Dr. Sajit Paul, Dr. Reji Paul, KuriaKose K. Jacob, Sosama KuriaKose v. Blue Dot Constructions (P) Ltd. and The Great Cochin Development Authority

**WP(C) NO. 699 OF 2019** **1** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN MONDAY, THE 14[TH] DAY OF FEBRUARY 2022 / 25TH MAGHA, 1943** ## **WP(C) NO. 699 OF 2019** ## **PETITIONER/S:** 1 DR.SAJIT PAUL AGED 48 YEARS S/O K.J.POULOSE, B-9, ALSA SHORECREST, DIWANS ROAD, M.G.ROAD P.O., COCHIN-16, REPRESENTED BY HIS POWER OR ATTORNEY HOLDER K.J. POULOSE, S/O PAILY JACOB, RESIDING AT B-9, ALSA SHORE CREST, DIWANS ROAD, M.G.ROAD P.O., COCHIN-16. 2 DR.REJIPAUL S/O K.J.POULOSE, B-9, ALSA SHORECREST, DIWANS ROAD, M.G.ROAD P.O., COCHIN-16, REPRESENTED BY HIS POWER OR ATTORNEY HOLDER K.J. POULOSE, S/O PAILY JACOB, RESIDING AT B-9, ALSA SHORE CREST, DIWANS ROAD, M.G.ROAD P.O., COCHIN-16. 3 KURIAKOSE K. JACOB S/O K.JACOB, C/O. K.J.POULOSE, B-9, ALSA SHORECREST, DIWANS ROAD, M.G.ROAD P.O., COCHIN-16, REPRESENTED BY HIS POWER OR ATTORNEY HOLDER K.J. POULOSE, S/O PAILY JACOB, RESIDING AT B-9, ALSA SHORE CREST, DIWANS ROAD, M.G.ROAD P.O., COCHIN-16. 4 SOSAMA KURIAKOSE W/O. KURIAKOSE K. JACOB, C/O.K.J.POULOSE, B-9, ALSA SHORECREST, DIWANS ROAD, M.G.ROAD P.O., COCHIN-16, REPRESENTED BY HIS POWER OR ATTORNEY HOLDER K.J. POULOSE, S/O PAILY JACOB, RESIDING AT B-9, ALSA SHORE CREST, DIWANS ROAD, M.G.ROAD P.O., COCHIN-16. BY ADVS. SHYAM PADMAN SRI.C.M.ANDREWS SRI.P.T.MOHANKUMAR SMT.BOBY M.SEKHAR KUM.LAYA MARY JOSEPH **RESPONDENT/S:** **WP(C) NO. 699 OF 2019** **2** 1 BLUE DOT CONSTRUCTIONS (P) LTD. DOOR NO.XL/5010, IST FLOOR, INFANT JESUS BUILDING, BANERJEE ROAD, HIGH COURT JUNCTION, ERNAKULAM, COCHIN-682 031, REPRESENTED BY ITS MANAGING DIRECTOR, SRI.T.G.VARHGESE, S/O. T.A.GEORGE, THUNDATHIL HOUSE, 33/21017-A, ANASWARA HOUSE, ARAKKADAVU ROAD, VENNALA DESOM, KOCHI-28. PRESENTLY FUNCTIONING AT DOOR NO.CC/1942, B1, GIRINAGAR NORTH, KADAVANTHARA, COCHIN-20. 2 THE GREAT COCHIN DEVELOPMENT AUTHORITY KADAVANTHARA, COCHIN-682 020, REPRESENTED BY ITS SECRETARY. BY ADVS. SRI.MINI V.A., SC, GCDA SRI.JIMMY GEORGE THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 14.02.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **WP(C) NO. 699 OF 2019** **3** ## **P.V.KUNHIKRISHNAN, J** **-------------------------------------------W.P.(C.) No. 699 of 2019** **-------------------------------------Dated this the 14[th] day of February, 2022** ## **JUDGMENT** ## The above writ petition is filed with following prayers : “i. To issue a writ of Certiorari or any other appropriate writ, order or direction, to quash Ext P3 and P4 orders passed by the Kerala State Consumer Disputes Redressal Commission, Thiruvananthapuram. ii. To issue a writ of Mandamus or any other appropriate writ, order or direction commanding the Kerala State Consumer Disputes Redressal Commission, Thiruvananthapuram to implement and execute Ext. P1 final Judgment. iii. To direct the 2nd respondent to register the flat No. 12 C in the name of the 1st petitioner along with two car parks on the ground floor marked simultaneously without any further payment and also to register flat No. 8B in the name of the 3rd petitioner along with car park without any further payment by issuing a writ of Mandamus or any other appropriate writ, order or direction. iv. To direct the 2nd respondent to pay the petitioner the interest at the rate of 18% per annum for the amount they have paid from 19th June 2007 till 2012 as directed by the State Commission in Ext. P1 Judgment and claimed in Ext.P2 Execution Application by issuing a writ of Mandamus or any other appropriate writ, order or direction. v. To issue any such other writ, order or direction as this Hon'ble Court may deem fit and proper under the circumstances of the present case. vi. Grant such other relief that is prayed for and is deemed just and proper to grant in the interests of justice. **WP(C) NO. 699 OF 2019** **4** vii. Award the entire costs of the petitioners.” 