KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

VAZHUTHACAUD, THIRUVANANTHAPURAM

C.C. No. 74/2017

JUDGMENT DATED: 01.08.2023

PRESENT:

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

SRI. AJITH KUMAR D.                                                    : JUDICIAL MEMBER

SRI. RADHAKRISHNAN K.R.                                        : MEMBER

COMPLAINANTS:

1. Dr. Sajitha Bashir, W/o Arvind Kumar Khare, Of No.513, Prasanth Nagar, Ulloor, Medical College P.O., Thiruvananthapuram-695 011, Presently residing at 5301, Macomb Street NW, Washington DC20016, USA.

2. Suhair A., S/o Abdul Khadir, Kattuvila Puthenveedu, Ram Nagar, Alamcode, Attingal Taluk, Trivandrum-695102 being the Power of        Attorney Holder of Dr. Sajitha Bashir.

 (By Adv. P.A. Ahamed)

                                                Vs.

OPPOSITE PARTIES:

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

2. John Jacob, Managing Director, Samson & Sons Builders and Developers (P) Ltd., T.C. 3/678, Kannimattom, TKD, Muttada P.O., Thiruvananthapuram-695 025.

3. Samuel Jacob, Director, Samson & Sons Builders and Developers (P) Ltd., T.C. 3/678, Kannimattom, TKD, Muttada P.O., Thiruvananthapuram-695 025.

4. Jacob Samson, Chairman, Samson & Sons Builders and Developers (P) Ltd., T.C. 3/678, Kannimattom, TKD, Muttada P.O., Thiruvananthapuram-695 025.

5. Dhaya Mary Varghese,W/o John Jacob, Director-Sales, Samson & Sons Builders and Developers (P) Ltd., T.C. 3/678, Kannimattom, TKD, Muttada P.O., Thiruvananthapuram-695 025.

   (By Adv. Dougles Linsby N.R.)

JUDGMENT

SRI. AJITH KUMAR D. : JUDICIAL MEMBER

This is a complaint filed against Samson & Sons Builders and Developers Private Limited Company, its Managing Director, Chairman and two Directors. 

2.  The allegations contained in the complaint in brief are as follows:  The 1^st opposite party is carrying out the business of property development and construction and sale of apartments.  Opposite parties 2 to 4 are the Managing Director, Chairman and the Director.  The 1^st complainant is represented by her power of attorney holder. The complainant came to know about the apartments in a project run by the opposite parties under the name “Vazhayila Project" later renamed as “Green Courtyard Project”.  On meeting the opposite parties the complainants were provided with a computer generated picture, pamphlets and specification of building materials that they used for construction and they convinced the complainant that they are trustworthy builders and assured that they will deliver the apartment to the customers within the time specified in the agreement.  On 14.08.2013, as a condition precedent opposite parties 1,2 and 4 asked the complainant to deposit Rs. 5,00,000/- which was agreed to be adjusted against the final cost of construction and accordingly the complainant paid Rs. 5,00,000/-.

3.  The land identified as Plot No. 15 in Vazhayila having an extent 4.49 Ares was registered in favour of the complainant for a sum of Rs. 8,00,000/- as per Sale Deed No. 2401/2013 dated 12.09.2013 of SRO Karakulam. Since a mistake occurred in the name of the complainant in the sale deed a rectification deed No.248/2014 of SRO Karakulam was also registered on 24.01.2014.

4.  On 12.09.2013 the second complainant and the opposite parties had entered into an agreement for the construction and sale of an individual villa. The opposite parties undertook to complete the construction of the villa by December 2014 and the villa project in December 2015.  But the construction moved at a snail pace.  The total cost of the villa project was fixed as Rs. 1,34,78,000/-.  On the date of agreement Rs. 35,00,000/- was paid and on the next day Rs. 40,00,000/- was also paid.  The 1^st complainant also paid the opposite parties Rs. 15,00,000/- each on 23.06.2014 and 23.08.2014 and Rs. 10,00,000/- on 18.11.2014.  Thus, the complainant had paid a total sum of Rs. 1,20,00,000/- to the opposite parties, but the project was nowhere near completion. During November/December 2016 the complainants received information through newspapers that the opposite parties were arrested on swindling and cheating charges.  The complainants tried to contact the opposite parties to enquire about the delay in construction but there was no response. The complainant thus realized that the opposite parties had deceived her after collecting a huge amount. 

5.  Out of the huge amount received from the complainants only a miniscule portion of the villa alone was constructed.  So the complainants had decided to take a valuation of the construction of the actual work carried out by the opposite parties which was calculated as Rs. 32,08,330/- only as assessed by the Valuation report by the Chartered Engineer V.M. Akbar Shah. Thus the opposite parties had illegally retained Rs. 87,91,670/-.

6.  The complainants have the right to get the work completed if the builder withdraws from the work or fails to complete the same as per the time frame fixed in the agreement. This was not done.  The complainants have suffered much agony on account of the deficiency of service on the side of the opposite parties.  They would seek for realization of Rs. 87,91,670/- with interest @ 18% per annum. They would also seek for realization of an amount of Rs. 10,00,000/- as compensation for the mental agony and loss suffered by them.  The complainants would also seek for permission to complete the construction on their own and to realise the cost of construction over and above the sale consideration if any from the opposite parties and their assets.

7.  On admitting the complaint notices were issued to the opposite parties. They entered appearance and filed 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. 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. 

