KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

VAZHUTHACAUD, THIRUVANANTHAPURAM

C.C. No. 144/2017

JUDGMENT DATED: 17.08.2023

PRESENT:

HON’BLE JUSTICE SRI. K. SURENDRA MOHAN     : PRESIDENT

SRI. AJITH KUMAR D.                                                    : JUDICIAL MEMBER

SRI. RADHAKRISHNAN K.R.                                        : MEMBER

COMPLAINANTS:

1. Sebastian Bejoy, S/o Bejoy Sebastian, House No. 170, Gandhi Nagar, 1^st Street, Thycaud P.O., Thiruvananthapuram-14.

2. Tincy Sebastian, W/o Sebastian Bejoy, House No. 170, Gandhi Nagar, 1^st Street, Thycaud P.O., Thiruvananthapuram-14.

 (By Advs. T.M. Sreekumar & Ajaykumar)

                                                Vs.

OPPOSITE PARTIES:

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

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

3. Jacob Samson, Chairman, Samson & Sons Builders and Developers (P) Ltd., T.C. 3/679, TKD Road, Kaliveena Building, Muttada P.O., Thiruvananthapuram-695 025.

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

   (By Adv. Dougles Linsby N.R.)

JUDGMENT

SRI. AJITH KUMAR D. : JUDICIAL MEMBER

 Complainants are husband and wife working in the field of Information Technology, filed the complaint against Samson & Sons Builders and Developers Private Limited Company, its Managing Director, Chairman and Director. 

2.  The allegations contained in the complaint are in brief as follows:  The 1^st opposite party is carrying out the business of property development and construction and sale of apartments.  Opposite parties 2 to 4 are the Managing Director, Chairman and Director.  The complainant had planned to settle at Trivandrum. Opposite parties had advertised in dailies and medias with regard to their business in constructing villas and apartments in the land having an extent of 36 Ares in Re Survey No.462/5, 22Ares in Re Survey No. 462/6 and 14.25 Ares in Re Sy No.465/4 in Block No 34 of Karakulam Village in the name as “Samson and Son’s Sanctuary-Skylark”.  Being attracted by the offers and facilities assured by the opposite parties the complainants have decided to invest funds in the project.  On 21.04.2013 the complainants had entered into an agreement for sale and construction for Rs 63,00,000/-.  A sum of Rs. 20,00,000/- was received by the opposite parties on different dates for that the first opposite party had issued receipts.  As per the stipulation in the karar the apartment will be handed over in full satisfaction of the complainants on or before December 2013.

3.  On 31.10.2016 the opposite parties agreed to finish construction of the 3^rd floor by March 2017 and specifically assured to return the advance money with interest if there is further delay on their part.  The said assurance was given in writing as “attachment to the original sale and construction agreement”.

4.  The complainants were expecting the delivery of the apartment as per the assurance made by the opposite parties in the agreement.  But the construction of the apartment did not progress as assured.  The complainants had approached the opposite parties and enquired about the delay in construction and sought for explanation for the non-execution of the sale deed and non-handing over of the apartment.   They failed to offer any satisfactory explanation.  The complainants realized that the opposite parties had deceived the complainants after collecting a huge amount.  Hence the complainants would seek for realization of Rs. 20,00,000/- with interest @ 12% per annum.  They would also seek for realization of an amount of Rs. 20,00,000/- as compensation for the mental agony and loss suffered.  They also claimed Rs. 25,000/- as 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 the proof affidavit filed by the complainant.  Exts. A1 to A3 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 which 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 first complainant had sworn 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 and A2 series.  Ext. A3 is the copy of the subsequent agreement dated 31.10.2016 by the opposite parties.  Ext. A1 would prove the execution of the agreement dated 21.04.2013 by which the opposite parties had agreed to construct the apartment on or before 31.05.2015 and handover possession of the apartment to the complainants. As per the stipulation in Ext. A1 the complainant paid Rs. 20,00,000/- as proved through the receipts, copies of which are exhibited as Ext. A2 series.  The execution of Ext. A1 and receipt of Rs. 20,00,000/- stands proved.

11.  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 affidavit filed by the 2^nd opposite party regarding the alleged cause which prevented them from starting the construction.  When the complainants discharged their duty regarding the due execution of the agreement and payment of Rs. 20,00,000/- it is up to the opposite parties to tender evidence and convince the alleged circumstances which prevented them from fulfilling the promise.  Vague assertions are seen raised in the affidavit filed by the 2^nd opposite party which is not supported by any evidence.  From the evidence on record it is crystal clear that the opposite parties have no intention to construct the apartment.

12.  The facts and circumstances brought before us would prove that the opposite parties had no intention to construct the apartment 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. 20,00,000/- from the complainants.  So the complainants are entitled to get back Rs. 20,00,000/- along with interest from the opposite parties.

13.  The complainants were in fact deceived by the opposite parties by assuring an apartment 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 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. 20,00,000/- (Rupees Twenty Lakhs only) received from the complainants with interest @ 8% per annum from 31.12.2015, the date on which the apartment ought to have been handed over to the complainant, 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 complainants, with interest thereon @ 8% per annum from  the date of filing the complaint i.e; on 15.06.2017, 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 judgement, failing which all the amounts shall carry interest @ 9% per annum.

JUSTICE K. SURENDRA MOHAN  : PRESIDENT

                                 AJITH KUMAR  D. : JUDICIAL 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 :

JUSTICE K. SURENDRA MOHAN  : PRESIDENT

                                   AJITH KUMAR  D. : JUDICIAL MEMBER

                                                                                                    RADHAKRISHNAN K.R.  : MEMBER

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