KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

VAZHUTHACAUD, THIRUVANANTHAPURAM

C.C. No. 132/2017

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:

Shahna M., W/o Suhas, Ihsan Manzil, JRA-71A, Kazhakootam.P.O, Thiruvananthapuram-695582.

(By Adv. R. Ajay Kumar)

                                                Vs.

OPPOSITE PARTIES:

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

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

3. John Jacob, Managing Director, Samson and Sons Pvt. Ltd., T.C. 3/679, Kaliveena Building, T.K.D Road, Pattom, Muttada P.O., Thiruvananthapuram-695 025.

4. Samuel Jacob, Managing Director, Samson & Sons (P) Ltd., T.C. 3/679, Kaliveena Building, T.K.D Road, Pattom, Muttada P.O., Thiruvananthapuram-695 025.

                     (By Adv. Dougles Linsby N.R.)

5. State Bank of India, represented by its Regional Manager, RBO, LMS Compound, Trivandrum- 695 033.

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, two Directors and State Bank of India represented by its Regional Manager. 

2.  The allegations contained in the complaint are in brief as follows:  The complainant had booked an apartment “ 1 D” on the first floor of the project “Sharon Hills Luxury Apartments - Phase II”, situated at Maruthoor, Vattappara, Trivandrm, the property developed by 1^st opposite party which is owned by opposite parties 2 to 4.  The 4^th opposite was the former student of the husband of the complainant.  As per the persuasion of the 4^th opposite party the complainant and her husband agreed to purchase a flat on a promise that the 4^th opposite party will arrange loan.

  3.  On 20.07.2013 the complainant had entered into an agreement for sale and construction and the complainant was promised to be sold undivided interest in the land having an area 1.36 cents as a part of the land of 32.641 cents comprised in 332/23,333/3 and 333/3-1 of Vattappara Village and the flat having the area of 1491.55 square feet inclusive of space for car parking for a total consideration of Rs. 30,00,000/-.  On 20.07.2013 complainant paid Rs.  12,00,000/- and thereafter the first opposite party  had arranged a loan from the Nanthencode branch of the 5^th opposite party  for the rest of the instalments. A tripartite agreement was also executed between the complainant, the first opposite party represented by 4^th opposite party and the Nanthencode Branch of the 5^th opposite party in December 2015.  The second and third instalments of Rs. 17,00,000/- were transferred by the fifth opposite party to the account of the 1^st opposite party.

4.  The opposite parties 1 to 4 had suppressed the fact that the property agreed to be sold to the complainant was mortgaged with the fifth opposite party and the tripartite agreement was executed.  Apart from the above payments the complainant had paid Rs. 1,96,543/- as loan repayment and Rs. 16,196/- as Building insurance.  On 27.02.2016 the complainant had paid Rs. 5,00,000/- to the opposite parties for interior work.  But the opposite parties never gave any receipts even after repeated requests.  As per the sale agreement an amount of Rs. 1,00,000/- alone remained to be paid.  The opposite parties were sending e-mails till March 2016 regarding the progress of the work but that information was false.  But later the opposite parties stopped sending e-mails and they shut down their office and they did not respond when the complainant tried to contact them.  The agreed date of completion of the construction and handing over of the apartment was 31.12.2016, but the opposite parties had failed to honour their words and the apartment lies without completion.  The opposite parties after receiving Rs. 34,00,000/- was lagging the whole project.  The fifth opposite party had facilitated others to deceive the complainant by transferring Rs. 17,00,000/- to their account.  The complainant had paid Rs.19,12,739/- to the opposite parties 1 to 4.  She seeks to get back the above amount along with Rs. 10,00,000/- each as compensation and punitive damages.  She would also seek for a prohibitory order against the fifth opposite party from causing initiation of any recovery steps against the complainant. The complainant realized that the opposite parties have deceived the complainant after collecting a huge amount.  The complainant hence suffered much agony on account of the deficiency of service on the side of the opposite parties. 

5.  On admitting the complaint notices were issued to the opposite parties.  They entered appearance but no version was seen filed within the statutory period.  At a highly belated stage after elapsing a period of five years opposite parties 1 to 4 filed a version with a petition to receive the same.  On 16.03.2022 the request to receive the version was rejected by this Commission.

