State Consumer Disputes Redressal Commission
Dr.Sharmil Kurian vs Desai Homes on 27 March, 2026
STATE CONSUMER DISPUTES REDRESSAL COMMISSION
KERALA
CONSUMER COMPLAINT NO. SC/32/CC/22/2010
Dr.Sharmil Kurian
PRESENT ADDRESS - ,KERALA.
.......Complainant(s)
Versus
Desai homes
PRESENT ADDRESS - ,KERALA.
.......Opposite Party(s)
BEFORE:
HON'BLE MR. JUSTICE SRI.B.SUDHEENDRA KUMAR , PRESIDENT
FOR THE COMPLAINANT:
Dr.Sharmil Kurian, Narayan.R (Advocate)
FOR THE OPPOSITE PARTY:
Desai homes
DATED: 27/03/2026
ORDER
KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION VAZHUTHACAUD, THIRUVANANTHAPURAM C.C No.22/2010 ORDER DATED : 27.03.2026 PRESENT:
HON'BLE JUSTICE SRI. B. SUDHEENDRA : PRESIDENT
KUMAR
SRI. AJITH KUMAR D. : JUDICIAL MEMBER
SRI.K.R.RADHAKRISHNAN : MEMBER
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 sustained loss. The complainants are also entitled to get 24% interest on the amount of Rs.57,87,551/- from 01.01.2008 till the date of handing over of the apartment to the complainants. The complainants also sustained a loss to the tune of Rs.27,78,024 as interest for the period from 01.01.2008 to 31.12.2009. The complainants also lost an amount of Rs.18,00,000/- by way of rent. Altogether, the opposite parties are thus bound to pay an amount of Rs.45,78,024 to the complainants. In the said circumstances, the complainants claimed an amount of Rs.45,78,024 together with interest @ 24% per annum on the amount of Rs.57,87,551/- from the date of suit till realisation and Rs.75,000/- per month as the probable rent from the date of complaint till the handing over of the apartment. The complainant also prayed for the costs of litigation.
5. The opposite parties filed a joint version, contending that since the allegations of breach of contract are involved in this case, the matter requires detailed evidence and hence, it cannot be decided in a summary trial before the Consumer Commission. The issues involved can be resolved only by a civil court. The opposite parties admitted that the complainants executed an agreement with the opposite parties on 15.12.2005 for purchasing apartment No.9B in the project 'DD Samudra Darsan'. The complainants paid the amount only on 23.06.2006, even though the agreement dated 15.12.2005 stipulated that the entire payment had to be made on or before 10.03.2006. So, the complainants did not perform their part of the agreement.
6. Even though it is stipulated in the agreement that the construction would be completed on or before 31.12.2007, one of the neighbours, namely, Taj Kerala Hotels and Resorts Ltd, which is having a hotel building on the northern side, where the construction activities of the opposite parties were going on, approached the Munsiffs Court, Ernakulam by filing O.S No.667/2006 for a permanent prohibitory injunction. In the said suit, Taj Kerala Hotels and Resorts Ltd filed an application for an interim prohibitory injunction restraining the opposite parties from continuing with the constructions and the Munsiffs Court granted an order of interim injunction which was in force till 28.06.2007. Ultimately, with the earnest efforts of the opposite parties, the grievance of Taj Kerala Hotels and Resorts Ltd were settled and the suit was dismissed as not pressed on 28.06.2007 and consequently, the interim injunction was also vacated on that date. Therefore, from 08.06.2006 to 28.06.2007, the opposite parties were not in a position to continue with the construction. The complainants are well aware of clause 15 of the contract which provides as follows:-
" That any delay in the completion of the construction for reasons beyond the control of the owners, promoters and builders including, but not exhaustive, natural calamities like heavy rain, floods, earth quakes, drought, famine, pestilence, or riots or civil commotion, labour strike or by reason of Government or judicial restrains on construction or short supply or non-availability of essential items like cement, steel or other building materials and the time during which such contingency continues shall be excluded in calculating and delivery of the apartment and this includes force majeure also".
