KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

VAZHUTHACAUD, THIRUVANANTHAPURAM

C.C. No. 137/2017

JUDGMENT DATED: 03.08.2023

PRESENT:

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

SRI. AJITH KUMAR D.                                                    : JUDICIAL MEMBER

SRI. RADHAKRISHNAN K.R.                                        : MEMBER

COMPLAINANT:

1. Linoy Paul John, S/o T.C. John, House No.4, Muthoot Valley, Kallayam P.O,Thiruvananthapuram-695043, Presently residing at 63, The Quarterdeck, Willeton, EWA-6155, Australia, Represented by his power of attorney  Mohan Mathew, Thasayil, Chempakassery Nagar, Opposite to M.G. College, T.C. 14/60, Pattom.P.O,Thiruvanathapuram-695004.

2. Dhanya Mariam Mohan, W/o Linoy Paul John, House No.4, Muthoot Valley, Kallayam P.O,Thiruvananthapuram-695043, Presently residing at 63, The Quarterdeck, Willeton, EWA-6155, Australia, Represented by her power of attorney  Mohan Mathew, Thasayil, Chempakassery Nagar, Opposite to M.G. College, T.C. 14/60, Pattom.P.O,Thiruvanathapuram-695004.

(By Adv. P.A. Ahamed)

                                                Vs.

OPPOSITE PARTIES:

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

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

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

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

   (By Adv. Dougles Linsby N.R.)

JUDGMENT

SRI. AJITH KUMAR D. : JUDICIAL MEMBER

 Complainants are husband and wife and permanently settled in Australia who are represented by their power of attorney holder, filed complaint 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 two Directors.  The complainants had planned to settle at Trivandrum. Opposite parties convinced the complainants that they are trustworthy builders and assured that they launch a project in Vazhayila by name “Green Courtyard”.  Being attracted by the offers and facilities assured by the opposite parties the complainants have decided to invest funds in the project.  On 03.09.2013 the complainants had entered into an agreement for sale and construction.  A sum of Rs. 40,00,000/- was received by the opposite parties.

3.  On 09.09.2013 land having an extent of 4.17 Ares in Green Courtyard, Vazhayila was registered in favour of the complainants.  Mutation was also effected in the name of the complainants.  On the date of registration Rs. 40,00,000/- was paid in addition to the initial payment.  The total value of construction was fixed as Rs. 80,00,000-, but the opposite parties received Rs. 1,18,00,000/-.  The construction of the villa moved only at a slow pace.  Though the works did not commensurate with the amounts paid complainants paid further amount of Rs. 20,00,000/- on 21.10.2014, Rs. 15,00,000/- on 04/12/2014.  Thus by December 2014 complainants paid Rs 1,15,00,000/- in addition to the Sale Consideration of Rs. 7,21,000/-. But the opposite parties were not keen on keeping their part of the commitment. 

4.  The construction did not progress as assured.  While so in November-December 2016 Complainants came to know that the opposite parties were arrested on cheating charges.  The complainants could not contact the opposite parties.  They had constructed only a miniscule portion which would worth Rs.  31,75,700/-.  The complainants had deputed a Chartered Engineer who prepared a valuation report.   It shows that the opposite parties had unlawfully retained Rs 89,45,300/-.   This amount along with 18% interest is sought to be realised from the opposite parties. A sum of Rs 10,00,000/- is also sought for as compensation for the mental agony and loss suffered and costs.

5.  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. 

6.  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 2013 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.  She 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 3^rd opposite party is a Director and he 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 unnecessary parties.  Therefore the opposite parties would seek dismissal of the complaint. 

7.  The evidence consists of the proof affidavit filed by the complainant.  Exts. A1 to A12 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.  No evidence was adduced on the side of the opposite parties.

8.  Heard both sides.  Perused the case records.

9.  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?

10.  Point No. (i) :-The question of maintainability was considered and found in favour of the complainants at the preliminary stage and the said finding has become final.  So this point does not arise at this stage

11.  Point Nos. (ii) &(iii):- These points are considered together for the sake of convenience.  The power of attorney holder had sworn an affidavit in support of the pleadings in the complaint.  The copy of the power of attorney is marked as Ext. A1.  The copy of the agreement and the receipts evidencing the payment of Rs 40,00,000/- to the opposite parties on 03.09.2013, Rs. 30,00,000/- and Rs. 10,00,000/- on 09.09.2013, Rs. 20,00,000/- on 21.10.2014 and Rs. 15,00,000/- on 04.12.2014 are exhibited as A4, A7, A8, A9 & A10.  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.A3 would prove the execution of the agreement dated 03.09.2013 by which the opposite parties had agreed to construct the villa on or before 31.12.2015 and handover possession of the same to the complainants. As per the stipulation in Ext. A3 the complainant paid Rs 1,15,00,000/- as on 04.12.2014 as proved through the receipts, copies of which are exhibited as Exts. A4 and A7 to A10.  The execution of A3 and receipt of Rs 1,15,00,000/- stands proved.

12.  An expert Commissioner had inspected the property and filed a report which is marked as Ext. C1.  The commissioner had inspected the property and valued the construction cost in respect of the partially constructed structure made by the opposite parties inclusive of the land value as Rs. 31,75,700/-.  The assessment made by the commissioner appears to be reasonable and no objection is seen raised by the opposite parties against the report.  Hence Ext. C1 is accepted for fixing the value of the partially built structure in the property.  So the value of the structure made in the property is fixed as Rs. 24,54,700/- after deducting the value of the land Rs. 7,21,000/-. 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 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. 1,15,00,000/- 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 complete the construction of the villa.  So the complainants are entitled to get the excess amount of Rs. 90,45,300/- (1,15,00,000-24,54,700) retained by the opposite parties along with interest.

13.  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. 90,45,300/- from the complainants. So, the complainants are entitled to get back Rs. 90,45,300/- along with interest from the opposite parties.

14.  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.10,00,000/- as compensation.  Since the complainants are the owners and title holders of the land purchased as per Ext. A5 they are entitled to get back the original title deed.  Complainants are also found entitled to get permission to complete the construction of the villa.

In the result, the complaint is allowed as follows:

a) The opposite parties are directed to pay the complainant the amount of Rs. 90,45,300/- (Rupees Ninety Lakhs Forty Five Thousand and Three Hundred only) being the excess amount received from the complainant with interest @ 8% per annum from 31.12.2016, the date on which the villa ought to have been handed over to the complainant, till the date of realisation.

b) The opposite parties are directed to pay Rs.10,00,000/- (Rupees Ten 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 ie on 29.05.2017, till the date of payment.

c) The opposite parties are directed to return to the complainants the original title deed No.2361/2013 of SRO Karakulam dated 09.09.2013 within 30 days from the date of receipt of the copy of this judgment.

d) The complainants are permitted to complete the construction of the villa.

e) 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

jb                                                                                                 RADHAKRISHNAN K.R.  : MEMBER