2

OPPOSITE PARTIES:

1. M/s Prestige Estates Projects Pvt. Ltd., Falcon House, No.1, Main Guard Cross Road, Bangalore - 560 001

2. Irfan Razack, Chairman & Managing Director, M/s Prestige Estates Projects Pvt. Ltd., Falcon House, No.1, Main Guard Cross Road, Bangalore - 560 001

3. Rezwan Razack, Joint Managing Director, M/s Prestige Estates Projects Pvt. Ltd., Falcon House, No.1, Main Guard Cross Road, Bangalore -

560 001

4.

M/s Prestige Estates Projects Pvt. Ltd., No.32, Bay Pride Mall, Shanmugham Road, Marine Drive, Ernakulam - 682 035

(by Adv. Abraham Markos)

C.C.No.09/2014

COMPLAINANTS:

1. Alexander Kurian, S/o V.K. Kurian residing at 5A, Link Heights, Panampilly Nagar, Cochin - 682 036

2. Mary Alexander, W/o Alexander Kurian residing at 5A, Link Heights, Panampilly Nagar, Cochin - 682 036

(by Advs. Anil S. Raj & Rajani K.N.)

Vs.

OPPOSITE PARTIES:

1. M/s Prestige Estates Projects Pvt. Ltd., Falcon House, No.1, Main Guard Cross Road, Bangalore - 560 001

2. Irfan Razack, Chairman & Managing Director, M/s Prestige Estates Projects Pvt. Ltd., Falcon House, No.1, Main Guard Cross Road, Bangalore - 560 001

3. Rezwan Razack, Joint Managing Director, M/s Prestige Estates Projects Pvt. Ltd., Falcon House, No.1, Main Guard Cross Road, Bangalore -

560 001

4.

M/s Prestige Estates Projects Pvt. Ltd., No.32, Bay Pride Mall, Shanmugham Road, Marine Drive, Ernakulam - 682 035

(by Adv. Abraham Markos)

3

C.C.No.10/2014

COMPLAINANTS:

1. Saju Chacko, S/o C.F. Chacko residing at 7, 3^rdStreet, Subbarao Avenue, College Road, Nungambakkom, Chennai - 600 006

2. Susha Saju, W/o Saju Chacko, residing at 7, 3^rdStreet, Subbarao Avenue, College Road, Nungambakkom, Chennai - 600 006

(by Advs. Anil S. Raj & Rajani K.N.)

Vs.

OPPOSITE PARTIES:

1. M/s Prestige Estates Projects Pvt. Ltd., Falcon House, No.1, Main Guard Cross Road, Bangalore - 560 001

2. Irfan Razack, Chairman & Managing Director, M/s Prestige Estates Projects Pvt. Ltd., Falcon House, No.1, Main Guard Cross Road, Bangalore - 560 001

3. Rezwan Razack, Joint Managing Director, M/s Prestige Estates Projects Pvt. Ltd., Falcon House, No.1, Main Guard Cross Road, Bangalore -

560 001

4.

M/s Prestige Estates Projects Pvt. Ltd., No.32, Bay Pride Mall, Shanmugham Road, Marine Drive, Ernakulam - 682 035

(by Adv. Abraham Markos)

C.C.No.11/2014

COMPLAINANT:

Seena Jojy, W/o Jojy Issac, 9D, Link Heights, Main Avenue, Panampilly Nagar, Kochi - 682 036

(by Advs. Anil S. Raj & Rajani K.N.)

Vs.

OPPOSITE PARTIES:

1. M/s Prestige Estates Projects Pvt. Ltd., Falcon House, No.1, Main Guard Cross Road, Bangalore - 560 001

4

2. Irfan Razack, Chairman & Managing Director, M/s Prestige Estates Projects Pvt. Ltd., Falcon House, No.1, Main Guard Cross Road, Bangalore - 560 001

3. Rezwan Razack, Joint Managing Director, M/s Prestige Estates Projects Pvt. Ltd., Falcon House, No.1, Main Guard Cross Road, Bangalore -

560 001

4.

M/s Prestige Estates Projects Pvt. Ltd., No.32, Bay Pride Mall, Shanmugham Road, Marine Drive, Ernakulam - 682 035

(by Adv. Abraham Markos)

C.C.No.53/2015

COMPLAINANT:

Issac Jojy, S/o Jojy Issac, 9D, Link Heights, Main Avenue, Panampilly Nagar, Kochi - 682 036

(by Advs. Anil S. Raj & Rajani K.N.)

Vs.

OPPOSITE PARTIES:

1. M/s Prestige Estates Projects Pvt. Ltd., Falcon House, No.1, Main Guard Cross Road, Bangalore - 560 001

2. Irfan Razack, Chairman & Managing Director, M/s Prestige Estates Projects Pvt. Ltd., Falcon House, No.1, Main Guard Cross Road, Bangalore - 560 001

3. Rezwan Razack, Joint Managing Director, M/s Prestige Estates Projects Pvt. Ltd., Falcon House, No.1, Main Guard Cross Road, Bangalore -

560 001

4.

M/s Prestige Estates Projects Pvt. Ltd., No.32, Bay Pride Mall, Shanmugham Road, Marine Drive, Ernakulam - 682 035

(by Adv. Abraham Markos)

5

COMMON JUDGEMENT

HON'BLE JUSTICE SRI. K. SURENDRA MOHAN : PRESIDENT

These complaints are all filed under Section 12 of the Consumer Protection Act 1986. The opposite parties are common in all the complaints. They are builders of repute having projects in Cochin, Bangalore and other places. They had announced an apartment complex by name "Prestige Neptune's Courtyard" at Marine Drive, Kochi on a parcel of land comprised in survey no.843 of Ernakulam Village. The 2^ndand 3^rdopposite parties are the Directors of the 1^st opposite party company and are alleged to be persons responsible for the conduct of the day to day business. The 4^thopposite party is a branch office of the 1^st opposite party. The 1^stopposite party invited buyers to purchase from a total of 360 residential apartments that were proposed to be constructed by them. On the basis of the invitation, many people booked apartments. The complainants in these cases are all persons who had booked and purchased apartments from the opposite parties. In all these complaints, the question to be considered is whether the complainants are entitled to be paid damages and compensation for the delay in completion of the project and for collection of excess amounts. It is alleged that they had suffered serious prejudice, loss and hardships due to the delay in completion of the project. The delay in completion of the project is alleged to be a serious deficiency in service actionable under the provisions of the Consumer Protection Act, 1986 (the Act for short). Since the questions that arise for decision in these complaints are common, these complaints are all considered together and disposed of by this Common Judgement.

6

C.C.No.07/2014

2. The complainant is a housewife. Her husband booked an apartment bearing no.2062 by paying an amount of Rs.24,46,880/-(Rupees Twenty Four Lakhs Forty Six Thousand Eight Hundred and Eighty only) acknowledged by the 1^stopposite party as per receipt no.PEPL/52844 dated 09.06.2008. After such payment was made, the opposite parties required her husband to enter into two agreements with them, the first being the agreement for sale and the second for the construction of the apartment. Since the complainant's husband and the other prospective buyers had already parted with hefty amounts, they had no option but to accept the terms in the agreement and to sign on the dotted line though the terms thereof were heavily loaded in favour of the builder and against the purchasers. The complainant's husband had raised the amount paid by borrowing from banks and other institutions bearing heavy interest burden. Therefore, he was not in a position to pursue any negotiation with the builders on the terms of the agreement. According to the complainant, the 1^stopposite party had abused his dominant position and imposed arbitrary, unfair and unreasonable conditions on her husband and other allottees of the housing complex. As per the terms of the agreement, the time for completion of 360 apartments was 36 months from 15.12.2006. Therefore, the construction had to be completed and possession had to be handed over on or before 14.12.2009. However, the project was abnormally delayed, according to the complainant, wilfully and deliberately and was finally completed only on 30.10.2012. The serious fall out of the delay was that persons like the complainant and her husband who had paid the total consideration had to

7

bear huge financial losses on the one hand while their hard earned money remained blocked and incapable of being gainfully utilised in any other manner. A perusal of the standard form agreement entered into by the purchasers and the opposite party would reveal the disparity in the clauses that unfairly exempt and wholly exclude the 1^stopposite party from any liability under the agreement while fastening liability for non-performance/delay in performance on the purchaser.

