KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

VAZHUTHACAUD, THIRUVANANTHAPURAM

C.C. No. 121/2017

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

COMPLAINANT:

Sudheera Kumar J.T., S/o A. Janardhanan Nair, TC18/1815(5), Sampoorna, Plavila, Thirumala, Thiruvananthapuram -695006.

(By Advs. Rajmohan C.S. & Sajeev S.R.)                                       Vs.

OPPOSITE PARTIES:

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

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

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

4. Samuel Jacob, Director, Samson & Sons Builders and Developers Pvt. Ltd.,TC 3/679,TKD Road, Kaliveena Building, Muttada P.O, Kowdiar Village, Thiruvananthapuram- 695025.

   (By Adv. Dougles Linsby N.R.)

JUDGMENT

SRI. AJITH KUMAR D. : JUDICIAL MEMBER

This is a complaint filed by one Sudheera Kumar against Samson & Sons Builders and Developers Private Limited Company, its Managing Director, Chairman and Director. 

2.  The allegations contained in the complaint are in brief as follows:  The 1^st opposite party is a private Limited Company carrying out the business of property development and construction and sale of apartments.  Opposite parties 2 to 4 are the Managing Director, Chairman and Director.  Opposite parties had advertised in dailies and medias with regard to their project being constructed in the land having an extent of 39.5 cents in survey No. 2572/A-1, 2572/A and 2571/1 of Vanchiyoor Village.  Complainant with a desire to acquire a residential house at Trivandrun contacted opposite parties 2 to 4 and as per the assurance and promise given by them decided to purchase one apartment in the sixth floor with three bed rooms (type 6A) with a built up area 1636 square feet along with .877 cents of undivided share in 39.5 cents of land with all rights over common facilities and covered car parking area for a total consideration of Rs. 65,00,000/-.  As per the agreed terms of the agreement dated 18.08.2013 the complainant had paid Rs. 20,00,000/- i.e; Rs. 5,00,000/- each on 18.08.2013 and 17.10.2013, Rs. 3,00,000/- on 16.11.2013 and Rs. 7,00,000/- on 06.12.2013 respectively. Opposite parties had issued receipts evidencing the payment. But to the utter surprise of the complainant and shock, the opposite parties never made any progress in the construction.  The complainant had requested the opposite parties to settle the claim of the complainant but they never made any effort to complete the construction though agreed to hand over possession on 31.012016. The complainant hence suffered much agony on account of the deficiency of service on the side of the opposite parties.  He would seek for realization of Rs. 20,00,000/- with interest @ 12% per annum for the principal amount paid.  He would also seek for realization of an amount of Rs. 10,00,000/- as loss incurred and Rs. 5,00,000/- as  compensation for the mental agony, loss suffered and costs.

3.  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. 

4.  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 period was extended by the parties as extra work has 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 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 subjected to the complainant fulfilling the obligations.  She has wilfully suppressed those facts and 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 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 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 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 3^rd opposite party is a Director and he 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 3^rd opposite party.  Therefore the opposite parties would seek dismissal of the complaint. 

5.  The evidence consists of the proof affidavit filed by the complainant.  Exts. A1 & A2 series were marked on the side of the complainant 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 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?

8.  Point No. (i): The plea of maintainability was already considered and found in favour of the complainant at the preliminary stage. The opposite parties never filed appeal against the said finding and hence the above issue does not arise at this stage.

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

10.  The complainant had sworn an affidavit in support of the pleadings in the complaint.  The copies of the agreement and the receipts evidencing the payment of Rs. 20,00,000/- to the opposite parties are exhibited as A1 and A2 series.  Though the opposite parties in the version contended that the documents produced may not be admitted in evidence as copies and not originals 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 18.08.2013 by which the opposite parties had agreed to construct the apartment on or before 31.01.2016 and handover possession of the apartment to the complainant. As per the stipulation in Ext. A1 the complainant paid Rs. 20,00,000/- as proved through the receipts, copies of which are exhibited as Ext. A2 series.  The execution of Ext. A1 and receipt of Rs. 20,00,000/- stands proved..

11.  According to the opposite parties they could not construct the apartment 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 cause which prevented them from starting the construction. When the complainant discharged his duty regarding the due execution of the agreement and payment of Rs. 20,00,000/- it is up to the opposite parties to tender evidence and convince the alleged circumstances which prevented them from fulfilling the promise. Vague pleadings alone 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 have no intention to construct the flat.

12.  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 complainant to have a place of abode and managed to enrich themselves by gaining a sum of Rs 20,00,000/- from the complainant. So, the complainant is entitled to get back Rs.20,00,000/- along with interest from the opposite parties.

13.  The complainant was in fact deceived by the opposite parties by assuring a flat after receiving a huge amount.  The hardships caused to the complainant cannot be adequately compensated in terms of money as his desire to have apartment in a prominent location was offered and defrauded.  On consideration of the mental agony and financial loss caused to the complainant it is found that the complainant is entitled to get Rs.5,00,000/- as compensation.

In the result, the complaint is allowed as follows:

a) The opposite parties are directed to pay the complainant the amount of Rs.20,00,000/- (Rupees Twenty Lakhs only) received from the complainant with interest @ 8% per annum from 31.01.2016, the date on which the flat ought to have been handed over to the complainant till the date of realisation.

b) The opposite parties are directed to pay Rs. 5,00,000/- (Rupees Five Lakhs) as compensation towards the mental agony and hardships suffered by the complainant, with interest thereon @ 8% per annum from  the date of filing the complaint ie on 29.04.2017, 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 judgement, failing which all the amounts shall carry interest @ 9% per annum.

JUSTICE K. SURENDRA MOHAN  : PRESIDENT

                                AJITH KUMAR  D. : JUDICIAL MEMBER

                                                                                                RADHAKRISHNAN K.R.  : MEMBER

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APPENDIX

I         COMPLAINANT’S WITNESS :

II       COMPLAINANT’S DOCUMENTS :

III      OPPOSITE PARTY’S WITNESS :

IV      OPPOSTE PARTY’S DOCUMENTS :

JUSTICE K. SURENDRA MOHAN  : PRESIDENT

                                AJITH KUMAR  D. : JUDICIAL MEMBER

                                                                                                   RADHAKRISHNAN K.R.  : MEMBER

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