7. In the instance case, it was clear that there was a judicial restraint for a period of one year from continuing with the construction on account of the order passed by the Munsiffs Court, Ernakulam. So, it can be clearly said that the delay was not attributable to the opposite parties. The neighbouring hotel, belonging to Taj Kerala Hotels and Resorts Ltd, raised all sorts of complaints against the opposite parties as is evident from letter dated 22.10.2008 issued by Taj Kerala Hotels and Resorts Ltd. In the said circumstances, the construction activities had to be slowed down. The swimming pool and the recreation areas of Taj Kerala Hotels and Resorts Ltd were very near to the construction site and on account of the risk involved, like the falling of the construction materials, debris etc., extra caution and care had to be taken. So also, when there was good inflow of guests and tourists from the hotel to the swimming pool area, the construction had to be stopped to avoid injury and also to avoid the infringing the privacy of the visitors/guests.
8. The opposite parties were getting frequent complaints and threats of legal action from the neighbours as heavy wind was blowing the cement into the living rooms of the neighbours. The opposite parties therefore had to act with considerable restraint throughout the construction. The opposite parties also had to give clarifications to the Greater Cochin Development Authority (GCDA), for which also, time was consumed. The opposite parties also had to renew the licence, which also caused delay in completing the construction. By April 2009, the opposite parties almost completed the construction of the apartment and at that time, the complainants entrusted the opposite parties with the work of interior decoration, which was not part of agreement dated 15.12.2005. That also caused delay in handing over the apartment to the complainants. The completion certificate was received on 03.04.2010. Since the interior decoration works were going on, the complainants could not occupy the apartment. However, since the interior works, which were not part of the contract, were entrusted by the complainants with the opposite parties, the said works along with civil modification works had to be done by the opposite parties at the request of the complainants. For doing the civil modifications and other interior decoration works, considerable time was taken. However, if the complainants wanted, they could have occupied the apartment in the month of April 2010. However, they occupied the apartment only in April 2011, which was not due to the delay caused by the opposite parties. The opposite parties also denied the different claims raised by the complainants.
9. In the trial, PW1 was examined and Exhibits A1 to A13 were marked for the complainants. DW1 was examined and Exhibits B1 to B13 were marked for the opposite parties.
10. PW1 is the father of the first complainant and the husband of the second complainant. Exhibit A1 is the special power of attorney dated 10.01.2012 executed by the first complainant in favour of the father of the first complainant. Exhibit A2 is the special power of attorney dated 16.01.2012 executed by the second complainant in favour of the father of the first complainant. Exhibit A3 is the copy of agreement dated 15.12.2005 executed by the complainants with the first opposite party. Exhibit A4 is the letter of undertaking dated 21.02.2006 executed jointly by the complainants and the first opposite party in favour of ICICI Bank. Exhibit A5 is agreement dated 14.09.2007 executed by the landlord Sri.Muhammed Ibrahim with the father of the first complainant. Exhibit A6 is the true copy of the lawyer notice dated 11.09.2009 issued by the complainants to the opposite parties. Exhibit A7 is the true copy of the acknowledgement card. Exhibit A8 is bill dated 13.04.2011 issued by Sealord Hotel for Rs.8,302/-. Exhibit A9 series are bills, four in numbers, issued by Jose Electricals. Exhibit A10 is bill dated 24.04.2011 issued by Sealord Hotel for Rs.4,533/. Exhibit A11 is bill dated 23.04.2011 issued by Azeez stores for Rs.414. Exhibit A12 is bill dated 23.04.2011 issued by Gopal and Company for Rs.125. Exhibit A13 is the original agreement dated 15.12.2005.