3. Many of the clauses in the agreements signed are therefore disputed by the complainant. The complainant opted for the recovery of the Value Added Tax (VAT) from her since the total consideration agreed to was inclusive of the same. Even if it is assumed that she was liable to pay VAT it was only 3%. The 1^stopposite party was not legally entitled to collect the same since they had chosen the compounding option which prohibited the builder from collecting any VAT from the purchaser. But, in clear violation of the undertaking filed by them before the VAT authorities they collected VAT @4% for the entire sale consideration. In view of the above, according to them a sum of Rs.4,28,400/- (Rupees Four Lakhs Twenty Eight Thousand Four Hundred only) was illegally collected from the complainant on 07.11.2012. Therefore, it is contended by the complainant that the said amount would have to be returned with interest @15% per annum.

4. It is further contended that, an amount of Rs.4,81,006/-(Rupees Four Lakhs Eighty One Thousand and Six only) had been collected from the complainant as service tax. Reliance is placed on circular no.108/02/2009-ST dated 29.01.2009 of the Commissioner, Service Tax CBCE, New Delhi, which

8

provides that, "any service provided by a seller in connection with the construction of a residential complex till the execution of the sale deed would be in the nature of self-service and consequently would not attract service tax". It is contended that the above position continued till July 2010. Had the 1^stopposite party completed and delivered possession within the time agreed to, on 14.12.2009, no service tax would have been payable by her. Only due to the wilful, deliberate and inordinate delay of nearly three years the complainant was made liable to pay service tax. Since she was in no way liable or responsible for the delayed construction and delivery, she is not liable to pay the same. The complainant was forced to pay the same under protest. Therefore, she is entitled to refund of the same with interest thereon @15% per annum from 07.11.2012.

5. Since the date for delivery of the apartment was 14.12.2009 and the actual date of delivery was 07.11.2012, even according to the agreement entered into between the parties the amount that was due from the opposite parties was Rs.7,00,000/-(Rupees Seven Lakhs only). The 1^stopposite party paid only Rs.2,40,000/-(Rupees Two Lakhs Forty Thousand only). According to the complainant she is entitled to interest @15% per annum on the entire sale consideration of Rs.1,34,64,456/-(Rupees One Crore Thirty Four Lakhs Sixty Four Thousand Four Hundred and Fifty Six only). The total amount due to the complainant on the above basis would work out to Rs.71,89,573/-(Rupees Seventy One Lakhs Eighty Nine Thousand Five Hundred and Seventy Three only). It is contended that she does not accept the stipulation in the one sided agreement that the 1^stopposite party was entitled to a grace period of six months

9

over and above the agreed completion period of 36 months or the stipulation that she would be entitled only to an amount of Rs.20,000/-(Rupees Twenty Thousand only) per month for the delay in construction. Therefore, she claims interest @15% per annum on the entire sale consideration of Rs.1,34,64,456/-(Rupees One Crore Thirty Four Lakhs Sixty Four Thousand Four Hundred and Fifty Six only) paid by her husband. Delivery of the flat was given to her only on 07.11.2012. Accordingly, she claims an amount of Rs.79,89,573/-(Rupees Seventy Nine Lakhs Eighty Nine Thousand Five Hundred and Seventy Three only). The complainant takes objection to the cost/charges extracted from her for securing permanent power, water and sanitary connections. For the said purposes, an amount calculated @Rs.100/-sq.ft. had been charged on her. Accordingly, she had paid an amount of Rs.2,14,900/-(Rupees Two Lakhs Fourteen Thousand Nine Hundred only). It is contended that the complainant is legally liable to pay to the 1^stopposite party only the actual cost incurred. Therefore, return of the said amount is claimed with interest thereon @15% per annum. Similarly, an amount of Rs.80,540/-(Rupees Eighty Thousand Five Hundred and Forty only) paid by her as cost of generator is disputed and refund of the said amount with interest @15% per annum is claimed from the 1^stopposite party.

6. In addition, she has claimed an amount of Rs.5,00,000/-(Rupees Five Lakhs only) as compensation for the mental agony and anguish suffered by her because of the inordinate delay in completion of the project as well as loss of money by way of excess payments made to the 1^stopposite party under coercion.

10

The total amount under the above mentioned heads add up to an amount of Rs.86,54,419/-(Rupees Eighty Six Lakhs Fifty Four Thousand Four Hundred and Nineteen only) with interest @15% per annum from the date of complaint till the date of realisation, alleging unfair trade practice.

7. On receipt of notice the opposite parties entered appearance and filed a common version. It is contended that, no specific allegation as to any defect in goods or deficiency in service or unfair trade practice or other similar deficiencies as contemplated in Consumer Protection Act, 1986 (the Act for short) has been made in the complaint. The complaint is essentially filed for compensation and refund of money. The relief claimed is in the nature of a suit for recovery of money simplicitor. Therefore, the complaint is not maintainable before this Commission. Since the entire consideration for purchase of the apartment in this case has been paid by the complainant's husband, there is no privity of contract between the complainant and the opposite parties. Therefore, she is not a consumer under Section 2(d) of the Act. The complainant has purchased an immovable property and therefore has not purchased any goods or availed any service as contemplated by the provisions of the Act.

8. Apart from the above, as per clause 17(c) of the construction agreement any differences or disputes arising between the complainant and the 1^stopposite party are to be referred to a sole arbitrator to be appointed by the 1^st opposite party. The 2^ndand 3^rdopposite parties are only employees of the 1^st opposite party and are not personally liable for the acts and omissions of the company. The 1^stopposite party company is a legal entity having a separate legal

11

existence. The contracts with the complainant were entered into with 1^stopposite party and no contracts have been entered into with the 2^ndand 3^rdopposite parties. There is no provision in the Act that provides for any personal or other liability against the Directors of the company. They are therefore unnecessary parties and the complaint against 2^ndand 3^rdopposite parties are only to be dismissed. The 4^thopposite party the branch office of the 1^stopposite party is also an unnecessary party. The complaint is therefore not maintainable against the said opposite party.

9. The complainant had entered into an agreement for the sale of undivided interest in a land and a construction agreement with the 1^stopposite party company namely "Prestige Estates Projects Pvt. Ltd." which is now a limited company, under the Companies Act, 1956 to purchase an undivided interest in land and for construction of an apartment in Prestige Neptune's Courtyard and one car park.

10. It is true that the 1^stopposite party company had advertised inviting the general public to book apartments in Prestige Neptune's Courtyard.

Accordingly, the complainant's husband booked an apartment bearing no.2062, by paying an advance of Rs.24,46,880/-(Rupees Twenty Four Lakhs Forty Six Thousand Eight Hundred and Eighty only) on 09.06.2008. At that time, the complainant's husband had filled up and signed a booking form based on which the apartment was agreed to be allotted to him. The advance payment, booking of apartment and consequent allotment were all subject to execution of an agreement for purchase of undivided interest in land and construction of apartment, which laid down the terms and conditions of the purchase including

12

the time schedule for payment of balance consideration and delivery of apartments.

11. The complainant's husband had entered into an agreement for sale and construction with the 1^stopposite party company. Both the agreements were signed by the complainant's husband with open eyes after he had read and understood each and every clause, terms and conditions of the said agreement. Therefore, the allegation of the complainant that her husband and other persons were required to give assent to the agreement by signing on the dotted line and that the same was one sided is false and denied. It is also an accepted procedure that in all new apartment purchases a booking is first confirmed in favour of the purchaser on payment of the booking advance. The complainant or the party who books the apartment always had the option to cancel the booking and not to enter into any agreement in which case the booking advance would be refunded. The 1^stopposite party has not coerced or dictated terms to the complainant's husband as alleged. The booking could have been cancelled even after the payment of the advance amount. There is no reason why the 1^stopposite party should have compelled the complainant's husband to pay the advance and enter into an agreement as there were more than enough purchasers for all the apartments in the project. In the instant case the complainant's husband proceeded with the execution of the agreements which lay down the jural relationship between the parties. On execution of the contracts, the complainant's husband became bound by the terms thereof and to pay the consideration for the apartment for which he had to find his own source. In fact, he paid the entire consideration without any

13

demur. The 1^stopposite party has never insisted the complainant or her husband to borrow money from banks or financial institutions or to bear heavy EMI or interest burden. The further allegation that the 1^stopposite party abused its dominant position and imposed heavy arbitrary and unreasonable conditions on the complainant's husband and other allottees of Prestige Neptune's Courtyard

is incorrect, highly defamatory and hence denied. The complainant was never forced to enter into any agreement with the 1^stopposite party. On the contrary, the complainant had voluntarily offered to buy the apartment for consideration upon mutually agreed terms and conditions. Similar agreements were executed by all other allottees and no other person has made any complaint with respect to the same. In any event, even the complainant's husband has never made any such complaints with respect to the same and has accepted the conditions, paid the consideration and has accepted the delivery of the apartment and the sale deed without any complaints whatsoever. The purchaser could have cancelled the contract at any time. By being satisfied with the same and having accepted the apartment, they are estopped from contending otherwise.

