KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

VAZHUTHACAUD, THIRUVANANTHAPURAM

C.C. No. 159/2016

JUDGMENT DATED: 18.04.2023

PRESENT : 

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

SRI.RANJIT. R                                                                   : MEMBER

SMT. BEENA KUMARY. A                                              : MEMBER

SRI. RADHAKRISHNAN K.R.                                        : MEMBER

COMPLAINANTS:

1. Shobha K.P., UG 99, Ulloor Gardens, Medical College P.O., Thiruvananthapuram.

2. K. Pankajakshan, UG 99, Ulloor Gardens, Medical College P.O., Thiruvananthapuram.

3. Dr. Divya K.P., UG 99, Ulloor Gardens, Medical College P.O., Thiruvananthapuram.

                              (By Adv. Narayan R.)

                                                Vs.

OPPOSITE PARTIES:

1. Samson & Sons Builders and Developers (P) Ltd., T.C. 3/679, T.K.D Road, Muttada P.O., Thiruvananthapuram-695 025 represented by its Managing Director.

2. John Jacob, Managing Director, Samson & Sons Builders and Developers (P) Ltd., T.C. 3/678, Kannimattom, TKD Muttada P.O., Thiruvananthapuram-695 025.
3. Samuel Jacob, Director, Samson & Sons Builders and Developers (P) Ltd., T.C. 3/678, Kannimattom, TKD Muttada P.O., Thiruvananthapuram-695 025.

4. Jacob Samson, Chairman, Samson & Sons Builders and Developers (P) Ltd., T.C. 3/678, Kannimattom, TKD Muttada P.O., Thiruvananthapuram-695 025.

5. Dhanya Mary Varghese, Director-Sales, Samson & Sons Builders and Developers (P) Ltd., T.C. 3/678, Kannimattom, Muttada P.O., Thiruvananthapuram-695 025.

(By Adv. Dougles Linsby N.R.)

JUDGMENT

SRI.RANJIT. R: MEMBER

                This complaint is filed against the builder Samson @ Sons Builders & Developers Pvt. Ltd. seeking refund of a total sum of Rs. 16,50,000/- being the amount received by the opposite party with 9% interest and compensation along with the costs of the proceedings. 

            2.  The case of the complainants as detailed in the complaint, in brief, is that the 1^st complainant & 2^nd complainant are husband and wife and 3^rd complainant is their daughter.  For the welfare of their daughter the complainants decided to purchase an apartment in Thiruvananthapuram and attracted by the offers made by the opposite parties of the apartment project in the name and style Sanctuary-Skylark at Vazhayila, Karakulam, Thiruvananthapuram they decided to purchase an apartment in the said flat complex.  Accordingly, the 1^st  & 2^nd complainants entered into an agreement with the opposite parties on 02.05.2013 for the purchase of apartment No. 18D in the above said apartment complex.  The total sale price of the flat was fixed at Rs. 60,00,000/-.  The 2^nd complainant paid an amount of Rs. 31,00,000/- to the opposite parties on 27.05.2013, even before the construction actually started.  As per the terms of the agreement the complainant was required to pay only Rs. 55,00,000/- at the time of completion of the structure and they were to pay the balance of Rs. 5,00,000/- only at the time of handing over of the apartment.  As per the agreement, the scheduled date of completion was fixed as on 31.05.2015.  However, contrary to what was assured, the opposite parties unilaterally began to move away from their promise.  In November 2013 the opposite parties stated that the project completion was shifted to December 2015.  In May 2014, seeing that the project was nowhere on schedule and concerned about the money that was paid, the complainants made repeated requests to the opposite party to return the money.  But the opposite parties did not heed to their request.  Later the 2^nd opposite party returned an amount of Rs. 14,50,000/- that too in six installments in May 2014 assuring that it was a token of goodwill and that the same need be repaid only when the construction reached the level that was agreed upon.  But the opposite parties did not do the work as per the schedule and they changed the date of completion of the project several times.  Many e-mails were sent by the opposite parties stating that they would complete the work within a short period of time.  In February 2016 it was informed by the opposite parties that the completion date was extended to 27.06.2018.  While so, the complainants got information through newspaper reports that the 4^th opposite party was arrested on charges of swindling and cheating.  Another newspaper report stated that opposite parties 2, 3 & 5 were also arrested for the same offence.   Now it is learnt that the project has come to a standstill and the Samson & Sons Builders have abandoned the work.  A balance amount of Rs. 16,50,000/- is still due to be paid by the opposite parties.  Hence, they filed this complaint seeking refund of the amount with interest and compensation.

