KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

VAZHUTHACAUD, THIRUVANANTHAPURAM

C.C. Nos. 44/2019, 45/2019, 46/2019 & 47/2019

COMMON JUDGMENT DATED: 19.01.2024

PRESENT:

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

SRI. AJITH KUMAR D.                                                    : JUDICIAL MEMBER

SRI. RADHAKRISHNAN K.R.                                        : MEMBER

C.C. No. 44/2019

COMPLAINANT:

M. Lalitha, T.C. 3/678, Kannimattam Road, Muttada P.O., Thiruvananthapuram-25.

                                                 (By Adv. Kavitha N. Nair)

                                                Vs.

OPPOSITE PARTIES:

1. Samson & Sons Builders Developers Private Ltd., T.C. 3/679, TKD Road, Pattom P.O., Thiruvananthapuram-25.

2. The Managing Director, Samson & Sons Builders Private Ltd., T.C 3/679, TKD Road, Pattom P.O., Thiruvananthapuram-25.

(By Adv. Dougles Linsby N.R. for OPs 1 & 2)

3. Mohan Oommen, S/o Varghese Oommen, Land Owner, Madavana, Good Shepherd Lane, Chenthi, Pongummoodu, Medical College P.O., Thiruvananthapuram-11.

C.C. No. 45/2019

COMPLAINANT:

M. Lalitha, T.C. 3/678, Kannimattam Road, Muttada P.O., Thiruvananthapuram-25.

                                          (By Adv. Kavitha N. Nair)

                                                Vs.

OPPOSITE PARTIES:

1. Samson & Sons Builders Developers Private Ltd., T.C. 3/679, TKD Road, Pattom P.O., Thiruvananthapuram-25.

2. The Managing Director, Samson & Sons Builders Private Ltd., T.C 3/679, TKD Road, Pattom P.O., Thiruvananthapuram-25.

(By Adv. Dougles Linsby N.R. for OPs 1 & 2)

3. Mohan Oommen, S/o Varghese Oommen, Land Owner, Madavana, Good Shepherd Lane, Chenthi, Pongummoodu, Medical College P.O., Thiruvananthapuram-11.

C.C. No. 46/2019

COMPLAINANT:

M. Lalitha, T.C. 3/678, Kannimattam Road, Muttada P.O., Thiruvananthapuram-25.

                                                (By Adv. Kavitha N. Nair)

                                                Vs.

OPPOSITE PARTIES:

1. Samson & Sons Builders Developers Private Ltd., T.C. 3/679, TKD Road, Pattom P.O., Thiruvananthapuram-25.

2. The Managing Director, Samson & Sons Builders Private Ltd., T.C 3/679, TKD Road, Pattom P.O., Thiruvananthapuram-25.

(By Adv. Dougles Linsby N.R. for OPs 1 & 2)

3. Mohan Oommen, S/o Varghese Oommen, Land Owner, Madavana, Good Shepherd Lane, Chenthi, Pongummoodu, Medical College P.O., Thiruvananthapuram-11.

C.C. No. 47/2019

COMPLAINANT:

M. Lalitha, T.C. 3/678, Kannimattam Road, Muttada P.O., Thiruvananthapuram-25.

                                                (By Adv. Kavitha N. Nair)

                                                Vs.

OPPOSITE PARTIES:

1. Samson & Sons Builders Developers Private Ltd., T.C. 3/679, TKD Road, Pattom P.O., Thiruvananthapuram-25.

2. The Managing Director, Samson & Sons Builders Private Ltd., T.C 3/679, TKD Road, Pattom P.O., Thiruvananthapuram-25.

(By Adv. Dougles Linsby N.R. for OPs 1 & 2)

3. Mohan Oommen, S/o Varghese Oommen, Land Owner, Madavana, Good Shepherd Lane, Chenthi, Pongummoodu, Medical College P.O., Thiruvananthapuram-11.

COMMON JUDGMENT

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

A large number of cases were filed before this Commission against M/s Samson and Sons Builders & Developers Pvt. Ltd., by hapless consumers alleging that after having booked apartments, villas and other residential structures, they had neither been put in possession of the completed houses nor given refund of the money paid by them.  More than 100 cases are pending before this Commission which shows that lakhs of rupees have been collected by the builders offering to construct and give possession of various residential structures.  It appears that the builders had been announcing various projects and persuading customers to pay money for purchase of the apartments/villas offered, even before the property on which the construction was proposed, had been purchased by them.  Full payment of the price of the apartments are alleged to have been obtained offering reduction in the final price.  Despite passage of time, the proposed constructions have not reached anywhere and therefore the customers have been clamouring for the return of the amounts paid by them.

