KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

VAZHUTHACAUD, THIRUVANANTHAPURAM

C.C. No. 160/2017

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. Dr. Jeesha C. Haran, Amritha, BRERA-83, Kumarapuram, Medical College P.O., Thiruvananthapuram-695 011.

2. Dr. N. Subha, Amritha, BRERA-83, Kumarapuram, Medical College P.O., Thiruvananthapuram-695 011.

(By Advs. G. Muraleedharan & Deepak J.M.)  

                   Vs.

OPPOSITE PARTIES:

1. M/s Samson & Sons Builders and Developers (P) Ltd., T.C. 3/679, TKD Road, Pattom, Muttada P.O., Thiruvananthapuram-695 025 represented by its Chairman and Managing Director.

2. Jacob Samson, Chairman, Samson & Sons Builders and Developers (P) Ltd., T.C. 3/679, TKD Road, Pattom, Muttada P.O., Thiruvananthapuram-695 025.

3. John Jacob, Managing Director, Samson & Sons Builders and Developers (P) Ltd., T.C. 3/679, TKD Road, Pattom, Muttada P.O., Thiruvananthapuram-695 025.

   (By Adv. Dougles Linsby N.R. for OPs 1 to 3)

4. Mohan Oommen, Madavana, Medical College P.O., Kunnathu Muri, Cheruvakkal Village, Thiruvananthapuram-695 011.

JUDGMENT

SMT. BEENA KUMARY. A: MEMBER

The 1^st complainant in this case is Dr. Jeesha C. Haran and 2^nd complainant is Dr. N. Subha who is the wife of 1^st complainant.  The complaint is filed against Samson and Sons Builders & Developers Ltd., its Chairman and Managing Director.

2.  The allegations contained in the complaint are in brief as follows: Opposite parties approached the complainants and informed them that there is an ongoing construction of a flat project named as “Samson and Sons, Angel Woods” Apartment 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 1541 sq. ft. and assured delivery.  As per the agreement dated 18.04.2016 the total sale consideration is Rs. 50,00,000/-.  The complainants had paid the amount in four instalments.  On the date of agreement itself the complainants had paid Rs. 15,00,000/-, thereafter Rs. 5,00,000/- on 19.04.2016, Rs. 3,00,000/- on 22.04.2015 and Rs. 27,00,000/- on 10.05.2015.  The opposite parties issued receipts for the payment.  But to the utter shock and surprise of the complainants the opposite parties made any progress in the construction.  Moreover, it is learned that the opposite parties made another agreement with one K.S. Nair Direej with the same flat i.e; Type D on the 5^th floor agreed to the complainants and obtained full payment from them.  The complainants had invested their entire savings for the purchase of the above said apartment.  But contrary to what was assured the opposite parties unilaterally began to move away from their assurance.  The complainants several times approached the opposite parties to proceed with the construction or to refund the amount of Rs. 50,00,000/- paid by them.  But the opposite parties evaded their obligations by flimsy reasons with the ulterior motive of misappropriating the money of the complainant illegally and unlawfully.  Hence this complaint. 

3.  On admitting the complaint notices were issued to the opposite parties.  They entered appearance and availed several chances, but no version has been filed.  

4.  The evidence consists of the proof affidavit filed by the 1^st complainant.  Exts. A1 to A3 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.

5.  Heard both sides. Perused the case records.

6.  Now the points that 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?

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

8.  The 1^st complainant has sworn to an affidavit in support of the pleadings in the complaint.  The agreement and the receipts evidencing the payment of Rs. 50,00,000/- to the opposite parties are exhibited as A1 & A2 series.  A3 is the copy of the brochure.  The opposite parties never disputed the transactions alleged in the complaint.  Ext. A1 would prove the execution of the agreement dated 18.04.2016 by which opposite parties had agreed to construct the apartment on or before 31.12.2017 and hand over possession of the apartment to the complainant.  As per the stipulation in Ext. A1 the complainants had paid Rs. 50,00,000/- as proved through Ext. A2 series.

9.  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.  When the complainants discharged their duty regarding the due execution of the agreement and payment of Rs. 50,00,000/- it was up to the opposite parties to tender evidence and prove 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 flat.

10.  The facts and circumstances brought before us would prove that the opposite parties had no intention to complete the construction of 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. 50,00,000/- from the complainants. So the complainants are entitled to get back Rs. 50,00,000/-  along with interest from the opposite parties.

11.  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 a 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. 50,00,000/- (Rupees Fifty Lakhs only) received from the complainants with interest @ 8% per annum from 31.12.2017, 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 01.07.2017 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 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

jb                                                                                         RADHAKRISHNAN K.R.  : MEMBER

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