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M/s. NUDPL Enterprises Pvt. Ltd., Bangalore v/s Saiprasad Natarajan & Another

    First Appeal No. 2378 of 2019
    Decided On, 26 February 2020
    At, National Consumer Disputes Redressal Commission NCDRC
    By, THE HONOURABLE MR. DINESH SINGH
    By, PRESIDING MEMBER
    For the Appellant: Abir Phukan, Ashkrit Tiwari, Advocates. For the Respondents: --------


Judgment Text

1. This Appeal has been filed under Section 19 of The Consumer Protection Act, 1986, hereinafter referred to as the ‘Act’, challenging the Order dated 24.07.2019 in C.C. No. 231 of 2017 passed by The State Consumer Disputes Redressal Commission, Karnataka, hereinafter referred to as the ‘State Commission’.

The Appellant herein, M/s NUDPL Enterprises Pvt. Ltd., was the Opposite Party before the State Commission, and is hereinafter being referred to as the ‘Builder Co.’.

The Respondents herein, Mr. Saiprasad Natrajan and Mrs. Shilpa Sundareshan, were the Complainants before the State Commission, and are hereinafter being referred to as the ‘Complainants’.

2. Heard the learned Counsel for the Builder Co. on admission.

Perused the material on record including inter alia the Order dated 24.07.2019 of the State Commission and the Memorandum of Appeal.

3. In the interest of justice, to provide fair opportunity to the Builder Co., to settle the matter on merit, the delay of 05 days in filing the Appeal is condoned.

4. The Complainants’ case before the State Commission was that they booked a residential unit with the Builder Co. for Rs. 81,24,360/-. An Agreement between the Builder Co. and the Complainants was executed on 11.03.2013. The Complainants paid Rs. 16,24,873/- to the Builder Co. in 2013. The Project had not even been initiated when the Builder Co. raised further demand. The Project was not completed by the agreed and assured date, i.e. 31.08.2015. The Project was nowhere nearing completion.

5. The Complainants filed Consumer Complaint No. 231 of 2017 before the State Commission in 2017. The State Commission, vide its impugned Order dated 24.07.2019, allowed the Complaint.

6. It is noted that [a] it is admitted that Rs. 16,24,872/- were paid to the Builder Co. by the Complainants (in 2013); [b] the Project had not even been initiated when the Builder Co. raised further demand; [c] the Project was not completed by the agreed and assured date of completion (30.08.2015), or within a reasonable period thence (reasonable period here would connote such period as a reasonable man would not normally agitate); [d] there is nothing on record to show that the Complainants were not ready and willing to pay the balance consideration amount, as per the terms and conditions of the Agreement, provided it was visible that the Project had been initiated and it was reasonably evident that it would be completed by the agreed and assured date.

7. The State Commission has observed in para 7 of its Order that “- - - it is evident that complainant purchased residential apartment in the project initiated by the OP under the name “Nitesh Cape Cod”. The sale consideration was Rs. 81,24,360/- out of which the complainant has paid a sum of Rs. 16,24,872/-. According to the terms, the OPs were required to hand over the possession on or before August 30, 2015.- - -” and that “- - -OP has not started the project itself.- - -”.

8. The State Commission has passed a fair, reasoned Order; no jurisdictional error, or legal principle ignored, or miscarriage of justice, is visible. The Award made appears just and equitable (“The above complaint is allowed with costs of Rs. 5,000/-. The OP is hereby directed to refund Rs. 16,24,872/- with interest at the rate of 12% p.a. from the date of receipt till the date of actual realization within 3 months from the date of this order failing which the complainant is at liberty to take steps to initiate recovery proceedings under Section 25 and criminal proceedings under Section 27 of Consumer Protection Act.”). There can be no two opinions that the amount deposited (Rs. 16,24,872/-) by the Complainants with the Builder Co. has necessarily to be refunded. In the facts and specificities of the case, the rate of interest (12% p.a.) appears reasonable.

9. Prior to, or, at the least, simultaneous to, getting a Consumer to enter into its agreement and accepting the first payment towards the total cost of the subject unit, the Builder Co. was required and expected to have the due pragmatic and realistic assessment and preparation of the Project Planning, Execution and Completion.