11. DW1 is the Manager of the 1st opposite party. Exhibit B1 is the true copy of the plaint in O.S 667/2006 of the Munsiffs Court, Ernakulam. Exhibit B2 is the true copy of the injunction application in O.S 667/2006. Exhibit B3 is the true copy of letter dated 22.10.2008 issued by Taj Kerala Hotels and Resorts Ltd., to the second opposite party. Exhibit B4 is the copy of order dated 23.09.2008 addressed to the Town Planning Officer, Corporation of Cochin by the second opposite party. Exhibit B5 is the true copy of letter dated 11.08.2008 issued by the Greater Cochin Development Authority to the Flag Officer Commanding-in-Chief, Southern Naval Command with copy to the second opposite party. Exhibit B6 is the true copy of the letter dated 26.01.2008 issued by Raj Rewal and Kuldeep Singh to the Secretary, GCDA. Exhibit B7 is the true copy of the letter dated 11.02.2008 issued by Lardner North and Co., to the first opposite party. Exhibit B8 is true copy of occupancy certificate dated 03.04.2010 issued by the Corporation of Cochin. Exhibit B9 is copy of receipt dated 04.05.2009 issued to the complainants for the receipt of Rs.80,000/-. Exhibit B10 is the copy of receipt dated 19.12.2009 issued to the complainants for the receipt of Rs.80,751/-. Exhibit B11 is the receipt dated 28.05.2010 issued to the complainants for the receipt of an amount of Rs. 21,000/-. Exhibit B12 is the receipt dated 12.02.2011 issued to the complainants for an amount of Rs.62,466/-. Exhibit B13 is letter dated 26.04.2011 issued by the first complainant to the first opposite party requesting for taking possession of the apartment on 26.04.2011. (Exhibit B6 and B7 are not available in records. It was reported by the Commissioner as early as on 28.09.2017 that Exhibits B6 and B7 were only photo copies and the said documents were marked subject to proof. However, the originals of the said documents were not produced by the opposite parties. Exhibits B6 and B7 are not available now. However, since Exhibits B6 and B7 were not proved, this complaint can be disposed of even without referring to the said documents).
12. The points arise for consideration are: -
1. Whether the complaint is maintainable?
2. Whether there was any delay in handing over the apartment to the complainants?
3. Whether the delay, if any, in handing over the apartment was attributable to factors beyond the control of the opposite parties?
4. Whether there was any deficiency in service on the part of the opposite parties?
5. If so, the compensation and costs, if any?
13. Point No.1:- The opposite parties had taken a contention that, since disputed questions of fact are evolved in this case, this Commission cannot decide such questions in a summary proceeding before the Commission and hence, the complaint filed by the complainants is not maintainable. We have gone through the contentions and evidence available in this case. The dispute in this case is only with regard to the delay in handing over the apartment to the complainants by the opposite parties. The said question cannot be said to be a disputed question of fact requiring elaborate trial. Therefore, the complaint is perfectly maintainable before this Commission. In the said circumstances, the contention in this regard raised by the opposite parties cannot be sustained. The point answered in favour of the complainants.
14. Point Nos.2 to 5:- For the sake of convenience and to avoid the risk of repetition, these points shall be considered together. It is not disputed that on 15.12.2005, the complainants executed Exhibit A13 agreement with the opposite parties for purchasing the undivided share and apartment No.9B in the project 'DD Samudra Darsan' having a super-built-up area of 1839 square feet, including 20% of 1839 sq.ft of undivided share in the common area and common facilities, along with a car parking area. It is also not disputed that, as per Exhibit A13 agreement, the date of completion of the construction was on 31.12.2007. As per Exhibit A13 agreement, the complainants were required to pay Rs.46,38,051/- towards the value of the apartment No.9B together with one car parking area and Rs.11,49,500 for 2299/2,40,000 undivided share in 59.285 cents of property. Thus, the total consideration was Rs.57,87,551/-. It is not disputed that the complainants paid an amount of Rs.7,87,551/- as advance consideration on the date of execution of Exhibit A13 agreement. The balance amount of Rs.50,00,000/- was paid by the complainants on 23.06.2006.