12. The expected date of completion for the entire project was 36 months from 15.12.2006 with a grace time of six months without having to pay the purchaser any interest or damages. Therefore, the apartment was supposed to be handed over on 14.12.2009 with a grace period of six months till 14.06.2010 subject to force majeure conditions. However, the project could be completed only on 31.03.2012 due to various adverse conditions like scarcity of raw materials, trade union strikes, hartals, bandhs, ban on sand mining and due to act

14

of God (vis major), due to various other reasons as mentioned under clause 5(b) of the construction agreement which reasons were all beyond the control of the 1^stopposite party. However, there was no wilful or deliberate act on the part of the 1^stopposite party to delay the completion of the project and such averments are made with malafide intentions. There is no reason why the 1^stopposite party should have delayed the construction wilfully and intentionally as any such delay would have caused loss to it. In any event the delay was never expected and was on account of various unforeseen factors. The contract provides for payment of compensation under clause 5(b) for delay in handing over of the apartments and thus all parties have knowingly and wilfully entered into the agreement whereby the compensation for the delayed delivery of the apartment was fixed at Rs.20,000/-(Rupees Twenty Thousand only) per month, subject to the conditions mentioned therein. However, in the case of complainant's husband there was delay in payment of instalments to the company as contemplated in the payment schedule and accordingly the delay in completion of the apartment is also attributable to such non payment or delayed payment of instalments. The completion of the apartment was made at the earliest possible date i.e. by 31.03.2012 and occupancy certificate was also obtained from the Corporation of Cochin. Thereafter, the 1^stopposite party had to get building numbers assigned to each apartment by the Kochi Corporation. There is no wilful or intentional delay as highlighted by the complainant. Considering the huge construction of several apartment complexes undertaken by the opposite parties in the Neptune's Courtyard there occurred a negligible delay in delivering the apartment to the

15

complainants due to reasons mentioned above that were beyond the control of the 1^stopposite party.

13. The 1^stopposite party herein was at every stage of construction exposed to various unforeseen and unexpected situations like a. Truck strike

b. Acute shortage of sand due to government restriction on sandmining c. Acute shortage of skilled and unskilled labour d. Innumerable regular hartals, bandhs and strikes These were the reasons that caused delay in construction of the apartments in addition to the substantial increase in cost for acquiring construction materials and other raw materials. Such situations were all beyond the control of the opposite parties and they fall under the exceptions stipulated by clause 5(b) of the construction agreement. Hence, the complainant is not entitled to any damages over and above what has been given to and accepted by them. An amount of Rs.2,40,000/- for twelve months delay was paid to the complainant's husband and other similar allottees and all of them accepted the amounts. Complainant is not entitled to claim compensation for such period of delay due to unforeseen reasons that are exempted as per the agreement. Apart from the above the delay in delivery was also caused due to non payment and delayed payment of consideration in instalments as stipulated by the payment schedule agreed upon by the complainant and other allottees.

14. Though there was no wilful, deliberate or negligent act on the part of the opposite parties in causing the delay they paid an amount of Rs.2,40,000/-

16

for the delay, calculated @Rs.20,000/-(Rupees Twenty Thousand only). Subsequent to payment of the said amounts, the opposite parties proceeded to register the apartment in the name of allottees. The same was not objected to by the complainant and the amount paid was accepted towards full and final satisfaction, without any objection. The complainant is therefore estopped from claiming any further amount under the said head. The complainant has not suffered any injury on account of the delay in completion of the construction.

15. The complainant was bound to pay VAT as this was in addition to what was agreed to be paid to the 1^stopposite party under clause 2(b) of the agreement. The same was collected at the rate applicable and paid to the authorities. The averment that the builder who opts for compounding is not entitled to collect the same from the purchaser is incorrect as there is no such prohibition. Therefore, the complainant is not entitled to claim refund of the VAT paid.

16. Similarly, service tax at the rate applicable was collected from the husband of the complainant. The circular dated 21.01.2009 relied upon by the complainant has no applicability to this case. All builders are liable to pay service tax and this is to be collected from the allottees.

17. The delay in execution of the sale deed was because of the delay on the part of the complainant's husband in paying the balance consideration. He paid the balance consideration only on 05.11.2012. Thereafter the sale deed was executed on 07.11.2012 after payment for purchase of necessary stamp papers was also made. The complainant is not entitled to the illegal claim of

17

Rs.79,81,573/-(Rupees Seventy Nine Lakhs Eighty One Thousand Five Hundred and Seventy Three only) or any other amounts. The agreement provides for liquidated damages and after having accepted the same, the complainant cannot make any further claim for compensation.

18. The apartment owners are liable to pay for the cost of the standby generator. In this case the standby generator was for the entire apartment complex and is a facility provided only by the 1^stopposite party. The cost for the same has to be paid by the apartment owners. The complainant's husband had paid the said amount without any objection and taken delivery of the apartment. Therefore, the complainant is not entitled for the refund of the said amount.

19. The complainant has no cause of action to file the present complaint. She is not entitled to any of the reliefs claimed. The opposite parties therefore sought for dismissal of the complaint.

20. Both parties adduced evidence on the above contentions. Exhibits A1 to A9 documents have been marked on the side of the complainants. On the side of the opposite parties, Exhibits B1 to B16 documents have been marked. PW1 Power of Attorney Holder of the complainant has been examined as a witness. For the opposite parties DW1 who is the Vice President of the opposite party has tendered evidence.

C.C.No.08/2014

21. C.C.No.08/2014 has been filed putting forward identical contentions as in C.C.No.07/2014. The version also contains identical contentions as in C.C.No.07/2014. Therefore, in order to avoid repetition, they are not reproduced

18

here. The evidence in this case consists of Exhibits A1 to A18 documents and the oral evidence of PW1 on the side of the complainant and Exhibits B1 to B20 documents and the oral evidence of DW1 on the side of the opposite parties.

C.C.No.09/2014

22. This is another complaint filed for similar reliefs. The contentions are responded to by the opposite parties putting forward similar contentions as in the earlier complaints. Both sides have adduced evidence. Exhibits A1 to A14 documents are marked on the side of the complainant and Exhibits B1 to B23 documents are marked on the side of the opposite parties. PW1 has tendered evidence for the complainant and DW1 for the opposite parties.

C.C.No.10/2014

23. In this case also the pleadings are identical. The evidence consists of A1 to A12 documents on the side of the complainant and B1 to B48 documents marked for the defence. The oral evidence consists of the testimonies of PW1 and DW1.

C.C.No.11/2014

24. Exhibits A1 to A12 documents have been marked on the side of the complainant and Exhibits B1 to B22 documents have been marked by the opposite parties. The oral evidence consists of the testimonies of PW1 and DW1.

C.C.No.53/2015

25. In this case, Exhibits A1 to A28 documents have been marked by the complainant. Exhibits B1 to B22 documents have been marked on the side

19

of opposite parties. The oral evidence consists of the testimonies of PW1 and

DW1.

26. After the close of evidence, counsel on both sides were heard. Elaborate arguments have been put forward by both sides. After hearing arguments, judgement was reserved.

The following points arise for consideration:

(i) Whether the complaint is maintainable?

(ii) Whether there is any deficiency in service on the part of the opposite parties as alleged in the complaint?

(iii) Whether the complainant is entitled to the compensation claimed in the complaint?

(iv) Reliefs and costs?

