BANJARA CONSTRUCTION COMPANY vs P.R.SIVA PRAKASH

THE respondent in these appeals, one Mr. P.R. Shiva Prakesh entered into an agreement with the appellant, that is, M/s Banjara Constructions Company Private Ltd. on 30.3.1990 for purchase of a Flat No. I and Garage No. II for a consideration of Rs. 1,82,00/- . According to the terms of the agreement, the purchaser of the flat has to pay the instalments mentioned in the schedule. Under Clause 15, it was "agreed and declared that not-with-standing anything herein contained the second party, that is, purchaser, shall not be entitled to possession of the said unit until the execution of the sale deed and construction of the said unit thereon, and full payment of all dues hereunder". THE Clauses 16 to 20 provide for payment of all costs etc., and for cancellation of agreement and for collection of interest, in case of failure to pay the instalments regularly. Clause 21 provides that the builder, that is, the second party shall construct the flat with all expedition not later than December, 1990. He is not responsible for the delay in construction of flat for the unforseen contingencies. Alleging that the possession of the flat was not delivered on or before 31.12.1990, as per the agreement, which constitutes the deficiency of service, a complainant CD. No. 821 of 1991 was filed in the District Forum, Hyderabad claiming a sum of Rs. 29,120-00 being the interest at 2% per month on Rs. 1,82,000-00 from 31.12.1990 to 31.8.1991, that is, for eight months; and further sum of Rs. 16,000-00 by way of compensation in view of the rents paid by the complainant. In all a sum of Rs. 45,120.00 was claimed.

INITIALLY, no counter was filed by the opposite party and the District Forum by its order dated 29.8.1992, after setting the opposite parties ex-parte, directed payment of Rs. 13,65000 with interest at 13% per annum and costs of Rs. 500-00. The amount of Rs. 13,650-00 arrived at by the District Forum roughly represents the seven and half months rent said to have been paid by the complainant. Aggrieved by the said order, the respondent filed LA. No. 16 of 1992 in the District Forum to set aside the ex-parte order and to dispose of the case on merits. The District Forum, on 27.11.1992 dismissed the said interlocutory application on the ground that the Forum becomes functus officio and has no jurisdiction to set aside the ex-parte order. Aggrieved by the said order, the opposite parties preferred the CD. A. No. 437 of 1992. Since the opposite party has preferred CD. No. 116 of 1993 against the order passed by the District Forum on merits, it is not necessary to go into the contentions raised in CD. A. No. 437 of 1992, It is accordingly dismissed. There shall be no order as to costs.

In CD. A. No. 116 of 1993, it is submitted by the learned Counsel for the appellant that the complainant did not pay the instalments, according to the schedule, but he paid the instalments at irregular dates and the last instalment was paid only on 27.4.1991. He also submitted that the flat owner wanted to carry out some extra work, for which an estimation of Rs. 5,238-00 was prepared by the Banjara Constructions Company, which was accepted by the complainant. By a letter dated 5th June, 1991, the construction company informed the Bank of the complainant that the flat will be ready for occupation by the month end, that is, by the end of June, 1991. It was also informed that the complainant has to remit the amount of Rs. 5,238-00 towards extra work and to take possession of the flat. By another letter dated June 11th, 1991, the banker of the complainant was informed that the flat will be ready by the end of the month, that is, end of June, 1991 and the complainant had to remit a sum of Rs. 5,238.00. It is contended that since the complainant has remitted the last schedule instalment only on 27.4.1991, it cannot be said that there is any default on the part of the builder in not giving the possession by the end of December, 1990 and that, therefore, the builder is not liable to pay any amounts either by way of compensation or the rental said to have been paid by the complainant upto that period. He further submitted that since he has written to the party that the flat will be completed in all probability by the end of June, 1991 and the party was asked to pay a further sum of Rs. 5,238/- towards extra cost, the party remitted the same only on 28.8.1991, on which date, the possession was given to the complainant. Hence, he contends that he is not at fault in giving possession till 28.8.1991 and, therefore, he is not liable to pay any damages. But it is to be seen that the extra cost was estimated in some time October, 1990 and the complainant was informed only that the flat would be ready by the end of June, 1991. But all the instalments scheduled and payable, according to the agreement, were paid by the complainant on 27.4.1991. There is no justification for not delivering the possession from 27.4.1991 till the end of June, 1991. Even according to the opposite party, the flat is ready for occupation only by the end of June, 1991. We are, therefore, of the view that since all the amounts of instalments were paid by the end of April, 1991 and as the flat was ready for occupation only in June, 1991, the complainant is entitled to payment of interest for the months of May and June, 1991, that is, two months on the amounts paid by him, that is Rs. 1,82,000-00 at the rate of 13% per annum. After calculation, it was submitted by both the parties, that the interest for the said amounts would come to Rs. 3,750-00. Hence, we hold the complainant is entitled only for the sum of Rs. 3,750-00.

DURING the pendency of the appeal CDA 437 of 1992, this Commission passed an order directing the construction company to deposit a sum of Rs. 7,500-00 and Rs. 500-00 being the costs and also directed the respondent to withdraw the same without furnishing any security. It is submitted that the complainant withdraw the said sum of Rs. 7,500-00 and Rs. 500-00. Since we allowed the appeal in part holding that the complainant is entitled only for payment of Rs. "3,750-00 (Rupees three thousand seven hundred and fifty only), we direct the complainant to refund Rs. 3,750-00 (Rupees three thousand seven hundred and fifty only) within a period of one month from today to the opposite party i.e. M/s Banjara Construction Company Limited. The appeal is accordingly allowed with costs of Rs. 500-00. Complaint allowed.