KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

VAZHUTHACAUD, THIRUVANANTHAPURAM

C.C. No. 02/2017

JUDGMENT DATED: 05.09.2023

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          

COMPLAINANT:

G. Babulal, S/o R. Gopala Pillai, Uzhuvathu, Enathu P.O., Pathanamthitta.

(By Adv. Vijesh Kattakkalil)

                   Vs.

OPPOSITE PARTIES:

1. M/s Samson & Sons Builders and Developers (P) Ltd., T.C. 3/679, Kaliveena building, Muttada P.O., Thiruvananthapuram-695 025 represented by its Managing Director John Jacob.

2. John Jacob, T.C. 3/678, TKD Road, Muttada P.O., Thiruvananthapuram-695 025.

3. Jacob Samson, T.C. 3/678, TKD Road, Muttada P.O., Thiruvananthapuram-695 025.

4. Dhanya Mary Varghese, W/o John Jacob, T.C. 3/678, TKD Road, Muttada P.O., Thiruvananthapuram-695 025.

      (By Adv. Dougles Linsby N.R.)

JUDGMENT

SMT. BEENA KUMARY. A: MEMBER

This complaint is filed by one Babulal who is a scientist against Samson and Sons Builders and Developers Pvt. Ltd. Company, its Managing Director and Directors. 

2.  The allegations contained in the complaint are in brief as follows: The opposite parties approached the complainant and informed that there is an ongoing construction of a flat project named Samson and Sons Selene Apartment Project which is shown as ‘A’ schedule.  The opposite parties further informed that they have agreed to given an apartment having built up area of 1636 sq. ft. numbering 7 B in the 7^th floor for a sale consideration of Rs. 75,00,000/-.  On this basis an agreement was executed on 29.08.2013.  As per the agreed terms the complainant has paid Rs. 20,00,000/- in two installments, i.e; Rs. 5,00,000/- on 29.08.2013, Rs. 8,00,000/- and Rs. 7,00,000/- on 22.02.2014 through online fund transfer.  The opposite parties agreed to hand over the flat on or before 31.01.2016.  It was agreed that balance amount should be paid through instalments only on the basis of progress in construction but until now the opposite parties have not even completed the initial stages of construction.

3.  The opposite parties had conspired to cheat and take illegal advantage from the complainant and thereby opposite parties cheated the complainant by promising to hand over the building and obtaining Rs. 20,00,000/- from the complainant.  The complainant approached the opposite parties several times and demanded the money back or to settle the matter.  But opposite parties had turned deaf ear to his repeated pleas.  The complainant had issued a notice to the opposite parties through his counsel on 21.12.2016 demanding repayment of the money obtained by the opposite parties from the complainant.  Though opposite parties accepted the notice no reply was sent.  The complainant alleges that there is deficiency of service and unfair trade practice on the part of opposite parties.  Due to the act of the opposite parties the complainant has suffered too much mental agony, financial loss etc. which cannot be compensated by any means of apology.  Hence this complaint.

4.  On admitting the complaint notices were issued to the opposite parties.  They entered appearance and filed a version with the following contentions: The complaint is not maintainable. The subject matter of the complaint falls outside the jurisdiction of the Consumer Protection Act as the same is basically a commercial transaction.  It is also contended that the dispute between the builder and the allottee falls under the jurisdiction of the Real Estate Regulation and Development Act 2016.  Chapter V of the said Act deals with matters in relation to the dispute between the builders and allottees. 

5.  The Commercial Division and Commercial Appellate Division of High Courts Act, 2015 imposes a specific bar of jurisdiction on the Consumer Protection Act over the commercial disputes.  By virtue of the Real Estate Regulation Development Act and the Commercial Division and Commercial Appellate Division of High Courts Act 2015, jurisdiction of the consumer commission over the dispute has ceased.  The complaint is barred by limitation as all the transactions had taken place in 2013 and the complaint was filed in 2016.  The averments in the complaint are in the nature of settlement of accounts and refund of money.  There is no allegation of deficiency of service or unfair trade practice against the opposite parties.  So the complaint is only to be dismissed. The 1^st opposite party is a professionally managed builder having more than 10 years of experience.  The opposite parties would admit the execution of the agreement to construct an apartment for the complainant in the land purchased by the complainant.  It is also conceded that there was a stipulation to complete the construction, but period was extended by the parties as extra work had to be carried out.  According to the opposite parties the agreement never stipulates time as the essence of the contract.  The opposite parties informed the complainant about the unforeseen circumstances and the finishing date of the work was extended to June 2018.  There was no wilful delay on the part of the opposite parties.  The delay occurred on account of the labour issues and escalation of the price of construction materials.  So the opposite parties cannot be held liable for the delay in construction of the apartment.  As per the agreement executed between the parties the projected date of completion is subjected to the complainant fulfilling the obligations.  Complainant has wilfully suppressed those facts and making allegations without any bonafides.  The documents relied upon by the complainants are only copies and no originals are produced.  So those documents cannot be admitted in evidence before testing the veracity of the same.  The delay in completing the construction of the apartment is attributable to several factors including lorry labourers strike, hike in the price of sand, shortage of construction materials etc.  In 2012 there was a strike in the quarry.  The scarcity of cement also resulted in the stoppage of the construction activities.  The construction industry had gone into stagnation in 2014.  These true state of affairs have been informed to the complainant who admitted those facts and there is no deficiency in service. Opposite parties are taking all possible measures to complete the construction in a time bound manner.  But the 1^st opposite party is an incorporated company, the shares of the company are owned by the shareholders, it has only three Directors and one of them is the Managing Director and other Director is the Chairman.  The entire dealings of the company are managed by the Managing Director, Chairman and the Director only.  The complaint is barred by mis-joinder on account of the impleadment of unnecessary parties.  Therefore the opposite parties would seek dismissal of the complaint. 

