1.      Heard Mr. C.N. Sreekumar, Senior Advocate assisted by Mr. Amit Sharma, Advocate, for the appellants and Mr. P.A. Noor Muhamed, Advocate, for the respondents.

2.      Joy Kaliyavumkal and Mrs. Chinnamma Joy (the complainants) have filed FA/401/2008 from the order of Kerala State Consumer Disputes Redressal Commission, dated 25.06.2008, passed in Original Petition No.108 of 2000, partly allowing the complaint and directing the opposite parties to pay Rs.402192/- as compensation for delayed possession, Rs.200000/-, for promised amenities and Rs.125000/- as costs for repairs. In the appeal, they have prayed for enhancement of compensation on various head along with interest and for directing the respondents to execute conveyance for undivided share in entire 103 cents of land according to the agreement, instead of 42 cents of land as executed on 07.03.1998.

3.      Hardy T. George and Lidy T. George (the appellants in FA/402/ 2008) filed OP/109/2000 and H.V. Hariharan and Shanta Hariharan (the appellants in F.A./403/2008) filed OP/93/2000, and one Mrs. Radha Ramachandran filed OP/15/2001 (no appeal filed), for similar reliefs against same opposite parties, in respect of same housing project. State Commission consolidated and tried all the four complaints together and decided by a common order dated 25.06.2008, from which above three appeals have been filed. As such these appeals were consolidated and heard together and are being decided by a common order.

4.      In order to appreciate the controversy, the facts of OP/108/2000 are being given. Joy Kaliyavumkal and Mrs. Chinnamma (the appellants) filed OP/108/2000 for directing the respondents (i) to pay Rs.100000/- as compensation for mental agony, Rs.402192/- as interest @12% per annum from 01.03.1996 to 31.06.1998 as compensation for delayed possession, Rs.18500/- as charges for polish and painting, Rs.45000/- for rectification works in the flat, Rs.1000000/- for rectification works in the building, Rs.200000/- for not providing promised amenities, Rs.10000/- for non-payment of building tax and Rs.100000/- for loss of security of the building (total Rs.1775692/-), (ii) cost of litigation, (iii) to execute sale deed in respect of remaining area of undivided share of 103 cents, comprised in survey No.42/6 & 63/7 of Edappally South village, (iv) to remove all constructions, protrusions and additions, raised apart from the approved plan, (v) to provide proper passage through southern side, (vi) not to obstruct the complainants from the benefits available to the building including the well, transformer, pump set etc., (vii) to evict all commercial lessees, (viii) to provide central reception on ground floor, exclusive play area for children, swimming pool, health club, gym, common guest room on 10^th floor, Cable TV, telephone intercom connection, round the clock security, tennis court, shuttle court, recreation facility, laundry and locker facility, (ix) to provide corporation water connection, (x) to rectify defects in septic tank and soak pits, (xi) to rectify leakage of all water pipes and (xii) any other relief which is deemed fit and proper in the facts and circumstances of the case.