15. The opposite parties contended that the balance consideration had to be paid by the complainants on 10.03.2006. However, the payment was made only on 23.06.2006. Therefore, there was failure on the part of the complainants in performing the obligations as per Exhibit A13 agreement. Consequently, the complainants cannot contend that there was delay on the part of the opposite parties in handing over the possession of the apartment to the complainants. Exhibit A4 is the letter of undertaking signed by the complainants, the opposite parties and ICICI Home Finance Company Ltd. It is clearly mentioned in Exhibit A4 that the loan amount of Rs. 50,00,000/- mentioned in the schedule was already sanctioned. Exhibit A4 is dated 21.02.2006, which would show that the loan was sanctioned before 10.03.2006. It is clearly stated in Exhibit A4 that the ICICI Home Finance Company Ltd. would pay the entire loan amount towards the sale consideration of the building upon a demand being raised by the borrower on the basis of the demand letter from the builder subjected to satisfactorily technical verification by ICICI HFC. The opposite parties did not raise any contention that the opposite parties had issued any such demand letter prior to 23.06.2006 for the purpose of releasing the amount. Since Exhibit A4 letter of undertaking, signed by the opposite parties, the complainants and ICICI HFC, specifically stated that an amount of Rs.50,00,000/- was already sanctioned as loan on 21.02.2006, the opposite parties had every right to get the said amount released from the bank in accordance with the terms of agreement. Therefore, the contention of the opposite parties that the complainants delayed the payment till 23.06.2006 cannot be accepted.
16. The complainants would contend in the complaint that even though there was an assurance as per Exhibit A13 agreement that the construction would be completed on or before 31.12.2007, the construction could not be completed as promised. PW1 stated in his cross-examination that he could occupy the apartment only on 26.04.2011. Therefore, there was delay in handing over the possession of the apartment to the complainants. The opposite parties also admitted that there was delay in handing over the possession of the apartment to the complainants.
17. The opposite parties, however, contended that the delay occurred due to reasons beyond the control of the opposite parties and hence the opposite parties are entitled to the protection under clause 15 of Exhibit A13 agreement. It was contended by the opposite parties that the occupancy certificate was issued by the Corporation of Cochin on 03.04.2010 and hence the complainants could have occupied the apartment in the month of April 2010 itself. However, the apartment was occupied by the complainants only in April 2011. The evidence of PW1 would show that the complainants occupied the apartment on 26.04.2011. Exhibit B13 would also show that the complainants occupied the apartment on 26.04.2011. Thus, from the evidence on record, it is proved that the complainants occupied the apartment on 26.04.2011.
18. Now we will decide whether the delay was caused due to reasons beyond the control of the opposite parties as provided under clause 15 of Exhibit A13 agreement or not. Clause 15 of Exhibit A13 provides that if the delay was caused due to natural calamities like heavy rains, floods, earthquakes, drought, famine, pestilence, etc., or riots or civil commotion, labour strike or Government or judicial restraints on construction or short supply or non-availability of essential items, the time during which such contingency continued must be excluded for calculating the period of completion of construction or delivery of the apartment.
19. The opposite parties contended that since the order of interim injunction issued by the Munsiffs Court, Ernakulam in O.S. No. 667/006, filed by the adjacent owner of the property, namely, Taj Kerala Hotels and Resorts Ltd., restraining the opposite parties from continuing the construction work was in force for a period from 08.06.2006 to 28.06.2007, the construction could not be continued during the said period, which caused a delay of more than one year in completing the construction. However, due to the active indulgence of the opposite parties, the said suit was withdrawn by the opposite parties on 28.06.2007. Exhibit B1 is the copy of the plaint in O.S. No.667/2006. Exhibit B2 is the copy of IA No.4750/2006 filed by the plaintiff in the said suit requesting to restrain the defendant therein, who is the second opposite party herein, from making any further constructions in the B schedule property of the said suit till the final disposal of the suit.
