KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

VAZHUTHACAUD, THIRUVANANTHAPURAM

C.C. No. 152/2017

JUDGMENT DATED: 31.07.2023

PRESENT:

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

SRI. AJITH KUMAR D.                                                    : JUDICIAL MEMBER

SRI. RADHAKRISHNAN K.R.                                        : MEMBER

COMPLAINANT:

Saju Skaria, Chakkittel Saj Bhavan, T.C. 3/1270, East Pattom, Pattom P.O, Thiruvananthapuram-4 represented by his Power of Attorney holder Sri. C.S. Skaria.

                   (By Adv. K.S. Satheesh Kumar)

                                                Vs.

OPPOSITE PARTIES:

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

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

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

4. Dhanya Mary John, Director, Samson & Sons Builders and Developers (P) Ltd., 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.

   (By Adv. Dougles Linsby N.R.)

JUDGMENT

SRI. AJITH KUMAR D. : JUDICIAL MEMBER

This is a complaint filed by one Saju Skaria against Samson & Sons Builders and Developers Private Limited Company, its Managing Director, Chairman and two Directors. 

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 5 are the Managing Director, Chairman and the Directors.  The complainant with an intention to purchase a residential flat in Thiruvananthapuram came to know about the apartments in a project run by the opposite parties as “Santhosh Nagar Flat” at Muttada.  Complainant made enquiries with the opposite parties 2 to 5 and they arranged a meeting and convinced the complainant that they are trust worthy builders and assured that they will deliver the apartment to the customers within the time specified in the agreement.  On 04.05.2014 the complainant had entered into an agreement for the sale and construction of a 4^th option apartment with the undivided share in the property with the opposite party for a total consideration of Rs. 60,00,000/-.  As per the terms of the agreement the complainant had paid Rs. 20,00,000/- on 04.05.2014 and was waiting for the balance payment as stipulated in the agreement.  As per the stipulation in the karar the apartment will be handed over in full satisfaction of the complainant on or before 31.12.2015 as he made the payment of first instalment as contemplated in the agreement and assured by the opposite parties.  The complainant was expecting the delivery of the apartment as per the assurance made by the opposite parties in the agreement.  But they never started construction of the apartment as assured.  The complainant 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.  But they never started the construction of the apartment and there was no communication from their side.  The complainant had approached the 5^th opposite party and enquired about the reason for the violation of the conditions in the agreement.  He replied that the opposite parties will convene a meeting of the persons who paid for the apartments and give proper explanation and will announce the date of handing over of the apartment.  The complainant realized that the opposite parties have deceived the complainant after collecting a huge amount.  Even if the complainant had deposited the amount in a nationalized bank he should have received interest @ 9% per annum.  The complainant hence suffered much agony on account of the deficiency of service on the side of the opposite parties.  He would seek for realization of Rs. 20,00,000/- with interest @ 9% per annum for the principal amount paid till the agreed date of delivery and thereafter @ 18% per annum. He would also seek for realization of an amount of Rs. 10,00,000/- as compensation for the mental agony and loss suffered.  He also claimed Rs. 50,000/- as costs.

3.  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. 

4.  The Commercial Division and Commercial Appellate Division of High Courts Act 2015 imposes a specific bar of jurisdiction of 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 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 has 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.  He has wilfully suppressed those facts and making allegations without any bonafides.  The documents relied upon by the complainant 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, the 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 4^th opposite party is not a Director and she is not responsible for the day-to-day affairs of the company.  The complaint is barred by mis-joinder on account of the impleadment of the 4^th opposite party.  Therefore the opposite parties would seek dismissal of the complaint. 

5.  The evidence consists of the proof affidavit filed by the complainant.  Exts. A1 to A3 and C1 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.

6.  Heard both sides. Perused the case records.

7.  Now the points which 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?

8. Point No (i):- The question of maintainability was considered and decided in favour of the complainant at the preliminary stage. The opposite parties never challenged the finding of this commission.  So this point does not arise at this stage.

9.  Point Nos. (ii) &(iii) :- The power of attorney holder 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 A3.  Ext. A2 is the copy of the Power of Attorney executed by the complainant.  Though the opposite parties in the version contended that the documents produced may not be admitted in evidence as copies and not originals they did not oppose the marking of the documents.  The opposite parties never disputed the transaction alleged in the complaint.  Ext.A1 would prove the execution of the agreement dated 04.05.2014 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 complainant. As per the stipulation in A1 the complainant paid Rs 20,00,000/- on 04.05.2014 as proved through the receipt, copy of which is exhibited as Ext. A3.  The execution of Ext. A1 and receipt of Rs. 20,00,000/- stands proved.

10.  An advocate Commissioner had inspected the property and filed a report, the certified copy of the same is marked as Ext. C1.  The photographs of the premises are also seen enclosed with Ext. C1.  It is proved through the report of the commissioner that no construction is so far made in the property.  The opposite parties have no case that they have put up any construction in the property.

11.  According to the opposite parties they could not construct the apartment 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 cause which 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 is up to the opposite parties to tender evidence and convince the alleged circumstances which prevented them from fulfilling the promise. Vague pleadings are seen raised in the version 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 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.

13.  The complainant was in fact deceived by the opposite parties by assuring an apartment after receiving a huge amount.  The hardships caused to the complainant cannot be adequately compensated in terms of money as his desire to have apartment in a prominent location was offered and defrauded.  On consideration of the mental agony and financial loss caused to the complainant it is found that the complainant is 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 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 apartment ought to have been handed over to the complainant, till the date of realisation.

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 30.06.2017,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

jb                                                                                                RADHAKRISHNAN K.R.  : MEMBER

APPENDIX

I         COMPLAINANT’S WITNESS :

II       COMPLAINANT’S DOCUMENTS :

III      OPPOSITE PARTY’S WITNESS :

IV      OPPOSTE PARTY’S DOCUMENTS :

V       COURT EXHIBIT :

JUSTICE K. SURENDRA MOHAN  : PRESIDENT

                                   AJITH KUMAR  D. : JUDICIAL MEMBER

                                                                                            RADHAKRISHNAN K.R.  : MEMBER

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