It was the responsibility of the Builder Co. to ensure that it was in a position to complete the Project by the agreed and assured date and in all contingencies within a reasonable period thence (reasonable period here would again connote such period as a reasonable man would not normally agitate).

Project Planning, Execution and Completion were its responsibility, and not of the Consumer(s).

(Normal) impediments or problems that arise in Planning, Execution and Completion were its responsibility, and not of the Consumer(s).

Specifically, availability of land (/ acquisition of land), as well as all approvals from the concerned Government / Development / Municipal authorities, as and when due, being fundamental basic requirements of a construction Project, were decidedly the Builder Co.’s primary responsibilities, and not of the Consumer(s).

Its arrangements with any third party etc. or its arrangements with its contractors or sub-contractors etc. or its litigation etc. were its own concern / problem, and not of the Consumer(s).

Cost and Time Overruns were its responsibility, and not of the Consumer(s).

Non-fulfilment of its overall responsibilities of Project Planning, Execution and Completion can not be and are not grounds for condoning or overlooking delay in completion by the agreed and assured date.

10. After making deposit of about Rs. 16.25 lakh in 2013, it should have been readily evident to the Consumer that [a] the Project has been duly initiated and [b] it would in all reasonable probability be completed by the agreed and assured date.

It cannot be that the Consumer keeps on making further and further deposits with the Builder Co., when it is evident to his naked eye that the Project has as yet not even been initiated and that in all probability it would not be completed by the agreed and assured date (31.08.2015).

11. Pertinently, it is admitted, at the time of arguments, on 17.02.2020, before this Commission, that the Project has, even now, not been completed, its occupancy-cum-completion certificate has not been obtained.

12. Ingredients of ‘deficiency in service’ within the meaning of Section 2(1)(g) & (o) of the Act are well and truly evinced on the part of the Builder Co.

13. The Act is for “better protection of the interests of consumers”, in recognizedly a fight amongst unequals.

Its Statement of Objects and Reasons says of “speedy and simple redressal to consumer disputes”.

The Complainants deposited Rs. 16,24,872/- with the Builder Co. in 2013. Further demand was raised when then Project had not even been initiated. The Project was not completed by the agreed and assured date (31.08.2015). Even now (on 17.02.2020, at the time of arguments before this Commission), the Project is nowhere near completion.

The Complainants made their deposit in 2013. The Complaint before the State Commission was filed in 2017. It was decided in 2019. Appeal was filed before this Commission in 2019. We are now in 2020.

14. This is a plain and simple case of a builder co., with wherewithal, on the one side, and an ordinary common consumer, without wherewithal, on the other side, with the builder co. first indulging in deficiency in service, causing loss and injury to the consumer, and then indulging in protracted litigation, in one, and then, two, Consumer Protection Fora. Before the second Forum, i.e. this Commission, its case fails at admission itself.

15. All this is not viewed favourably, it necessitates advice and cost.

16. The Appeal, being patently ill-conceived and totally devoid of merit, is dismissed with stern advice of caution to the Builder Co., through its Chief Executive, by imposition of cost of Rs. 50,000/-, to be deposited in the Consumer Legal Aid Account of the State Commission, within four weeks of the pronouncement of this Order.

17. The State Commission’s impugned Order dated 24.07.2019 is affirmed.

The Award made by the State Commission is confirmed.

18. The Builder Co. shall ensure compliance within four weeks of the pronouncement of this Order (para 16 and 17 above).

19. The State Commission shall undertake execution as per the law for failure or omission in compliance within the stipulated period.

20. It may be added that the liability qua the Co

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mplainants initiated the day they made their first deposit with the Builder Co., and it continues, as a continuing wrong. The duties / responsibilities of Director are laid-down in The Companies Act, 2013. The substantive principles of law as contained in Section 47 (‘Questions to be determined by the Court executing decree’) under Part II, Execution, of the CPC, may also be referred to. The Director(s) of the Builder Co. shall have to discharge the onus to show that they are not liable, along with the Builder Co., jointly and severally, on the question being raised in the executing Forum in execution proceedings. This observation is being made in reference to ‘Enforcement’ under Section 25(3) and ‘Penalties’ under Section 27 of the Act. 21. The Registry is directed to send a copy each of this Order to the State Commission and to the Complainants within three days of its pronouncement. Disposed.
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