20. Even though the opposite parties contended that there was an order of interim injunction in Exhibits B1 suit restraining the opposite parties from continuing the construction work for the period from 08.06.2006 to 28.06.2007, no such order of injunction was produced before the commission to substantiate the said contention of the opposite parties. The complainants contended that they came to know from the version that there was an interim order of injunction. However, PW1 stated that PW1 had no knowledge with regard to any order of injunction passed by the Court. When the opposite parties contended that the opposite parties could not continue the construction from 08.06.2006 to 28.06.2007 due to the interim order of injunction passed by the Court in Exhibit A1, it was the burden on the opposite parties to produce the copy of the said interim order of injunction to prove that the work could not be continued for the said period due to the order of injunction passed by the Court. It is not discernible as to why the opposite parties did not produce a copy of the said order of injunction, if there had been any such order. In the absence of any such evidence, the contention of the opposite parties that the construction work could not be continued for the period from 08.06.2006 to 28.06.2007 due to the interim order of injunction passed by the Munsiffs Court in Exhibits B1 suit cannot be accepted. Therefore, the contention in this regard is devoid of merits.
21. The opposite parties further contended that some delay was caused by the threat of a complaint raised by Taj Kerala Hotel and Resorts Ltd. Because of the said threat, the construction was slowed down. In order to prove the threat of complaint raised by Taj Kerala Hotel and Resorts Ltd., the opposite parties produced Exhibit B3. Exhibit B3 was the letter given by Taj Kerala Hotel and Resorts Limited to the opposite parties. It is stated in Exhibit B3 letter that the falling of the debris, the steel plates and scaffolding into the swimming pool area, was causing great hardships and huge damage to the property, guests and employees of Taj Kerala Hotel and Resorts Ltd. Some of the guests also complained that they would sue for the injuries and other damage. In the said circumstances, Taj Kerala Hotel and Resorts Ltd requested the opposite parties through Exhibit B3 letter to take immediate steps to stop falling of objects to their side to ensure the safety of their property, guests and employees.
22. It is borne out from the contention of the opposite parties that the opposite parties had started doing the work carefully to prevent the adjacent property owner from raising any complaint. The opposite parties would contend that, because of Exhibit B3 letter, the construction was delayed to some extent. It is natural that when work is done negligently, causing nuisance and injuries to the adjacent property owners, there will be objections and protests from the adjacent property owners. It is the duty of the builder to ensure that no damage or injury is caused to the property or person of adjacent property owners during the construction work. However, in this case, since nuisance was caused to the adjacent property owner, they had sent Exhibit B3 letter to the opposite parties. Thereafter, the opposite parties started doing the work carefully to prevent the adjacent property owner from raising any complaint, which caused some delay in completing the construction. The incidents leading to Exhibit B3 letter cannot be said to be an eventuality not anticipated by any builder. Therefore, the opposite parties cannot take any advantage out of it. That apart, the number of days of delay caused due to the above reason was not mentioned in the version by the opposite parties. Consequently, the contention in this regard cannot be accepted.
23. The opposite parties were getting frequent complaints and threats of legal action from the neighbours as heavy wind was blowing the cement into the living rooms of the neighbours. The opposite parties, therefore, had to act with considerable restraint throughout the construction, which also caused some delay in the construction. The number of days of delay caused for the above reason was also not mentioned in the version. That apart, the delay, if any, caused by the above-said reason cannot be said to be something which was not anticipated by any builder. Therefore, the contention in this regard is devoid of merits.
24. The opposite parties also contended that they had to give clarifications to the Greater Cochin Development Authority (GCDA), for which also, time was consumed. The opposite parties also had to renew the licence, which also caused delay in completing the construction. No evidence is available as to when the permit was renewed by the GCDA. No material was produced by the opposite parties to prove that there was a delay in renewing the permit. The number of days of delay caused for the above reason was also not mentioned by the opposite parties. In the said circumstances, the contention that there was some delay in completing the construction due to the delay in getting the permit renewed by the GCDA cannot be accepted.
25. Exhibit B8 is the occupancy certificate issued by the Corporation of Cochin on 03.04.2010. The issuance of the occupancy certificate by the Municipal Corporation is the proof showing the completion of the construction. The opposite parties also admitted in the version that the construction was complete, and the occupancy certificate was obtained on 03.04.2010. From the materials on record, we are satisfied that the construction of the apartment was complete on 03.04.2010. However, there was delay from 31.12.2007 to 03.04.2010 in completing the construction of the apartment by the opposite parties.
