 2 and the other opposite parties are the remaining respondents in the appeal.

 4.  The allegations contained in the complaint in brief are that the 1^st opposite party is a Company by name “Maruti Habitat & Realtors India Pvt. Ltd.” engaged in the construction of Apartments and Villas. The 2^nd opposite party is the Managing Director and opposite parties 3 to 6 are the Promoters and Directors of the 1^st opposite party.

5.  The complainants on 22.12.2008 had entered into an agreement with the 7^th and 8^th opposite parties for purchasing 1.54% of undivided interest in the total area of land consisting of 63.680 cents for a total consideration of Rs. 50,000/-. On that day itself another agreement was also executed for the construction of an apartment ‘Type A’ on the 16^th floor of the “Maruti Palace View". The complainants had remitted Rs. 25,000/- as booking charges and a sum of Rs. 5 lakhs was paid by way of a cheque. In view of another agreement executed for the purchase of apartment of “Type C” on the 7^th floor for a sum of Rs. 27,13,000/- for which a payment of Rs.25,000/- as initial payment and Rs. 5 lakhs by way of a cheque were made.  Thus the complainants had paid Rs. 10,50,000/-.  But the opposite parties never made any effort for the construction of the apartment as promised and they never made any common amenities of Club house, swimming pool, kids play area etc. and there was serious deficiency of service on the side of opposite parties.  Due to the unfair trade practice the complainants had lost an opportunity to possess an apartment.  Hence they would seek a direction to the opposite parties to refund the amount along with interest.

6. The opposite parties entered appearance and filed version stating that the prayer for refund of advance money is outside the scope of Consumer Forum. The Consumer Protection Act does not contemplate refund of advance money paid in a cancelled contract.  The construction could not be pursued due to recession, scarcity of labourers and river sand.  There is gross dereliction on the part of the complainants in payment of the balance amount.  The claim is barred by limitation as the complaint has been filed after elapse of a period of 2 years after their withdrawal from the contract.  The complaint is not maintainable as two complainants together had filed the complaint without obtaining leave of the court.  So the opposite parties would seek for the dismissal of the complaint.

7. In the appeal memorandum it is contended that the complainants ought to have filed the complaint within 2 years from the date of refusal of delivery of possession as held by the Apex Court in “Mehna Singh Khera and another versus M/s Unitech Ltd”.  They placed reliance upon another Ruling reported in 2021(5) KHC 475 in “Agarwal Vs. Aneja Consultancy” to canvas a position that the two complainants together cannot file a complaint without the leave on the court.  Hence the appellants would seek for setting aside the order of the District Commission by allowing the appeal.

8.  Heard the Counsel for the appellant.  Perused the appeal memorandum and the order of the District Commission.

9.  The complainants had entered into a contract for the purchase of the apartments. They had also remitted Rs. 10,50,000/- to the opposite parties. There is no case for the opposite parties that they had carried out the construction of the apartment but their case is that the construction could not be carried out on account of recession and scarcity of materials.  As long as the construction of the apartment is not completed the complainants can seek for refund of the payments made since the cause of action is a continuing one.  Therefore the bar contained in the Limitation Act is inapplicable to the given situation.  The ruling cited by the appellants is not applicable to the present case.

10.  The second technical objection raised by the appellants is that the complaint is bad as two complainants had joined together in filing the complaint.  As per the Authoritative Judicial Pronouncement of the Apex Court in “Brigade Enterprises Ltd Vs. Anil Kumar Virmany”  reported in SCC Online 1283 decided on 17.12.2021 it could be seen that there is no prohibition in the Consumer Protection Act in filing a complaint by the husband and wife as done in this case.

11.  Apart from these two technical contentions there is no substance in the appeal.  No useful purpose will be served in admitting the appeal.  Therefore we are inclined to dismiss the appeal without calling for the records from the District Commission.

In the result, the appeal is dismissed.

The statutory deposit made by the appellants at the time of filing the appeal is ordered to be refunded on proper acknowledgment. 

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JUSTICE K. SURENDRA MOHAN  : PRESIDENT

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AJITH KUMAR  D. : JUDICIAL MEMBER

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                                                              BEENA KUMARY. A         : MEMBER

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                                                         RADHAKRISHNAN K.R.  : MEMBER

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