Point No.(i)

27. According to the opposite parties, the complainant in these cases are not persons coming within the definition of consumer under the Act. They are persons who have purchased the apartments for commercial purpose. It is contended that the person who has been examined as PW1 is a chartered accountant. His wife, son, his brother-in-law and wife and friends are the other complainants. Though 360 apartments have been sold as part of the project, no complaints have been put forward by any of the other complainants except these six persons. Among them, the son of the complainant who has filed C.C.No.07/2014 has already sold his apartment for a handsome price. The others have let out the apartments to tenants and are earning profits. PW1 has admitted

20

in his cross examination that the apartments were purchased as an investment and for profit. In view of all the above circumstances, it is contended that the complainants are all persons who were pursuing a commercial venture.

28. However, the complainants respond by saying that the sale of the apartment of the son was to meet a domestic emergency and that, their intention is and has been to occupy the apartments purchased for their residences.

29. Having considered their respective contentions, we are not satisfied that purchase of apartments by the complainants in these cases could be characterised as a commercial venture. Though it is true that the apartments have been given on rent by them to earn a steady income, the fact remains that the complainants are all persons engaged in other professions or avocations earning income. Their action in investing their earnings in the purchase of residential apartments cannot be characterised as engaging in a commercial adventure or business. In the above view of the matter, we hold that the complaints are all maintainable.

30. On behalf of the complainants, the respective counsel have sought for the grant of interest on the amounts paid by them as price of the apartment purchased for the period of delay in completing the construction. The complainants objected to the collection of Value Added Tax (VAT) by the opposite parties. They have also raised objections to the collection of the service tax. According to them service tax was not payable by them up to July 2010. Had the opposite parties completed the construction and delivered possession as agreed on 14.12.2014 no service tax would have been payable by the

21

complainant. Therefore, they have sought for recovery of the amount paid by them as service tax also from the opposite parties. They have also demanded return of the amounts paid to the KSEB and the amount incurred by the builder for installing a generator in the complex. The opposite parties have produced documents to show that they have paid VAT and service tax. But the documents are objected to contending that, they do not specifically show payments in respect of the project under dispute here and that, the payment reflects the tax assessed on them for the entire organisation.

31. It cannot be disputed that payment of tax, whether it is VAT or service tax, is obligated by law and it is not in the hands of the opposite parties to waive such payments. In these proceedings there is nothing to show that the builder had not paid the amounts recovered from the consumers as tax, to the concerned authorities. Therefore, we are not satisfied that the complainants in these cases are entitled to claim refund of the amounts paid as VAT and service tax.

32. In so far as the amount charged for the purchase of the generator is concerned, we are of the firm view that the generator has been installed for the general convenience of all the occupants of the apartment complex. The same is a facility that is necessary for maintaining continuous supply of power in the apartment complex, especially keeping in view the fact that the same is comprised of multi-storied towers where the facility of a lift is indispensable. Therefore, recovery of the amount for the purchase of generator from the complainant cannot be found fault with. Nobody has a case before us that any excess amount had

22

been collected for the purchase of generator or that the amount collected had not been utilised for the purchase of the generator. Therefore, the claim of the complainants on the said count also is rejected.

Point No.(ii) & (iii)

33. The contention that was vigorously put forward and pursued by the complainants was that, there was inordinate delay in completion of the project, that the delay has caused serious loss, hardships and mental agony to them and that the conduct of the opposite parties constitutes gross deficiency in service. It is not in dispute that, as per the agreement between the complainant and the opposite parties, the construction had to be completed and possession had to be handed over on or before 14.12.2009. The complainants had raised the amounts required for the purchase of the apartment through banks and other financial institutions paying high rates of interest. Therefore, the delay in completion of the project had caused substantial monetary loss and had caused a lot of hardships to them. The project was abnormally delayed and was finally completed on

13.10.2012.

34. According to the opposite parties, the delay in completion of the project had been caused due to various problems that they had to encounter during the execution of the project. According to them, there was scarcity of raw materials, skilled labour and various other construction materials. Such factors were all unforeseen by the parties. The progress of the work was hampered by events like truck strike, acute shortage of sand due to the government restrictions. Innumerable hartals were a regular feature at that time. Bandhs and strikes also

23

affected the steady progress of the construction. It was to take care of the said eventualities that a grace period of six months was granted to the opposite parties in the agreement. For the delay beyond the said period, a provision to pay compensation @Rs.20,000/-(Rupees Twenty Thousand only) per month was also provided. In accordance with the above provision, the opposite parties had paid compensation at the stipulated rate to the purchasers, including the complainants. They had received the said amount without any objection. Therefore, it is contended that they are not entitled to claim any further amount for the delay in completing the construction.

35. The counsel appearing for the complainants responds to the above contentions pointing out that the amount provided in the agreement as compensation for the delay was too meagre. The agreement itself was a one sided agreement drafted by the opposite parties. There was no equal platform for the parties to negotiate or settle any of the terms. The purchasers ultimately had to sign on the dotted line. Therefore, it is contended that, payment of the amount provided by the agreement would not absolve the opposite parties of the liability for the delay caused. According to them, proper compensation is necessary to be fixed, outside the terms of the agreement. Reliance is placed on the decision of the Apex Court in Wg. Cdr. Arifur Rahman Khan & Aleya Sultana & Ors. Vs. DLF Southern Homes Pvt. Ltd. (2020) 16 SCC 512 = 2020 KHC 6499 to contend that failure to deliver possession of apartments as stipulated in the agreement would constitute deficiency in service and unfair trade practice. Therefore, in each of these cases the complainants claim interest on the amount

24

of sale consideration paid by them for the period of delay. In order to consider the above claim, it is first necessary to examine the clauses in the construction agreement entered into between the complainant and the opposite parties and to ascertain whether the clauses are loaded in favour of the builder or not, as alleged. The construction agreements in all these cases are identical and clause 2 deals with:

2) cost of construction, taxes and payment

(a) The cost of construction of Schedule 'C' Apartment is as stipulated in the Annexure II hereto, which shall be paid by the First Party to the Second Party on or before the stipulated dates mentioned therein. The payment on due dates being the essence of this contract as non payment would result in delay in construction. All payments as per the schedule shall be made by the First Party without there being any necessity of any demand as and when it is due.

(b) The First Party shall also be liable to pay value added tax and service tax and all other taxes applicable on this Agreement and as may be levied by the State/Central Government from time to time including contribution to the construction workers or labour welfare fund as applicable.

(c) In the event of delay/default by the First Party in payment the cost of construction and taxes as detailed in the Annexure II the Second Party shall be entitled to terminate this Agreement

25

by issuing a notice calling upon the First Party to pay the arrears of amounts due within 15(fifteen) days from the date of receipt of such notice and if the First Party fails to pay the arrears, this Agreement shall be deemed to have been terminated after forfeiture of 15% of cost of construction stipulated herein as liquidated damages.

(d) In the event of termination as aforesaid, the Second Party shall be entitled to recover from the First Party 15% of the total cost of construction reserved herein as liquidated damages by adjusting the same against the amounts already paid by the First Party till the date of termination and refund the balance, if any, within thirty days from the date of resale of Schedule 'B' Property and Schedule 'C' Apartment. On such termination the Agreement to Sell entered into between the parties hereto and Land Owners stand terminated automatically without further notice to the First Party.

(e) In case of violation of the terms in the Agreement to Sell by the First Party the terms in this Agreement shall be deemed to have been violated and hence stand terminated automatically without notice and consequences of termination as detailed in the said Agreement will be applicable.

(f) Upon termination of this Agreement the First Party shall not have any claims over the Schedule 'B' Property and Schedule

26

'C' Apartment. The Second Party shall be entitled to deal with the Schedule 'B' Property and Schedule 'C' Apartment as it may deem fit for their benefit without reference to First Party.

The delivery of possession is stated under clause 5 as follows:

(a) The construction of the Schedule 'C' Property will be completed in all respects as per the agreed Specifications and possession of the Schedule 'C' Apartment will be delivered by the Second Party to the Owners/s after completion of construction within 36 months from 15.12.2006, with a grace time of an additional six months in case of delay without having to pay to the First Party any interest or damages. Though every effort will be made to obtain electrical, water and sanitary connections within the stipulated time, no responsibility will be accepted by the Second Party for delays' in obtaining such connections, clearances, certificates from the statutory bodies/authorities and First Party shall not be entitled to claim any damage/losses/interest against the Second Party on the ground of such delay, provided there is no delay on the part of the Second Party in applying for the above and the Second Party has complied with all the legal requirement for getting the same.

