KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

VAZHUTHACAUD, THIRUVANANTHAPURAM

C.C. No. 124/2017

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. Anil Mathew

2. Mrs. Sini Anil Mathew, G 304,Park Titanium, Park Street, Wakad, Pune, Maharashtra, Pin-411057, from A1-702, Kumar Prerana, New D.P. Road, Aundh, Pune represented by their Power of Attorney Holder, Dr. Philip, Retired Professor, Panachamootil House, BNRA-70, Benedict Nagar, Nalanchira P.O, Pin 695015 Thiruvananthapuram.

    (By Adv. Idicula Zachariah)

                                                Vs.

OPPOSITE PARTIES:

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

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

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

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

   (By Adv. Dougles Linsby N.R.)

JUDGMENT

SRI. AJITH KUMAR D. : JUDICIAL MEMBER

This is a complaint filed 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 4 are the Managing Director, Chairman and the Director.  The complainants are represented by their power of attorney holder. Complainants on the basis of advertisements came to know about the apartments in a project run by the opposite parties as “Samson & Sons Merry Land Flats” near Paruthipara, Kowdiar Village, Thiruvananthapuram.  Complainant on meeting the opposite parties provided the complainants with a computer-generated picture and pamphlets and specification of building materials that they use for the construction 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 15.01.2014 the complainant had entered into an agreement for the sale and construction of a flat having 1500 sq.ft built up area car parking space, along with proportionate undivided share in 32.200 cents in Sy.Nos.1451/1-1-1, 1451/1, 1451/1-1,1449/1 and 1455 of Kowdiar Village with the opposite parties for a total consideration of Rs. 85,00,000/-.  As per the terms of the agreement the complainant had paid Rs. 10,00,000/- on 15.01.2014.  As per the stipulation in the agreement time is the essence of the contract and stipulated that the flat will be handed over in full satisfaction of the complainant on or before 31.12.2016.  The complainant paid a further sum of Rs 20,00,000/- in three instalments.  Complainants were expecting the delivery of the flat as per the assurance made by the opposite parties in the agreement.  But they never made the construction of the flat 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.  The complainant realized that the opposite parties had deceived the complainant after collecting a huge amount.  Complainants had caused issuance of a lawyer notice on 22.04.2017 seeking refund of the amount with interest. The complainants hence suffered much agony on account of the deficiency of service on the side of the opposite parties.  They would seek for realization of Rs. 30,00,000/- with interest @ 18% per annum. They would also seek for realization of an amount of Rs. 10,00,000/- as compensation for the mental agony and loss suffered.  They also claimed Rs. 1,00,000/- as costs.

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

4.  The evidence consists of the proof affidavit filed by the complainant.  Exts. A1 to A6 series 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.

5.  Heard both sides.  Perused the case records.

6.  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?

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

8.  The Power of Attorney holder of the complainant had sworn an affidavit in support of the pleadings in the complaint.  The copy of the agreement and the receipts evidencing the payment of Rs. 30,00,000/ to the opposite parties are exhibited as Exts. A2 and Ext. A3 series.  Ext. A2 would prove the execution of the agreement dated 15.01.2014 by which the opposite parties had agreed to construct the apartment on or before 31.12.2016 and handover possession of the apartment to the complainant.  As per the stipulation in Ext. A2 the complainant paid Rs 10,00,000/- each on 15.01.2014 and 17.01.2014 and Rs. 5,00,000/- each on 18.012014 and 29.01.2014 as proved through the receipts, copy of which are exhibited as Ext. A3 series.  The execution of Ext. A2 and receipt of Rs. 30,00,000/- stands proved.

9.  An advocate Commissioner had inspected the property and filed a report which 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.

10.  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 30,00,000/- 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.

11.  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. 30,00,000/- from the complainant.  So the complainant is entitled to get back Rs.30,00,000/- along with interest from the opposite parties.

12.  The complainant was 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 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. 30,00,000/- (Rupees Thirty Lakhs only) received from the complainant with interest @ 8% per annum from 31.12.2016, 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.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 06.05.2017, 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      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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