Puravankara Projects Ltd. And Ors. vs Jayan O.K. Kamala

IN this appeal there, is challenge to impugned order dated 21.1.2015, passed by Kerala State Consumer Disputes Redressal Commission, Thiruvananthapuram (for short, ''State Commission) vide which, complaint filed by Respondent/Complainant was allowed in part.

BRIEF facts are, that respondent entered into an agreement with Appellants/Opposite Parties for purchase of an apartment in ''Purva Grandbay'' at Marine Drive, Ernakulam. The respondent was allotted Apartment No. GB 513 on the 5 floor. The total sum agreed was Rs. 76 lakhs, which was scaled down to Rs. 71,09,660/ - as payment was made in lump sum and this amount was paid on October 3, 2006. The apartment was agreed to be delivered in March, 2009. It is stated, that appellants have not so far handed over the apartment to the respondent. Further, sale of undivided interest in land and sale deed of apartment have not been executed. The major attraction of the apartment was the atrium which appellants are now trying to convert into car parking. Respondent had raised Rs. 45,30,000/ - through bank loan. Balance Rs. 32 lakhs was raised by selling land owned by the respondent. Now respondent has to pay Rs. 64,000/ - per month towards that loan. Further, respondent is now staying in a rented house. Accordingly, respondent filed a consumer complaint claiming following reliefs: " a) To prohibit the opposite parties from effecting any alteration to the entrance lobby(atrium) by converting the same into car parking area.

b) To direct the opposite parties to pay an amount of Rs. 14,15,764/ - being the interest paid by the complainant till March, 2009 to the ICIC bank towards housing loan availed by the complainant to effect upfront payment to the opposite parties with 12% interest till payment.

c) To direct the opposite parties to pay Rs. 50,000/ - per month from April 2009 till the completion and handing over of the flat being the monthly rent receivable by the complainant.

d) To direct the opposite party to give Rs. 20 lakhs - towards compensation for the deficiency in service an unfair trade practice committed by them.

e) To direct the opposite party to give Rs. 25,000/ - towards cost of this proceedings."

AS per the counter filed by the appellants before the State Commission their defence is that, as per the terms and conditions of the construction agreement, appellants were liable to complete the construction by March, 2009. The said project could not be completed as per the schedule timings due to the unstable nature of the soil and piling on the recently reclaimed land auctioned by the Greater Cochin Development Authority. Thus, appellants had to go for additional piling for the foundation as they could not compromise on the quality of construction, being a responsible developer of repute. The completion time was initially was March, 2009 which was revised to December, 2009 and again it was revised to June, 2010. Thereafter, 3rd revision was from March, 2010 to March, 2011. Appellants have admitted receipt of payment of Rs. 71,09,660/ - from the respondent. Thus, project could not be completed within time due to aforesaid reasons.

State Commission, vide impugned order partly allowed the complaint.

BEING aggrieved, appellants have filed the present appeal.

WE have heard the learned counsel for the appellants and gone through the record.

IT is submitted by learned counsel, that parties are bound by the terms and conditions of the Agreement. Mere delay in completing the construction within the stipulated period would not entitle the respondent for compensation when parties by contract have agreed as to how compensation would be determined and on what basis a party complaining of the breach, would be entitled for compensation. The State Commission overlooked this aspect and erroneously came to conclusion that respondent would be entitled to compensation due to delay in completion of the construction, without taking into account the surrounding factors and circumstances which are borne out of record.

ON 22.4.2015, Ld. counsel for appellants advanced the arguments and matter was reserved for order.

ON 5.5.2015, counsel for appellants filed an application seeking additional hearing in the case. In application it is stated, that on 22.4.2015 part arguments of counsel for appellants were heard and matter has been reserved for order. Now counsel want to advance further arguments.

LD . counsel for appellants have made wrong averments in this application for seeking additional hearing on the ground, that arguments in part were advanced by him. As per record arguments were concluded and that is why, matter was reserved for order.

BE that as it may, Ld. counsels for appellants have not filed their affidavit in support of this application. Instead, affidavit of one Ranjit Thomas, Regional Head (Kerala) of First Appellant has been filed stating, that application for additional hearing has been drafted under his instructions and what has been stated therein, is true and correct.