2.  In the above context, these four complaints were filed by Smt. N. Lalitha, wife of the Chairman of M/s Samson & Sons Builders and Developers (Pvt.) Ltd., Mr. Jacob Samson.  Since all these four cases have been filed by the very same person against the very same opposite parties raising identical contentions on the basis of the separate agreements executed on the same day, i.e; on 21.03.2016, these cases are considered together and disposed of as per this common judgment. 

3.  In all these cases, the facts pleaded are similar.  According to the complainant, she had entered into an agreement with the opposite parties for the purchase of apartments in a project by name ‘Angel Woods’.  A separate agreement was entered into with the owner of the land on which the Apartment Complex was proposed to be constructed, on the same day, 21.03.2016.  The allegation is that, despite payment of the entire price, the apartments have not been handed over to the complainant as agreed.  Therefore, complainant has sought for recovery of the amounts paid by her with interest @ 6% per annum.  She has also sought for recovery of an amount of Rs. 1,00,000/- paid by her to the owner of the property. 

          4.  In C.C. No. 44/2019, the complainant is alleged to have agreed to purchase an apartment having an area of 1598.37 sq. ft (type C-1) on the first floor for a total consideration of Rs. 55,00,000/-.  An agreement has simultaneously been entered into with the owner of the land on 21.03.2016, the date of the agreement for purchase of the apartment.  As per the said agreement, an extent of 45 sq. m. of undivided share of land on the northern side of 13.38Ares of the total area of 24.20 Ares have been agreed to be sold to the complainant for a total sale consideration of Rs. 3,00,000/-.  The cost of the apartment was agreed to be Rs. 55,00,000/- and the same was agreed to be completed and given possession of in December 2017.

          5.  In C.C. No. 45/2019 as per an agreement dated 21.03.2016 an apartment having 1524.68 sq ft. (type E-2) for Rs. 55,00,000/- on the second floor of the proposed building was agreed to be purchased.  It was agreed to be sold to the complainant for a total consideration of Rs. 55,00,000/-.  As per a separate agreement entered into between the complainant and the owner of the property on the same day,45 sq. m. of undivided share of land on the northern side of 13.38 ares of the total area of 24.20 ares was agreed to be sold for a consideration of Rs. 3,00,000/-.  On the date of the agreement an amount of Rs. 1,00,000/- is alleged to have been paid by the complainant.

          6.  In C.C. No. 46/2019 as per agreement dated 21.03.2016 the complainant agreed to purchase an apartment having an area of 1524.68 sq ft. (type E3) on the 3^rd floor of the proposed building for a total sale price of Rs. 55,00,000/-.  As per a separate agreement dated 21.03.2016 the complainant is alleged to have agreed to purchase 45 sq. m. of undivided share of land on the northern side of 13.38 ares of the total area of 24.20 ares for a consideration of Rs. 3,00,000/-.  Rs. 1,00,000/- was paid on the date of the agreement. 

          7.  In C.C. No. 47/2019 as per an agreement dated 21.03.2016, the complainant is alleged to have agreed to purchase an apartment having an area of 1575.98 sq. ft on the fourth floor of the Angel Woods for a total consideration of Rs.55,00,000/-. On the same day another agreement has been entered into between the complainant and the owner of the property for the purchase of 36 sq mtr. of undivided share of land on the part of southern side of 10.84ares of the total area of 24.20 ares for a total consideration of Rs. 3,00,000/-. An amount of Rs. 1 lakhs has been paid as advance towards the agreed purchase price.

          8.  All the four complaints were admitted and notices were issued to the opposite parties.  In C.C. No. 47/2019, I.A 386/2019 was filed by the complainant praying for an order of injunction against alienation of the immovable property by the 3^rd opposite party.  On 12.04.2019 an order of injunction restraining the 3^rd opposite party from encumbering the property covered by the agreement has also been granted.  The said order is still in force. 

