SOUTHERN INVESTMENTS PRIVATE LIMITED and SOUTHERN INVESTMENTS (P) LTD. v. STATE OF KERALA, CHERUKAT VIJAYAKUMAR and JAYASREE VIJAYAKUMAR

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** **TUESDAY, THE 14TH DAY OF NOVEMBER 2017/23RD KARTHIKA, 1939** ## **WP(C).No. 25357 of 2017 (T)** **----------------------------** **PETITIONER(S): -------------** **1. SOUTHERN INVESTMENTS PRIVATE LIMITED, 65, MONTIETH ROAD, EGMORE, CHENNAI - 600 008, REPRESENTED BY ITS DIRECTOR OPERATIONS, SHRI. JACOB CHANDY.** **2. SOUTHERN INVESTMENTS (P) LTD., GLENDALE EAST, 6/240 A2, SHIVAPURI, BANK ROAD, CALICUT - 673 001. REPRESENTED BY ITS DIRECTOR OPERATIONS SHRI. JACOB CHANDY.** **BY ADVS.SRI.BECHU KURIAN THOMAS (SR.) SRI.GEORGE A.CHERIAN** **RESPONDENT(S):** **--------------** **1. STATE OF KERALA,** **REPRESENTED BY THE SECRETARY, DEPARTMENT OF CONSUMER AFFAIRS, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM - 695 001.** **2. CHERUKAT VIJAYAKUMAR, NO.26/27, TASAMI PARK, SINGANALLUR, COIMBATORE - 641 005.** **3. JAYASREE VIJAYAKUMAR, NO.26/27, TASAMI PARK, SINGANALLUR, COIMBATORE - 641 005.** **R2-R3 BY ADVS. SRI.G.SHRIKUMAR (SR.) SRI.ANESH PAUL R1 BY SENIOR GOVERNMENT PLEADER SMT. K.R. DEEPA** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 14-11-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **WP(C).No. 25357 of 2017 (T)** ## **----------------------------** ## **APPENDIX** **PETITIONER(S)' EXHIBITS ----------------------EXHIBIT P1 : TRUE COPY OF THE COMPLAINT DATED 31.03.2016 FILED BY THE 2ND AND 3RD RESPONDENT HEREIN AS C.C.NO.57/2016 BEFORE THE CONSUMER DISPUTES REDRESSAL COMMISSION, THIRUVANANTHAPURAM. EXHIBIT P2 : A TRUE COPY OF THE OBJECTION DATED 29.08.2016 FILED BY THE WRIT PETITIONERS IN C.C.57/2016 BEFORE THE CONSUMER DISPUTES REDRESSAL COMMISSION. EXHIBIT P3 : TRUE COPY OF THE B DIARY PROCEEDINGS IN CC 57/16 ON THE FILES OF CONSUMER DISPUTES REDRESSAL COMMISSION. EXHIBIT P4 : A TRUE COPY OF THE JUDGMENT DATED 31.10.2016 IN C.C.57/2016 ON THE FILES OF THE STATE CONSUMER DISPUTES REDRESSAL COMMISSION.** **RESPONDENT(S)' EXHIBITS - NIL -----------------------//TRUE COPY//** **P.A. TO JUDGE** ww ## **K. VINOD CHANDRAN, J. ---------------------------------W.P(C). No.25357 of 2017 [T] ---------------------------------Dated this the 14[th] day of November, 2017** ## **JUDGMENT** The petitioners are aggrieved with Ext.P4 judgment of the Kerala State Consumer Redressal Commission, Thiruvananthapuram (for brevity 'Commission'). Respondents 2 & 3 are retired people who booked an apartment in a project of the petitioners; a builder of apartment complexes. They were before the Commission with Ext.P1 complaint; alleging that despite agreements entered into with the developers in the year 2012 and the agreed date of handing over being 31.03.2014, the constructions were not completed. 2. The petitioners had made the entire W.P(C). No.25357 of 2017 [T] 2 payments by 02.09.2014. The Company had unilaterally extended the period up to December, 2015, which the petitioner did not object to. The petitioners had spent considerable amounts; the entire savings of their lifetime and was waiting for the apartment; to come back and settle down in Kerala. The completion did not happen in the year 2015 also and they again waited for one year, after which the above complaint was filed, in which Ext.P4 judgment was passed. 3. It is also submitted that Counsel appearing for the petitioners before the Commission; agreed on behalf of the petitioners before the Commission that the completion will be effected and the apartment handed over within one year, the same has not been done even now. The one year, as agreed upon, expired on 31.10.2017. 4. The learned Counsel for the petitioners W.P(C). No.25357 of 2017 [T] 3 first takes me through the proceeding sheet of the Commission as seen from Ext.P3. On 25.04.2016 the appeal was submitted and the opposite parties appeared on 28.07.2016. They raised a question of maintainability based on the overriding provisions of the Real Estate [Regulation and Department] Act, 2016. The issue was heard and the challenge to maintainability rejected by order dated 27.09.2016. 