w w w . L a w y e r S e r v i c e s . i n



Thomas John & Another v/s M/s. Puravankara Project Ltd., Kochi & Another


Company & Directors' Information:- PURAVANKARA LIMITED [Active] CIN = L45200KA1986PLC051571

    CC.No. 59 of 2014

    Decided On, 19 August 2019

    At, Kerala State Consumer Disputes Redressal Commission Thiruvananthapuram

    By, THE HONOURABLE MR. T.S.P. MOOSATH
    By, JUDICIAL MEMBER & THE HONOURABLE MRS. A. BEENA KUMARI
    By, MEMBER

    For the Appellant: Marykunju John, Advocate. For the Respondent: Joshewa, Advocate.



Judgment Text

T.S.P. Moosath, Judicial Member

Complaint filed under section 17 of the Consumer Protection Act.

2. The averments contained in the complaint are in brief as follows. On10.01.2008 the complainants entered into an agreement with the first opposite party, by executing two sets of documents. The first agreement is for the purchase of an undivided 0.171% share in the land for a total consideration of Rs 8,21,500/-. The second agreement which is called of the construction agreement was for the construction of a three bed room apartment in the third floor of “Purava Eternity” for a total consideration of Rs 26,31,650/-. It is provided that both the agreementswill form an integral part of each other. The complainants paid the entire consideration as per the schedule of the payment incorporated in the agreement. They completely paid the construction cost for the apartment as per the agreement also. As per the terms of the agreement the opposite parties had agreed to complete the construction of the apartment in all respects and hand over the possession to the complainants on or before 31.12.2009 and execute the sale deed in respect of the undivided share in the land. The grace period of six months is also provided for handing over the possession of the apartment in a fit condition for occupation. But the opposite parties have not completed the construction of the apartment even though more than three years have elapsed. Even after the expiry of the grace period the opposite parties have been negligent and indifferent in adhering to the terms of the agreement and thus there was deficiency in service on the part of the opposite parties. The complainants understood that the opposite parties diverted the funds collected from the complainants and other persons for other purposes with result that they could not perform the services promised and guaranteed by them within the stipulated period or even after the expiry of the grace period. It is specifically agreed by the opposite parties that if the completion of the construction is delayed even after the expiry of the grace period they would compensate the complainants by paying at the rate of Rs 7000/- per month till the date completion of the construction of the apartment and handing over the possession of the same to the complainants. So the opposite parties are liable to pay compensation at the rate of Rs 7000/- per month from 01.07.2010 till 01.04.2014 which comes to Rs 3,22,000/-. In order to get over the situation and to forestall any move on the part of the complainants to enforce the legitimate rights and privileges under the agreement, the first opposite party suggested for entering into a supplementary agreement on 16.01.2014 by which they suggested to take temporary possession of the apartment under the guise of enabling the complainants to carry out the interior works. But the complainants could not accept the suggestion, since it was only to delay the completion of the transactions. Complainants suffered serious inconvenience on account of the inordinate delay caused by the opposite parties in completing the transaction. Hence registered notice was issued on 04.03.2014 to the opposite parties calling upon them to hand over the possession of the apartment within a period of one month and to register the sale deed and pay compensation at the rate of Rs 7000/- per month from 01.07.2010 till handing over the possession of the apartment. But they have not cared to send any reply. Hence the complainants were constrained to approach this commission for redressal of their grievances. The inconvenience and damages and mental sufferings caused to the complainants on account of the deficiency of service on the part of the opposite parties is estimated at Rs 20,00,000/- which is a modest estimate. The prayer of the complainants is to direct the opposite parties to complete the construction of the apartment in all respects as per the terms of the agreement and hand over possession within a time specified by the commission, to execute and register the conveyance deed with respect to 0.171% in respect the B schedule described in the agreement, to award compensation of Rs 23,00,000/-including the compensation stipulated in the agreement and to pay cost of the proceedings.