9.  While these cases were pending before this Commission, Covid-19 pandemic broke down in the year 2020.  As a result of the lock-down that was imposed by the Government, sitting could not be conducted for some time.  When the restrictions were relaxed, taking into account the safety of all concerned, this Commission introduced online sitting and all cases were being taken up and considered through the online platform.  Numerous adjournments had to be granted since the respective counsel was in quarantine and unable to attend sitting due to various other constraints. On 18.01.2022, Adv. Ajith R. Rajendran represented the complainant and sought time for filing proof affidavit.  According to him, he is the junior of Adv. Kavitha Nair.  Since Adv. Kavitha Nair was representing Adv. Dougles Linsby, the counsel for the opposite parties before us, as the junior, we questioned the counsel for the complainant.  At this juncture, the parties in other similar cases who were present in the online platform intervened pointing out that the complainant in this case was the wife of Mr. Jacob Samson, who is the Chairman of the opposite party company. They alleged that these four cases constitute a collusive litigation filed for ulterior purposes and that these proceedings were nothing but an abuse of the judicial process.  Since the development referred to above were unprecedented we recorded it in detail in the proceedings dated 18.01.2022. 

10.  Thereafter, proof affidavit was filed by the complainant.  In the proof affidavit filed on 09.03.2022 we notice that the complainant has stated in her description that, she was the wife of Mr. Jacob Samson who is none other than the Chairman of M/s Samson and Sons Builders & Developers Private Ltd. Such a description, we notice, was conspicuously absent in either the complaint or the affidavit filed in support of the injunction petition filed by the complainant.  These cases were posted for evidence thereafter. In C.C. No. 44/2019 the complainant filed proof affidavit along with 3 documents which were marked as Exts. A1 to A3 since the opposite party had no objection to such marking.  Thereafter evidence on the side of the complainant was closed.  On 31.05.2022 proof affidavit was filed on behalf of the opposite parties.  One document was marked as Ext. B1.  Thereafter evidence was closed.

11.  In C.C. No. 45/2019 the complainant filed proof affidavit along with 3 documents which were marked as Exts. A1 to A3 since the opposite party had no objection to such marking.  Thereafter evidence on the side of the complainant was closed.  On 31.05.2022 proof affidavit was filed on behalf of the opposite parties.  One document was marked as Ext. B1.  Thereafter evidence was closed.

12.  In C.C. No. 46/2019 the complainant filed proof affidavit along with 3 documents which were marked as Exts. A1 to A3 since the opposite party had no objection to such marking.  Thereafter evidence on the side of the complainant was closed.  On 31.05.2022 proof affidavit was filed on behalf of the opposite parties.  One document was marked as Ext. B1 on consent.  Thereafter evidence was closed.

13.  In C.C. No. 47/2019 the complainant filed proof affidavit along with 3 documents which were marked as Exts. A1 to A3 since the opposite party had no objection to such marking.  Thereafter evidence on the side of the complainant was closed.  On 31.05.2022 proof affidavit was filed on behalf of the opposite parties.  One document was marked as Ext. B1 on consent.  Thereafter evidence was closed.

14.  All the above cases were heard together after close of the evidence.  According to the counsel for the complainant, the transactions were fully borne out by the records produced.  The payments made were all proved and acknowledged by the receipts produced.  Therefore, according to the counsel, the complainant was entitled to a decree as prayed for in the complaint.  Counsel for the opposite parties had nothing in reply except to suggest that this Commission may peruse the records and pass orders.

15.  We have carefully perused the records produced before us.  We have also given our anxious consideration to the facts and circumstances of these cases.  What looms large in all these cases is the fact that they are filed by the wife of the Managing Director of the 1^st opposite party. The version on behalf of the opposite parties has been filed by Mr. John Jacob, S/o Mr. Jacob Samson, Managing Director of the company.  Proof affidavit has also been filed by Mr. John Jacob who is the son of the complainant.  In short, the opposite parties are the husband and son of the complainant, though in their capacities representing the company.  In the background, it is the fact that more than 100 cases had been filed by the prospective buyers who had paid large amounts to the opposite parties, believing their assurance that apartments/villas would be constructed and given possession to them.  All those persons allege and contend that these four complaints have been filed at the instance of the opposite parties with the sole object of ploughing back into their family a substantial sum of money out of the assets of the company acquired by utilizing the amounts received from the various prospective purchasers.  Therefore, according to them these cases constitute abuse on the process of law.

