KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

VAZHUTHACAUD, THIRUVANANTHAPURAM

C.C. No. 71/2017

JUDGMENT DATED: 18.04.2023 

PRESENT : 

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

SRI.RANJIT. R                                                                   : MEMBER

SMT. BEENA KUMARY. A                                              : MEMBER

SRI. RADHAKRISHNAN K.R.                                        : MEMBER

COMPLAINANTS:

1. Sajad Kharim, ‘Pattappally House, KRA-66, Ambalathumukku, Pettah P.O., Thiruvananthapuram.

2. Alsumayya Beegom, ‘Pattappally House, KRA-66, Ambalathumukku, Pettah P.O., Thiruvananthapuram.

                       (By Advs. Narayan R. & Sameer Kharim)

                                                Vs.

OPPOSITE PARTIES:

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

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

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

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

5. Dhanya Mary Varghese, Director-Sales, Samson & Sons Builders and Developers (P) Ltd., T.C. 3/678, Kannimattom, Muttada P.O., Thiruvananthapuram-695 025.

(By Adv. Dougles Linsby N.R.)

JUDGMENT

SRI.RANJIT. R: MEMBER

            This complaint is filed against the builders Samson & Sons Builders & Developers Private Limited seeking refund of a total sum of Rs. 31,00,000/- being the amount received by the opposite parties with 18% interest and compensation along with costs of the proceedings.

            2. The case of the complainants as detailed in the complaint, in brief, is that:

            The complainants are husband and wife.  They decided to purchase an apartment attracted by the offers made by the opposite parties of their apartment project in the name and style ‘Angel Woods’ at Kudappanakunnu village, Thiruvananthapuram.  Accordingly complainant entered into an agreement with opposite party for purchase of the apartment No. D4 on the said project on 12.08.2015 for a total sale consideration of Rs. 50,00,000/-.  On the date of signing the above agreement a sum of Rs. 30,00,000/- was paid to the opposite parties by the complainants and the same was acknowledged by them in the above agreement and in the receipt attached to the said agreement.  The 2^nd opposite party also received an additional sum of Rs. 1,00,000/- from the complainants on 29.10.2016.  Though the 2^nd opposite party has received the amount of Rs. 1,00,000/- he did not give any receipt for the same.  As per the terms in the agreement the opposite party assured and promised to have the apartment completed and handed over by June 2017.  But contrary to the above assurance, the opposite parties miserably failed to make any construction and have not even laid the foundation of the block in which the apartment No. D4 booked by the complainants is located.  They have only erected a pillar structure of the block situated on the rear side of the property and the work was discontinued and has come to a standstill.   While so the complainants got information that the 2^nd opposite party had been arrested on swindling/cheating charges for deceiving similarly placed persons who booked apartments and paid the amounts.  Later it was informed that the other opposite parties were also arrested on swindling charges.  Opposite parties 2, 3, 4 & 5 are absconding and they are not responding to queries made by the complainants.  Now it is learned that the project has come to a standstill and Samson & Sons Builders have abandoned the work.  An amount of Rs. 31,00,000/- has been paid by the complainant to the opposite parties.  But they have not so far completed the construction or handed over the apartment.  Therefore alleging deficiency in service and unfair trade practice on the part of the opposite parties, the complainants have filed this complaint claiming refund of Rs. 31,00,000/- with interest @ 18% per annum from 12.08.2015 till repayment.  They also claimed compensation of Rs. 10,00,000/- and also costs of the proceedings. 

            3.  Opposite parties 1 to 5 entered appearance on receipt of notice and filed joint version challenging the maintainability of the complaint on the ground that this Commission established under the Consumer Protection Act was no longer competent to adjudicate the issues involved here, in view of the enactment of Real Estate Regulation and Development Act 2015.   The other grounds canvassed by the opposite parties are that many documents produced by the complainants are forged ones and so without forensic examination genuineness of those documents cannot be determined.  They have also contended that the proceedings demand a plethora of evidence, since it involves complicated questions of fact and law, which can be adjudicated only by a civil court. 

