KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

VAZHUTHACAUD, THIRUVANANTHAPURAM

C.C. No. 230/2017

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:

Jeevan Palackal, S/o P.N. Parameswara Kurup, residing at Nadackal, Mararikkulam, Mararikkulam North P.O., Alappuzha-688 549.

                                         (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 Jeevan Palackal 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 carrying out the business of property development and construction and sale of apartments.  Opposite parties approached the complainant and informed the complainant that there was an ongoing construction of a flat project named as "Samson & Sons Builders and Developers Pvt. Ltd.-Pearl Crest" which is shown as A schedule.  Thereafter the complainant and opposite parties entered into an agreement for sale and construction of a type E apartment on the 13^th floor having flat No. 13 E along with the undivided share in the property on 21.06.2014 for a consideration of Rs. 65,00,000/-.  As per the terms of the agreement the complainant had paid Rs. 65,00,000/- on 21.06.2014 itself.  The opposite parties issued receipt for the same. 

3.  As per the agreement the opposite parties assured the complainant that they would complete the construction of the apartment and would hand over the same on or before 31.12.2015.  But the complainant was surprised to notice that the opposite parties, after collecting such a huge sum from the complainant and issuing allotment letter, had not at all started the construction of the apartment as assured to the complainant.  The complainant has approached the opposite parties on several occasions and enquired about the delay in construction of the apartment and demanded for an explanation for non-execution of the sale deed as per the terms of the agreement.  The opposite parties failed to give a proper explanation and they put forward some flimsy reasons.  But even after the stipulated period they didn’t start the construction and there was no communication from the side of the opposite parties.  The complainant alleges that the opposite parties had conspired together to cheat him for getting illegal gain and obtained Rs. 65,00,000/- from the complainant on 21.06.2014.  The act of the opposite parties amounts to unfair trade practice and deficiency of service in not honouring their promise to hand over the building after obtaining Rs. 65,00,000/-.  The complainant issued a legal notice to the opposite parties demanding refund of the amount.  But there was no response from the side of the opposite parties.  Hence this complaint is necessitated. 

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.  Ext. A1 was marked on the side of the complainant, as the counsel for the opposite parties had no objection to mark the document.  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 in the complaint.  The copy of the agreement with payment schedule is exhibited as Ext. A1. Though the opposite parties in the version contended that the document produced may not be admitted in evidence as copy and no original was produced, at the stage of evidence they did not oppose the marking of the document.  The opposite parties never disputed the transaction alleged in the complaint. Ext. A1 would prove the execution of the agreement dated 21.06.2014 by which the opposite parties had agreed to construct the apartment on or before 31.12.2015 and handover possession of the apartment to the complainant. As per the stipulation in Ext. A1 the complainant paid Rs. 65,00,000/- which is proved by the acknowledgment in the payment schedule attached to the agreement.

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. 65,00,000/- 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. In this case as per the application filed by the complainant an advocate commissioner visited the property and reported that there no construction is seen done by the opposite parties.

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. 65,00,000/- from the complainants. So the complainants are entitled to get back Rs. 65,00,000/- 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. 7,00,000/- 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. 65,00,000/- (Rupees Sixty 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 complainant, till the date of realization.

b) The opposite parties are directed to pay Rs. 7,00,000/- (Rupees Seven 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

jb

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

jb