(c) The Second Party hereby agrees that they are liable to pay to the First Party damages at the rate of Rs.20,000/- per month for any delay in delivery of possession of the Schedule 'C' Apartment, not

27

attributable to any of the reasons stated above, even after the lapse of the grace time.

36. It is not in dispute that though the construction was agreed to be completed within 36 months from 15.12.2006, i.e. on or before 14.12.2009 the project was delayed and was finally completed on 13.12.2012. It is not in dispute that the entire sale consideration has been paid by the complainants in accordance with the schedule appended to the agreement. The total cost so paid is stated to be 68,22,074/-(Rupees Sixty Eight Lakhs Twenty Two Thousand and Seventy Four only) as far as the complainant in C.C.No.08/14 is concerned. There does not appear to be any dispute among the parties regarding the actual amounts paid. Though it is contended that the amounts were raised through banks and other financial institutions at high rates of interest details regarding the amounts so raised or the interest paid are not furnished.

37. The opposite parties have raised a contention that there had been defaults on the part of the complainants also. But there is no evidence regarding the said contention. Admittedly, no action was taken by the opposite parties with respect to such alleged delays on the part of the complainants. Therefore, it is not necessary for us to consider the said contentions at any length. The fact that there was delay in completion of the construction is admitted by the opposite parties. Since they have already paid compensation of the rate stipulated in the agreement, it is also not open to them to contend that the delay was caused due to factors beyond their control. In Wg. Cdr. Arifur Rahman Khan & Aleya Sultana & Ors. Vs. DLF Southern Homes Pvt. Ltd. (supra) it has been held that failure to

28

deliver possession of apartments as stipulated in the agreement would constitute deficiency in service and unfair trade practice. It has also been held that Consumer Courts have powers to award compensation in its terms, but not considering the rate of compensation prescribed in the agreement. Considering a similar stipulation as in the construction agreements in these cases, in the matter of compensating the consumer and the developer it has been held that such clauses should not be construed to limit the claim of a consumer for compensation. The Court has summarised the entire issue in paragraph 31 of the judgement which reads as follows:

31. The failure of the developer to hand over possession within the contractually stipulated period amounts to a deficiency of service within the meaning of Section 2 (1) (g), warranting the invocation of the jurisdiction vested in the NCDRC to issue a direction for the removal of the deficiency in service;

(iii) The triggering of an obligation to pay compensation on the existence of delay in handing over possession is admitted by the developer for, even according to it, it has adjusted compensation at the agreed rate of Rs 5 per square foot per month to 145 out of the 171 appellants;

(iv) The agreement is manifestly one-sided: the rights provided to the developer for a default on the part of the home buyer are not placed on an equal platform with the contractual right provided to the home buyer in the case of a default by the developer;

29

(v) There has been a gross delay on the part of the developer in completing construction ranging between two and four years. Despite successive extensions of time to deliver possession sought by the developer, possession was not delivered on time;

(vi) The nature and quantum of the delay on the part of the developer are of such a nature that the measure of compensation which is provided in clause 14 of the ABA would not provide sufficient recompense to the purchasers; and

(vii) Judicial notice ought to be taken of the fact that a flat purchaser who is left in the lurch as a result of the failure of the developer to provide possession within the contractually stipulated date suffers consequences in terms of agony and hardship, not the least of which is financial in nature. Having paid a substantial amount of the purchase price to the developer and being required to service the debt towards loan installments the purchaser is unable to obtain timely possession of the flat which is the subject matter of the ABA.

But, it has been submitted by the developer - a submission which found acceptance by the NCDRC - that the execution of the Deed of Conveyance by a flat purchaser precludes a consumer claim being raised for delayed possession. During the course of the proceedings before the NCDRC, the flat purchasers relied upon the communications which were issued by the developer to demonstrate that the purchasers were not permitted by the developer to execute a Deed of Conveyance

30

or to take possession under protest. The material which was produced before the NCDRC supports this submission, which was urged before the Court by Mr Prashant Bhushan, learned Counsel. By a communication dated 16 February 2016, the developer informed a flat buyer that in terms of the ABA, the allottee is required to take possession of the apartment by making payments and executing documentation after the developer has obtained a certificate for occupation from the competent authority and has offered possession of the apartment to the allottee. The developer stated:

"We may also like to bring to your notice, that if the acceptance of offer of possession terms is being conveyed by the allottee under protest the Company will not be in a position to hand over the possession and execute the Conveyance Deed and as such your request to take over the possession and execute the documents under protest is untenable."

38. In view of the above authoritative pronouncement of the law by the Apex Court, it is held that in these cases also there has been deficiency in service on the part of the opposite parties. Therefore, the complainants are entitled to claim compensation for the delay in construction. Though the opposite parties have a case that the delay was caused due to forces beyond their control and force majeure conditions, absolutely no evidence has been adduced by them in support of the said contention of theirs. As per the agreements, the apartments ought to have been delivered on or before 14.12.2009. Even if the grace period of six months stipulated by the agreement is added on, it was necessary for the

31

apartments to have been handed over on or before 14.05.2010. However, the apartment was finally delivered only on 30.10.2012 accepting that the delay was not attributable to any of the extenuating factors mentioned in the agreement, they have also paid compensation for the delay at a lesser rate. Therefore, the complainant shall be entitled to claim interest on the amounts paid by them for the period from 14.05.2010 to 30.10.2012. The opposite parties shall be entitled to deduct the amounts already paid by them as compensation for the delay in construction @Rs.20,000/-(Rupees as specified in the agreement, from the amount of interest that we are ordering hereunder:

All the complainants are therefore entitled to succeed on the terms indicated above. In the result, C.C.No.07/2014 is ordered as follows:

(a) The opposite parties are directed to pay to the complainants interest @8% per annum on the amount of Rs.1,20,33,760/-(Rupees One Crore Twenty Lakhs Thirty Three Thousand Seven Hundred and Sixty only) for the period from 14.05.2010 to 30.10.2012, within a period of one month from the date of receipt of a copy of this judgement;

(b) The opposite parties are directed to pay an amount of Rs.2,50,000/-(Rupees Two Lakhs Fifty Thousand only) to the complainants as compensation for the mental agony, hardships and losses caused to them due to the delay in completion of the construction as agreed in Exhibit A2, within a period of one month from the date of receipt of a copy of this judgement;

32

(c) The opposite parties are also directed to pay to the complainant an amount of Rs.50,000/-(Rupees Fifty Thousand only) as costs of this litigation within a period of one month;

(d) If the amounts in (a) and (b) are not paid within a period one month from the date of receipt of a copy of this judgement, the amounts shall carry interest @9% per annum.

C.C.No.08/2014 is ordered as follows:

(a) The opposite parties are directed to pay to the complainants interest @8% per annum on the amount of Rs.97,80,575/-(Rupees Ninety Seven Lakhs Eighty Thousand Five Hundred and Seventy Five only) for the period from 14.05.2010 to 30.10.2012, within a period of one month from the date of receipt of a copy of this judgement;

(b) The opposite parties are directed to pay an amount of Rs.2,50,000/-(Rupees Two Lakhs Fifty Thousand only) to the complainants as compensation for the mental agony, hardships and losses caused to them due to the delay in completion of the construction as agreed in Exhibit A4, within a period of one month from the date of receipt of a copy of this judgement;

(c) The opposite parties are also directed to pay to the complainant an amount of Rs.50,000/-(Rupees Fifty Thousand only) as costs of this litigation within a period of one month;

(d) If the amounts in (a) and (b) are not paid within a period one month from the date of receipt of a copy of this judgement, the amounts shall carry interest @9% per annum.