2. The petitioners are the complainants in CC No. 28/2010 filed against the respondents herein before the Kerala State Consumer Disputes Redressal Commission, Thiruvananthapuram. The State Commission as per Ext.P1 judgment allowed CC No.28/2010 directing the respondents to register the flat No.12C in the name of the 1[st] petitioner along with two car parks on the ground floor marked simulataneously without any further payment and also to register flat No.8B in the name of the 3[rd] petitioner along with car park without any further payment. It is also found that the petitioners are entitled interest at the rate of 18% per annum for the amount they have paid from 19.6.2007 till 2012. The possession of the said flats and car parks are already given to the petitioners 1 and 3. It is a fact that Ext.P1 judgment has become final and binding to all parties. Subsequently, execution petition was filed before the State Commission. During the pendency of Ext.P2 execution petition and on the basis of a submission from the part of the 2[nd] respondent, the State Commission passed Ext.P3 order, wherein the 2[nd] respondent was directed to register the undivided share in the property comprising flat in **WP(C) NO. 699 OF 2019 5** favour of the 3[rd] petitioner. It is the case of the petitioner that since the same is against the purport and spirit of Ext.P1 judgment which is sought to be executed, the petitioners submitted an application seeking correction. It is the further case of the petitioners that instead of directing the respondents to register the flats and car parks in favour of the respective petitioners, the State Commission passed Ext.P4 order including the 1[st] petitioner also in Ext.P3 order. It is the definite case of the petitioners that when Ext.P1 final judgment itself is capable of easy execution by directing the 2[nd] respondent to execute and register sale deeds conveying flat Nos. 12C and 8B along with car parks especially in view of Ext.P6(a) which shows that the title and assignable right, Exts.P3 and P4 orders are illegal. Hence, this writ petition is filed. 3. Heard the learned counsel for the petitioner and the learned Standing Counsel appearing for the 2[nd] respondent. 4. The learned counsel for the petitioner reiterated his contention. The counsel submitted that as far as the petitioners are concerned, there is no remedy against Exts.P3 and P4. The counsel submitted that it is an order passed in an execution **WP(C) NO. 699 OF 2019** **6** proceedings, against which no remedy is provided as per the Consumer Protection Act, 1986. The counsel also relied the judgments of the Apex Court in **Ambience Infrastructure Pvt. Ltd. and others Ltd. v. Ambience Island Apartment** **Owners and Others** , MANU/SCOR/36832/2020 [Civil Appeal Nos.1213-1215 of 2017 dated 28.8.2020] and **Karnataka Housing Board v. K.A.Nagamani** [AIR 2019 SC 2290 = 2019 (6) SCC 424]. 5. The counsel also submitted that Exts.P3 and P4 orders passed by the State Commission are not in tune with Ext.P1 order passed by the Tribunal. The counsel submitted that the execution court cannot go behind the original order passed by the Commission. On the other hand, the learned Standing Counsel for the 2[nd] respondent submitted that the prayers in this writ petition were not raised before the State Commission and it is raising for the first time. The counsel also submitted that no such contention was raised before the State Commission, when the execution petition was pending. The Standing Counsel for the 2[nd] respondent also submitted that there is nothing to interfere with Exts.P3 and P4 orders because those orders were passed after hearing both sides. **WP(C) NO. 699 OF 2019 7** The counsel also takes me through the application (IA No.1005/2018) submitted by the petitioners based on which Ext.P4 order is passed. The counsel takes me through the prayer in IA No. 1005/2018 and submitted that there is nothing wrong in Ext.P4 order because it was passed based on the prayers in the petition. 