KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

VAZHUTHACAUD, THIRUVANANTHAPURAM

C.C. No. 177/2016

JUDGMENT DATED: 05.09.2023

PRESENT:

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

SRI. AJITH KUMAR D.                                                    : JUDICIAL MEMBER

SMT. BEENA KUMARY. A                                              : MEMBER

SRI. RADHAKRISHNAN K.R.                                        : MEMBER

COMPLAINANTS:

1. Asha Shani Ruksana, W/o Eqbal P.E., Flat No. I A, Yellow Sapphire, Samson and Sons Apartment, T.K. Divakaran Road, Muttada, Thiruvananthapuram-695 025.

2. Eqbal P.E., S/o B.A. Ibrahim, Puthenpurayil House, Pallala, Alappuzha .

(By Advs.C.S. Raj Mohan & Bani P.)      

                   Vs.

OPPOSITE PARTIES:

1. Samson & Sons Builders and Developers (P) Ltd., Regd. Office at Kaliveena Building, Muttada P.O., Kowdiar Village, Thiruvananthapuram-695 025 represented by its Managing Director John Jacob.

2. Jacob Samson, Chairman, Samson & Sons Builders and Developers (P) Ltd., Regd. Office at Kaliveena Building, Muttada P.O., Kowdiar Village, Thiruvananthapuram-695 025.

3. Samuel Jacob, Director, Samson & Sons Builders and Developers (P) Ltd., Regd. Office at Kaliveena Building, Muttada P.O., Kowdiar Village, Thiruvananthapuram-695 025 now residing at T.C. 3/678, Kannimattom, Muttada P.O., Kowdiar Village, Thiruvananthapuram-695 025.

   (By Adv. Dougles Linsby N.R.)

JUDGMENT

SMT. BEENA KUMARY. A: MEMBER

The 1^st complainant is the wife of the 2^nd complainant who is a government employee.  The 1^st opposite party is a private company and other opposite parties are the Chairman and Director.  The opposite parties are engaged in the business of constructing apartments and villas and as such they have advertised in dailies and medias with regard to the proposed project at Vazhayila, Thiruvananthapuram.  The complainants watched the advertisements and being attracted the same, decided to purchase one of the said flats.  As per the proposal from the side of the opposite parties, complainants and opposite parties executed an agreement on 14.10.2012 and the complainants agreed to pay an amount of Rs. 35,00,000/-.  The complainants had paid an amount of Rs. 20,00,000/- on 14.10.2012.  The brother of the complainant signed the agreement for and on behalf of the complainants and the opposite parties issued receipts for the payment of the amount.  The complainants had paid Rs. 3,00,000/- on 27.10.2012, Rs. 6,00,000/- on 10.11.2012, Rs. 1,00,000/- on 17.11.2012 and the balance amount of Rs. 5,00,000/- on 30.11.2012.  The opposite parties had issued receipts for all payments. 

2.  In the agreement it is also stated that if the construction is not completed within the stipulated time opposite parties agreed to book a 3 BHK apartment in another apartment project of the 1^st opposite party, i.e; Sharon Flats, Maruthoor, Trivandrum as guarantee, before the end of 2014.

3.  The complainants paid the total cost as per the payment schedule.  Though repeatedly requested, the opposite parties neither handed over the built up area to them as agreed nor returned the money as per the terms.  Even though the opposite parties received the consideration from the complainants, they failed to complete the construction of the said flat.  Opposite parties are liable to hand over the built up area to the complainants.  Though the complainants requested several times to complete the construction or refund the amount with interest to them, the opposite parties failed to complete the same.  The complainants are the victims of the unfair trade practice of the opposite parties and also the opposite parties committed utter deficiency of service to the complainants.  Hence this complaint. 

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 on 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 2016.  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 1^st 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 had 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 1^st 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 complaint is barred by mis-joinder on account of the impleadment of unnecessary parties.  Therefore the opposite parties would seek dismissal of the complaint. 

6.  The complainants have produced 7 documents which are marked as Exts. A1 to A7 since the opposite parties had no objection to mark those documents.  The opposite parties filed proof affidavit and marked Ext. B1 document. 

7.  Heard both sides. Perused the case records.

8.  Now the points that arise for determination are:

1. Whether the complaint is maintainable?
2. Whether there is any deficiency of service or unfair trade practice on the part of the opposite parties in the transaction as alleged?
3. Reliefs and costs?

9.  Point No. (i): The issue regarding maintainability was considered and found that the complaint was maintainable at the 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 complainants have produced seven documents.  Ext. A1 is the copy of the agreement.  Exts. A2 to A6 are the payment receipts issued by the opposite parties for the payment of Rs. 35,00,000/-.  Ext. A7 is the copy of the Power of Attorney.  Though the opposite parties in the version contended that the documents produced may not be admitted in evidence as copies and no originals were produced, 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 14.10.2012 by which the opposite parties had agreed to construct the apartment before the end of 2014.  As per the stipulation in Ext. A1 the complainants paid Rs. 35,00,000/- as proved through Exts.A2 toA6 receipts issued by the opposite parties.  The execution of A1 and receipt of Rs. 35,00,000/- stand 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 causes that prevented them from starting the construction.  When the complainants discharged their duty regarding the due execution of the agreement and payment of Rs. 35,00,000/- it was up to the opposite parties to tender evidence and prove the alleged circumstances which prevented them from fulfilling the promise.  Vague pleadings alone are seen raised in the version which are 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. 35,00,000/- from the complainants. So the complainants are entitled to get back Rs. 35,00,000/-  along with interest from the opposite parties.

14.  The complainants were in fact deceived by the opposite parties by assuring the sale of 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 an 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. 7,00,000/- 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. 35,00,000/- (Rupees Thirty Five Lakhs only) received from the complainants with interest @ 8% per annum from 30.12.2014, 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. 7,00,000/- (Rupees Seven 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 27.12.2016 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 judgment, failing which all the amounts shall carry interest @ 9% per annum.

JUSTICE K. SURENDRA MOHAN  : PRESIDENT

                                AJITH KUMAR D.: JUDICIAL MEMBER

                                                                                               BEENA KUMARY. A         : MEMBER

                                                                                                RADHAKRISHNAN K.R.  : MEMBER

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APPENDIX

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

                                                                                             BEENA KUMARY. A         : MEMBER

jb                                                                                            RADHAKRISHNAN K.R.  : MEMBER