33

C.C.No.09/2014 is ordered as follows:

(a) The opposite parties are directed to pay to the complainants interest @8% per annum on the amount of Rs.99,29,733/-(Rupees Ninety Nine Lakhs Twenty Nine Thousand Seven Hundred and Thirty Three only) for the period from 14.05.2010 to 30.10.2012, within a period of one month from the date of receipt of a copy of this judgement;

(b) The opposite parties are directed to pay an amount of Rs.2,50,000/-(Rupees Two Lakhs Fifty Thousand only) to the complainants as compensation for the mental agony, hardships and losses caused to them due to the delay in completion of the construction as agreed in Exhibit A5, within a period of one month from the date of receipt of a copy of this judgement;

(c) The opposite parties are also directed to pay to the complainant an amount of Rs.50,000/-(Rupees Fifty Thousand only) as costs of this litigation within a period of one month;

(d) If the amounts in (a) and (b) are not paid within a period one month from the date of receipt of a copy of this judgement, the amounts shall carry interest @9% per annum.

C.C.No.10/2014 is ordered as follows:

(a) The opposite parties are directed to pay to the complainants interest @8% per annum on the amount of Rs.87,91,978/-(Rupees Eighty Seven Lakhs Ninety One Thousand Nine Hundred and Seventy Eight only) for the period from 14.05.2010 to 30.10.2012, within a period of one month from the date of receipt of a copy of this judgement;

34

(b) The opposite parties are directed to pay an amount of Rs.2,50,000/-(Rupees Two Lakhs Fifty Thousand only) to the complainants as compensation for the mental agony, hardships and losses caused to them due to the delay in completion of the construction as agreed in Exhibit A2, within a period of one month from the date of receipt of a copy of this judgement;

(c) The opposite parties are also directed to pay to the complainant an amount of Rs.50,000/-(Rupees Fifty Thousand only) as costs of this litigation within a period of one month;

(d) If the amounts in (a) and (b) are not paid within a period one month from the date of receipt of a copy of this judgement, the amounts shall carry interest @9% per annum.

C.C.No.11/2014 is ordered as follows:

(a) The opposite parties are directed to pay to the complainants interest @8% per annum on the amount of Rs.1,05,29,600/-(Rupees One Crore Five Lakhs Twenty Nine Thousand Six Hundred only) for the period from 14.05.2010 to 30.10.2012, within a period of one month from the date of receipt of a copy of this judgement;

(b) The opposite parties are directed to pay an amount of Rs.2,50,000/-(Rupees Two Lakhs Fifty Thousand only) to the complainants as compensation for the mental agony, hardships and losses caused to them due to the delay in completion of the construction as agreed in Exhibit A5, within a period of one month from the date of receipt of a copy of this judgement;

35

(c) The opposite parties are also directed to pay to the complainant an amount of Rs.50,000/-(Rupees Fifty Thousand only) as costs of this litigation within a period of one month;

(d) If the amounts in (a) and (b) are not paid within a period one month from the date of receipt of a copy of this judgement, the amounts shall carry interest @9% per annum.

C.C.No.53/2015 is ordered as follows:

(a) The opposite parties are directed to pay to the complainants interest @8% per annum on the amount of Rs.73,93,440/-(Rupees Seventy Three Lakhs Ninety Three Thousand Four Hundred and Forty only) for the period from 14.05.2010 to 30.10.2012, within a period of one month from the date of receipt of a copy of this judgement;

(b) The opposite parties are directed to pay an amount of Rs.2,50,000/-(Rupees Two Lakhs Fifty Thousand only) to the complainants as compensation for the mental agony, hardships and losses caused to them due to the delay in completion of the construction as agreed in Exhibit A7, within a period of one month from the date of receipt of a copy of this judgement;

(c) The opposite parties are also directed to pay to the complainant and amount of Rs.50,000/-(Rupees Fifty Thousand only) as costs of this litigation within a period of one month;

(d) If the amounts in (a) and (b) are not paid within a period one month from the date of receipt of a copy of this judgement, the amounts shall carry interest @9% per annum.

36

Dictated to my Confidential Assistant, transcribed by her, corrected by me and pronounced in the Open Court, this the 2^ndday of September, 2024.

JUSTICE K. SURENDRA MOHAN : PRESIDENT

K.R. RADHAKRISHNAN : MEMBER

SL

37

C.C.No.07/2014

APPENDIX

I. COMPLAINANT'S WITNESS

PW1 - Jojy Issac

II. COMPLAINANT'S DOCUMENTS

A1 - Copy of the receipt dated 09.06.2008 A2 - Copy of the construction agreement & agreement for sale dated

23.06.2008

A3 - Copy of the sale deed A4 - Copy of the statement of accounts issued to the 1^stopposite party A5 - Copy of exemption notification for service tax by Ministry of Finance A6 - Copy of lawyer notice issued to the opposite parties dated 22.10.2013 A7 - Copy of the A/D card for receipt of lawyer notice issued to the 1^st opposite party dated 25.10.2013

A8 - Copy of the A/D card for receipt of lawyer notice issued to the 2^nd opposite party dated 25.10.2013

A9 - Copy of the A/D card for receipt of lawyer notice issued to the 3^rd opposite party dated 25.10.2013

III. OPPOSITE PARTY'S WITNESS

DW1 - Thankachan Thomas V.

IV. OPPOSITE PARTY'S DOCUMENTS

B1 - Copy of the booking form submitted to the 1^stopposite party B2 - Copy of cheque dated 04.06.2008 issued to the 1^stopposite party B3 - Copy of cheque dated 15.06.2008 issued to the 1^stopposite party B4 - Copy of cheque dated 30.07.2008 issued to the 1^stopposite party B5 - Copy of cheque dated 15.08.2008 issued to the 1^stopposite party B6 - Copy of cheque dated 15.10.2008 issued to the 1^stopposite party B7 - Copy of cheque dated 15.12.2008 issued to the 1^stopposite party B8 - Copy of cheque dated 15.02.2009 issued to the 1^stopposite party B9 - Copy of cheque dated 15.04.2009 issued to the 1^stopposite party B10 - Copy of cheque dated 15.06.2009 issued to the 1^stopposite party B11 - Copy of cheque dated 15.08.2009 issued to the 1^stopposite party B12 - Copy of cheque dated 11.06.2012 issued to the 1^stopposite party B13 - Copy of cheque dated 16.10.2012 issued to the 1^stopposite party B14 - Copy of cheque dated 16.10.2012 issued to the 1^stopposite party B15 - Copy of cheque dated 01.11.2012 issued to the 1^stopposite party B16 - Copy of statement of accounts as on 05.12.2014

38

V. COURT EXHIBITS

^NIL

C.C.No.08/2014

APPENDIX

I. COMPLAINANT'S WITNESS

PW1 - Jojy Issac

II. COMPLAINANT'S DOCUMENTS

A1 - Copy of receipt dated 16.10.2006 A2 - Copy of receipt dated 15.11.2006 A3 - Original receipt dated 16.12.2006 A4 - Copy of construction agreement dated 11.01.2007 A5 - Letter dated 11.06.2012 for proof of non-completion of project A6 - Copy of sale deed dated 30.10.2012

A7 - Copy of statement of accounts as on 04.10.2012 A8 - Copy of exemption notification for service tax dated 29.01.2009 A9 - Copy of e-mail dated 04.10.2012 showing statement of accounts A10 - Copy of e-mail dated 12.10.2012 showing statement of accounts A11 - Copy of e-mail dated 12.10.2010 showing statement of accounts A12 - Copy of e-mail of extract of Kerala Finance Bill dated 18.10.2012 A13 - Copy of e-mail for balance payment dated 20.10.2012 A14 - Copy of e-mail regarding possession of apartments dated 31.12.2012 A15 - Copy of lawyer notice to all opposite parties dated 30.09.2013 A16 - Copy of the A/D card for receipt of lawyer notice issued to the 1^st opposite party dated 05.10.2013

A17 - Copy of the A/D card for receipt of lawyer notice issued to the 2^nd opposite party dated 30.09.2013

A18 - Copy of the A/D card for receipt of lawyer notice issued to the 3^rd opposite party dated 30.09.2013

III. OPPOSITE PARTY'S WITNESS

DW1 - Thankachan Thomas V.

