KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

VAZHUTHACAUD, THIRUVANANTHAPURAM

C.C. No. 174/2017

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          

COMPLAINANTS:

1. Ciby Mathew Oommen, S/o Lt. Col. P.J. Oommen, KV-39, “Savera”, Kalavihar Nagar, Kunnukuzhy, Thiruvananthapuram.

2. Rogy Mathew, W/o Ciby Mathew Oommen, S/o Lt. Col. P.J. Oommen, KV-39, “Savera”, Kalavihar Nagar, Kunnukuzhy, Thiruvananthapuram.

(Represented by Power of Attorney Holder Dr. Rony Mathew, T.C 3/543, Kamal Nagar, Nalanchira, Thiruvananthapuram.

                                  (By Adv. S. Reghukumar)

                   Vs.

OPPOSITE PARTIES:

1. 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, S/o Jacob Samson, Managing Director, Samson & Sons Builders and Developers (P) Ltd., T.C. 3/679, Kaliveena Building, Muttada P.O., Thiruvananthapuram-695 025.

3. Samuel Jacob, S/o Jacob Samson, Director, , Samson & Sons Builders and Developers (P) Ltd., T.C. 3/679, Kaliveena Building, Muttada P.O., Thiruvananthapuram-695 025.

4. Dhanya Mary John, Director, Samson & Sons Builders and Developers (P) Ltd., T.C. 3/679, Kaliveena Building, Muttada P.O., Thiruvananthapuram-695 025.

   (By Adv. Dougles Linsby N.R.)

JUDGMENT

SMT. BEENA KUMARY. A: MEMBER

The complainants are husband and wife.  Their power of attorney holder conducts the case.  The complaint is against Samson and Sons Builders and Developers Pvt. Ltd., its Managing Director and Directors. 

2.  The allegations contained in the complaint are as follows:  The opposite parties and the complainant entered into an agreement on 26.07.2013 for the sale of an apartment having built up area of 1690 sq. ft. Type 3BHK in the 4^th floor of the building.  Total sale consideration is Rs. 70,00,000/-.  As per the agreement the complainants had paid Rs. 35,00,000/-, i.e; Rs. 25,00,000/- on 29.07.2013 and Rs. 10,00,000/- on 27.10.2016.  The opposite parties agreed to handover the apartment on or before 31.12.2015.

3.  The complainants are working abroad.  On enquiry it is understood that there was no progress in the construction work.  Meanwhile opposite parties demanded for executing a new agreement but the terms and conditions of the new agreement were not accepted by the complainants.  The complainants sent mails enquiring about the completion of the work.  But there was no reply from the side of the opposite parties.  The complainants’ requests and demands for repayment of the huge amount obtained by the opposite parties were rejected and there was no response from their side to complete the construction work or refund the amount.  The opposite parties had conspired together to cheat for getting illegal gain from the complainants.  The above act of the opposite parties amounts to deficiency in service and unfair trade practice by promising to hand over the building after obtaining Rs. 35,00,000/- and the complainants have been paying interest.  The complainants hence suffered much agony on account of the deficiency of service on the side of the opposite parties.  They would seek for realization of Rs. 35,00,000/- with interest @ 12% per annum for the principal amount paid.  They also seek for realization of compensation for the mental agony and loss suffered by them. 

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 evidence consists of the proof affidavit filed by P/A holder of the complainant.  Exts. A1 to A7 series were marked on the side of the complainant as the counsel for the opposite parties has no objection in receiving those documents in evidence.  The second opposite party filed an affidavit in lieu of examination.  Ext.  B1 was also marked.

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 P/A holder of the complainants 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. 35,00,000/- to the opposite parties are exhibited as  A2 to A4.   The opposite parties never disputed the transaction alleged in the complaint.  Ext. A2 would prove the execution of the agreement dated 26.07.2013 by which opposite parties had agreed to construct the apartment on or before 31.12.2015 and hand over possession of the apartment to the complainants.  As per the stipulation in Ext. A2 the complainants had paid Rs. 35,00,000/- as proved through Exts. A3 &A4.

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. 35,00,000/- 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 complainants to have a place of abode and managed to enrich themselves by gaining a sum of Rs. 35,00,000/- from the complainants. So the complainants are entitled to get back Rs. 35,00,000/-  along with interest from the opposite parties.

14.  The complainants were in fact deceived by the opposite parties by assuring the sale of a flat after receiving a huge amount. The hardships caused to the complainants cannot be adequately compensated in terms of money as their desire to have apartment in a prominent location was offered and defrauded.  On a consideration of the mental agony and financial loss caused to the complainants it is found that the complainants are entitled to get Rs. 5,00,000/- 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. 35,00,000/- (Rupees Thirty Five Lakhs only) received from the complainant with interest @ 8% per annum from 31.12.2015, the date on which the flat ought to have been handed over to the complainants, till the date of realization.

b) The opposite parties are directed to pay Rs. 5,00,000/- (Rupees Five 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 13.07.2017 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