Back
2026 Supreme(Online)(SCDRC) 2475
STATE CONSUMER DISPUTES REDRESSAL COMMISSION
B. Sudheendra Kumar, President, Ajith Kumar D., Judicial Member, K.R.Radhakrishnan, Member
Sharmil Kurian – Appellant
Versus
Desai Homes – Respondent
CONSUMER COMPLAINT NO. SC/32/CC/22/2010
Important Points
Subject
Consumer Law - Real Estate / Housing Construction Delay
Act Referred
Headnote
Facts of the case:
The complainants entered into an agreement with the opposite parties to purchase a residential apartment in a multi-storeyed complex for a total consideration of Rs. 57,87,551/-. Despite the agreement stating that construction would be completed by 31.12.2007, the project was delayed. The opposite parties claimed the delay was due to legal disputes with a neighbouring hotel and government regulatory processes. The complainants sought compensation for the delay, asserting financial loss and inability to occupy the premises in time.
Findings of Court:
The Commission found that the opposite parties failed to provide evidence for the alleged legal injunctions and that unforeseen delays due to adjacent construction risks and regulatory compliance are inherent responsibilities of a professional builder. The court ruled that the deficiency in service occurred until the issuance of the occupancy certificate on 03.04.2010.
Issues: 1. Maintainability of the complaint before the Commission. 2. Whether the delay in construction was attributable to factors beyond the builder's control. 3. Whether the builder committed a deficiency in service.
Ratio Decidendi: Professional builders are expected to anticipate and mitigate common hindrances such as coordination with regulatory authorities or adjacent construction impacts; failing to do so constitutes a deficiency in service, regardless of contractual force majeure clauses, unless specific, proven exceptions are met.
Result: Complaint allowed in part; opposite parties directed to pay Rs. 11,71,980/- with 9% interest and costs.
For the Appellants/Petitioners: Balagopalan A, Kala G. Nambiar, M.N Manmadhan, R.Narayan
For the Respondents: Joson Manavalan, Mohan Kumar, Bhuvanandran Nair
| Table of Content |
|---|
| 1. maintainability of consumer complaints in summary proceedings. (Para 1 , 5 , 12 , 13) |
| 2. contractual obligations and deadlines in builder-buyer agreements. (Para 2 , 3 , 4 , 14 , 15 , 16) |
| 3. assessment of force majeure claims for construction delays. (Para 6 , 7 , 8 , 18 , 19 , 20 , 21 , 22 , 23 , 24 , 25 , 26) |
| 4. quantum of compensation for deficiency in service. (Para 17 , 27 , 28 , 29 , 30 , 31) |
COMPLAINANTS :
1. Dr. Sharmil Kurian, S/o T.C Kurian, 11-B/2, Model Town, Balrajeswar Road, Mulund West, Mumbai, presently residing at Mulund West, Mumbai, presently residing at 5330, Pershing Ave#307, St.Loucis.M.O 63112, USA.
2. Mrs.Valsa Kurian, W/o T.C.Kurian, 11-B/2, Model Town, Bairajeswar Road, Mulund West, Mumbai
(by Adv. Balagopalan.A, Adv. Kala.G.Nambiar, Adv. M.N Manmadhan & Adv. R.Narayan)
Vs.
OPPOSITE PARTIES :
1. M/s Desai Homes, A Partnership firm having registration No.2078/92, 40/7669 C 40, DD Vasthra Mahal, Market Road, Kochi-11, represented by its Patner, V.R.Desai
2. V.R.Desai, Partner, Desai Homes, House No.31/1772, DD Village, May Village, May Ist Road, Thammanam, Kochi - 682032
(by Adv. Joson Manavalan, Adv. Mohan Kumar & Adv. Bhuvanandran Nair)
ORDER
HON’BLE JUSTICE SRI. B. SUDHEENDRA KUMAR : PRESIDENT
This is a complaint filed under Section 17 of the Consumer Protection Act, 1986.
2. The second complainant is the mother of the first complainant. Both the complainants were residing in Mumbai. The 1st complainant is a doctor, presently working in a hospital in the USA. The first opposite party is engaged in developing properties and construction of residential apartments. The first opposite party launched a project, namely, ‘DD Samudra Darsan’ in Ernakulam, which is a multi-storeyed residential apartment complex. The complainants entered into an agreement for sale and construction with the first opposite party on 15.12.2005. The second opposite party is the partner of the first opposite party. As per the agreement, the first opposite party agreed to assign 2299/2,40,000 undivided shares over 59.285 cents of property comprised in Survey No.843 of Ernakulam Village and Apartment No.9B on the 9th floor having a super-build up area of 1839 square feet including 20% of 1839 sq.ft as undivided share in the common areas and common facilities in ‘DD Samudra Darsan’, to the complainant. It was agreed that the construction would be completed on or before 31.12.2007.
3. As per the agreement, the complainants were required to pay Rs.46,38,051/- for the value of apartment No. 9B, together with one car parking area and Rs. 11,49,500/- for the value of 2299/2,40,000 undivided shares in 59.285 cents of property. Thus, the complainants had to pay a total consideration of Rs.57,87,551 as per the agreement. Out of the aforesaid amount, the complainants paid Rs.7,87,551/- on the date of executing the agreement. The balance amount of Rs.50,00,000/- was paid by the complainants by way of two cheques drawn on the ICICI Bank. Both the cheques were dated 23.06.2006. Thus, the complainants paid the entire sale consideration towards the undivided share and the value of apartment No.9B on 23.06.2006 itself. The complainants had thus performed their part of obligation as per the agreement. Even though the first opposite party assured that the construction of Samudra Darshan would be completed on or before 31.12.2007, the same was not yet completed. The complainants contended that nearly two years elapsed from the date of completion mentioned in the agreement. The complainants sustained heavy loss due to the delay in completing the construction. The complainants had to pay EMI to the Bank towards repayment of the loan availed by the complainants for purchasing the apartment. The complainants also proposed to come back and settle in Kerala for the purpose of looking after the old aged parents.
4. The complainants contended that the complainants had a choice to give the apartment on rent. On that ground, the complainants susta
