KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

VAZHUTHACAUD, THIRUVANANTHAPURAM

C.C. No. 171/2017

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. Prasanth V.J., ‘Devi Nivas’, Kanchiyoorkonam Road, Kattakkada P.O., Thiruvananthapuram-695 572.

2. Satheesh Gopinath, ‘Krishna Kripa’, T.C. 17/2138, Dr. Pai Lane, Thirumala Village, Poojapura, Thiruvananthapuram-695 012 represented by his Power of Attorney Prasanth V.J.

3. Sandhya, W/o Satheesh Kumar, Krishna Kripa’, T.C. 17/2138, Dr. Pai Lane, Thirumala Village, Poojapura, Thiruvananthapuram-695 012 represented by her Power of Attorney Prasanth V.J.

      (By Adv. P.A. Ahamed)  

                   Vs.

OPPOSITE PARTIES:

1. Samson & Sons Builders and Developers (P) Ltd., 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 and Developers (P) Ltd., T.C. 3/678, Kannimattom, TKD Road, Muttada P.O., Thiruvananthapuram-695 025.

3. Samuel Jacob, Director, Samson & Sons Builders and Developers (P) Ltd., T.C. 3/678, Kannimattom, TKD Road, Muttada P.O., Thiruvananthapuram-695 025.

4. Jacob Samson, Chairman, Samson & Sons Builders and Developers (P) Ltd., T.C. 3/678, Kannimattom, TKD Road, Muttada P.O., Thiruvananthapuram-695 025.

5. Dhanya Mary Varghese, W/o John Jacob, Director-Sales, Samson & Sons Builders and Developers (P) Ltd., T.C. 3/678, Kannimattom, TKD Road, Muttada P.O., Thiruvananthapuram-695 025.

   (By Adv. Dougles Linsby N.R.)

JUDGMENT

SMT. BEENA KUMARY. A: MEMBER

This is a complaint filed by one Prasanth, Satheesh Gopinath and Sandhya.  The 2^nd and 3^rd complainants are brother and sister and they both have executed Power of Attorney in favour of the 1^st complainant.  The present complaint is against Samson and Sons Builders and Developers Pvt. Ltd. Company.

2.  The allegations contained in the complaint are in brief as follows:  The complainants have separately booked residential apartments in the project plotted by the opposite parties in the name and style of ‘Orchid Valley’ and due to reasons known to the opposite parties the same could not be completed on time.  So after mutual discussion and deliberations between the complainants and opposite parties an agreement for sale was executed on 08.07.2016 between the complainants and 2^nd opposite party on behalf of other opposite parties also and registered before the Sub Registrar Office, Pattom as Document No. 1941/2016. As per the terms of the agreement the opposite parties agreed to sell Apartment No. 1 D in the first floor with built up area 158 sq. m. with corresponding undivided share of 60 sq. m. (01.50 cents) in the Samson and Sons Nova Castle Apartment in survey No. 2762 in Kowdiar village for a total consideration of Rs. 60,00,000/-.  In the agreement the opposite parties acknowledged receipt of Rs. 15,00,000/- from the 1^st complainant, Rs. 20,00,000/- from the 2^nd complainant and Rs. 20,00,000/- from the 3^rd complainant totalling a sum of Rs. 55,00,000/-.  The opposite parties further agreed that the building will be completed and sale deed will be executed and delivered on or before 31.03.2017 on receipt of the balance sale consideration of Rs. 5,00,000/-.  Even after the expiry of the period mentioned in the agreement the opposite parties failed to complete the construction and to execute the sale deed as already agreed upon.  Now only the structure of the building is completed, no side wall or interior partition is done by the opposite parties.  On a fair estimation a sum of Rs. 25,00,000/- is needed to complete the construction of the premises as already agreed upon.  

3.  But contrary to what was assured the opposite parties unilaterally began to move away from their assurance.  The complainants’ attempts to contact the opposite parties were failed.  There was no response from the side of the opposite parties. Meanwhile it was informed that the opposite parties were arrested by police in a cheating case.

4.  After the period of time was over the complainants sent a lawyer’s notice to the opposite parties to execute the sale deed.  The complainants had paid Rs. 55,00,000/-, but the opposite parties utilized only Rs. 30,00,000/-.  The complainants are willing to finish the work at their own cost and requested the opposite parties to refund the excess amount illegally held.   There has been no reply to the notice.   Hence this complaint.   The complainants stated that the action of the opposite parties tantamounts to unfair trade practice and deficiency of service.  The complainants pray for return of the amount of Rs. 55,00,000/- with interest from the opposite parties along with compensation and costs. 

5.  On admitting the complaint notices were issued to the opposite parties.  They entered appearance and availed several chances, but no version has been filed.  

6.  The evidence consists of proof affidavit filed by the 1^st complainant for himself and for other complainants also.  Exts. A1 to A4 series were marked on the side of the complainants.  Ext. A1 is the copy of Power of Attorney dated 25.04.2017.  Ext. A2 is the copy of Power of Attorney dated 30.06.2017.  Ext. A3 is the copy of the agreement dated 08.07.2016.  Ext. A4 series are the lawyer’s notice dated 25.04.2017, its postal receipt and acknowledgment card.  There is no evidence from the side of opposite parties.  Hence the affidavit filed by the complainants remains unchallenged. 

7.  Heard the complainant and perused the case records. 

8.  Now the points that arise for determination are:

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

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

10.  The 1^st complainant, the power of attorney holder of other complainants has sworn to an affidavit in support of the pleadings in the complaint.  The opposite parties never disputed the transaction alleged in the complaint.  Copy of agreement dated 08.07.2016 marked as Ext. A3 proved that the opposite parties had agreed to complete the construction of the apartment on or before 31.03.2017 on receipt of the balance sale consideration of Rs. 5,00,000/-.  In the agreement the opposite parties acknowledged receipt of Rs. 15,00,000/- from the 1^st complainant, Rs. 20,00,000/- from the 2^nd complainant and Rs. 20,00,000/- from the 3^rd complainant totalling to a sum of Rs. 55,00,000/- towards sale consideration. 

11.  When the complainants discharged their duty regarding the due execution of the agreement and payment of Rs. 55,00,000/- it was up to the opposite parties to tender evidence and prove the alleged circumstances which prevented them from fulfilling the promise.  From the evidence on record it is crystal clear that the opposite parties have no intention to complete the flat.  In this case the opposite parties did not file proof affidavit.  Hence the affidavit filed by the complainants stands unchallenged.

12.  The facts and circumstances brought before us would prove that the opposite parties had no intention to complete the construction 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. 55,00,000/- from the complainants. So the complainants are entitled to get back Rs. 55,00,000/- along with interest from the opposite parties.

13.  The hardships caused to the complainants cannot be adequately compensated in terms of money as their 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 complainants it is found that the complainants are entitled to get Rs. 6,00,000/- 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. 55,00,000/- (Rupees Fifty Five Lakhs only) received from the complainants with interest @ 8% per annum from 31.03.2017, 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. 6,00,000/- (Rupees Six Lakhs only) as compensation towards the mental agony and hardships suffered by the complainants, with interest thereon @ 8% per annum from the date of filing the complaint i.e; on 07.07.2017, 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