KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

VAZHUTHACAUD, THIRUVANANTHAPURAM

C.C. No. 76/2017

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. Sundeep Kochayyappan Pillai, S/o. Narayanan Kochayyappan Pillai, Meenakshimandiram, Kovoor, Palayamkunnu.P.O,Trivandrum-695146.

2. Athira. C, W/o Sundeep Kochayyappan Pillai, Meenakshimandiram, Kovoor, Palayamkunnu.P.O, Trivandrum-695146.

(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. Dhanya Mary Varghese W/o John Jacob, Director-Sales, Samson & Sons Builders and Developers (P) Ltd., TC3/678 Kannimattom, TKD Muttada. P.O, Thiruvananthapuram-695025.

   (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 are in brief as follows:  The 1^st Complainant had proposed to settle in Trivandrum in 2013. The opposite parties represented to him that they are reputed builders and they launch a project at Vazhayila as “Vazyayila Project and subsequently named as Green Courtyard”.  Being attracted with the offer and facilities assured by the opposite parties the 1^st complainant had decided to invest in the project.

3.  On 11.11.2013 the complainants and the opposite parties executed an agreement and in view of the agreement a sum of Rs.25,00,000/- was paid to the opposite parties.

4.  Subsequently 1^st opposite party through 2^nd and 4^th opposite parties made arrangements for the purchase of the landed property in the name of the complainants for an amount of Rs. 4,39,200/-, the property having an extent of 02.47 Ares comprised in Resurvey No.461/8-2 in Block No.34 in Karakulam Village as per Sale Deed No. 811/2015 dated 13.04.2015.  The complainant had also spent a sum of Rs. 50,000/- towards documentation and registration charges.  As per the agreement total cost of construction is Rs 85,00,000/-.

5.  Though the complainant had paid Rs. 25,00,000/- to the opposite parties and spent a sum of Rs. 5,00,000/- for purchasing the property the opposite parties never carried out the construction of the building.  The opposite parties assured that the work will be completed at the earliest but in November and December 2016 the complainant received information that the opposite parties were arrested on cheating charges.  When the complainants made efforts to contact the opposite parties they never responded.

6.  As per the stipulation in the agreement the complainants have got the right to resume construction through their workers in the event the builder withdraws from the work or fails to complete the construction within time frame.

7.  The office of the opposite parties remained closed from November 2016 onwards.  The complainants would seek for refund of Rs. 25,00,000/- the amount received by the opposite parties along with interest @18% per annum and  an amount of Rs. 10,00,000/- as compensation for the mental agony and loss suffered and costs.

8.  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. 

9.  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 2012 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.  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 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 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 dismissal of the complaint. 

10.  The evidence consists of the proof affidavit filed by the complainant.  Exts. A1 to A8 were marked on the side of the complainant as the counsel for the opposite parties has no objection in receiving those documents in evidence. 

11.  The second opposite party did not even file an affidavit in lieu of examination. When the matter was posted for the evidence of the opposite parties, they remained absent and there was no representation.  Hence the matter was taken for judgment after hearing the counsel for the complainant.

12.  Perused the case records.

13.  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?

14.  Point No. (i):- The question of maintainability was answered at the preliminary stage and found that the complaint is maintainable.  No appeal has been filed before any appellate forum.  So issue regarding maintainability need not be considered at this stage.

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

16.  The 2^nd complainant had sworn an affidavit in support of the pleadings in the complaint.  The copies of the brochure of the project, the agreement and the receipts evidencing the payment of Rs. 25,00,000/- to the opposite parties are exhibited as A1 to A6.  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. A2 would prove the execution of the agreement dated 11.11.2013 by which the opposite parties had agreed to construct the apartment on or before December 2015 and handover possession of the apartment to the complainant. As per the stipulation in Ext. A2 the complainant paid Rs. 25,00,000/- on four dates such as 13.11.2013, 04.02.2014, 09.07.2014 and 11.04.2015 as proved through the receipts, copies of which are exhibited as Exts A3 to A6.  The execution of Ext. A2 and receipt of Rs. 25,00,000/- stands proved.

17.  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. 25,00,000/- it is up to the opposite parties to tender evidence and convince the alleged circumstances which prevented them from fulfilling the promise.  Vague pleadings 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 apartment.

18.  The facts and circumstances brought before us would prove that the opposite parties had no intention to construct the apartment 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. 25,00,000/- from the complainants.  So the complainants are entitled to get back Rs. 25,00,000/- along with interest from the opposite parties.

19.  The complainants were in fact deceived by the opposite parties by assuring an apartment after receiving a huge amount.  The hardships caused to the complainants cannot be adequately compensated in terms of money as their desire to have 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. 5,00,000/- 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. 25,00,000/- (Rupees Twenty Five Lakhs only) received from the complainants with interest @ 8% per annum from 31.12.2015, the date on which the apartment ought to have been handed over to the complainants, till the date of realisation.

b) The opposite parties are directed to pay Rs. 5,00,000/- (Rupees Five 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 14.02.2017, 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

jb

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

jb                                                                                         RADHAKRISHNAN K.R.  : MEMBER