26. Having gone through the relevant inputs as discussed above, we are not satisfied that the opposite parties could establish that the delay in completing the construction of the apartment was attributable to factors beyond the control of the opposite parties and in the circumstances, the opposite parties are not entitled to get protection under clause 15 of Exhibit A13 agreement for the delay in completing the construction of the apartment.
27. We will now decide whether the delay from 03.04.2010 to 26.04.2011 in taking possession of the apartment by the complainants could be attributable to the opposite parties as contended by the complainants. It is borne out from the evidence that the complainants had taken possession of the apartment only on 26.04.2011. Even though the complainants contended that since the construction was not complete, the complainants could not occupy the apartment till 26.04.2011, Exhibit B8 occupancy certificate would show that the construction was complete on 03.04.2010. The issuance of Exhibit B8 occupancy certificate by the Municipal Corporation would prove that the construction was complete. Since the construction was complete, the complainants could have occupied the apartment on any date in April, 2010 itself after 03.04.2010.
28. The opposite parties would contend that the complainants had requested to do the interior work along with some civil modification work, for which the complainants had paid an extra amount. It was only after getting the occupancy certificate that the civil modification and the other interior works were commenced by the opposite parties. In order to complete the said works, a reasonable time was taken. If the complainants wanted to occupy the apartment in the month of April 2010 itself, they could have done it. However, they occupied the building only on 26.04.2011. The evidence on PW1 would also show that PW1 had paid an additional amount for doing the interior work of the apartment. It is further borne out from Exhibit A13 that Exhibit A13 does not mention anything about the interior work. PW1 admitted that even on 23.04.2011, the complainants had handed over some hardware items to the opposite parties for the interior works. Exhibits B9 to B12 would show that the complainants had paid extra amount for the interior decoration work to the opposite parties. From Exhibits B9 to B12 coupled with the evidence of PW1 and the contention of the opposite parties, it can be safely held that the delay occurred from April 2010 till 26.04.2011 to occupy the apartment by the complainants could not be attributed to the opposite parties.
29. Having gone through the relevant inputs as discussed above, we are satisfied that the apartment ought to have been completed on or before 31.12.2007. However, the construction was completed only on 03.04.2010 as seen from Exhibit B8 occupancy certificate. Therefore, there was a delay in completing the construction of the apartment by the opposite parties. We have already found that the opposite parties could not establish any circumstance indicating that the opposite parties are entitled to get protection under clause 15 of Exhibit A13 agreement for the delay in completing the construction of the apartment from 31.12.2007 to 03.04.2010. Since there was delay in completing the construction of the apartment, there can be no doubt that there was deficiency in service on the part of the opposite parties in this regard. However, we have already found that the delay from 03.04.2010 to 26.04.2011 in occupying the apartment by the complainants could not be attributed to the opposite parties. In the said circumstances, the complainants are entitled to get compensation only for the delay from 31.12.2007 to 03.04.2010 in completing the construction of the apartment by the opposite parties.
30. As per clause 9 of Exhibit A13, the complainants had to pay interest at the rate of 24% per annum with quarterly rest in the event of the complainants not making the remittance in accordance with the payment schedule. However, there is no such provision for the default of the builder in Exhibit A13 agreement. Admittedly, the possession was already handed over to the complainants on 26.04.2011. Since the possession had already been handed over to the complainants, the complainants are entitled to only a reasonable interest as compensation for the delay in completing the construction of the apartment. Since we have decided to give interest as compensation for the delay in completing the construction of the apartment, the claim of the complainants for compensation under other heads for the delay in completing the construction need not be considered.
31. Considering the facts and circumstances of the case, we are of the view that interest at the rate of 9% per annum on the amount of Rs.57,87,551/- paid by the complainants for the period from 31.12.2007 to 03.04.2010 will be sufficient to meet the ends of justice. Thus, we are granting interest at the rate of 9% per annum on the amount of Rs.57,87,551/- for a period of 27 months, which would come to Rs.11,71,980/-. Accordingly, the complainant is entitled to get a total amount of Rs.11,71,980/- as compensation towards the inconvenience, hardships, and financial loss caused to the complainant on account of the deficiency in service on the part of the opposite parties owing to the delay in completing the construction of the apartment.