4.  On merits the opposite parties have sought to justify the delay in completion of the construction on the ground that the said delay happened on account of reasons beyond their control. In the year 2012 there was lorry drivers’ & labourers’ strike, hike in price of sand, shortage of construction materials like sand, stone etc. There was scarcity of cement also.  Again there was rise in cement prices.  These factors were all beyond the control of the opposite party.  They further contended that the opposite parties were arrested at the instance of some of the complainants and also most of the documents were taken by the Police in connection with the Police investigation.  But they apprehend that these documents may be forged to create false claims against the opposite party.  The complainants are well aware of the circumstances and the ground reality concerning the present work.  They extended the delivery date solely due to reasons beyond their control i.e; force majeure factors and the opposite parties were not personally liable for the same.  They are taking necessary steps to complete the work in a time bound manner.  In the above circumstances, they pray for dismissal of the complaint.

5.  The counsel for the opposite parties have produced a copy of the order of the NCLT ordering moratorium of all legal proceedings instituted or pending against the opposite parties.  This Commission by the order dated 16.11.2021 decided to proceed with the complaint in view of the judgment of the apex court in Pioneer Urban Land and infrastructure & another Vs. Union of India &ors. (2019) 8 SCC 416 wherein it was held that the order of moratorium has no impact on the continuation of the proceedings under the Consumer Protection Act.  Hence the complaint was proceeded further. 

6.  Evidence consists of affidavit in lieu of chief filed by the 1^st complainant for and on behalf of 2^nd complainant.  2 documents produced by the complainants were marked as Exts. A1 & A2 on consent.  Opposite parties did not adduce any oral or documentary evidence. 

7.  The following points arise for consideration. 

1. Whether the complaint is maintainable?
2. Whether there is unfair trade practice or deficiency in service on the part of opposite parties 1 to 5?
3. Whether the complainants are entitled to any compensation? If so what is the quantum. 

8.  Point (i) :- Two main grounds canvassed to assail maintainability of the complaint is that this Commission established under the Consumer Protection Act no longer is empowered to adjudicate issues involved in the real estate matters in view of the enactment of the Real Estate Regulation and Development Act, 2016 and that the dispute involved in these proceedings needs production of plethora of evidence involving complicated questions of fact and law, which can be adjudicated only by a competent civil court.  We find that it is a well settled legal position that the remedies available under the Real Estate Regulation and Development Act and the Consumer Protection Act are co-existing and parallel remedies and the home buyers are at liberty to choose any of the remedies available to them.  The Supreme Court in a landmark judgment dated 02.11.2020 in the case of M/s Imperia Structures Ltd. Vs. Anil Patni & anr. held that Real Estate Regulatory Authority Act does not restrict the jurisdiction under the Consumer Protection Act, 1986, to entertain and deal with the complaints filed by the consumers of real estate projects.  The Apex Court held that RERA and Consumer Protection Act are two different legislations and despite ongoing cases before the RERA, a Consumer Forum will always have the power to entertain cases wherein the home buyers qualify as consumers within the definition of the said expression under the Consumer Protection Act, 1986.  Reference needs to be made to the judgment passed by the Supreme Court in the matter of Pioneer Urban Land and infrastructure & another Vs. Union of India & ors. (2019) 8 SCC 416 wherein the Bench held that co-existing and parallel remedies are provided to the aggrieved under the RERA and Consumer Protection Act.  It has further been held that the provisions of the Insolvency and Bankruptcy Code 2016 also have no impact on the jurisdiction under the Consumer Protection Act.  Hence in such circumstances an allottee is at liberty to avail any of the remedies available to him under the different statutes.  Thus, this Consumer Complaint is maintainable.  As regards the other ground that many of the documents produced by the complainants are forged and cannot be accepted, the contention has not been pursued by the opposite parties during the trial.  The complainant has not even been cross examined by the opposite parties.  The documents produced by the complainants were also marked without any objection.  Therefore we repel the challenge against maintainability of the complaint and find that the complaint is maintainable.  This point is found accordingly.

