KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
VAZHUTHACAUD, THIRUVANANTHAPURAM
C.C. No. 84/2017
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
COMPLAINANTS:
- Vipin A.S, Athimattathil, Pulinthanam P.O, Pothanicad, Ernakulam,Pin- 686671, represented by his Power of Attorney Holder Mrs. Sithalakshmi.
- Sithalakshmi, W/o Vipin A.S, Athimattathil, Pulinthanam P.O, Pothanicad, Ernakulam- 686671.
(By Adv. Vijesh Kattakkalil)
Vs.
OPPOSITE PARTIES:
- M/s Samson & Sons Builders and Developers (P) Ltd., T.C. 3/679, Kaliveena Building, Muttada P.O., Thiruvananthapuram represented by its Managing Director, John Jacob, T.C. 3/678, Kannimattom, T.K.D Road, Muttada P.O., Thiruvananthapuram-695 025.
- John Jacob, S/o Jacob Samsom, T.C. 3/678, Kannimattom, TKD Road, Muttada P.O., Thiruvananthapuram-695 025.
- Samuel Jacob, Director, Samson & Sons Builders and Developers (P) Ltd., T.C. 3/678, Kannimattom, TKD Road, Muttada P.O., Thiruvananthapuram- 695025.
(By Adv. Dougles Linsby N.R.)
JUDGMENT
SRI. AJITH KUMAR D. : JUDICIAL MEMBER
This is a complaint filed by one Sithalakshmi as the power of attorney holder of Sri. V.P. Vipin against Samson & Sons Builders and Developers Private Limited Company, its Managing Director and Director.
2. The allegations contained in the complaint are in brief as follows: The 1st opposite party is a private Limited Company carrying out the business of property development and construction and sale of apartments. Opposite parties approached the complainants and informed the complainants that there is an ongoing construction of a flat project named as "Samson & Sons Nova Castle Apartments Project" which is shown as A schedule. The opposite parties further informed that they have agreed to give an apartment having built up area of 1683.94 Square feet and assured the delivery. As per the agreement dated 17.02.2016 the total consideration was Rs. 85,00,000/-. Rs. 1,00,000/- was paid as advance by cash and Rs. 8,00,000/- was paid through online fund transfer on 17.02.2016. Rs. 7,00,000/- was paid on 18.02.2016 through online fund transfer. Rs. 15,00,000/- was paid through online transfer. Rs. 49,00,000/- was arranged by the complainant by availing a housing loan from State Bank of Travancore, P & SB, Perumbavoor Branch. Opposite parties had issued receipts evidencing the payment. But to the utter shock and surprise of the complainants, the opposite parties never made any progress in the construction. Moreover, it is learned that the opposite parties had pledged A Schedule property with KFC and availed loan and cheated the complainants in securing Rs. 80,00,000/- without disclosing the loan. The complainants had opted to back out from the agreement and the opposite parties requested the complainants not to terminate the agreement and reduced the consideration as Rs. 80,00,000/-. Accordingly complainants agreed to execute a fresh agreement. On the request of the complainants KFC has agreed to issue No Objection Certificate on condition that the complainants should make full payment of the housing loan towards mortgage money and further agreed to lift the mortgage over the apartment bearing No. B4 in Nova Castle and the proportionate undivided land of 1.15 cents. The opposite parties agreed for the same and based on such a condition KFC issued No Objection Certificate and on 08.03.2016 housing loan was sanctioned by the complainants’ bankers. On 08.04.2016 KFC had released all its charges over the apartment. On 08.06.2016 a fresh agreement was also executed. Opposite parties had promised to hand over the completed apartment on or before 30.09.2016.
