KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

VAZHUTHACAUD, THIRUVANANTHAPURAM

C.C. No. 156/2017

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. Prasun Kumar Nag, S/o late Paritosh Kumar Nag, T.C 25/2206(9), Thyvila Road, Near Ayurveda College, Thampanoor, Thiruvananthapuram-695 001.

2. Priyanka Mukherjee, W/o Prasun Kumar Nag, T.C 25/2206(9), Thyvila Road, Near Ayurveda College, Thampanoor, Thiruvananthapuram-695 001.

                   Vs.

OPPOSITE PARTIES:

1. Samson & Sons Builders and Developers (P) Ltd., T.C. 3/679, TKD Road, Kaliveena Building, Muttada P.O., Kowdiar Village, Thiruvananthapuram-695 025 represented by its Managing Director John Jacob.

2. John Jacob, Managing Director, Samson & Sons Builders and Developers (P) Ltd., T.C. 3/679, Kaliveena Building, Muttada P.O., Kowdiar, Thiruvananthapuram-695 025.

3. Jacob Samson, Chairman, Samson & Sons Builders and Developers (P) Ltd., T.C. 3/679, Kaliveena Building, Muttada P.O., Kowdiar, Thiruvananthapuram-695 025.

4. Samuel Jacob, Director, , Samson & Sons Builders and Developers (P) Ltd., T.C. 3/679, Kaliveena Building, Muttada P.O., Kowdiar Village, Thiruvananthapuram-695 025.

   (By Adv. Dougles Linsby N.R.)

JUDGMENT

SMT. BEENA KUMARY. A: MEMBER

The complainants in this case are husband and wife.  This complaint is against Samson and Sons Builders and Developers Pvt. Company, its Managing Director, Chairman and Director. 

2.  The allegations contained in the complaint are in brief as follows:  The opposite parties approached the complainants and informed that there is an ongoing construction of a flat project named “Angel Woods” which is shown as A schedule.  The opposite parties further informed that they have agreed to given an apartment having built up area of 1419.69 sq. ft and assured the delivery.  As per the agreement dated 24.04.2015 the total sale consideration was Rs. 55,00,000/- and the complainants had paid Rs. 26,00,000/- in four instalments i.e; Rs. 1,00,000/- on 24.04.2015, Rs. 1,00,000/- on 18.05.2015, Rs. 9,00,000/- on 23.06.2015 and Rs. 15,00,000/- on 07.10.2016.  Opposite parties had issued receipts for the payments.  But to the utter shock and surprise of the complainants, the opposite parties never made any progress in the construction.  It is pertinent to note that the opposite parties have assured that the entire construction would be completed and handed over to the complainants on or before December 2016 which was later extended and reconfirmed to be as 31.03.2017. 

3.  The opposite parties had not taken any steps to complete the construction of the flat.  The requests of the complainants were not responded by the opposite parties.  The complainants had sent a notice to the opposite parties but no response from their side.  The opposite parties had conspired to cheat for getting illegal gain from the complainants. The act of the opposite parties amounts to deficiency of service and unfair trade practice by promising to hand over the building after obtaining Rs. 26,00,000/-.  The complainants have suffered much agony on account of the deficiency of service on the side of opposite parties. He would seek for realization of Rs. 26,00,000/- with interest and compensation for the mental agony and loss suffered.  Hence this complaint. 

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

5.  The evidence consists of the proof affidavit filed by the complainants.  Exts. A1 to A7 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.

6.  Heard both sides. Perused the case records.

7.  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?

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

9.  The complainants had sworn to an affidavit in support of the pleadings in the complaint.  The copies of the agreement and receipt evidencing the payment of Rs. 26,00,000/- to the opposite parties are exhibited as Exts. A1 & A2 series.  Ext. A1 would prove the execution of the agreement dated 24.04.2015 by which the opposite parties had agreed to construct the apartment on or before 31.03.2017 and handover possession of the apartment to the complainants. As per the stipulation in Ext. A1 the complainants paid Rs. 26,00,000/- as proved through Ext. A2 series. The execution of A1 and receipt of Rs. 26,00,000/- stands proved.

10.  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. 26,00,000/- 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 construct the flat.

11.  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. 26,00,000/- from the complainants. So the complainants are entitled to get back Rs. 26,00,000/- along with interest from the opposite parties.

12.  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. 4,00,000/- 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. 26,00,000/- (Rupees Twenty Six Lakhs only) received from the complainants with interest @ 8% per annum from 31.03.2017, 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. 4,00,000/- (Rupees Four 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         COMPLAINANTS’S WITNESS :

II       COMPLAINANTS’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