IV. OPPOSITE PARTY'S DOCUMENTS

B1 - Copy of booking form dated 28.08.2006 B2 - Copy of cheque dated 10.11.2006 issued to the 1^stopposite party B3 - Copy of cheque dated 15.12.2006 issued to the 1^stopposite party B4 - Copy of cheque dated 15.02.2007 issued to the 1^stopposite party B5 - Copy of cheque dated 15.04.2007 issued to the 1^stopposite party B6 - Copy of cheque dated 24.05.2007 issued to the 1^stopposite party

39

B7 - Copy of cheque dated 16.08.2007 issued to the 1^stopposite party B8 - Copy of cheque dated 15.10.2007 issued to the 1^stopposite party B9 - Copy of cheque dated 14.12.2007 issued to the 1^stopposite party B10 - Copy of cheque dated 15.02.2008 issued to the 1^stopposite party B11 - Copy of cheque dated 17.04.2008 issued to the 1^stopposite party B12 - Copy of cheque dated 16.06.2008 issued to the 1^stopposite party B13 - Copy of cheque dated 18.08.2008 issued to the 1^stopposite party B14 - Copy of cheque dated 15.10.2008 issued to the 1^stopposite party B15 - Copy of cheque dated 15.12.2008 issued to the 1^stopposite party B16 - Copy of cheque dated 10.03.2009 issued to the 1^stopposite party B17 - Copy of letter dated 11.06.2012 issued by the 1^stopposite party B18 - Copy of occupancy certificate issued by the Corporation of Cochin dated 31.03.2012

B19 - Copy of cheque dated 19.10.2012 issued to the 1^stopposite party B20 - Copy of cheque dated 19.10.2012 issued to the 1^stopposite party B21 - Copy of cheque dated 20.10.2012 issued to the 1^stopposite party B22 - Copy of cheque dated 10.04.2013 issued to the 1^stopposite party B23 - Copy of D.D. dated 30.04.2013 issued to the 1^stopposite party B24 - Copy of statement of accounts as on 05.12.2014

V. COURT EXHIBITS

^NIL

C.C.No.09/2014

APPENDIX

I. COMPLAINANT'S WITNESS

PW1 - Jojy Issac

II. COMPLAINANT'S DOCUMENTS

A1 - Additional list of documents dated 05.09.2018 A2 - Original receipt dated 16.02.2007 A3 - Original receipt dated 16.02.2007 A4 - Copy of construction agreement and agreement for sale A5 - Copy of agreement for sale

A6 - Copy of receipt dated 20.09.2012

A7 - Copy of sale deed dated 26.09.2012

A8 - Copy of statement of accounts as on 19.01.2013 A9 - Copy of exemption notification for service tax by Ministry of Finance A10 - Copy of lawyer notice to all opposite parties dated 30.09.2013

40

A11 - Copy of A/D card for receipt of lawyer notice dated 05.10.2013 by 1^stOP A12 - Copy of A/D card for receipt of lawyer notice dated 05.10.2013 by 2^ndOP A13 - Copy of A/D card for receipt of lawyer notice dated 05.10.2013 by 3^rdOP

III. OPPOSITE PARTY'S WITNESS

DW1 - Thankachan Thomas V.

IV. OPPOSITE PARTY'S DOCUMENTS

B1 - Copy of the booking form dated 06.02.2007 B2 - Copy of cheque dated 12.02.2007 issued to the 1^stopposite party B3 - Copy of cheque dated 12.02.2007 issued to the 1^stopposite party B4 - Copy of cheque dated 12.02.2007 issued to the 1^stopposite party B5 - Copy of cheque dated 14.02.2007 issued to the 1^stopposite party B6 - Copy of cheque dated 15.02.2007 issued to the 1^stopposite party B7 - Copy of cheque dated 15.04.2007 issued to the 1^stopposite party B8 - Copy of cheque dated 15.06.2007 issued to the 1^stopposite party B9 - Copy of cheque dated 15.08.2007 issued to the 1^stopposite party B10 - Copy of cheque dated 15.10.2007 issued to the 1^stopposite party B11 - Copy of cheque dated 15.12.2007 issued to the 1^stopposite party B12 - Copy of cheque dated 15.02.2008 issued to the 1^stopposite party B13 - Copy of cheque dated 15.04.2008 issued to the 1^stopposite party B14 - Copy of cheque dated 15.06.2008 issued to the 1^stopposite party B15 - Copy of cheque dated 15.08.2008 issued to the 1^stopposite party B16 - Copy of cheque dated 15.10.2008 issued to the 1^stopposite party B17 - Copy of cheque dated 15.12.2008 issued to the 1^stopposite party B18 - Copy of cheque dated 15.02.2009 issued to the 1^stopposite party B19 - Copy of cheque dated 15.04.2009 issued to the 1^stopposite party B20 - Copy of cheque dated 15.06.2009 issued to the 1^stopposite party B21 - Copy of letter received from the 1^stopposite party dated 07.06.2012 B22 - Copy of sale deed dated 26.09.2012 executed by the 1^stopposite party B23 - Copy of statement of accounts as on 05.08.2015

V. COURT EXHIBITS

^NIL

C.C.No.10/2014

APPENDIX

I. COMPLAINANT'S WITNESS

PW1 - Jojy Issac

41

II. COMPLAINANT'S DOCUMENTS

A1 - Copy of power of attorney dated 09.07.2016 A2 - Copy of construction agreement dated 22.12.2006 A3 - Copy of agreement for sale dated 05.09.2019 A4 - Copy of sale deed dated 16.12.2006 A5 - Copy of statement of accounts as on 01.02.2013 A6 - Copy of exemption notification for service tax dated 29.01.2009 A7 - Copy of lawyer notice dated 30.09.2013

A8 - Copy of A/D card for receipt of lawyer notice dated 05.10.20131^stOP A9 - Copy of A/D card for receipt of lawyer notice dated 05.10.2013by 2^ndOP A10 - Copy of A/D card for receipt of lawyer notice dated 05.10.2013 by 3^rdOP A11 - Copy of application filed under the provisions of RTI A12 - Copy of reply to Exhibit A11 application by the VAT Authority

III. OPPOSITE PARTY'S WITNESS

DW1 - Thankachan Thomas V.

IV. OPPOSITE PARTY'S DOCUMENTS

B1 - Copy of the booking form B2 - Copy of letter dated 31.10.2006 issued by the 1^stOP B3 - Copy of e-mail dated 28.11.2006 issued by the 1^stOP B4 - Copy of the letter dated 14.12.2006 issued by the 1^stOP B5 - Copy of e-mail dated 15.12.2006 issued by the 1^stOP B6 - Copy of cheque dated 16.12.2006 issued to the 1^stopposite party B7 - Copy of cheque dated 15.12.2006 issued to the 1^stopposite party B8 - Copy of agreement of sale dated 22.12.2006 B9 - Copy of e-mail dated 02.04.2007 issued by the 1^stOP B10 - Copy of e-mail dated 07.04.2007 issued by the 1^stOP B11 - Copy of e-mail dated 09.04.2007 issued by the 1^stOP B12 - Copy of e-mail dated 26.04.2007 issued by the 1^stOP B13 - Copy of e-mail dated 10.05.2007 issued by the 1^stOP B14 - Copy of e-mail dated 15.05.2007 issued by the 1^stOP B15 - Copy of cheque dated 25.06.2007 issued to the 1^stopposite party B16 - Copy of cheque dated 16.08.2007 issued to the 1^stopposite party B17 - Copy of letter dated 31.08.2007 issued by the 1^stOP B18 - Copy of cheque dated 15.10.2007 issued to the 1^stopposite party B19 - Copy of cheque dated 14.12.2007 issued to the 1^stopposite party B20 - Copy of cheque dated 15.02.2008 issued to the 1^stopposite party B21 - Copy of e-mail dated 09.05.2008 issued by the 1^stOP

42

B22 - Copy of cheque dated 26.05.2008 issued to the 1^stopposite party B23 - Copy of cheque dated 16.06.2008 issued to the 1^stopposite party B24 - Copy of cheque dated 08.09.2008 issued to the 1^stopposite party B25 - Copy of cheque dated 07.10.2008 issued to the 1^stopposite party B26 - Copy of cheque dated 07.01.2009 issued to the 1^stopposite party B27 - Copy of cheque dated 05.02.2009 issued to the 1^stopposite party B28 - Copy of cheque dated 05.03.2009 issued to the 1^stopposite party B29 - Copy of cheque dated 01.05.2009 issued to the 1^stopposite party B30 - Copy of e-mail dated 13.10.2011 issued by the 1^stOP B31 - Copy of e-mail dated 14.10.2011 issued by the 1^stOP B32 - Copy of cheque dated 04.11.2011 issued to the 1^stopposite party B33 Copy of letter dated 08.06.2012 issued by the 1^stOP B34 Copy of cheque dated 27.10.2012 issued to the 1^stopposite party B35 Copy of cheque dated 06.05.2013 issued to the 1^stopposite party B36 - Copy of statement of accounts as on 05.08.2015 B37 - Copy of sale deed dated 04.01.2019