6. I considered the contentions of the petitioner and the 2[nd] respondent. I considered the judgments in **Ambience Infrastructure's** case (supra) and **Karnataka Housing Board's** case (supra) relied by the counsel for the petitioners. In the light of the above judgments, there is no remedy to the petitioners against Exts.P3 and P4. Exts.P3 and P4 orders are passed at the execution stage. Therefore, I decided to consider this matter on merit. Ext.P1 is the order passed by the State Commission. It will be better to extract the relevant portion of Ext.P1 order. 6. “During the pendency of the complaint the opposite parties handed over the flat to the complainants in 2012. Therefore the only question that remains to be considered is what is the compensation complainants are entitled to? 7. Agreed date of completing the construction and handing over of the flat was June 19, 2007. Therefore there is a delay of 5 years in handing over of the flat for which complainants are entitled to interest at the rate of 18% per annum for the amount they have paid from June 19, 2007 till 2012. No separate compensation is awarded. **WP(C) NO. 699 OF 2019** **8** 8. There is another aspect. So far opposite parties have not effected registration of the flats to complainants. Therefore opposite parties are directed to register the Flat. No:12-C in the name of first complainant along with two car parks on the ground floor marked simultaneously without any further payment and also to register Flat No.8-B in the name of third complainant along with one car park without any further payment.” 7. Thereafter, Ext.P2 execution petition was filed by the ## petitioners. In Ext.P2, Ext.P3 order was passed by the State Commission. The contents in Ext.P3 order is also extracted hereunder : “Counsel for the second judgment debtor submits that second judgment debtor is prepared to execute registered sale deed over the undivided share in the property comprising flat in favour of the 3[rd] complainant on any day suiting convenience of 3[rd] complainant. Complainants have to bear the expense for the registration and also intimate the date convenient for registering the deed to GCDA. Second judgment debtor by way of registered communication within two weeks. The date for registration has to be preferably fixed on any date in the first week of July. So far as the dispute raised by first judgment debtor further enquiry is called for. Complainant is directed to collect and produce certificates over the company from the website of Registrar of companies.” ## 8. Thereafter, IA No. 1005/2018 was filed before the ## State Commission and State Commission passed Ext.P4 order. ## The relevant portion of the order is extracted hereunder : “Correction petition filed by the complainants to correct the Order on 31.5.2018. By the above order passed, 2nd Judgment Debtor GCDA was directed to execute registered sale deed over the undivided share of property comprising Flat in favour of the 3rd complainant. There was omission to include the first complainant along with the 3rd complainant is the statement made for correction, for which 2nd Judgment Debtor has no **WP(C) NO. 699 OF 2019** **9** objection. Correction sought as above is allowed ordering inclusion of the first complainant along with 3rd complainant. Another correction sought for is that the registration of undivided share should also mention the car parks allotted to the above two complainants, 1[st] and 3rd complainants. We do not find any merit in the correction so sought for. The entitlement of the complainant to have car parks have been taken note of and ordered in the Judgment, but, when registration of undivided shares are to be done by the 2[nd] Judgment Debtor, GCDA it cannot be asked to include in such registration deed, the car parks as well. That portion of the correction sought for is dismissed. Order dated 31.5.2018 shall be corrected by including the words '1[st] complainant and' before the word 3[rd] complainant on the 3[rd] line of the Order. Corrected order to be handed over to the parties.” 