3. The opposite parties filed version raising the following contentions. The complaint is not maintainable. It is admitted that on 10.01.2008 the complainants and the opposite parties entered into two agreements, as mentioned in the complaint. The complainants have defaulted in payment of their dues towards the monthly instalments to the opposite parties. Hence a defaulter cannot claim the benefit under the agreements. There was delay on the part of the complainants in making the monthly instalments. There has been a delay of nearly 1060 days in total in making payment of monthly instalments by the complainants. So the complainants are liable to pay the interest on the delayed payments which amounts to Rs 89,002/- .It is submitted that the delay occurred because of the reasons and factors which are beyond the control of the opposite parties. The construction which commenced prior to KMB Rules 1999 which was extended to the project land and subsequently on account of the writ petitions filed by the various builders and purchaser before the Hon’ble High Court of Kerala challenging the Government order extending the KMB Rules 1999 and issuance of various circulars, government orders clarifying with regard to the construction which had commenced prior to the extension of KMB Rules 1999 and the ultimate decision dated 25.11.2009 of the Hon’ble High Court of Kerala in Writ PetitionNo.13085/2009 and various other connected matters and various other factors such as restrictions on sand mining, transport, labour unrest harthal etc are reasons for the delay in the construction and handing over the flat to the complainants. So as per clause no.15 of the agreement the opposite parties are not liable to pay compensation to the complainants. The allegation of the complainants is that the opposite parties suggested for entering into a supplementary agreement on 16.01.2014 in order to get over the situation and to forestall any move on the part of the complainants to enforce their legitimate rights and privileges under the agreement is false. The intention of the supplementary agreement was to enable the customers to take possession and to avoid further delay in handing over the possession. The statement of the complainants that they have suffered huge damages and serious inconvenience were caused to them is false. The claim of Rs 20,00,000/- as compensation made by the complainants cannot be allowed. The complainants are governed by the terms of the agreements and in case of delay in handing over possession, the complainants cannot claim any amount which is inconsistent with the terms of the said agreement. It is submitted that the flat in question has been completed in all aspects and is ready for occupation. The opposite party has sent communication to the complainants to make payment of the statutory charges, stamp duty and registration charges and to obtain sale deed in their favour after furnishing the details. The reliefs A & B in the complaint has become infrectuous, as opposite party called upon the complainants to take possession and get the sale deed executed after the payment of the necessary statutory charges. There is outstanding due of Rs 3,04,200/- which the complainants are liable to pay the opposite parties. The complainants are not entitled to get any relief against the opposite parties.

4. It is an admitted fact that after the filing of the present complaint the opposite parties completed the construction of the apartment and handed over the possession to the complainants and the opposite parties had executed and registered the conveyance deed with respect to the apartment and the undivided share in the property in favour of the complainants. So the reliefs sought for as “A & B “in the complaint need not be considered. The only point to be considered is

1. Whether the complainants are entitled to get compensation from the opposite parties, if so, what is the amount to which they are entitled to get.

5. The first complainant was examined as PW1 and Exts.A1 to A4 series were marked on the side of the complainants. The Manager, Legal of OP1 filed affidavit and produced documents.

6.The Point

7. There is no dispute to the fact that on 10.01.2008 the complainant and the opposite parties entered into Exts.A1 & A2 agreements. Ext.A1 agreement is regarding the sale of undivided share described as B schedule in that document. The purchase price of the said property to be paid by the complainant to the opposite parties was Rs 8,21,500/-. On the date of the execution of that document the complainants paid Rs 23,831/- to the opposite parties and the balance amount of Rs 7,97,669/- is to be paid by the complainants to the opposite parties by way of 24 instalments as stated in the Schedule in Clause 3 and Ext.A1 agreement, Ext.A2 is the agreement regarding the sale of the apartment for a total consideration of Rs 26,31,640/- and on the date of execution of that agreement the complainant has paid Rs 76,169/- to the opposite parties. The balance amount of Rs 25,55,471/- has to be paid by way of 24 instlalments as mentioned in the schedule of clause 4 of Ext.A2. As per Ext.A2 agreement the opposite parties have to complete the construction of the apartment and hand over possession to the complainants on or before 31.12.2009 and execute and register the sale deed. Six months grace period was also provided to hand over the possession of the apartment to the complainant. So the opposite parties have to hand over the possession of the apartment to the complainant on or before 30.06.2010. There is not much dispute between the parties to these facts.

