KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

VAZHUTHACAUD, THIRUVANANTHAPURAM

C.C. No. 161/2016

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. Shobha K.P., UG 99, Ulloor Gardens, Medical College P.O., Thiruvananthapuram.

2. K. Pankajakshan, UG 99, Ulloor Gardens, Medical College P.O., Thiruvananthapuram.

3. Dr. Deepa K.P., UG 99, Ulloor Gardens, Medical College P.O., Thiruvananthapuram.

                              (By Adv. Narayan R.)

                                                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. 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, 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 is a complaint filed by the complainants, husband, wife and their daughter, under Sec. 17 of the Consumer Protection Act, 1986, claiming a refund of the amount paid by them to the opposite parties towards the sale consideration of the apartments booked by them, with interest, compensation and costs.

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

            The 1^st complainant and 2^nd complainant are husband and wife and the 3^rd complainant is their daughter.  The complainants attracted by the offers made by M/s Samson & Sons Builders and Developers (P) Ltd., decided to purchase an apartment in their project in the name and style Meridian Height at Kowdiar, Thiruvananthapuram.  The complainants were promised by the opposite parties that Apartment No. 10 B in 10^th Floor in the said project will be handed over in July 2013 as it was nearing completion.  Accordingly the parties entered into an agreement on 27.05.2013 wherein the scheduled date of completion was fixed as 15.07.2013.  The total sale consideration was fixed at Rs. 70 lakhs.  The entire amount of Rs. 70 lakhs was paid on the date of agreement itself i.e; on 27.05.2013.  However, contrary to what was assured, the opposite parties unilaterally began to move away from the promise about the date of completion of project from time to time.  To the utter shock and dismay of the complainants, during February 2015 opposite parties informed them that due to an oversight flat No. 10 B was registered in the name of another purchaser.  The opposite parties then made an offer that the amounts paid can be adjusted in another project being constructed at TKD Road, Pattom in the name and style ‘Nova Castle’.  The complainants agreed to the said proposal since they have also booked another flat for their daughter at Nova Castle.  Both parties agreed for a fresh agreement to that effect.  But the opposite parties never effected a fresh agreement.  Even though no fresh agreement was executed the opposite parties assured through e-mails that a flat at Nova Castle, Muttada will be handed over within a short span of time.  The entire life savings, retirement benefits and amounts received through sale of a property at Bangalore and savings of their daughter were invested in the 3 projects of the opposite parties in Sky lark at Vazhayila for their elder daughter, in Nova Castle for their younger daughter and for their own purpose, complainants 1 & 2 booked the apartment in Meridian Height at Kowdiar which was later changed by the opposite parties to ‘Nova Castle’ at Muttada. The opposite parties even though changed the completion date several times, they kept on assuring the complainants that the work was going on in full swing and that the assured apartment at Nova Castle would be handed over with all agreed facilities.  While so the complainants came to know that the Managing Director and other Directors of the Samson & Sons Builders and Developers Pvt. Ltd., the opposite parties 2 to 5 were arrested on charges of cheating and swindling charges.  Now it has come out that the project has become dead still and the opposite parties have no intention to honour their commitments.  Therefore alleging deficiency of service on the part of opposite parties, complainants filed the complaint, claiming refund of Rs. 70 lakhs paid by them with interest @ 9% per annum from 27.05.2013, the date of payment of the entire amount.  They also claimed an amount of Rs. 7 Lakhs as compensation and 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.  The opposite parties raised the question of maintainability and requested that to be heard as a preliminary issue, by filing separate petition I.A. No.1130/2017.  This Commission heard the petition and vide separate order dated 12.06.2019, dismissed the petition holding that the complaint was maintainable. 

5.  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 the reasons beyond their control i.e; force majeure factors and that 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 prayed for dismissal of the complaint.

6.  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. 

7.  Evidence consists of affidavit in lieu of chief filed by the 1^st complainant for and on behalf of other complainants.  5 documents produced by the complainants were marked as Exs. A1 to A5 on consent.  Opposite parties did not adduce any oral or documentary evidence. 

8.  Heard the counsel for the complainant. 

9.  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. 

10.  Point (i) :- This Commission heard the question of maintainability and as per the order dated 12.06.2019 found that the complaint was maintainable.  Therefore the question regarding maintainability need not be revisited here. 

11.  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 Meridian Heights, Kowdiar, Thiruvananthapuram for a sale consideration of Rs. 70,00,000/- and the complainants paid the full amount of Rs. 70,00,000/- on 27.05.2013 and that the opposite parties agreed to deliver the possession of the apartment by 15.07.2013.   To the utter shock of the complainants it was informed by the opposite parties that due to an oversight the flat booked by them in Meridian Heights was registered in the name of another purchaser.  The opposite parties however agreed that the amount paid by them can be adjusted towards another project in Nova Castle at TKD Road.  The complainants agreed for the same and asked them to have a fresh agreement executed.  But the opposite parties did not execute fresh agreement but assured through e-mails that they would provide another flat in Nova Castle.   Later the opposite parties shifted the completion date many times.  However, the opposite parties did not complete the construction in Nova Castle as promised 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. 70,00,000/- is still due to the complainants from the opposite parties.

12.  The documents produced by the complainant prove their case.  Ext. A1 is the copy of the agreement dated 27.05.2013.  Copy of e-mail dated 22.07.2013 is marked as Ext. A2.  Copy of newspaper report showing that 4^th opposite party was arrested in a cheating case is marked as Ext. A3.  Assurance given by the 2^nd opposite party through e-mail dated 03.11.2016 that the project would be completed shortly is marked as Ext. A4.  Copy of newspaper report dated 17.12.2016 showing that the opposite parties 2, 3 & 5 were also arrested in a cheating case is marked as Ext. A5. 

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. 70,00,000/- and that the complainants had paid the full amount of Rs. 70,00,000/- as early as on 27.05.2013.  This amount is due to the complainants from the opposite parties.

14.  Though the opposite parties have been extending the time for completion of the project, they had 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 documents to substantiate their claim.  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 31.12.2014, 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. 70,00,000/- which is due to them with 9% interest with compensation and costs of the proceedings.  Since the hard earned money of Rs. 70,00,000/- of the complainants is lying with the opposite parties from 27.05.2013 onwards and since they have hoodwinked the complainants by not handing over the flat they had originally booked at Meridian Heights and promised to hand over another flat at Nova Castle which never happened, this is a clear case of unfair trade practice.  Now it has come out that the opposite parties have abandoned all the projects and hence the complainants are to be adequately compensated.  We feel an amount of Rs. 7,00,000/- 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 Rs. 70,00,000/- with interest @ 8% per annum from 27.05.2013, the date of payment of the amount till date of repayment. 
2. Opposite parties 1 to 5 are directed to pay an amount of Rs. 7,00,000/- 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 at 8% per annum from 24.12.2016, the date of filing of 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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