3. The opposite parties had conspired together to cheat for getting illegal advantage by promising to hand over the building after obtaining Rs. 80,00,000/- and the complainants have been paying interest @ 9.95% per annum from 31.03.2016. The above act of the opposite parties amounts to deficiency of service and unfair practice. The complainants on 23.01.2017 issued a notice to the opposite parties demanding refund of Rs. 80,00,000/-. The complainants hence suffered much agony on account of the deficiency of service on the side of the opposite parties. They would seek for realization of Rs. 80,00,000/- with interest @ 12% per annum for the principal amount paid. They would also seek for realization of an amount of Rs. 15,00,000/- as solatium for the mental agony and loss suffered.
4. 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.
5. 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 1st 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 complainants in the land purchased by the complainants. 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 complainants 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 complainants fulfilling the obligations. Complainants have wilfully suppressed those facts and making allegations without any bonafides. The documents relied upon by the complainants 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 complainants 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 1st 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 opposite parties would seek dismissal of the complaint.
6. The evidence consists of the proof affidavit filed by the complainant. Exts. A1 to A6 were marked on the side of the complainants 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
- Whether the complaint is maintainable?
- Whether there is any deficiency of service or unfair trade practice on the part of the opposite parties in the transaction as alleged?
- Reliefs and costs?
9. Point No. (i): The issue regarding maintainability was considered and found that the complaint is maintainable at a preliminary stage. Opposite parties never filed appeal before the appellate forum and hence the above finding has become final and thus this point does not arise at this stage
10. Point Nos. (ii) & (iii): These points are considered together for the sake of convenience.
11. The complainant had sworn an affidavit in support of the pleadings in the complaint. The copies of the agreement and receipt evidencing the payment of Rs. 80,00,000/- to the opposite parties are exhibited as Exts. A1 to A4. Exts. A5 and A6 are the copies of the notice and the postal receipt in respect of the notice issued on 23.01.2017 to the opposite parties with a demand to refund the cash paid. Though the opposite parties in the version contended that the documents produced may not be admitted in evidence as copies and not originals, at the stage of evidence they 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 17.02.2016 by which the opposite parties had agreed to construct the apartment on or before 30.09.2016 and handover possession of the apartment to the complainant. As per the stipulation in Ext. A1 the complainant paid Rs. 80,00,000/- as proved through Exts. A2 to A4. The execution of A1 and receipt of Rs.80,00,000/- stands proved.
12. 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. 80,00,000/- it is up to the opposite parties to tender evidence and convince the alleged circumstances which prevented them from fulfilling the promise. Vague pleadings alone 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 construct the flat.
13. The facts and circumstances brought before us would prove that the opposite parties had no intention to construct the flat and they had exploited the needs of the complainants to have a place of abode and managed to enrich themselves by gaining a sum of Rs. 80,00,000/- from the complainants. So the complainants are entitled to get back Rs. 80,00,000/- along with interest from the opposite parties.
14. The complainants were in fact deceived by the opposite parties by assuring a flat 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.
In the result, the complaint is allowed as follows:
a) The opposite parties are directed to pay the complainants the amount of Rs.80,00,000/- (Rupees Eighty Lakhs only) received from the complainants with interest @ 8% per annum from 30.09.2016, the date on which the flat ought to have been handed over to the complainants, till the date of realization.
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 22.02.2017,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
RADHAKRISHNAN K.R. : MEMBER
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APPENDIX
I COMPLAINANT’S WITNESS :
II COMPLAINANT’S DOCUMENTS :
A1 | - | Copy of the agreement dated 17.02.2016 |
A2 | - | Copy of receipt dated 17.02.2016 |
A3 | - | Copy of receipt dated 18.02.2016 |
A4 | - | Copy of receipt dated 31.03.2016 |
A5 | - | Copy of lawyer’s notice dated 23.01.2017 |
A6 | - | Copy of postal receipt |
III OPPOSITE PARTY’S WITNESS :
IV OPPOSTE PARTY’S DOCUMENTS :
B1 | - | Copy of the order of NCLT |
JUSTICE K. SURENDRA MOHAN : PRESIDENT
AJITH KUMAR D. : JUDICIAL MEMBER
RADHAKRISHNAN K.R. : MEMBER
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