8.  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 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 complainant in the land purchased by the complainant.  It is also conceded that there was a stipulation to complete the construction, but the period was extended by the parties as extra work had to be carried out.  According to the opposite parties the agreement never stipulated time as the essence of the contract. The opposite parties had informed the complainant 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 subject to the complainant fulfilling the obligations.  She has wilfully suppressed those facts and now making allegations without any bonafides.  The documents relied upon by the complainant 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 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 quarries.  Scarcity of cement also resulted in stoppage of the construction activities.  The construction industry had gone into stagnation in 2014.  These true state of affairs had been informed to the complainant 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 which 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 4^th opposite party is not a Director and she is not responsible for the day-to-day affairs of the company.  The complaint is barred by mis-joinder on account of the impleadment of the 4^th opposite party.  Therefore the opposite parties would seek for dismissal of the complaint. 

9.  The evidence consists of the proof affidavit filed by the complainant.  Exts. A1 to A14 and C1 were marked on the side of the complainant as the counsel for the opposite parties expressed no objection in receiving those documents in evidence.  No evidence was adduced by the opposite parties though sufficient opportunities were given.

10.  Heard both sides.  Perused the case records.

11.  Now the points which 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?

12.  Point No. (i):- The opposite parties filed applications and challenged the maintainability of the complaint. Those petitions were dismissed on a finding that the complaint is maintainable and the said finding has become final as no appeal has been filed by the opposite parties.  So the contention regarding maintainability does not arise at this stage and the point is decided accordingly.

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

14.  The Power of Attorney holder of the 1^st complainant had sworn an affidavit in support of the pleadings in the complaint. Ext A1 is the brochure of the project issued to the complainant by the opposite parties. Ext. A2 is copy of the power of attorney executed by the 1^st complainant in favour of the 2^nd complainant. A3 and A8 to A12 are the copies of the receipts evidencing the payment of Rs 1,20,00,000/-.  Exts. A4 & A5 are the copies of the registered sale deed and the rectification deed in respect of the purchase of the land.  As per Ext. A6 the complainant had remitted the land tax in respect of the land.  Ext A7 is the Sale/Construction agreement dated 12.09.2013.  Complainant had exhibited A13 series, the newspaper reports in respect of the arrest of the opposite parties on a charge of cheating.  Ext A14 is the copy of the valuation report dated 18.01.2017 by a Chartered Engineer that the cost of construction effected by the opposite parties would come only to Rs. 32,08,330/-.  Ext. C1 is also the report issued by the very same expert as directed by this Commission on application by the complainant.  The copy of the agreement and the receipts evidencing the payment of Rs 1,20,00,000/- to the opposite parties are exhibited as A7,A3 &A8 to A12. Though the opposite parties in the version contended that the documents produced may not be admitted in evidence as they are copies and not originals, they did not oppose marking of the documents at the stage of recording evidence. The opposite parties never disputed the transaction alleged in the complaint.  Ext. A7 would prove the execution of the agreement dated 12.09.2013 by which the opposite parties had agreed to construct the villa on or before 31.12.2015 and hand over possession of the villa to the complainant.  As per the stipulation in Ext. A7 the complainant had paid Rs.5,00,000 on 14.08.2013, Rs. 35,00,000/- on 12.09.2013, Rs.40,00,000/- on 13.09.2013, Rs.15,00,000/- on 23.06.2014, Rs.15,00,000/- on 23.08.2014 and Rs.10,00,000/- on 18.11.2014 as proved through the receipts, copy of which are exhibited as Ext. A3 and A8 to A12.  The execution of A7 and receipt of Rs. 1,20,00,000/- thus stands proved.

15.  The complainants had deputed an expert Commissioner who had inspected the property and filed a report which is marked as Ext. C1.  The photographs of the premises are also seen enclosed with Ext. C1.  It is proved through the report of the commissioner that substantial work has to be carried for the complete construction as stipulated in the agreement. As per Ext. C1 a sum of Rs. 53,63,996/- is needed further for completion of the construction.  The assessment made by the expert commissioner regarding the cost of construction to be carried out appears to be just and reasonable. Hence the amount arrived at as Rs. 53,63,996/- can be  fixed as the refund to be ordered against the opposite parties.

16.  After the inspection of the commission the complainant filed I.A. No 269/2017 and obtained permission from this commission as per the order dated 02.05.2019 for completion of the construction.  According to the opposite parties they could not complete the work on several reasons.  But no tangible evidence was adduced by the opposite parties for this.  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 complainant has discharged her duty regarding the due execution of the agreement and payment of Rs. 1,20,00,000/- as agreed, it is up to the opposite parties to tender evidence and convince the alleged circumstances which prevented them from fulfilling the promise. Vague pleadings 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 had no intention to complete construction of the villa.  In Ext. C1 the advocate commissioner has explained about the difficulties in completing the construction of the villa.

JUSTICE K. SURENDRA MOHAN  : PRESIDENT

                                    AJITH KUMAR  D. : JUDICIAL MEMBER

jb                                                                                                 RADHAKRISHNAN K.R.  : MEMBER

APPENDIX

I         COMPLAINANT’S WITNESS :

II       COMPLAINANT’S DOCUMENTS :

III      OPPOSITE PARTY’S WITNESS :

IV      OPPOSTE PARTY’S DOCUMENTS :

V       COURT EXHIBIT :

JUSTICE K. SURENDRA MOHAN  : PRESIDENT

                                 AJITH KUMAR D. : JUDICIAL MEMBER

jb                                                                                              RADHAKRISHNAN K.R.  : MEMBER