5.      Joy Kaliyavumkal and Mrs. Chinnamma stated that M/s. Mangalam Homes and Resorts Pvt. Ltd. (respondent-1) (the builder) was a company, registered under Companies Act, 1956 and engaged in the business of development and construction of building and selling its unit to the prospective buyers. M.C. Varghese (father of respondents-2 to 5) was its Managing Director. Sabu Varghesee, Sajan Varghesee, Saji Varghese and Biju Varghesee (respondents-2 to 5) were owners of the land admeasuring 103 cents situated in Survey No.42/5, 42/6, 63/7, 63/12-A & 12-B of Edappally South village, Kanayannur Taluk, Ernakulam district. The builder launched a project of group housing in the name of “Mangalam Towers” and made wide publicity that licence and building plan for construction of two multi-storeyed buildings having plinth area 150000/- sq. ft. in 103 cents land for 80 flats were obtained by them. The complainants bonafide believed upon the representations of the builder and approached them for allotment of a flat in March, 1995. The builder provided printed sketch of the design layout and brochure. After deliberation and negotiation they agreed for purchase of a three bedrooms flat, built up area 1488 sq.ft. for Rs.1436400/-, including cost of covered car parking of Rs.60000/-. The complainants paid Rs.681375/- through cheque on 21.03.1995. The builder executed an agreement dated 12.05.1995 under which remaining sale consideration was payable up to 14.12.1995, in three instalments. The complainants made payments strictly according to the schedule as per agreement. Under clause-2 of the agreement, the builder has promised to complete the construction within 9 months from 21.03.1995. Under clause-22, the builder promised to deliver possession of the flat complete in all respect till December, 1995 and in case of delay, an interest @12% per annum was payable for the delayed period. The construction was unreasonably delayed. The builder vide letter dated 12.01.1998 informed that final finishing works were going on in full swing and power and water connection would be obtained till next month. As demanded, the complainants deposited Rs.94028/- on 04.03.1998. The opposite parties executed sale deed dated 07.03.1998, which was received to the complainants on 24.04.1998. After going through the sale deed, it was noticed that it was not in respect of the actual proportionate undivided share of 103 cents land as agreed in the agreement. The builder handed over possession on 18.07.1998. After getting possession, it was noticed that in the flat, there were various constructional defects and it was not in habitable condition. The building was not constructed as per specifications given in brochure. The details of defects in construction of the flat as well as the building have been specified in the complaint. The complainants vide letter dated 08.10.1998, informed the builders about the defects and requested to rectify the defects. The builder, vide letter dated 23.10.1998 assured to rectify the defects and execute another deed in respect of proportionate share in 103 cents land. But nothing was done. On demands of various flat buyers, the builder held a meeting on 22.07.1999 and 26.03.2000. In this meeting also the builder acknowledged the defects and assured to rectify it. But nothing was done. Then the complaint was filed alleging that the builder has committed deficiency in service and unfair trade practice.   

 6.     The opposite parties filed their written reply on 20.04.2001 and contested the complaint. They stated that the project “Mangalam Towers” consisted two towers, each of 40 flats. 40 flats in one tower were constructed and possession was given to the allottees. Other tower of 40 flats was pending for construction. The construction was delayed due to labour problem and shortage of building materials etc. Some of the allottees were defaulters in payment of instalments, which was also one of the causes for delay in construction. Basic structure was completed but finishing works was delayed as individual buyer demanded some additional interior works as per their choice. Due to delay in construction, cost was escalated up to the extent of 10% but under mutual understanding, the builder has waived the increased cost although under the agreement, the builder was entitled for increased cost. After completing the constructions, the builder send a draft of the sale deed to the allottees, who after understanding it approached the builder for execution of registered sale deed, which was executed on 07.03.1998. After completing construction, the builder applied for issue of “No Objection Certificates” from Command Aviation Officer, Electrical Inspectorate and “Completion Certificate”, from Municipal Corporation, which were issued in between 15.04.1998 to 28.04.1998. Thereafter possession was delivered to the complainants in July, 1998. They denied about any construction defects, either in the individual flat or in the building. They denied that there was no sufficient space for movement of fire tenders. There was one connection of Municipal Water and the builder has applied water connections, for individual flats. The complainants did not raise any objection either in respect of the actual proportionate undivided share of 103 cents land or in respect of any deficiency in construction at the time of taking possession. After about two years of taking possession, they filed this complaint. They denied service of any letter dated 08.10.1998. The builder has already intimated the buyers that the facilities mentioned in paragraph-16 (e) of the complaint would be provided as the builder was in process of completing the construction. The builder called for a meeting of the buyers for forming Residents Welfare Society but in the meeting agenda was diverted. In the meeting dated 11.02.2000, the Residents Welfare Society was formed by all the buyers. The builder has handed over all the documents relating to the property as well as the building to the office bearer of the Association. The builder has undertaken additional work relating to the maintenance of wear and tear in the building. The builder has informed the office bearers of the Association vide later dated 27.06.2000 that the money collected from 19 apartment buyers would be transferred to the account of the Association as soon as the account is opened. The builder has not committed any illegality negligence or indifference causing any monetary or mental agony to the complainants. The defects as pointed out in paragraph 20 (A) of the complaint do not exist in the building. All facilities of firefighting was installed and no objection certificate dated 28.04.1998 was obtained from Fire Service Authorities.  By letter dated 27.06.2000, the builder informed the complainants that fire extinguisher would be installed soon. For which the builder was negotiating with Fatima Enterprises Thiruvananthapuram. It has been denied that there was not enough space for moving the fire tenders. It has been denied that Kerala State Electricity Board was charging commercial rate for the electricity connection to the home buyers.

