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KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION, THIRUVANANTHAPURAM
B. Sudheendra Kumar, President, Ajith Kumar D., Judicial Member and Radhakrishnan K.R., Member
T. Gangadharan – Complainant
versus
P.J. Homes and Anr. – Opp. Parties
Consumer Complaint No.191 of 2017
Decided on 24.01.2025
Consumer Protection Act, 1986 – Section 17 – Consumer Protection Act, 2019 – Section 47 – Services – Allotment of Flat/Plot – Delayed Possession – The subsequent developments were suppressed by the complainants and they sought for refund of the entire amount – The conduct of the complainants in this regard is to mislead this Commission – But that alone may not be a ground to deprive the complainants from seeking adequate compensation with regard to the inconvenience caused in completing the construction work – As per the construction agreement, the work ought to have been completed on or before 31.03.2013. But till 2015, the opposite parties could not complete the work – So this delay had caused inconvenience to the complainants and so a lumpsum amount could be awarded as compensation to the complainants in this connection – Though the complainants had suppressed the material facts regarding their ownership of the land and taking possession of the villa and sought for the refund of the whole amount paid is not taken as a circumstance to dismiss the complaint – Thus, a consolidated amount can be ordered to the complainants as compensation for the inconvenience caused in completing the construction work of the villa as stipulated in the agreement – Complaint allowed. [Paras 10 to 19]
Result: Complaint allowed.
JUDGMENT
Ajith Kumar D., Judicial Member—This is a complaint filed under Section 17 of the Consumer Protection Act, 1986.
2. The 1st complainant is the father of the 2nd complainant. The complainants had an intention to settle down in an around Kazhakkuttom area Thiruvananthapuram. They had seen the advertisements made by the opposite parties in the newspapers and internet regarding a land and villa project proposed by the opposite parties at Aiyroorpara Village in the name “Garden View”. The project contemplates construction of villas in the land comprising a total extent of 94.55 cents comprised in Sy.No.145/24-18 of Aiyroorpara Village. The complainants were to get ownership of 4.20 cents of land along with undivided right in respect of 1.5 cents of land along with Villa No.B3 constructed by the opposite parties.
3. On 25.07.2012 the opposite parties had collected an amount of Rs.15,00,000/- (Rupees Fifteen Lakhs only) from the complainants as earnest money towards the confirmation of allotment. Sale deed with respect of transfer of 4.20 cents of land along with undivided right of 1.5 cents of land was executed on 02.07.2012 in favour of the 2nd complainant. On 27.07.2012 an agreement of construction of the villa was executed between the 1st complainant and the opposite parties. The agreement contemplates the construction of a villa namely Villa No.B3 with a plinth area of 1712 sq.ft. in the land owned by the complainants. The total consideration was fixed as Rs.50,00,000/- (Rupees Fifty Lakhs only).
4. In addition to the first payment, the complainants have paid Rs.10,00,000/- (Rupees Ten Lakhs only) on 14.09.2012, Rs.7,50,000/- (Rupees Seven Lakhs Fifty Thousand only) each on 16.11.2012 and 09.02.2013. Thus by February 2013 a total amount of Rs.40,00,000/- (Rupees Forty Lakhs only) was paid to the opposite parties. It is clearly stipulated in the agreement that the entire construction of the villa will be over and handed over possession of the same on or before 31.03.2013. Inordinate delay was caused in adhering to the time schedule contemplated in the agreement. The work up to the first floor alone was completed. The complainants had availed financial assistance from the Union Bank of India, Main Branch for the purpose of effecting payments to the opposite parties. The complainants are entitled to get interest on the loan availed by them. There was no progress in the construction after the completion of the first floor.
5. The opposite parties had demanded a further amount of Rs.7,50,000/- (Rupees Seven Lakhs Fifty Thousand only) for the completion of the remaining work. The complainants had paid the said amount in two instalments i.e. on 26.03.2014 and 03.04.2014. Ultimately, they had paid Rs.47,50,000/- (Rupees Forty Seven Lakhs Fifty Thousand only) by April 3, 2014.
6. As per clause 19 of the agreement, the opposite parties are liable to refund the amount of earnest money and all other amount with interest @12% per annum till repayment and all costs and expenses.
7. The 1st complainant had terminated the development agreement vide notice dated 09.10.2015 and sought for the refund of the earnest money and other cash given to them pursuant to the agreement. The opposite parties have issued a reply notice admitting the receipt of the amount, but raised a further demand for cash. Ultimately by December 2015, the opposite parties had stopped the work. Thus by January 2016, the complainant had entrusted the work to an outside agency and the by spending an amount of Rs.10,15,100/- (Rupees Ten Lakhs Fifteen Thousand One Hundred only) for converting the flat habitable for accommodation.
8. The opposite parties have not cared to act in consonance with clause 19 nor refund the amount paid by the complainants. Hence, the complainants would seek for an order directing the opposite parties to refund Rs.40,00,000/- (Rupees Forty Lakhs only) received by the opposite parties by virtue of agreement dated 27.07.2012 along with interest
Adequate Compensation – The conduct of the complainants in this regard is to mislead this Commission. But that alone may not be a ground to deprive the complainants from seeking adequate compensation....
1) Complainant cannot be made to wait indefinitely for the delivery of possession and the act of the Opp. Party in relying on force majeure clause while retaining amounts deposited by the Complainant....
Pecuniary jurisdiction – it is clear that for the purpose of pecuniary jurisdiction, the value of services hired or availed plus compensation shall be the value for the purpose of pecuniary jurisdict....
Consumers are entitled to a refund with interest if the promised service is not delivered, irrespective of arbitration clauses.
(1) Unreasonable delay – in a case of an unreasonable delay in offering possession of the allotted flat, the consumer cannot be compelled to accept possession at a belated stage and is entitled to se....
(1) Consumer Protection Act - Complainant has chosen his remedy under the Consumer Protection Act, his complaint before this Commission is perfectly maintainable and there is no embargo in proceeding....
Contract - A term of a contract will not be final and binding if it is shown that the flat purchasers had no option but to sign on the dotted line, on a contract framed by the builder.
Court held that one-sided contractual terms favoring builders amount to unfair trade practices under consumer laws, entitling buyers to refunds and compensation for delays.
Failure to deliver possession constitutes deficiency in service, validating consumer refunds with interest.
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