9. The counsel for the petitioner now submitted that he is not pressing IA No. 1005/2018 which leads to Ext.P4 order. The contentions of the petitioner is that the State Commission passed Exts.P3 and P4 orders, not in tune with Ext.P1 original order passed by the State Commission. The counsel for the 2[nd] respondent disputed the same and submitted that the petitioners are raising this point for the first time before this Court. I perused Ext.P1 order passed by the State Commission and also Exts.P3 and P4 orders. There is some force in the arguments of the petitioners. I think Exts.P3 and P4 orders are to be set aside and the matter is to be remitted back to the State Commission for fresh consideration in accordance to law, after giving an opportunity of hearing to the petitioners and the respondents. The petitioners and the respondents are free **WP(C) NO. 699 OF 2019 10** to raise all their contentions before the State Commission and the State Commission will pass appropriate orders in accordance to law, untrammelled by any observations in this judgment. Therefore, this writ petition is allowed in the following manner : - 1) Exts.P3 and P4 orders are set aside. - 2) The State Commission is directed to consider EA No. 19/2016 in CC No.28/18 as expeditiously as possible, after giving an opportunity of hearing to the petitioners and the respondents. SD/- **P.V.KUNHIKRISHNAN JUDGE** SKS **WP(C) NO. 699 OF 2019** **11** ## **APPENDIX OF WP(C) 699/2019** PETITIONER EXHIBITS |EXHIBIT P1|TRUE COPY OF THE JUDGMENT DATED 5.5.2016| |---|---| ||IN CC NO.28/2010 PASSED BY THE HON'BLE| ||STATE COMMISSION.| |EXHIBIT P2|TRUE COPY OF E.A.NO.19/2016 IN CC| ||NO.28/2010 DATED 31.10.2016 FILED BEFORE| ||THE HON'BLE STATE COMMISSION.| |EXHIBIT P3|TRUE COPY OF THE ORDER DATED 31.5.2018| ||PASSED BY THE HON'BLE STATE COMMISSION IN| ||E.A.NO.19/2016 IN COMPLAINT NO.28/2010.| |EXHIBIT P4|TRUE COPY OF THE ORDER DATED 6.9.2018| ||PASSED BY THE HON'BLE STATE COMMISSION IN| ||I.A. NO.1005/2018 IN E.P.NO.19/2016 IN| ||COMPLAINT NO.28/2010.| |EXHIBIT P5|TRUE COPY OF THE AGREEMENT DATED| ||19.12.2005 WHICH IS MARKED AS EXT.A1 IN| ||THE COMPLAINT NO.28/2010.| |EXHIBIT P6|TRUE COPY OF THE APPLICATION DATED| ||19.9.2018 FILED BY THE POWER OF ATTORNEY| ||HOLDR OF THE PETITIONERS UNDER RIGHT TO| ||INFORMATION ACT, BEFORE THE UBLIC| ||INFORMATION OFFICER, COCHIN MUNICIPAL| ||CORPORATION.| |EXHIBIT P6(A)|TRUE COPY OF THE REPLY GIVEN BY THE PUBLIC| ||INFORMATION OFFICER, COCHIN MUNICIPAL| ||CORPORATION DATED 17.10.2018.| |EXHIBIT P7|TRUE COPY OF THE SALE DEED ENTERED INTO| ||BETWEEN ONE OF THE PURCHASERS OF THE FLAT,| ||MR.K.REVI AND THE RESPONDENTS HEREIN| |EXT.P8|TRUE COPY OF THE PROPERTY TAX RECEIPT FOR| ||THE FINANCIAL YEAR 2020-2021| |EXT.P8(A)|TRUE COPY OF THE PROPERTY TAX RECEIPT FOR| ||THE FINANCIAL YEAR 2021-2022| **WP(C) NO. 699 OF 2019** **12** EXT.P9 TRUE COPY OF THE RELEVANT EXTRACT FROM THE PROPERTY TAX ASSESSMENT REGISTER OBTAINED UNDER THE RIGHT TO INFORMATION ACT, 2005 RESPONDENT EXHIBITS EXHIBIT R2(a) COPY OF PRAYER PORTION IN C.C NO.28/10 FILED BEFORE CONSUMER DISPUTES REDRESSAL COMMISSION. EXHIBIT R2(b) COPY OF 1ST PAGE OF SALE DEED EVIDENCING EXECUTION & REGISTERING OF SALE DEED JOINTLY BY BUILDER & GCDA. EXHIBIT R2(c) COPY OF THE 1ST PAGE OF SALE DEED EVIDENCING EXECUTION AND REGISTERING OF THE SALE DEED BY GCDA ALONE. EXHIBIT R2(d) COPY OF LETTER DATED 29-2-2020 SENT BY 2ND RESPONDENT TO THE CORPORATION OF COCHIN.