KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

VAZHUTHACAUD, THIRUVANANTHAPURAM

C.C. No. 229/2017

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:

Ivy Elizabeth Philip, W/o late Chandy George, Pancheril, Vadakkumbhagam, East Kollam, Kollam-691 001.

                                         (By Adv. K.S. Satheesh Kumar)

                   Vs.

OPPOSITE PARTIES:

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

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

3. Jacob Samson, Chairman, Samson & Sons Builders and Developers (P) Ltd., T.C. 3/678, Kannimattom, Muttada P.O., Thiruvananthapuram- 695025.

4. Dhanya Mary John, Director, Samson & Sons Builders & Developers Pvt. Ltd., Kaliveena Building, T.C. 3/678, Kannimattom, Muttada P.O., Thiruvananthapuram.
5. Samuel Jacob, Director, Samson & Sons Builders and Developers (P) Ltd., T.C. 3/678, Kannimattom, Muttada P.O., Thiruvananthapuram- 695025.

   (By Adv. Dougles Linsby N.R.)

JUDGMENT

SMT. BEENA KUMARY. A: MEMBER

This complaint is filed by one Ivy Elizabeth against Samson and Sons Builders & Developers Pvt. Ltd., its Managing Director, Chairman and Directors.

          2.  The allegations contained in the complaint are in brief as follows: The 1^st opposite party is a private limited company and property developers and builders who are carrying out the business of property development and construction and sale of apartments, and the opposite parties 2 to 5 are the Managing Director, Chairman and Directors respectively.   Late Chandy George, who is the husband of the complainant with the desire to settle at Thiruvananthapuram, was in search of an apartment in Thiruvananthapuram.  On search of the same the said Chandy George came to know about the Apartment Project of the opposite parties viz; “Orchid Valley” at Muttada, Kudappanakunnu Village, Thiruvananthapuram.  Thereafter the complainant contacted the opposite parties and they arranged a meeting and convinced him that they are trustworthy builders and assured him that they will deliver the apartment to the customers within the time specified as per the agreement.  Thereafter the said Chandy Goerge entered into an agreement for sale and construction of a 10^th option apartment, along with undivided share in the property, on 12.06.2014, with the opposite parties with respect to their residential apartment project “Orchid Valley” for a total consideration of Rs. 60,00,000/-.  Thereafter as per the terms of agreement, the complainant paid a total amount of Rs. 20,00,000/- in four instalments, i.e; Rs. 5,00,000/- on 12.06.2014, Rs. 4,00,000/- on 10.07.2014, Rs. 8,00,000/- on 25.07.2014 and Rs. 3,00,000/- on 03.08.2014 and was waiting for the proceeds of the construction of the flat and balance payment as per the agreement dated 12.06.2014.  As per the terms of the agreement the opposite parties have assured the above said Chandy George that they will complete the construction and hand over the apartment on or before 31.12.2015.  But he was surprised to notice that the opposite parties have not at all started the construction of the apartment as assured to him.  In the said circumstances he had approached the opposite parties on many occasions and enquired about the delay.  But the opposite parties put forward some flimsy reasons and assured that they will deliver the apartment within time.  But even after the period of execution of the sale deed the opposite parties did not start the construction and thereafter not cared to reply to the enquiries. 

3.  He several times approached the opposite parties and demanded back the amount paid to the opposite parties.  But there was no response from their side.  In the meanwhile Mr. Chandy George expired on 11.12.2016 even without getting his dream fulfilled.   Thereafter, his wife, the complainant has approached several times to the opposite parties and demanded back the amount paid to them, for purchasing another flat.  But the opposite parties did not turn up to hear the request.  The complainant and her family suffered too much due to the deficiency of service of the opposite parties, for which the opposite parties are liable to pay compensation to them, which cannot be equated in terms of money.  Hence for the redressal of her grievances the complainant has filed 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 2012 and the complaint was filed in 2017.  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 complainants in the land purchased by the complainants.  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 complainants 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 complainants fulfilling the obligations.  Complainants have 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 complainants 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 opposite parties would seek dismissal of the complaint. 

6.  The evidence consists of the proof affidavit filed by the complainant.  Exts. A1 & A2 series were marked on the side of the complainant, as the counsel for the opposite parties had no objection to mark the documents.  Ext. C1 Commission Report has been marked as court exhibit.  The 2^nd opposite party filed proof affidavit in lieu of examination and Ext. B1 was 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 complainant has sworn to an affidavit in support of the pleadings.  Copy of the agreement dated 12.06.2014 is marked as Ext. A1 and the payment receipts are marked as Ext. A2 series.  The complainant’s husband late Chandy George had paid Rs. 5,00,000/- on 12.06.2014, Rs. 4,00,000/- on 10.07.2014, Rs. 8,00,000/- and Rs. 3,00,000/- on 03.08.2014 totalling to Rs. 20,00,000/-.  The complainant has produced photocopy of the documents.  The opposite parties have not raised any objection in marking the documents.  Ext. A1 would prove the execution of the agreement dated 12.06.2014 by which the opposite parties had agreed to construct the apartment on or before 31.12.2015 and hand over possession of the apartment to the husband of the complainant.  Ext. A2 series proved the payment of Rs. 20,00,000/- to the opposite parties by the husband of the complainant.

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 starting 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 construct the flat.

13.  The facts and circumstances brought before us would prove that the opposite parties had no intention to construct 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 husband of the complainant had paid the money to the opposite parties.  It was his dream to settle in Trivandrum with his wife in this apartment.  Due to the inhuman act of the opposite parties he died before fulfilling his dream.  The only legal heir, his wife, filed this complaint after his death.  Complainant’s husband expired on 11.12.2016.  The opposite parties had assured him that the flat will be handed over to him on or before 31.12.2015. 

15.  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 her 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. 3,00,000/- as compensation.

In the result, the complaint is allowed as follows:

a) The opposite parties are directed to pay the complainant the amount of Rs. 20,00,000/- (Rupees Twenty 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 complainant, till the date of realization.

b) The opposite parties are directed to pay Rs. 3,00,000/- (Rupees Three 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 20.10.2017, 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

                                                                                                  RADHAKRISHNAN K.R.  : MEMBER

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APPENDIX

I         COMPLAINANT’S WITNESS :

II       COMPLAINANT’S DOCUMENTS :

III      OPPOSITE PARTY’S WITNESS :

IV      OPPOSITE PARTY’S DOCUMENTS :

V       COURT EXHIBIT :

JUSTICE K. SURENDRA MOHAN  : PRESIDENT

                                       AJITH KUMAR D.: JUDICIAL MEMBER

                                                                                                BEENA KUMARY. A         : MEMBER

                                                                                               RADHAKRISHNAN K.R.  : MEMBER

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