ANAND R.KATHARE vs ANIL And SUNIL TRADERS

THE 1st opposite party M/s. Anil & Sunil Traders sold an undivided share of 154/8000 of land to the complainant Anand R. Kathare. On 5.2.1993 a tri-partite agreement was entered into between the complainant and the said 1st opposite party and the 2nd opposite party M/s. Fusion Constructions, builders wherein it was agreed that the 2nd opposite party would construct a flat described in the schedule of the agreement for a sum of Rs. 6,16,820/- as a part of a multi- storey building. THE 2nd opposite party shall finish construction within a period not exceeding 18 months from the date of agreement and the possession shall be delivered within 15 days thereof. As per the schedule of payment mentioned in the agreement the complainant has paid all the instalment amounts payable by him. In spite of the complainant having given the entire amount the 2nd opposite party has not completed the construction of the flat. THE electricity, sewerage, water and other connections have not been provided at all. This inaction of the opposite parties amounts to gross deficiency in service. THE further case of the complainant is that the opposite parties while constructing the building have deviated from the original plans submitted by the M.M.D.A. by constructing 3 more floors without sanction. THE complainant has availed of housing loan from the Life Insurance Corporation of India for payment of the amount to the 2nd opposite party for the construction. THE complainant sent letters to the 2nd opposite party seeking delivery of the flat but there were no answers to that. On account of this attitude of the 2nd opposite party the complainant suffered mental agony and anguish. If the flat had been made ready it would fetch a rent of Rs. 15,000/- per month. THE present building that is occupied by the complainant is short of enough space and therefore it is inconvenient. On these grounds the opposite parties are liable to pay compensation @ Rs. 15,000/- per month which comes to Rs. 3,85,000/-, for mental agony the complainant would be entitled to a sum of Rs. 1,50,000/-. Thus the opposite parties are liable to pay to the complainant a total sum of Rs. 5,35,000/-. On these allegations the complaint was filed for direction to the opposite parties to make the flat ready and deliver the same to the complainant and to pay the amounts claimed by him.

BOTH the opposite parties have filed a common written version in which they contended that the building was kept ready and the complainant was asked to take delivery of the same after payment of the amount due but the complainant for the reasons best known to him has not done so. The provision of power, drainage and water is beyond the control of the 2nd opposite party in spite of the fact that they have paid the necessary charges to the Government and for this reason as per the agreement the opposite parties are not liable for the delay caused in provision of the said things. The opposite parties denied that they have violated the conditions in the sanction order of the M.M.D.A. Therefore the complaint is devoid of merits and hence it has to be dismissed. The point that arises for consideration is whether there was deficiency in service on the part of the opposite parties and if so, what reliefs the complainant can be granted.

Point : It is common case that the complainant has purchased the undivided share of land owned by the 1st opposite party and in a tri-partite agreement executed by the complainant, the 1st opposite party and the 2nd opposite party-builders, it was agreed that the complainant shall pay a sum of Rs. 6,16,820/- for construction and it could be in instalments and that the 2nd opposite parties shall finish the construction within 18 months from the date of the agreement i.e. 5.2.1993. It is not disputed that the complainant has paid the entire amount payable by him under the agreement. But the possession of the flat has not yet been delivered to him. He has specifically alleged in the complaint that the electricity, sewerage, water and other connections have not been provided at all. Regarding this the contention of the opposite parties is that the provision of these things is beyond their control and this being the reason, in spite of the fact that they have applied for these things and paid the charges they could not get them and as per Clause 6 of the agreement if delay is caused for the reasons beyond the control of the builders they will not be liable and hence it cannot be held that there was any deficiency in service on the part of the opposite parties. But there is no material to show that the 2nd opposite party has done anything to provide power, drainage and water. Therefore there is no merit in their contention that the delay in providing them was beyond their control. Even though as per the agreement the construction of the flat should have been completed within 18 months and possession should have been delivered within 15 days therefrom i.e., on 5.8.1994, the building has not been completed for about one year and eight months till the date of filing of the complaint i.e., 10th April, 1996. This is clearly gross negligence on the part of the 2nd opposite party. It has to be remembered mat according to the complainant he has borrowed money from the Life Insurance Corporation of India for payment of the amount for the building. In these circumstances it is beyond any doubt that the 2nd opposite party shall pay compensation to the complainant. The complainant''s case that he had suffered mental pa in also has to be accepted. For compensation, in our view, considering the circumstances of the case, interest @ 12% p.a. on the amount of Rs.6,16,820/- from 5.8.1994 would be reasonable. For mental agony, compensation of Rs. 10,000/- would be proper.

IN the result, we order me 2nd opposite party to complete the construction of the flat and deliver possession of it to the complainant within 3 months from today. We further order the 2nd opposite party to pay interest @ 12% p.a. on Rs. 6,16,820/- from 5.8.1994 till realisation, and also a sum of Rs.l0,000/- as compensation for mental agony and further a sum of Rs. 2,000/- as costs. These amounts shall also be paid within 3 months. As regards the 1st opposite party, since no allegation has been made against them, the complaint is dismissed. But there will be no order as to costs. Complaint disposed of.