KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

VAZHUTHACAUD, THIRUVANANTHAPURAM

C.C. No. 102/2017

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:

Roy Mathew, T.C. 11/407(1), PKRA-273, Cherakarottu Veedu, Parottukonam, Nalanchira P.O., Ulloor Village, Thiruvananthapuram-695 015 represented by his Power of Attorney holder Varghese Mathew, T.C. 11/407(2), PKRA-273(A), Parottukonam, Nalanchira P.O., Ulloor Village, Thiruvananthapuram-695 015.

  (By Adv. Idicula Zachariah)

                                                Vs.

OPPOSITE PARTIES:

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

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

4. Samuel Jacob, Director, Samson & Sons Builders and Developers (P) Ltd., T.C. 3/679, Kaliveena Building, T.K.D 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 Director. 

2.  The allegations contained in the complaint in brief are as follows:  The 1^st opposite party is carrying out the business of property development, construction and sale of apartments.  Opposite parties 2 to 4 are the Managing Director, Chairman and the Director.  The complainant is abroad who is represented by his brother, his Power of Attorney holder.  On the basis of an advertisement the complainant came to know that the opposite parties have a building project named as “Samson & Sons-SHARON HILLS Apartments'' at Thiruvananthapuram.  On meeting the opposite parties they convinced the complainant with computer generated picture, pamphlets and specification of the building they proposed to construct and also that they are trustworthy builders and assured him that they will deliver the apartment within the time specified as per the agreement.  On 05.04.2013 the complainant entered into an agreement with the opposite parties for the construction and sale of an apartment (B3 Type) having 1500 sq feet built up area on the third floor of the building “SHARON HILLS” along with covered car parking area and other common amenities and 1.57 cents undivided share in the property for a total consideration of Rs. 35,00,000/-.  As per the terms of the agreement the complainant paid Rs. 5,00,000/- on the date of agreement and the balance amount of Rs. 30,00,000/- on 10.07.2013. As per the stipulation in the agreement the apartment was to be handed over in full satisfaction of the complainant on or before 30.05.2014.  The complainant was expecting the delivery of the apartment as per the assurance made by the opposite parties in the agreement.  But construction of the apartment never progressed as assured.  The complainant had approached the opposite parties and enquired about the cause for the delay in construction and sought for explanation for the non-execution of the sale deed and non-handing over of the apartment.  But they failed to offer any satisfactory explanation but assured that they will deliver the apartment within a period of 3 months.  But they never completed the construction work of the apartment and prolonged the matter.  He was assured that they will hand over the apartment on or before November 2016.  But in fact the work completed was less than 50%.  The complainant could realise that he was deceived by the opposite parties.  On 03.03.2017 complainant sent a notice to the opposite parties through his lawyer to complete the construction and hand over the apartment or to refund Rs.35,00,000/- with 18% interest, but they never sent a reply.  The complainant suffered much agony on account of the deficiency of service on the side of the opposite parties.  Therefore he would seek for realization of Rs. 35,00,000/- 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 by him.  He also claimed Rs. 1,00,000/- as costs.

3.  On admitting the complaint notices were issued to the opposite parties.  They entered appearance and filed 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. 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 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 him.  There was a stipulation to complete the construction, but the period was extended by the parties as extra work had to be carried out.  According to the opposite parties the agreement never stipulated time as the essence of the contract.  The opposite parties had 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 subject to the complainant fulfilling the obligations.  He has wilfully suppressed those facts and now makes 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 quarries. Scarcity of cement also resulted in stoppage of the construction activities.  The construction industry had gone into stagnation in 2014.These true state of affairs had 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 which are owned by the shareholders, the only three Directors and one of them is the Managing Director and the other Director is the Chairman. The entire dealings of the company are managed by the Managing Director, Chairman and the Director only.  But others are 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 A6 and C1 were marked on the side of the complainant as the counsel for the opposite parties expressed no objection in receiving those documents in evidence.  The evidence consists of the proof affidavit filed by the complainant.  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 answered in favour of the complainant on an application filed by the opposite parties.  They never filed any appeal against the said finding and hence this issue does not arise at this stage.

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

10.  The Power of Attorney holder of the complainant had sworn an affidavit in support of the pleadings in the complaint.  Ext. A1 is the notarized copy of the power of attorney.  The copy of the agreement and the receipts evidencing the payment of Rs. 35,00,000/ to the opposite parties are exhibited as A2 and Ext. A3 series.  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   marking of those documents.  The opposite parties never disputed the transaction alleged in the complaint.  Ext.A2 would prove the execution of the agreement dated 05.04.2013 by which the opposite parties had agreed to construct the apartment on or before 30.04.2014 and handover possession of the apartment to the complainant.  As per the stipulation in Ext. A2 the complainant paid Rs. 35,00,000/-  on 05.04.2013 and 10.07.2013  as proved through the receipts, copies of which are exhibited as Ext. A3 series.  The execution of A2 and receipt of Rs. 35,00,000/- stands proved.

11.  An advocate Commissioner had inspected the property and filed a report, the certified copy of which is marked as Ext. C1.  Photographs of the premises are also seen enclosed with Ext. C1.  It is proved through the report of the commissioner that construction was not completed in the property as agreed.

12.  According to the opposite parties they could not construct the apartment for several reasons. But no tangible evidence was adduced by the opposite parties to substantiate their contention.  Mere assertions are made in the version filed by the opposite parties regarding the alleged causes which prevented them from starting the construction.  When the complainant has discharged his duty regarding the due execution of the agreement and payment of Rs. 35,00,000/- 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 are not supported by any evidence.

13.  The facts and circumstances brought before us would prove that the opposite parties had no intention to complete the construction of the apartment and they had exploited the desire of the complainant to have a place of abode and managed to enrich themselves by gaining a sum of Rs. 35,00,000/- from him. So the complainant is entitled to get back Rs. 35,00,000/- along with interest from the opposite parties.

14.  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 an apartment in a prominent location at Thiruvananthapuram was offered to be fulfilled and later 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.10,00,000/- 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.35,00,000/- (Rupees Thirty Five Lakhs only) received from him with interest @ 8% per annum from 30.05.2014, 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.10,00,000/- (Rupees Ten 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 of the complaint ie from 24.03.2017, 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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