B38 - Copy of certificate of payment dated 30.09.2019 issued by Assistant Commissioner, Commercial Taxes

B39 - Copy of cheque dated 30.01.2008 issued by the 1^stopposite party B40 - Copy of challan dated 05.02.2008 towards VAT B41 - Copy of cheque dated 19.05.2008 issued by the 1^stopposite party B42 - Copy of challan dated 12.06.2008 towards VAT B43 - Copy of cheque dated 29.08.2008 issued by the 1^stopposite party

V. COURT EXHIBITS

^NIL

C.C.No.11/2014

APPENDIX

I. COMPLAINANT'S WITNESS

PW1 - Jojy Issac

II. COMPLAINANT'S DOCUMENTS

A1 - Copy of receipt dated 07.09.2006 A2 - Copy of receipt dated 11.09.2006 A3 - Copy of receipt dated 15.11.2006 A4 - Copy of receipt dated 16.12.2006 A5 - Copy of construction agreement & agreement for sale dated 11.01.2007

43

A6 - Copy of sale deed dated 30.10.2012 A7 - Copy of statement of accounts as on 04.10.2012 A8 - Copy of exemption notification for service tax dated 29.01.2009 A9 - Copy of lawyer notice dated 30.09.2013

A10 - Copy of A/D card for receipt of lawyer notice dated 05.10.2013 1^stOP A11 - Copy of A/D card for receipt of lawyer notice dated 05.10.2013 by 2^ndOP A12 - Copy of A/D card for receipt of lawyer notice dated 05.10.2013 by 3^rdOP

III. OPPOSITE PARTY'S WITNESS

DW1 - Thankachan Thomas V.

IV. OPPOSITE PARTY'S DOCUMENTS

B1 - Copy of booking form dated 06.10.2006 B2 - Copy of cheque dated 10.11.2006 issued to the 1^stopposite party B3 - Copy of cheque dated 15.12.2006 issued to the 1^stopposite party B4 - Copy of cheque dated 15.02.2007 issued to the 1^stopposite party B5 - Copy of cheque dated 15.04.2007 issued to the 1^stopposite party B6 - Copy of cheque dated 15.08.2007 issued to the 1^stopposite party B7 - Copy of cheque dated 15.10.2007 issued to the 1^stopposite party B8 - Copy of cheque dated 15.12.2007 issued to the 1^stopposite party B9 - Copy of cheque dated 15.02.2008 issued to the 1^stopposite party B10 - Copy of cheque dated 15.04.2008 issued to the 1^stopposite party B11 - Copy of cheque dated 15.06.2008 issued to the 1^stopposite party B12 - Copy of cheque dated 15.08.2008 issued to the 1^stopposite party B13 - Copy of cheque dated 15.10.2008 issued to the 1^stopposite party B14 - Copy of cheque dated 15.12.2008 issued to the 1^stopposite party B15 - Copy of cheque dated 15.02.2009 issued to the 1^stopposite party B16 - Copy of cheque dated 15.10.2009 issued to the 1^stopposite party B17 - Copy of cheque dated 15.12.2009 issued to the 1^stopposite party B18 - Copy of cheque dated 15.12.2009 issued to the 1^stopposite party B19 - Copy of cheque dated 15.12.2009 issued to the 1^stopposite party B20 - Copy of cheque dated 15.12.2009 issued to the 1^stopposite party B21 - Copy of cheque dated 20.10.2012 issued to the 1^stopposite party B22 - Copy of statement of accounts as on 05.12.2014

V. COURT EXHIBITS

^NIL

44

C.C.No.53/2015

APPENDIX

I. COMPLAINANT'S WITNESS

PW1 - Jojy Issac

II. COMPLAINANT'S DOCUMENTS

A1 - Copy of Power of Attorney A2 - Original receipt dated 03.10.2006 A3 - Copy of receipt dated 15.11.2006 A4 - Copy of receipt dated 16.12.2006 A5 - Copy of receipt dated 15.02.2007 A6 - Copy of receipt dated 15.04.2007 A7 - Construction agreement and agreement for sale dated 30.04.2007 A8 - Copy of letter dated 25.03.2013 for non-completion of project A9 - Copy of reply letter dated 22.04.2013

A10 - Copy of sale deed dated 29.07.2014

A11 - Copy of statement of accounts as on 30.05.2014 A12 - Copy of exemption notification for service tax dated 29.01.2009 A13 - Copy of e-mail dated 04.10.2012

A14 - Copy of e-mail dated 12.10.2012

A15 - Copy of e-mail dated 12.10.2012

A16 - Copy of e-mail dated 18.10.2012

A17 - Copy of e-mail dated 20.02.2013

A18 - Copy of lawyer notice dated 19.09.2014

A19 - Copy of A/D card for receipt of lawyer notice dated 15.07.2019 1^stOP A20 - Copy of A/D card for receipt of lawyer notice dated 15.07.2019 by 2^ndOP A21 - Copy of A/D card for receipt of lawyer notice dated 15.07.2019 by 3^rdOP A22 - Copy of e-mail dated 17.11.2008

A23 - Copy of reply e-mail

A24 - Copy of letter dated 11.06.2012 issued by the opposite party A25 - Copy of statement of accounts sent by the 1^stopposite party A26 - Copy of letter dated 24.06.2014 issued by the complainant A27 - Copy of the e-mail sent by the Power of Attorney to the opposite party A28 - Copy of e-mail dated 01.07.2014 sent by opposite party

III. OPPOSITE PARTY'S WITNESS

DW1 - Thankachan Thomas V.

IV. OPPOSITE PARTY'S DOCUMENTS

B1 - Copy of cheque dated 10.11.2006 issued to the 1^stopposite party B2 - Copy of letter dated 12.11.2006

B3 - Copy of letter dated 14.12.2006

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B4 - Copy of cheque dated 15.12.2006 issued to the 1^stopposite party B5 - Copy of cheque dated 15.02.2007 issued to the 1^stopposite party B6 - Copy of cheque dated 15.04.2007 issued to the 1^stopposite party B7 - Copy of cheque dated 30.04.2007 issued to the 1^stopposite party B8 - Copy of cheque dated 24.05.2007 issued to the 1^stopposite party B9 - Copy of cheque dated 16.08.2007 issued to the 1^stopposite party B10 - Copy of cheque dated 15.10.2007 issued to the 1^stopposite party B11 - Copy of cheque dated 14.12.2007 issued to the 1^stopposite party B12 - Copy of cheque dated 15.02.2008 issued to the 1^stopposite party B13 - Copy of cheque dated 17.04.2008 issued to the 1^stopposite party B14 - Copy of cheque dated 16.06.2008 issued to the 1^stopposite party B15 - Copy of cheque dated 18.08.2008 issued to the 1^stopposite party B16 - Copy of cheque dated 15.10.2008 issued to the 1^stopposite party B17 - Copy of cheque dated 15.12.2008 issued to the 1^stopposite party B18 - Copy of cheque dated 16.02.2009 issued to the 1^stopposite party B19 - Copy of letter dated 18.08.2010 issued by the 1^stopposite party B20 - Copy of e-mail dated 28.02.2011 issued by the 1^stopposite party B21 - Copy of letter dated 11.06.2012 issued by the 1^stopposite party B22 - Copy of letter dated 22.02.2013 issued by the 1^stopposite party B23 - Copy of cheque dated 24.06.2014 issued to the 1^stopposite party B24 - Copy of cheque dated 12.08.2014 issued to the 1^stopposite party B25 - Copy of letter dated 01.09.2014 issued by the 1^stopposite party B26 - Copy of statement of accounts as on 04.03.2016

V. COURT EXHIBITS

^NIL

PRESIDENT