5. It was also on 27.09.2016 a version was filed by the petitioners and then the matter was posted to 31.10.2016 for filing proof affidavit. On 31.10.2016 proof affidavit was filed, both sides were heard and complaint allowed in part as per Ext.P4. It is submitted that the procedure as seen from the Consumer Protection Regulations, 2005 was not followed by the Commission nor was the procedure as prescribed under the Consumer W.P(C). No.25357 of 2017 [T] 4 Protection Act, 1986, sub-Section 2 of Section 13 followed. There was no opportunity granted to the petitioner to cross-examine the person who filed the proof affidavit nor was the person who filed the proof affidavit directed to depose on oath. The petitioners had filed elaborate objections by Ext.P2 version, which had to be proved by evidence and the Commission acted beyond the boundaries of its powers in passing Ext.P4 without granting a due opportunity to the petitioners. The learned counsel would also rely on **Dalbir Kaur Dhillon v. Punjab Urban Planning & Development Authority [(2001) 9 SCC 751]** to contend that the Commission was obliged to discuss the material on record with respect to the contentions raised before it. 6. The learned Senior Counsel appearing for the respondents would contend that the Commission W.P(C). No.25357 of 2017 [T] 5 had closed the matter noticing that the respondents before the Commission had only requested for a time of one year, which the Commission felt to be on the higher side. It was hence six months time was granted and on the handing over not materialising even within that date, directions were issued to refund Rs.49,68,460/- with interest @ 12% per annum from March, 2014, the date of completion as per the agreement. 7. Before looking into the contentions raised by the petitioner against the order passed by Ext.P4, paragraph 5 of the Memorandum of writ petition is to be noticed, which is extracted hereunder: _“5. On 31.10.2016 when matter was taken up, the Commission, passed over the case for hearing. The counsel for the writ petitioners was not served with any proof affidavit. Thereafter_ W.P(C). No.25357 of 2017 [T] 6 _when the case was called again, the Hon'ble Commission, enquired with the writ petitioners' counsel as to the time required to hand over the apartment._ **When the counsel submitted that one years time is required.** _It was informed that the complaint is being closed._ **Petitioners were under the bonafide belief that complaint was being closed with a direction to complete construction within one year.** _True copy of the B diary proceedings in CC No.57/2016 on the files of Consumer Disputes Redressal Commission is produced ” and marked as_ **Ext.P3** _._ 8. In fact there is an admission even in the writ petition that the counsel had submitted that one years time is required to complete the construction. There cannot be any contention raised as to the counsel having submitted without the instructions from the petitioners especially since the petitioners' further plea is that they were under the bonafide belief that the complaint has been closed with a direction to complete the W.P(C). No.25357 of 2017 [T] 7 construction within one year. Hence the only dispute raised in the writ petition is the judgment having been passed directing completion within six months, failing which the opposite parties are directed to refund the amount along with costs as computed by the Commission. If actually one year was granted there would have been no objection is the consequent inference. It is also to be noticed that as of now, the one year sought for by the petitioners is over. The apartment has not yet been handed over, nor is it completed. 