16.  Apart from the aspects referred to above, we notice that in stark contrast to the stand adopted by the opposite parties in other similar cases, no petitions questioning the maintainability of the complaint before this Commission was filed in these cases.  Nor was any petition filed seeking stay of further action in view of the interim order passed by the National Company Law Tribunal (NCLT) in insolvency proceedings pending against the opposite parties.  Opposite parties have been adopting an ever-obliging attitude towards the complainant in these cases. As noticed by us earlier, Adv. Kavitha Nair, who was all along representing Mr. Dougles Linsby, the counsel for the opposite parties in other similar cases, is the counsel for the complainant.  All the above aspects give strength to the allegations made by the complainants in other similar cases that these cases are collusive proceedings.

17.  It is true that, Exts. A1, A2 and A3 support the claim made by the complainant.  The receipts produced by the complainant in these cases are neither disputed nor questioned by the opposite parties.  However, one fails to understand why the complainant had preferred these cases considering the close relation between her and the opposite parties.  We notice that they do not dispute her claim also.  They have not contested the claim of the complainant, but have only been facilitating her efforts by their inaction.  Another feature of these cases is that the construction projects referred to were to be located in a property that was not owned by the opposite parties.  Therefore in these cases separate agreements with the land owner have also been entered into by the complainant for sale of a share in the land.  The complainant has also obtained an order of temporary injunction against the land owner restraining him from alienating the said property.  It is strange that he has also not chosen to contest these cases. 

18.  Since there is an allegation that these cases are an abuse of the judicial process, it is necessary to consider what exactly is meant by the said expression.  Without the support of any authority, it can be safely said that, invocation of the judicial process without justifiable cause shall amount to abuse of the judicial process.  In this case as already noticed above, we do not find any dispute between the parties.  The jurisdiction that has been granted to this Commission is for the purpose of deciding consumer disputes.  The expression ‘consumer dispute’ has been defined in Sec. 2(1) (e) of the Consumer Protection Act.  Sec. 2(1) (e) is reproduced hereunder:

2(1)(e): Consumer dispute means a dispute where the person against whom a complaint has been made, denies or disputes the allegations contained in the complaint.

As per the above definition, consumer dispute means a dispute where the person against whom the complaint has been made, denies or disputes the allegations contained in the complaint.  In this case, as already noticed above, there is no dispute between the complainant and the opposite parties.  The parties are close relatives and members of the same family.  The addresses of the complainant and the opposite parties are the same, and shows that they are all living together.  There are no disputes that require to be resolved among them.  If actually, money was due to the complainant the opposite parties should have settled the same within their family.  In view of the background, circumstances in which these complaints were filed, we are of the view that these complaints have been filed for collateral purposes and in a situation where the complainant has no genuine or bonafide dispute to be resolved.  Therefore, we hold that these complaints constitute abuse of the judicial process. 

For the above reasons, these complaints are all dismissed, but without costs.

.

JUSTICE K. SURENDRA MOHAN  : PRESIDENT

                                         AJITH KUMAR D.: JUDICIAL MEMBER       

                                                                                                          RADHAKRISHNAN K.R.  : MEMBER

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APPENDIX

C.C. No. 44/2019

1. COMPLAINANT’S WITNESS

2. COMPLAINANT’S DOCUMENTS

3. OPPOSITE PARTY’S WITNESS

4. OPPOSITE PARTY’S DOCUMENTS

C.C. No. 45/2019

I        COMPLAINANT’S WITNESS

II       COMPLAINANT’S DOCUMENTS

III      OPPOSITE PARTY’S WITNESS

IV      OPPOSITE PARTY’S DOCUMENTS

C.C. No. 46/2019

I        COMPLAINANT’S WITNESS

II       COMPLAINANT’S DOCUMENTS

III      OPPOSITE PARTY’S WITNESS

IV      OPPOSITE PARTY’S DOCUMENTS

C.C. No. 47/2019

I        COMPLAINANT’S WITNESS

II       COMPLAINANT’S DOCUMENTS

III      OPPOSITE PARTY’S WITNESS

IV      OPPOSITE PARTY’S DOCUMENTS

JUSTICE K. SURENDRA MOHAN  : PRESIDENT

                                  AJITH KUMAR D.: JUDICIAL MEMBER       

                                                                                                    RADHAKRISHNAN K.R.  : MEMBER

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