7.      Before the State Commission, the Complainants filed various documentary evidence and Affidavits of Evidence of P.V.Hariharan, V.T.George and M.P.Joseph. The opposite parties also filed various documents and Affidavits of Evidence of P.B. Srikumar, R.Radhakrishnan and Motilal S. In order to verify the defects in construction in the flats as well as building as alleged by the complainants, State Commission obtained three reports from the different Commissioners i.e. report dated 25.10.2002 (Ext. C-1), report dated 12.01.2003 (Ext.C-2) and report dated 09.12.2004 with photographs (Annexure C-3). The affidavit of two witnesses, namely, Devi Cherian (CW-1) and TR Venkideswaran (CW-2) were also filed. The State Commission after hearing the parties by judgment dated 25.06.2008 held that due date of possession was 31.12.1995, while the possession as handed over to the complainants in OP/93/2000 on 17.07.1998, in OP/108/2000 on 01.07.1998, in OP/109/2000 on 01.07.1998 and in OP/15/2001 on 03.01.1999, therefore, as per Clause 22 of the Agreement, the buyers were entitled for compensation in the shape of interest @12% per annum on their deposit. Cost of car parking as provided was of Rs.10000/- as per Ext.-C-3 i.e. Commissioner’s report dated 09.12.2004, while the builder has charged Rs.60000/-. As such the builder is liable to refund Rs.50000/- in this head. The builder has not provided common facilities as promised in the brochure, therefore, the buyers are entitled for refund of Rs.200000/- each in this respect. On these findings, the complaints were partly allowed and the builder was directed to refund the amount for delayed possession along with interest, cost of repairs and compensation for not providing promised amenities. Hence, these appeals have been filed by three sets of the complainants.

8.      During the pendency of these appeals, the appellants filed Additional Evidence vide IA/10246/2018, IA/10247/2018 & IA/10248/2018, which was allowed on 17.07.2018. Through these IAs the appellants filed a copy of compromise filed in appeal i.e. AS No.289 of 2006, M/s. Mangalam Homes & Resorts (P) Ltd & Ors. Vs. P.V.Babu, in the Court of Second Additional District Court, Ernakulam, in which the builder has agreed to pay Rs.1400000/- to one of the home buyers in lieu proportionate area of land in 103 cents. This compromise was accepted by the appellate court and the appeal was decided in terms of the compromise. The appellants also filed the report of Er. Diaz J. Malickan dated 16.05.2019 showing that respondents -2 to 5 sold an area of 29.528 cents of survey No.42/5, 42/6, 63/7, 63/12-A and 63/12-B to one Mr. A.V.Francis Allukas, through sale deed dated 05.04.2012 who resold this property to M/s. Shahi Spices India Pvt. Ltd. through sale deed dated 29.12.2015. On the basis of these two sale deeds, it has been alleged that the total price of 56.281 cents land was Rs.180099200/-. On its basis, the proportionate compensation in 103 cents land is being claimed.

9.      We have considered the arguments of the counsel for the parties and examined the record. The claims of the appellants before the State Commission are broadly headed as compensation for (i) defect in construction. (ii) not providing the covered car parking. (iii) not providing common facilities as promised in the brochure and (iv) delay in delivery of possession. It may be noted that the complainants have paid total cost of Rs.1436400/- for the flat and they claimed total compensation of Rs.1775692/-. Meaning thereby is the complainants would get the flat free of cost and also about Rs.3.5/- lacs along with principal amount within a period of three years on their deposit. This amounts to unjust enrichment and demands were unfair.