6.  The complainant was examined as PW1 and produced six documents which are marked as Exts. A1 to A6.  Opposite party cross examined the complainant.  The 2^nd opposite party filed proof affidavit and has marked one document as Ext. B1. 

7.  Heard both sides. Perused the case records.

8.  Now the points that arise for determination are:

1. Whether the complaint is maintainable?
2. Whether there is any deficiency of service or unfair trade practice on the part of the opposite parties in the transaction as alleged?
3. Reliefs and costs?

9.  Point No. (i): The issue regarding maintainability was considered and found that the complaint was maintainable at the preliminary stage. Opposite parties never filed appeal before the appellate forum and hence the above finding has become final and thus this point does not arise at this stage.

10.  Point Nos. (ii) & (iii): These points are considered together for the sake of convenience.

11.  The complainant has sworn to an affidavit in support of the pleadings in the complaint.  The copies of the agreement and the receipt evidencing the payment of Rs. 20,00,000/- to the opposite parties are exhibited as A1 to A3.  Ext. A4 is the copy of lawyer’s notice.  Ext. A5 is the postal receipts and Ext. A6 is the acknowledgment cards.  The opposite parties never disputed the transaction alleged in the complaint.  Ext. A1 would prove the execution of the agreement dated 29.08.2013 by which opposite parties had agreed to construct the apartment on or before 31.01.2016 and hand over possession of the apartment to the complainant.  As per the stipulation in Ext. A1 the complainant had paid Rs. 20,00,000/- as proved through Exts. A2 & A3.

12.  According to the opposite parties they could not construct the apartment due to several reasons.  But no tangible evidence was adduced by the opposite parties.  Mere assertions are made in the version filed by the opposite parties regarding the alleged causes that prevented them from completing the construction.  When the complainant discharged his duty regarding the due execution of the agreement and payment of Rs. 20,00,000/- it was up to the opposite parties to tender evidence and prove the alleged circumstances which prevented them from fulfilling the promise.  Vague pleadings alone are seen raised in the version which are not supported by any evidence.  From the evidence on record, it is crystal clear that the opposite parties have no intention to complete the construction of the flat.

13.  The facts and circumstances brought before us would prove that the opposite parties had no intention to complete the construction of the flat and they had exploited the needs of the complainant to have a place of abode and managed to enrich themselves by gaining a sum of Rs. 20,00,000/- from the complainant. So the complainant is entitled to get back Rs. 20,00,000/-  along with interest from the opposite parties.

14.  The complainant was in fact deceived by the opposite parties by assuring the sale of a flat after receiving a huge amount. The hardships caused to the complainant cannot be adequately compensated in terms of money as his desire to have an apartment in a prominent location was offered and defrauded.  On a consideration of the mental agony and financial loss caused to the complainant it is found that the complainant is entitled to get Rs. 4,00,000/- as compensation.

In the result, the complaint is allowed as follows:

a) The opposite parties are directed to pay the complainants the amount of Rs. 20,00,000/- (Rupees Twenty Lakhs only) received from the complainant with interest @ 8% per annum from 31.01.2016, the date on which the flat ought to have been handed over to the complainant, till the date of realization.

b) The opposite parties are directed to pay Rs. 4,00,000/- (Rupees Four Lakhs only) as compensation towards the mental agony and hardships suffered by the complainant, with interest thereon @ 8% per annum from the date of filing the complaint ie on 02.01.2017 till the date of payment.

c)  The opposite parties are also directed to pay Rs. 50,000/- (Rupees Fifty Thousand only) as costs of this litigation.

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

JUSTICE K. SURENDRA MOHAN  : PRESIDENT

                              AJITH KUMAR D.: JUDICIAL MEMBER

                                                                                          BEENA KUMARY. A         : MEMBER

jb                                                                                         RADHAKRISHNAN K.R.  : MEMBER

APPENDIX

I         COMPLAINANT’S WITNESS :

II       COMPLAINANT’S DOCUMENTS :

III      OPPOSITE PARTY’S WITNESS :

IV      OPPOSITE PARTY’S DOCUMENTS :

JUSTICE K. SURENDRA MOHAN  : PRESIDENT

                             AJITH KUMAR D.: JUDICIAL MEMBER

                                                                                            BEENA KUMARY. A         : MEMBER

jb                                                                                           RADHAKRISHNAN K.R.  : MEMBER