In the result, the complaint stands allowed in part, and the opposite parties are jointly and severally directed to pay Rs.11,71,980/- with interest at the rate of 9% per annum from the date of complaint till the date of realisation, as compensation to the complainants towards the deficiency in service on the part of the opposite parties in connection with the delay in completing the construction of the apartment. The opposite parties are also directed to pay costs of Rs.25,000/- to the complainants.
PRESIDENT
JUSTICE B. SUDHEENDRA :
KUMAR
JUDICIAL
AJITH KUMAR D. :
MEMBER
K.R. RADHAKRISHNAN : MEMBER
VS
C.C.No.22/2010
APPENDIX
I. COMPLAINANT'S WITNESS
PW1 T.C.Kurian
II. COMPLAINANT'S DOCUMENTS
A1 - Special power of attorney dated 10.01.2012 executed by the 1st
complainant in favour of the father of the 1st complainant.
A2 - Special power of attorney dated 16.01.2012 executed by the 2 nd complainant in favour of the father of the 1st complainant. A3 - The copy of the agreement dated 15.12.2005 executed by the complainants with 1st opposite party.
A4 - The letter of undertaking executed jointly by the complainants and the 1st opposite party to ICICI Bank dated 21.02.2006.
A5 - The agreement dated 14.09.2007 executed by the landlord Sri.Muhammed Ibrahim with the father of the 1st complainant. A6 - The true copy of the lawyer notice dated 11.09.2009 sent by the complainant to the opposite parties.
A7 - The true copy of the acknowledgement card.
A8 - Bill dated 13.04.2011 issued by Sealord hotel
A9 - Series of bills four in numbers issued by the Jose Electricals
A10 - Bill dated 24.04.2011 issued by Sealord Hotel.
A11 - Bill dated 23.04.2011 issued by Azeez Stores.
A12 - Bill dated 23.04.2011 issued by Gopal and Company.
A13 - The original agreement dated 15.12.2005 executed by the
complainants with 1st opposite party.
III. OPPOSITE PARTY'S WITNESS
DW1 Vamana Shenoy
IV. OPPOSITE PARTY'S DOCUMENTS
B1 - The true copy of the plaint in O.S 667/2006 of the Munsiff
Court, Eranakulam
B2 - The true copy of the injunction application in O.S 667/2006.
B3 - The true copy of the letter dated 22.10.2008 issued by the Taj
Kerala Hotels and Resorts Limited.
B4 - The copy of the order dated 23.09.2008 addressed to the
Town Planning Officer, Corporation of Cochin by the 2nd
opposite party.
B5 - The copy of the letter dated 11.08.2008 issued by the Greater
Cochin Development Authority to the Flag Officer
Commanding-in-chief, Head Quarters, Southern Naval
Command, Kochi-4
B6 - The true copy of the letter dated 26.01.2008 issued by issued
by Raj Rewal and Kuldeep Singh to the Secretary GCDA.
B7 - The true copy of the letter dated 11.02.2008 issued by
Lardner North and Co. to the 1st opposite party.
B8 - The true copy of the occupancy certificate dated 03.04.2010
issued by the Corporation of Cochin.
B9 - The copy of the receipt dated 04.05.2009 issued to the
complainants.
B10 - The copy of the receipt dated 19.12.2009 issued to the
complainants.
B11 - The copy of the receipt dated 28.05.2010 issued to the
complainants.
B12 - The receipt dated 12.02.2011 issued to the complainants.
B13 - The letter dated 26.04.2011 issued by the 1st complainant to
the 1st opposite party requesting for taking possession of the apartment on 26.04.2011.
V. COURT EXHIBITS
NIL
JUSTICE B. SUDHEENDRA : PRESIDENT
KUMAR
AJITH KUMAR D. : JUDICIAL
MEMBER
K.R. RADHAKRISHNAN : MEMBER
VS
..................
SRI.B.SUDHEENDRA KUMAR
PRESIDENT