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

7.  Heard both sides. Perused the case records.

8.  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?

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

10.  The complainant had sworn an affidavit in support of the pleadings in the complaint.  The documents produced are copies which were admitted in evidence as the opposite parties 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 20.07.2013 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. A1 the complainant paid Rs. 12,00,000/- on 20.07.2013 as proved through the receipt, copy which is exhibited as Ext A2.  The execution of Ext. A1 and receipt of Rs. 12,00,000/- stands proved. Ext. A3 is the copy of the tripartite agreement dated 02.12.2015 between the complainant, the fifth opposite party along with other opposite parties by which loan for Rs. 18,00,000/- was sanctioned by creating equitable mortgage on the flat to be constructed and the undivided interest of the complainant over the same.  Ext. A5 is the arrangement letter issued by the fifth opposite party with regard to the sanctioning of the loan.  Ext. A4 would show that Rs. 17,00,000/- was transferred to the account of the opposite parties number 1 to 4.

11.  The financial loss incurred by the complainant is quantified by her as Rs. 19,12,739/-.  Apart from the initial payment of Rs.12,00,000/- on 20.07.2013, Ext. A5 would show that the complainant repaid Rs. 1,96,543/- towards the loan, a further loss of Rs. 16,196/- was incurred towards the insurance premium for the proposed flat and a sum of Rs. 2,14,743/- was deducted by the fifth opposite party from the account of the complainant.  The evidence adduced by the complainant stands unchallenged.

12.  According to the complainant the encumbrance created by the opposite parties on the flat and the undivided share of land to the fifth opposite party was not disclosed and hence collusion on the part of the fifth opposite party with other opposite parties is attributed.  This allegation does not appear to be correct.  In Ext. A3 it is specifically mentioned that the bank has got lien over the flat.  In the loan sanctioning order, the complainant had subscribed her signatures in all pages.  It is specifically made clear that a mortgage stands created.  The complainant is an educated person whose version that she was unaware of the mortgage on the property cannot be accepted.  In the tripartite agreement every aspect in this regard is clearly narrated.  So pretending ignorance about the mortgage charge on the flat by the bank is apparently wrong and hence the prayer for a prohibitory injunction against the fifth opposite party cannot be granted. There is also no evidence on record to prove any deficiency of service or unfair trade practice on the side of the fifth opposite party.  Therefore, the complainant is not entitled to get any relief against the fifth opposite party.

13.  The e-mail communication sent by the opposite parties to the complainant marked as Ext. A6 would prove that the opposite parties were furnishing false information about the progress of the work.  There is grave dereliction on the part of the opposite parties 1 to 4 in not completing the work.  When the complainant discharged her duty regarding the due execution of the agreement and payment of cash as agreed it is up to the opposite parties to tender evidence and convince the alleged circumstances which prevented them from fulfilling the promise.  From the evidence on record it is crystal clear that the opposite parties have no intention to complete the construction of the villa.

14.  The facts and circumstances brought before us would prove that the opposite parties 1 to 4 had no intention to complete the construction of the apartment and they had exploited the needs of the complainant to have a place of abode and managed to enrich themselves by gaining funds from the complainant. So the complainant is entitled to get back Rs.19,12,739/- being the amount paid along with interest from the opposite parties 1 to 4.

15.  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 her 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 in part as follows:

a) The opposite parties 1 to 4 are directed to pay the complainant the amount of Rs.19,12,739/- (Rupees Nineteen Lakhs Twelve Thousand Seven Hundred and Thirty Nine only) 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 realization.

b) The opposite parties 1 to 4 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 09.05.2017, till the date of payment.

c) The opposite parties 1 to 4 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.

e) The prayer for injunction and all other reliefs claimed against the fifth opposite party are disallowed.

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 :

JUSTICE K. SURENDRA MOHAN  : PRESIDENT

                                  AJITH KUMAR  D. : JUDICIAL MEMBER

                                                                                               RADHAKRISHNAN K.R.  : MEMBER

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