THERE is nothing on record to show that on 22.4.2015, Mr. Ranjit Thomas was present before this Commission when arguments were addressed. Therefore, we fail to understand as on what basis he has sworn the affidavit stating therein, that what has been stated in the application is correct, when he was not present on 22.4.2015. Prima -facie affidavit sworn by Mr. Ranijt Thomas is patently false. We would have proceeded against him for filing the false affidavit, but, we are refraining from taking any action against him. Even otherwise, in the entire application, no reasons whatsoever have been given as to why counsel wants to address further arguments.

THE State Commission while partly allowing the complaint, in the impugned order observed; "Following points arise for consideration;

WHETHER there is any deficiency in service on the part of the opposite parties.

Whether the complainant is entitled to any compensation? If so, what is the quantum."

Point No:1

It is admitted and is proved by the documents produced by the complainant that complainant and opposite parties entered into an agreement dated July 29, 2006. Copy of which is marked as Exbt. A10, for the purchase of apartment No. GB.513 in the 5 floor of ''Purva Grandbay'' at Marine Drive, Ernakulam for a consideration of Rs. 76 lakhs, which was scaled down to Rs. 71,09,660/ - and that the complainant paid the entire amount on October 3, 2006. The agreed date of delivery was March 2011. The opposite parties have so far did not complete, the construction and delivered, the apartment to the complainant. Dw1 the legal Manager of the opposite party would say that due to unstable nature of the soil additional piling has to be done and hence the delay.

The above version of DW1 appears to be not true. Exbt. B6 is the copy of the report of Sreenivasa Moorthi Exbt. B7 is the copy of the report of Babu T. Jose, the Engineers which show that the piling work done by M/s. Simples Company which was defective and therefore opposite parties have entrusted the piling work to M/s. Coastal foundations. Therefore, the contentions of the opposite parties that delay due to reasons beyond their control cannot be accepted.

The complainant as PW1 would allege that the space shown as entrance lobby (Atrium) is converted into car parking area. But the Advocate commissioner did not find any deviation from the approved plan Exbt. CI is the report of Commissioner with photo. But in Exbt. A31, the plan sent by opposite parties to the complainant Atrium is seen shown.

Thus after accepting the amount the opposite parties have failed to complete the construction within the stipulated period, which amounts, to deficiency in service and unfair trade practice, for which complainant is entitled to compensation.

Point No. 2

The next question for consideration is, what is the compensation complainant is entitled to

On this aspect it has to be mentioned that from the inception the opposite parties employing delaying tactics. Inspite of the directions given by this Commission opposite party did not execute the sale deed with respect to the undivided share in the plot though complainant had paid the Registration charges and stamp duty. That apart complainant is now repaying the loan availed by him from bank. He is also residing in a rented house. Taking into consideration all these aspects we feel that interest at the rate of 12% per annum from March 2009 till realization would be reasonable. No separate compensation is awarded. As the complainant has paid the entire sale consideration and registration charges no amount is due to opposite parties from the complainant."

IT is an admitted fact, that construction agreement was executed between the parties on 29.07.2006. As per terms and conditions of this agreement, appellants have to deliver the possession of the apartment to the respondent in March, 2009. Further, there is no dispute with regard to receipt of sum of Rs. 71,09,660/ - by the appellants from the respondent. It is also not in dispute, that till date construction of apartment has not been completed.

THE plea taken by appellants before the State Commission was, that due to unstable nature of soil, additional piling work had to be done and hence there was delay.

THERE is nothing on record to show that soil was of unstable nature. Even if there was delay in the piling work, it had occurred due to defective work done by the company engaged by the appellants. Respondent has nothing to do in this regard.

ADMITTEDLY , the appellants have failed to complete the construction of the apartment within the stipulated time, after having received the entire consideration amount from the respondent, as early as in the year 2006. Thus, deficiency on the part of the appellants is writ large. Appellants in preset case, "Wants to have the cake and eat it too." Appellants, after having received huge sum of Rs. 71,09,660/ - from the respondent in October,2006, are enjoying the same for the last about 9 years. In addition till date, they have not handed over the possession of the apartment. On the other hand, respondent having paid the entire consideration of the flat, is still empty handed.