10.    So far as the compensation for defects in construction is concerned, the State Commission has appointed three Commissioners and obtained their reports. The last Commissioner has submitted the photographs also along with report dated 09.12.2004. On the basis of these reports, the State Commission determined the compensation for deficiency in construction. No illegality has been pointed out in the order of the State Commission in this respect.

11.    So far as car parking space is concerned, Schedule ‘B’ of the agreement provides for a covered car parking on the ground floor in the building under construction on within the land described in Schedule ‘A’. In the agreement, Rs.60000/- was charged towards the car parking. The State Commission found that the car parking was provided in AC sheet and its cost was determined as Rs.10000/- and compensation of Rs.50000/- was provided for this. We do not find any illegality in the assessment of the compensation for the car parking.

12.    So far as common facilities are concerned, the agreement is totally silent in respect of common facilities nor any amount has been charged for it. State Commission has granted Rs.200000/- to each home buyers as compensation for not providing common facility. We do not purpose to enhance this amount simply on the ground that the builder has not charged any amount from the buyers in this head. 12% interest has been granted for the compensation in delay in delivery of possession according to the agreement. Supreme Court in Wg. Camdr Arrifur Rahman Vs.DLF Southern Homes Pvt. Ltd., (2020) 16 SCC 512, held interest @6% per annum as the compensation in delay in delivery of possession. However, the builder has not filed any appeal against impugned order as such we upheld this compensation.

13.    Main dispute is in respect of damages for not transferring the proportionate share in 103 cents land. The appellants relied upon paragraph-15 (a) of the agreement dated 12.05.1995 and submitted that as in Schedule-A, the land admeasuring 103 cents in Survey No.42/5, 42/6, 63/7, 63/12-A and 63/12-B are mentioned as such, the appellants were entitled for proportionate area in 103 cents, while the sale deed 07.03.1998, was in respect of proportionate area of 42 cents land only. As the opposite parties have sold part of this land to a third party as such, the appellants claimed Rs.1500000/- as compensation for individual home buyers towards the proportionate share in the land.

14.    Paragraph-15 (a) of the agreement dated 12.05.1995 is quoted below:-

15.(a)- The owners do hereby undertake to have a sale deed for an undivided interest in the lands described in the ‘A’ schedule hereto executed at the cost of the purchaser in favour of the purchaser on realization of above sale consideration in full or on completion of the constructions contemplated herein whichever is later.

15.    In prefatory paragraphs of the agreement dated 12.05.1995, the ambiguity in respect of proportionate undivided interest in the lands has been clarified as follows:-

“And whereas for removal of doubts and ambiguity, both the parties have mutually agreed that the proportionate undivided fractional right in the A schedule properties intended to be conveyed under this agreement by the owners shall be the total built up area of the building complex to be completed in accordance with the aforesaid plan or in accordance with any modified plan that may be sanctioned granting additional FSI and/or right to construct further floors and/or built up area to the owners in the A schedule landed properties.” 

16.    From this clarification in the agreement, it is clear that proportionate share in the total built up area of the building complex to be completed in accordance with the sanctioned plan has to be transferred. There is no dispute that the Tower in which the flats of the complainants were constructed was within 42 cents land according to the sanctioned plan. The respondents have transferred proportionate share in 42 cents land to the appellants through sale deed dated 07.03.1998 and there was no deficiency in service in this respect.

17.    So far as the compromise decree passed in AS No.289 of 2006, M/s. Mangalam Homes & Resorts (P) Ltd & Ors. Vs. P.V.Babu, is concerned, the compromise decree operates as estoppel against the parties. The judgments, which are not passed in the proceedings of probate, matrimonial admiralty or insolvency or the judgments having effect of res-judicata are irrelevant in a subsequent suit/proceeding. The appellants cannot take any benefits of the compromise decree passed in AS No.289 of 2006, M/s. Mangalam Homes & Resorts (P) Ltd & Ors. Vs. P.V.Babu. 

ORDER

In view of the aforesaid discussions, the appeals are dismissed.