9. The further argument is with respect to the necessity of evidence for establishing the delay in payments, which caused the delay in handing over also, according to the petitioners. The contention is futile in view of the specific undertaking made before the Commission. Be that W.P(C). No.25357 of 2017 [T] 8 as it may, in Ext.P1 complaint, respondents 2 & 3 had specifically indicated the dates of payment made by them. There is also no dispute before the Commission or before this Court that Rs.49,68,460/- was paid as on 02.09.2014. The version of the petitioner is produced at Ext.P2. Ext.P2 makes a bland allegation that the complainants were also to blame for not making payment of the amounts in a time bound manner as mandated in the agreement. There is nothing stated in the version as to the exact delay caused by the petitioners. In any event, it is an admitted fact that on 02.09.2014 the respondents had paid the entire amounts. 10. The original agreement mandated completion of the entire work within 27 months and the same was to be completed on 30.03.2014. The installments as per the agreement would be W.P(C). No.25357 of 2017 [T] 9 during the ongoing project; dependent upon the various stages of construction. The respondents paid up the amounts by 02.09.2014. Completion was not effected and the apartment handed over in the period agreed upon for completion of construction. 11. Even if there were delay in payments the respondents having paid the entire amounts on 02.09.2014; 27 months from that date, the handing over did not materialise. The balance payments to be made by the respondents 2 & 3, even according to the petitioners, is only the payment at the time of handing over of the apartment. 12. Considering the overall circumstances, this Court does not find any reason to hold that any evidence led on the delay caused in making the payments would have had any bearing on the issue. The decision of the Hon'ble Supreme Court W.P(C). No.25357 of 2017 [T] 10 in **Dalbir Kaur Dhillon** [supra] also does not apply on facts. A reading of the order of the Apex Court would indicate that therein the question raised was the computation of damages, which does not arise here at all. As was noticed, admittedly the petitioners had paid the amounts even if with delay, before 02.09 2014. Even after 27 months from that date, the period agreed upon in the original agreement; the completion was not effected. 13. At the risk of repetition the Commission had recorded the submission of the learned counsel for the petitioners that they would require one year's time to complete the project and hand over the apartment, on which undertaking, reducing the period, Ext.P4 order was passed. The writ petition also is filed on the premise that the Commission, without regard W.P(C). No.25357 of 2017 [T] 11 to the undertaking, had directed completion within six months. The only sustainable argument in the teeth of the undertaking, is that the time granted ought to have been one year. There was a stay of the order in this writ petition and now the one year time as undertook by the petitioners has elapsed. The petitioners have not completed the construction even as per the undertaking made before the Commission. The petitioners, as noticed above, stated in the writ petition that they were under the bonafide belief that the complaint was closed with a direction to complete the construction within one year. In such circumstances, this Court does not find any reason to interfere with Ext.P4. The writ petition is dismissed affirming the order of the Commission; especially noticing the fact that even after the one year time as sought for by the W.P(C). No.25357 of 2017 [T] 12 petitioners, the apartment has not been completed or handed over. Suffice it to modify Ext.P4 to the extent of the petitioners having been mulcted with liability from March, 2014. 31.03.2014 was the date of completion as per the agreement. Hence the instalments to be paid during the various stages of the construction was to be made on or before 31.03.2014. Respondents 2 & 3 admit that the last payment was made on 02.09.2014. In such circumstances, the interest @12% would run from 02.09.2014. With the above modification, the writ petition would stand dismissed. Parties to suffer their respective costs. Sd/- ## **K. VINOD CHANDRAN, JUDGE.** //True Copy// P.A. to Judge sp/14/11/17