            3.  Opposite parties 1 to 5 entered appearance on receipt of notice and filed joint version challenging the maintainability of the complaint on the ground that this Commission established under the Consumer Protection Act was no longer competent to adjudicate the issues involved here, in view of the enactment of Real Estate Regulation and Development Act 2015.   The other grounds canvassed by the opposite parties are that many documents produced by the complainants are forged ones and so without forensic examination genuineness of those documents cannot be determined.  They have also contended that the proceedings demand a plethora of evidence, since it involves complicated questions of fact and law, which can be adjudicated only by a civil court. 

4.  The opposite parties raised the question of maintainability and requested that to be heard as a preliminary issue, by filing separate petition I.A. No.1128/2017.  This Commission heard the petition and vide separate order dated 12.06.2019, dismissed the petition holding that the complaint was maintainable. 

5.  On merits the opposite parties have sought to justify the delay in completion of the construction on the ground that the said delay happened on account of reasons beyond their control. In the year 2012 there was lorry drivers’ & labourers’ strike, hike in price of sand, shortage of construction materials like sand, stone etc. There was scarcity of cement also.  Again there was rise in cement prices.  These factors were all beyond the control of the opposite party.  They further contended that the opposite parties were arrested at the instance of some of the complainants and also most of the documents were taken by the Police in connection with the Police investigation.  But they apprehend that these documents may be forged to create false claims against the opposite party.  The complainants are well aware of the circumstances and the ground reality concerning the present work.  They extended the delivery date solely due to the reasons beyond their control i.e; force majeure factors and that the opposite parties were not personally liable for the same.  They are taking necessary steps to complete the work in a time bound manner.  In the above circumstances, they pray for dismissal of the complaint.

6.  The counsel for the opposite parties have produced a copy of the order of the NCLT ordering moratorium of all legal proceedings instituted or pending against the opposite parties.  This Commission by the order dated 16.11.2021 decided to proceed with the complaint in view of the judgment of the apex court in Pioneer Urban Land and infrastructure & another Vs. Union of India & ors. (2019) 8 SCC 416 wherein it was held that the order of moratorium has no impact on the continuation of the proceedings under the Consumer Protection Act.  Hence the complaint was proceeded further. 

7.  Evidence consists of affidavit in lieu of chief filed by the 1^st complainant for and on behalf of other complainants.  9 documents produced by the complainants were marked as Exs. A1 to A9 on consent.  Opposite parties did not adduce any oral or documentary evidence. 

8.  Heard the counsel for the complainant. 

9.  The following points arise for consideration. 

1. Whether the complaint is maintainable?
2. Whether there is unfair trade practice or deficiency in service on the part of opposite parties 1 to 5?
3. Whether the complainants are entitled to any compensation? If so what is the quantum. 

10.  Point (i) :- This Commission heard the question of maintainability and as per the order dated 12.06.2019 found that the complaint was maintainable.  Therefore the question regarding maintainability need not be revisited here. 

11.  Points (ii) & (iii):- These points are considered jointly. 

The specific case of the complainants is that they booked an apartment in the project of the opposite party named Sanctuary Skylark at Vazhayila, Karakulam, Thiruvananthapuram for a sale consideration of Rs., 60,00,000/- of which the complainants plaid Rs. 31,00,000/- and that the opposite parties agreed to deliver possession of the apartment by May 2015.  Later the opposite parties shifted the completion date many times.  However, the opposite parties did not complete the construction or hand over the flat to them.  In May 2014 seeing that the project was nowhere on schedule and concerned about the money the complainants had paid, they made repeated requests to the opposite party to refund the amount.  At last in May 2014 the Managing Director, the 2^nd opposite party, returned an amount of Rs. 14,50,000/- in six installments assuring that the said amount need be paid only when the construction progresses as assured in the agreement.  But the opposite parties backed out of their assurance and extended the time frame for completion of the project from time to time.  While so, from newspaper reports the complainants came to know that opposite parties 1 to 5 were all arrested on cheating charges and that the project was abandoned. An amount of Rs. 16,50,000/- is still due to the complainant from the opposite parties.

