KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

VAZHUTHACAUD, THIRUVANANTHAPURAM

C.C. No. 83/2017

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:

K. Suresh Kumar, S/o.Kamalasanan, residing at Halasy,T.C.3/426, TKD Road, Muttada .P.O, Trivandrum District, represented through his Power of Attorney Holder M.Vijayan, S/o Madhavan, residing at V.S. Nivas, TC 3/570(3), Near Parayil Kovil, Muttada .P.O.

                           (By Adv. Vijesh Kattakkalil)

                                                Vs.

OPPOSITE PARTIES:

1. Samson & Sons Builders and Developers (P) Ltd., T.C. 3/679, Kaliveena Building, Muttada P.O., Thiruvananthapuram represented by its Managing Director, John Jacob, T.C. 3/678, Kannimattom, T.K.D Road, Muttada P.O., Thiruvananthapuram-695 025.

2. John Jacob, S/o Jacob Samson, T.C. 3/678, Kannimattom, TKD Road, Muttada P.O., Thiruvananthapuram-695 025.

3. Jacob Samson, T.C. 3/678, Kannimattom, TKD Road, Muttada P.O., Thiruvananthapuram-695 025.

   (By Adv. Dougles Linsby N.R.)

JUDGMENT

SRI. AJITH KUMAR D. : JUDICIAL MEMBER

This is a complaint filed by Sri. K. Suresh Kumar through his Power of Attorney Holder, Sri. M. Vijayan against Samson and Sons Builders & Developers Private Limited Company and two others.

2.  The allegations contained in the complaint are in brief as follows:  The 1^st opposite party is carrying out the business of property development and construction and sale of apartments.  Opposite parties 2 & 3 are the Managing Director and Chairman.  Opposite parties 2 & 3 had approached the complainant and informed about the building project run by the opposite parties as “Samson & Sons -Nova Castle Apartment Project” and the above property is shown as Schedule A. The opposite parties 2 & 3 convinced the complainant that they will deliver the apartment numbering 9B (Type B) in the 9^th floor with built up area of 1700 Square Feet having undivided interest in 1.15 cents for an amount of Rs. 35,00,000/-.  The above apartment is scheduled as ‘B’.  On 17.11.2011 the complainant had entered into an agreement with the opposite parties for the  construction and sale of B schedule property with undivided interest of the land  for a total consideration of Rs. 35,00,000/-.  As per the terms of the agreement the complainant had paid Rs. 35,00,000/- on different dates for which the first opposite party had issued receipts.  As per the stipulation in the agreement the apartment was to be handed over in full satisfaction of the complainant on or before 31.12.2014.  The complainant was expecting the delivery of the apartment as per the assurance made by the opposite parties in the agreement.  But construction of the apartment did not progress as assured.  The complainant was surprised to know that the opposite parties had pledged the A schedule property with KFC and obtained a loan and no attempt was made to construct the building.  The complainant had approached the opposite parties and enquired about the delay in construction and sought for explanation for non-execution of the sale deed and non-handing over of the apartment.  Still they never completed construction of the apartment and when the complainant sent a notice to the opposite parties demanding refund of the money the complainant realized that the opposite parties had deceived him after collecting a huge amount.  Thus the complainant suffered much mental agony on account of the deficiency of service on the side of the opposite parties.  He had sent a lawyer notice to the opposite parties to complete the construction of the apartment, to register the sale deed and to hand over possession or else to refund the amount with interest @ 12% per annum, but there was no response.  Hence the complainant would seek for realization of Rs. 35,00,000/- paid by him with interest @ 12% per annum.  He would also seek for realization of an amount of Rs. 15,00,000/- as compensation for the mental agony and loss suffered along with  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.  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 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 an agreement to construct an apartment for the complainant in the land purchased by him.  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.  The agreement never stipulates 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 subjected to the complainant fulfilling the obligations.  He has wilfully suppressed those facts and now makes 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 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 and he had 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 the 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.  Raising the above contentions the opposite parties would seek for dismissal of the complaint. 

5.  The evidence consists of the proof affidavit filed by the complainant.  Exts. A1 to A5 were marked on the side of the complainant as the counsel for the opposite parties expressed 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 question of maintainability was considered on application filed by the opposite parties and it was found as maintainable.  The above finding has become final as no appeal had been filed by the opposite parties. So at present this issue does not arise at this stage and the point is decided against the opposite parties.

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. 35,00,000/- to the opposite parties are exhibited as A1 to A3. Though the opposite parties in the version contended that the documents produced may not be admitted in evidence as they are only copies and not originals they did not oppose marking of the documents when evidence was tendered.  The opposite parties never disputed the transaction alleged in the complaint. Ext. A1 would prove the execution of the agreement dated 17.11.2011 by which the opposite parties had agreed to construct the apartment on or before 31.12.2014 and handover possession of the apartment to the complainant. As per the stipulation in Ext. A1 the complainant had paid Rs. 17,50,000/-  on 17.11.2011 and Rs. 17,50,000/-  on 18.06.2012 respectively which stands proved through the receipts, copies of which are exhibited as Ext A2 &A3.  The execution of A1 and receipt of Rs. 35,00,000/- stands proved.

11.  According to the opposite parties they could not construct the apartment for several reasons.  But no tangible evidence was adduced to substantiate their contention.  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 his duty regarding due execution of the agreement by effecting payment of Rs. 35,00,000/- it is up to the opposite parties to tender evidence and convince the alleged circumstances which prevented them from fulfilling their 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.

12.  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 desire of the complainant to have a place of abode and managed to enrich themselves by illegally gaining a sum of Rs. 35,00,000/- from him.  So the complainant is entitled to get back Rs.35,00,000/- paid by him along with interest from the opposite parties.

13.  The complainant was in fact deceived by the opposite parties by assuring an apartment 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 of Thiruvananthapuram was offered to be fulfilled and later he was defrauded.  The stress and pain experienced by an individual can be imagined. On consideration of the mental agony and financial loss caused to the complainant it is found that he is entitled to get Rs.7,00,000/- as compensation.

In the result the complaint is allowed as follows.

1. The opposite parties are directed to pay the complainant the amount of Rs. 35,00,000/- (Rupees Thirty  Five Lakhs only) received from him along with interest @ 8% per annum from 31.12.2014, the date on which the apartment ought to have been handed over to the complainant till the date of realisation.
2. 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 complainant, with interest thereon @ 8% per annum from  the date of filing the complaint ie on 20.02.2017, till the date of payment.
3. The opposite parties are also directed to pay Rs. 50,000/- (Rupees Fifty Thousand only) as costs of this litigation.
4. All the amounts shall be paid within a period of one month from the date of receipt of a 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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