Good Earth Properties and Anr. vs P.S. Pratheep

Although, as per office report, the Respondent remains unserved but Mr. Ajit Joy, Advocate, has put in appearance, on his behalf. He states that neither the travel and allied expenses have been paid to the complainant nor the requisite deposit, as directed vide order dated 20.10.2016, has been made by the Appellants. He,however, admits that the travel expenses were offered to his junior last evening but the same was not accepted. Be that as it may, Counsel appearing for the Appellants undertakes to pay to the Complainant the a foresaid amount within a week from today. 2. This First Appeal under Section 19 of the Consumer Protection Act, 1986 (for short "the Act") has been preferred by a real estate developer and its Chief Executive, against the order dated 13.5.2016, passed by the Kerala State Consumer Dispute Redressal Commission. Thiruvananthapuram (for short "the State Commission") in CC/95/2015. By the impugned order, the State Commission, while allowing the Complaint filed by the Respondent, alleging deficiency in service on the part of the Appellants on account of delay in completing the construction of the house, within the period agreed to in terms of the agreement dated 12.5.2011, as modified vide renewal agreement dated 12.5.2011, has issued the following directions : 1. The opposite parties are directed to refund Rs. 15,48,600 (Rupees fifteen lakhs forty-eight thousand and six hundred only) to the h complainant with interest @ 9% p.a. from 3.8.2012 till realization. 2. An amount of Rs. 2 lakh (Rupees two lakh only) as compensation for mental agony. 3. An amount of Rs. 25,000 (Rupees twenty five only) towards cost of proceedings. The order shall be compiled within a period of 30 days from the date of receipt of the copy of the order. Failure to comply this order will entitle the complainant to recover interest @ 12% to the entire amount from the date of this order till realization." Observing thus : "The complainant availed loan for payment of sale consideration and he has to pay interest against the loan amount The complainant paid Rs. 15,48,600 and he being a salaried person is struggling for the repayment of loan along with the house rent as he is occupying in a rented house. We find that the complainant suffered mental agony due to the non-completion of the house and financial loss. The complainant also incurred expenses for conducting the case engaging lawyer and other expenses and we fix Rs. 25,000 as cost of proceedings. We are of the considered view that there is deficiency in service and unfair trade practise on the part of the opposite parties and opposite parties are liable to refund the amount received from the complainant with interest. 3. The short grievance of the Appellants is that since in the Complaint the main prayer was for a direction to the Appellants to complete the construction, within a fixed time frame, which the Appellants were willing to abide by, the State Commission was not justified in directing the refund of the said amount along with compensation and interest. It is also the stand of the Appellants that the construction could not be completed within the stimulated time because of an interim stay by the Municipal Corporation, Thiruvananthapuram, on the allegation that the Complainant had encroached upon the land of his neighbour, on which the house in question was to be constructed. 4. Upon notice, the Complainant is represented through his Counsel. Accordingly, we have heard learned Counsel for both the parties. 5. Having perused the documents on record, we are of the view that there is no merit in the Appeal, 6. Apart from the fact that having entered appearance in the Complaint, the Appellants had failed to file their written version and had been proceeded against ex parte by the State Commission, admittedly, the possession of a completed house was to be delivered in the first instance by 31.3.2012 and then in terms of the renewal agreement signed on 12.5.2011 finally by 31.12.2013. ft. is not in dispute that the construction of the house is still not complete. That being the factual scenario as of date, no other option was left with the State Commission except to accept the alternative prayer in the Complaint and direct refund of the amounts paid by the Complainant to the Appellants for construction of the house. In light of the circumstances, noted in the afore-extracted paragraph, viz. the Complainant having raised interest bearing loan for making payment to the Appellants, the rate of interest awarded cannot be said to be unreasonable or excessive. Accordingly, we uphold the order to that extent. 7. However, we find that the land, on which the house was to be constructed by the Appellants, still continues to vest in the Complainant, as the same had been purchased by him from a third party, with the assistance of the Appellants. That being so, bearing in mind the fact that by now there would definitely be some escalation in the value of land, we feel that the award of compensation of Rs. 2,00,000 as also the rate of interest as default stipulation is on the higher side. 8. Consequently, the Appeal is partly allowed to the extent that the Appellants shall be liable to pay to the Complainant the principal amount along with interest at the rate of 9% p.a. from the date of each deposit till realization along with a compensation of Rs. 1,00,000. The said amount shall be paid by the Appellants to the Complainant within 4 weeks from the date of receipt of a copy of this order, failing which the entire-amount shall carry interest at the rate of 12% p.a. from the date of filing of the Complaint till realization. 9. Before parting with the case, we are constrained to note that the conduct of the Appellants even in this Appeal is blame-worthy, inasmuch as they have failed to comply with the interim order passed on 20.10.2016, directing them to deposit in this Commission the principal amount along with interest @ 9% p.a. Furthermore, the Appeal, is also barred by limitation, as there is a delay of 50 days in fifing the same, for which no satisfactory explanation has been furnished, 10. The Appeal stands disposed of in the above terms. Appeal partly allowed.