12.  The documents produced by the complainants prove their case.  Ext. A1 is the copy of the agreement dated 02.05.2013.  Copy of receipt dated 27.05.2013 showing payment of Rs. 31,00,000/- is Ext. A2.  Ext. A3 is the e-mail sent by the opposite party dated 06.11.2013 stating that the project completion date was shifted to December 2015.  The e-mail dated 26.11.2014 sent by the opposite parties stating about the progress of the work is Ext. A4.  E-mail dated 19.06.2015 with photos, showing the stage of construction sent by the opposite parties is Ext. A5 series.  Copy of e-mail dated 03.02.2016 together with work schedule is marked as Ext. A6 series.  Copy of newspaper report showing that 4^th opposite party was arrested in a cheating case is marked as Ext. A7.  Assurance given by the 2^nd opposite party through e-mail dated 05.11.2016 that the project would be completed shortly is marked as Ext. A8.  Copy of newspaper report dated 17.12.2016 showing that the opposite parties 2, 3 & 5 were also arrested in a cheating case is marked as Ext. A9. 

13.  On going through the documents produced by the complainant it is clear that the complainants had booked the flat in the project of the opposite party for a sale consideration of Rs. 60,00,000/- of which complainants paid Rs. 31,00,000/-.  It is also an admitted fact that the opposite parties have repaid an amount 14,50,000/- to the complainants in May 2014 and that Rs. 16,50,000/- is still due from the opposite parties.

14.  Though the opposite parties have been extending the time for completion of the project, they had not completed the project as per the agreement.  Even though they have stated in the version that the delay was due to shortage of construction materials, lorry drivers’ strike etc.  and also due to force majeure factors, they have not produced any documents to substantiate their claim.  They have failed to establish any force majeure situation for the delay in handing over of the possession to the complainants.   Even though the agreed date of delivery as per clause 10 of the agreement was May 2015, the opposite parties have miserably failed to complete the project.  It has now come out that the opposite parties have abandoned the project.  The complainants cannot wait indefinitely for the project to get completed.  A clear deficiency in service and unfair trade practice is discernible in the conduct of the opposite parties in this case.  Therefore we find that the complainants are entitled to get refund of the amount of Rs. 16,50,000/- which is still due to them with 8% interest, together with compensation and costs of the proceedings. 

In the result, the complaint is allowed as follows: 

1. Opposite parties 1 to 5 are directed to refund Rs. 16,50,000/- with interest @ 8% per annum from 27.05.2013, the date of payment of the amount till date of repayment. 
2. Opposite parties 1 to 5 are directed to pay an amount of Rs. 2,00,000/- as compensation to the complainant for the mental agony and misery suffered by the complainants due to the deficiency in service and unfair trade practice committed by the opposite parties with 8% interest thereon from 22.12.2016, the date of filing of the complaint till date of payment. 
3. Opposite parties are directed to pay Rs. 50,000/- as costs of the proceedings. 
4. All the above amounts shall be paid within a period of one month from the date of receipt of a copy of this judgment, failing which all the amounts shall carry interest @ 9% per annum. 

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JUSTICE K. SURENDRA MOHAN  : PRESIDENT

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                                                                RANJIT. R                      : MEMBER

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                                                          BEENA KUMARY. A         : MEMBER

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                                                          RADHAKRISHNAN K.R.  : MEMBER

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C.C. No.159/2016

APPENDIX

1. COMPLAINANT’S WITNESS

2. COMPLAINANT’S DOCUMENTS

3. OPPOSITE PARTY’S WITNESS

4. OPPOSITE PARTY’S DOCUMENTS

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JUSTICE K. SURENDRA MOHAN  : PRESIDENT

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                                                           RANJIT. R                      : MEMBER

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                                                          BEENA KUMARY. A         : MEMBER

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                                                           RADHAKRISHNAN K.R.  : MEMBER

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