8. According to the complainants they paid the entire amount by May 2010 as mentioned in Exts.A1 & A2 agreements but even after lapse of three years, after the payment, the opposite parties have not handed over the possession of the flat and not executed the sale deed with respect to the flat. Further the opposite parties demanded the complainants to pay Rs 3,04,200/- as liquidated damages. On 04.03.2004 the complainant sent a notice to the opposite parties to hand over the possession of the apartment. Even though the opposite parties received the notice, they did not send any reply. Ext.A4 is the copy of the notice, Ext.A4 (a) is the postal receipt and Ext.A4 (b) is the acknowledgement card signed by the opposite parties. In order to forestall any move on the part of the complainants to enforce their legitimate rights the opposite parties suggested for entering into a supplementary agreement on 16.01.2004 by which they suggested to take temporary possession of the apartment under the guise of enabling the complainants to carry out the interior works and it was not accepted by the complainant. Ext.A3 is the copy of the supplementary agreement dated 16.01.2004 handed over to the complainant by the opposite parties. During the pendency of the complaint, on 08.12.2014 the opposite parties filed memo stating that they have completed the construction of the apartment and to give direction to the complainants to take possession of the apartment. On the basis of the above memo the complainants went to the office of the opposite parties got the key of the apartment on 15.12.2014. The sale deed with respect to the apartment and undivided share in the property was executed by the opposite parties in favour of the complainant on 24.03.2015. According to the complainants the entire amount as per the agreement was paid by them by May 2010, but the opposite parties handed over the possession of the apartment only in December 2014 and so they are entitled to get compensation from the opposite parties. In Clause 9 of Ext.A2 it is agreed by the opposite parties that if the construction of the apartment is delayed even after the expiry of the grace period they will pay compensation at the rate of Rs 7000/- per month till the completion of the construction of the apartment and handing over the possession of the same to the complainants. The complainants have claimed Rs 3,22,000/- as compensation at the rate of Rs 7000/- per month from 01.07.2010 to 01.04.2014. It is stated by the appellants that the delay on the part of the opposite parties in handing over the possession of the apartment caused inconvenience and mental sufferings to them and they are entitled to get Rs 20,00,000/- as compensation from the opposite parties. So the complainants claimed Rs 23,00,000/- as compensation from the opposite parties. It is admitted by the opposite parties that there occurred some delay on their part in completing the construction and handing over the apartment to the complainants. But according to them there was no willful delay or latches on their part and the delay occurred because of some reasons which are beyond their control. It is stated by the opposite parties that the construction which commenced prior to KMB Rules 1999 which was extended to the project land and subsequently on account of writ petitions filed by various builders and parties before the Hon’ble High Court of Kerala challenging the Government order extending the KMB Rules 1999 and issuance of various circulars, government orders clarifying with regard to the construction which commenced prior to the extension of KMB Rules 1999 and ultimate decision dated 25.11.2009 of the Hon’ble High Court of Kerala in WP.No.13085 and various other connected matters caused delay in completing the construction of the building. Pursuant to the KMB Rules being extended to the project land the building permit / regularization had to be obtained which was done by the first opposite party. As per Clause 15 in Ext.A2 the date stipulated for delivery of the apartment is subject to variation on account of force majeure or acts of God or Government orders / Restrictions / Controls or any strike including transport strike and other reasons which are beyond the control of the first opposite party. It is also stated that the first opposite party shall not be responsible for delay in obtaining the sanctions of Statutory Authorities. So the opposite parties claim that since the delay caused was not because of their fault and because of the application of the KMB Rules to the project land, they are not liable to pay compensation to the complainants. The KMB Rules 1999 which was extended to the project land might have caused some delay in obtaining permit / registration etc. But as stated by the opposite parties the ultimate decision in the matter came from the Hon’ble High Court of Kerala by the judgment dated 25.11.2009 in WP.No.13085/2009. So the fact that KMB Rules 1999 was extended to the project land cannot be considered as a valid reason for the delay on the part of the opposite parties in completing the construction of the apartment and handing over possession and handing over possession till December 2014. So the opposite parties cannot claim protection for the delay on the basis of clause 15 in Ext.A2. It is stated by the opposite parties that the complainant agreed to pay the instalments in time without demand by the opposite parties as the time for payment of balance sale consideration and construction cost was essential, on account of the scheme formulated in the development of the property and in the event of any default in payment of the balance amount the entire project will be affected. It is stated by the opposite parties that the complainant had, on several occasions committed default in payment of the instalments in time and as per the statement the complainants are liable to pay the interest of Rs 89,002/- for the delayed payment. But they have waived that amount. It is stated by the opposite parties that the complainants who had committed default in payment of the monthly instalments as per the agreements cannot claim compensation from the opposite parties on the basis of the agreements. PW1 deposed that he is no disputing the final statement given by the opposite parties and he had made payments as per the final statement given by the opposite parties. On going through the statements produced by the opposite parties it can be seen that on some occasions there was delay of some days in making payments of the monthly instalments by the complainants, which is negligible. Even if there is delay of some of days in making some monthly instalments the same would be deemed to have been condoned by the opposite parties by accepting payments without any demur. Any way, it can be seen that the complainants had paid almost the whole amount as per the schedule of payments mentioned in Exts.A1 & A2 by May 2010. So the opposite parties cannot contend that the complainants are not entitled to claim compensation from them for the delay in handing over the possession of the apartment, since the complainants have committed default in payments of the instalments. Considering the facts and circumstances of the case it can be seen that there is deficiency in service on the part of the opposite parties and complainants are entitled to get compensation from the opposite parties, for the delay on their part in completing the construction of the apartment and handing over the possession of the apartment to the complainants.