9.  Points (ii) & (iii):- These points are considered jointly. 

The specific case of the complainants is that they booked an apartment in the project of the opposite party named ‘Angel Woods’ at Kudappanakunnu village, Thiruvananthapuram for a sale consideration of Rs. 50,00,000/- and the complainants paid an amount of Rs. 30,00,000/- on 12.08.2015 and that the opposite parties agreed to deliver the possession of the apartment by June 2017.  Later the opposite parties shifted the completion date many times.  However, the opposite parties did not complete the construction or hand over the flat to them.  The opposite parties backed out of their assurance and extended the time frame for completion of the project from time to time.  While so, from the newspaper reports the complainant came to know that opposite parties 1 to 5 were all arrested on cheating charges and that the project was abandoned. An amount of Rs. 30,00,000/- is still due to the complainants from the opposite parties.

12.  The documents produced by the complainants prove their case.  Ext. A1 is the copy of the agreement dated 12.08.2015.  Copy of receipt dated 12.08.2015 showing payment of Rs. 30,00,000/- is Ext. A2.   Even though the complainants have averred that they have paid an amount of Rs. 1,00,000/- more to the 2^nd opposite party they have not produced any document evidencing the same.  However at the same time, the opposite parties have not disputed the fact that the complainant had made the payment of Rs. 1,00,000/- also.  

13.  On going through the documents produced by the complainant it is clear that the complainants had booked the flat in the project of the opposite party for a sale consideration of Rs. 50,00,000/- of which the complainants had paid Rs. 31,00,000/-.

14.  Though the opposite parties have been extending the time for completion of the project, they have not completed the project as per the agreement.  Even though they have stated in the version that the delay was due to shortage of construction materials, lorry drivers’ strike etc.  and also due to force majeure factors, they have not produced any evidence to substantiate their contention.  They have failed to establish any force majeure situation for the delay in handing over of the possession to the complainants.   Even though the agreed date of delivery as per clause 10 of the agreement was June 2017, the opposite parties have miserably failed to complete the project.  It has now come out that the opposite parties have abandoned the project.  The complainants cannot wait indefinitely for the project to get completed.  A clear deficiency in service and unfair trade practice is discernible in the conduct of the opposite parties in this case.  Therefore we find that the complainants are entitled to get refund of the amount of Rs. 31,00,000/- which is due to them with reasonable interest, compensation and costs of the proceedings.  The Supreme Court of India in a catena of decisions has awarded interest, keeping in view the current market situation and also the fact that the banks have lowered the interest rate and considering the down trend in the rate of interest.  Keeping the said principles in mind, we are of the view that complainants are entitled to refund of the amount deposited by them with interest @ 8% per annum from 12.08.2015 till the date of realization.  Since the hard earned money of Rs. 31,00,000/- of the complainants has been lying with the opposite parties from 12.08.2015 onwards and they have abandoned the project, the complainants are entitled to be adequately compensated.  We hold an amount of Rs. 3,00,000/- is just and proper in these circumstances to be awarded as compensation for the mental agony and misery suffered by the complainants.

In the result, the complaint is allowed as follows: 

1. Opposite parties 1 to 5 are directed to refund to the complainants Rs. 31,00,000/- with interest @ 8% per annum from 12.08.2015, the date of the agreement till date of payment. 
2. Opposite parties 1 to 5 are directed to pay an amount of Rs. 3,00,000/- as compensation to the complainant for the mental agony and misery suffered by the complainants due to the deficiency in service and unfair trade practice committed by the opposite parties with interest thereon @ 8% from 01.02.2017, the date of filing the complaint till date of payment. 
3. Opposite parties are directed to pay Rs. 50,000/- as costs of the proceedings.
4.  All the above amounts shall be paid within a period of one month from the date of receipt of a copy of this judgment, failing which all the amounts shall carry interest @ 9% per annum.  

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JUSTICE K. SURENDRA MOHAN  : PRESIDENT

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                                                                    RANJIT. R                      : MEMBER

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                                                          BEENA KUMARY. A         : MEMBER

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                                                           RADHAKRISHNAN K.R.  : MEMBER

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APPENDIX

1. COMPLAINANT’S WITNESS

2. COMPLAINANT’S DOCUMENTS

3. OPPOSITE PARTY’S WITNESS

4. OPPOSITE PARTY’S DOCUMENTS

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JUSTICE K. SURENDRA MOHAN  : PRESIDENT

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                                                                 RANJIT. R                      : MEMBER

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                                                           BEENA KUMARY. A         : MEMBER

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                                                              RADHAKRISHNAN K.R.  : MEMBER

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