SUCH type of unscrupulous act on the part of Appellants/Builders should be dealt with heavy hands, who after grabbing the hard earned money from the purchasers, enjoy and utilize that money but does not hand over possession of flat, on one pretext or the other. Appellants want the respondent to run from one fora to other, so that they can go on enjoying the respondent'' money, without any hindrance.

IT is well settled that no leniency should be shown to such type of litigants who in order to cover up their own fault and negligence, goes on pursuing meritless litigation. Equity demands that such unscrupulous litigants whose only aim and object is to deprive the opposite party of the fruits of the decree, must be dealt with heavy hands. Unscrupulous builders like appellants who after taking entire cost of the apartment, do not perform their part of obligation, should not be spared. A strong message is required to be sent to such type of builders, that this Commission is not helpless in such type of matters.

NOW question arise for consideration is, as to what should be the quantum of punitive damages which should be imposed upon the appellants for dragging the respondent upto this fora, when appellants have no case at all. It is not that every order passed by the judicial fora is to be challenged by the litigants, even if the same is based on sound reasonings.

IN Ravinder Kaur v. Ashok Kumar, : AIR 2004 SC 904, the Apex Court observed; "Courts of law should be careful enough to see through such diabolical plans of the judgment debtor to deny the decree holders the fruits of the decree obtained by them. These type of errors on the part of the judicial forum only encourage frivolous and cantankerous litigations causing law''s delay and bringing bad name to the judicial system."

FURTHER , Apex Court in Ramrameshwari Devi and Ors. v. Nirmala Devi and Ors. (Civil Appeal Nos. 4912 -4913 of 2011 decided on July 4, 2011) observed; "45. We are clearly of the view that unless we ensure that wrong -doers are denied profit or undue benefit from the frivolous litigation, it would be difficult to control frivolous and uncalled for litigations. In order to curb uncalled for and frivolous litigation, the Courts have to ensure that there is no incentive or motive for uncalled for litigation. It is a matter of common experience that court''s otherwise scarce and valuable time is consumed or more appropriately wasted in a large number of uncalled for cases.

The court further held;

"50. Learned Amicus articulated common man''s general impression about litigation in following words;

"Make any false averment, conceal any fact, raise any plea, produce any false document, deny any genuine document, it will successfully stall the litigation, and in any case, delay the matter endlessly. The other party will be coerced into a settlement which will be profitable for me and the probability of the court ordering prosecution for perjury is less than that of meeting with an accident while crossing the road."

Lastly, Apex Court observed;

While imposing the costs we have to take into consideration pragmatic realities and be realistic what the defendants or the respondents had to actually incur in contesting the litigation before different courts. We have to also broadly take into consideration the prevalent fee structure of the lawyers and other miscellaneous expenses which have to be incurred towards drafting and filing of the counter affidavit, miscellaneous charges towards typing, photocopying, court fee etc.

The other factor which should not be forgotten while imposing costs is for how long the defendants or respondents were compelled to contest and defend the litigation in various courts. The appellant in the instant case have harassed the respondents to the hilt for four decades in a totally frivolous and dishonest litigation in various courts the appellants have also wasted judicial time of the various courts for the last 40 years.

On consideration of totality of the facts and circumstances of this case, we do not find any infirmity in the well -reasoned impugned order/judgment. These appeals are consequently dismissed with costs, which we quantify as Rs. 2,00,000/ -. We are imposing the costs not out of anguish but by following the fundamental principle that wrongdoers should not get benefit out of frivolous litigation ".

THUS , present appeal is nothing but gross abuse of process of law and same is required to be dismissed with punitive damages. Therefore, present appeal stand dismissed with punitive damages of Rs. 5,00,000/ - (Rupees Five Lacs only). Out of this amount, a sum of Rs. 2,50,000/ - (Rupees Two Lacs Fifty Thousand only) be deposited by way of demand draft in the name of ''Consumer Legal Aid Account'' of this Commission. Balance amount of Rs. 2,50,000/ - (Rupees Two Lacs Fifty Thousand only) should be deposited by way of demand draft in the name of respondent. The aforesaid amounts be deposited within six weeks, failing which appellants shall be liable to pay interest @ 9% p.a. till realization

THE punitive damages awarded in favour of respondent shall be paid to him, only after expiry of period of appeal or revision preferred, if any. List for compliance on 17th July, 2015.