9. As per Ext.A2 agreement the opposite parties had to complete the construction and hand over the possession of the apartment to the complainants on or before 30.06.2010, but they handed over the possession of the apartment to the complainants only in December 2014. As per the clause 9 in Ext.A2 if there was delay on the part of the opposite parties in completing the construction of the apartment and handing over the possession of the apartment, even after the grace period of six months they will pay Rs 7000/- per month to the complainants. So the complainants are entitled to get compensation at the rate of 7000/- for 54 months. So the complainants are entitled to get Rs 3,78,000/- as compensation from the opposite parties. It is stated by the complainants that because of the delay on the part of the opposite parties in handing over the possession of the apartment to them much inconveniences were caused to them and it caused mental agony to them. The complainants claim Rs 20,00,000/- as compensation for the inconvenience caused to them and the mental agony suffered by them. In Chief Administrator, Hariyana Urban Development Authority and Another Vs Sakunthala Devi (2017) 2 SCC 301 the Hon’ble Supreme Court held that it is a pre condition that there must be proof of loss or injury suffered by the consumer due to the negligence of the opposite party. Computation of compensation has to be fair, reasonable and commensurate to loss or injury. It is the duty of the Consumer Forum to take into account of all relevant factors for computation of compensation. In a case where the Commission / Forum has directed delivery of possession the party has to a certain extent got benefit. The cost of the land / flat would have gone up in the mean time. Of course, even in case where possession has been directed, there can be compensation for the harassment / loss. But such compensation has to be worked out after looking into the facts of each case and after determining what is the amount of harassment / loss which had been caused to the consumer. In the present case, admittedly the opposite parties delivered possession of the apartment and they had executed sale deed of the undivided share in the property and the apartment in the name of the complainants, after the filing of the complaint. The counsel for the opposite parties had drawn our attention to the deposition of PW1 wherein he stated that he was an ordinary resident of South Africa and he was there for more 25 years and his plan was to come back to India and settle here after five years, after the retirement of his wife, PW1gave the deposition on 07.07.2015. So the complainants have no case that they were residing in a rented house and because of the delay in handing over the poss

Please Login To View The Full Judgment!

ession of the flat by the opposite parties, they have to incur expenses for payment of rent. In the affidavit filed by the first complainant it is stated that whenever he came to Kochi with his wife they had to stay in brother’s house at Palai and to make frequent travels from Pala to Kochi by spending huge amount as travelling expenses. During their stay at Kochi they had to stay hotels by paying huge sum of money as daily rent. But the complainants have not adduced any evidence regarding the amounts alleged to have spent by them for their stay in hotels. It is stated by the complainants that by May 2010 they had paid the entire amount to the opposite parties and if interest is calculated at 12% per year for the amount paid by them it will be more than Rs 18,00,000/-. But it cannot be the basis or criteria for determining the compensation. The fact remains that the price / cost of the apartment and property was escalated by the passage of time. As per Ext.A2, the agreement between the parties is to pay compensation at the rate of Rs 7000/- per month by the opposite parties to the complainant if there is delay on their part in completing the construction and handing over the possession of the apartment to the complainants. But considering the mental agony and the inconvenience caused to the complainants because of the delay on the part of the opposite parties in handing over the possession of the apartment to the complainants they are entitled to get reasonable compensation and we consider that Rs 2,00,000/- is just and reasonable compensation for the mental agony, inconvenience and sufferings caused to the complainants because of the delay on the part of the opposite parties in handing over the possession of the apartment to the complainants. So the complainants are entitled to Rs 5,78,000/- ( Rs 3,78,000+2,00,000) as compensation from the opposite parties. In the result, the complaint is partly allowed. The opposite parties are directed to pay Rs 5,78,000/-as compensation together with cost of Rs 10000/- to the complainants, within one month from the date of receipt of the copy of the judgment, failing which the amount of compensation ordered will carry interest at the rate of 10% per annum from the date of order.
O R