CHANDRA SEONI vs FUSION CONSTRUCTIONS

THE opposite party, promoter of construction of flats M/s. Fusion Constructions at No. 138-A, St. Mary''s Radd, Madras-18, invited public to purchase flats to be constructed in the said premises. In response to the offer made by the opposite party, 1 the complainant Mrs. Chandra Seoni booked one flat bearing No. A-l together with undivided share in the land. THE complainant and the opposite party entered into an agreement in February, 1992. THE case of the complainant is that as per the terms of the agreement, the construction should be completed in or before the end of February, 1994. THE opposite party had commenced construction with only a few workmen and the execution was at snail''s pace. THE complainant paid the instalments of the cost of construction, and the last payment was made on 2.3.1993. In spite of such payments, the work done by the opposite party was not satisfactory and it was far behind the schedule, the amount paid by the complainant was much more than the quantum of work executed by the opposite party. THE opposite party has not shown any interest in completing the construction within the stipulated period. THE complainant was left with no option excepting to withhold the three instalments amounting to Rs. 2,58,000/-. But the opposite party has not made any progress in work. THEre was no construction activity for a period of one year i.e., 1993-94. THE fact remains the opposite party has not completed the construction of the flat booked by the complainant and handed over possession as per the agreement. THE opposite party failed and neglected to fulfill their obligation under the agreement. It was only after great persuasion the opposite party registered the sale deed in respect of the undivided share of land with incomplete superstructure, on 31.3.1994. THE complainant reasonably estimates the damages at Rs. 15 lakhs and the opposite party is liable to pay this amount. In the letter dated 5.7.1995 written by the complainant to the opposite party, she expressed her readiness and willingness to make the payment due to the opposite party in one cheque provided the opposite party fulfills its obligation by completing the construction of the flat. But the opposite party has not responded to it. THErefore the opposite party is guilty of deficiency in service. In reply to a Lawyer''s notice sent by the complainant, the opposite party has written that the agreement had been terminated. THE opposite party has no right to so terminate the agreement. On these allegations, the complainant has prayed for directing the opposite party to deliver the flat purchased by her and to pay Rs. 15 lakhs as damages towards compensation for the loss.

THE opposite party Firm contended in their written version that they had commenced the construction as early as 26.2.92 and have completed the same well within the period of 24 months. THE opposite party further contended that me complainant never paid the instalment amounts in time as per the schedule under Clause 10 of the agreement. All the instalments should have been paid before 31.3.93. Out of the contracted amount of Rs. 8,55,168/-, the complainant has paid a sum of Rs. 5,26,288/- only as on date. In the absence of timely payment, the complainant has absolutely no locus standi to ask for possession of the said flat. To a notice dated 4.8.95 sent by the complainant the opposite party sent a detailed reply dated 6.9.95. Since the payment of instalments by the complainant was erratic, the opposite party had no choice but to terminate the contract as per Clause 12 of the agreement. Since the complainant has not paid the entire amount due under the agreement, she has no right to claim damages or delivery of the flat. THErefore, the complaint is liable to be dismissed. The points that arise for consideration are: 1. Whether there was deficiency in service on the part of the opposite party? 2. If so, what relief can be granted to the complainant?

Point Nos. 1 & 2 ; On perusal of the agreement entered into between the parties, we find that as per the terms thereof, the complainant has to pay the entire cost price of Rs. 8,55,168/in nine instalments, the last instalment being at the time of delivery of possession of the flat. As regards the construction of the flat, it is only stated that the construction shall be finished within two years from February, 1992 i.e., in or before February, 1994. Therefore, the complainant on her part must pay the instalment amounts according to the dates mentioned in the agreement, and the opposite party firm on its part, must construct and deliver possession of the flat within two year i.e., in or before February, 1994. It is even according to the complainant, she has paid the last instalment on 2.3.1993. The opposite party has filed a Memo of payments containing instalment amount paid, due dates and the dates on which the instalments were paid. This is not disputed. In the complaint it is stated that the last payment was made on 2.3.93. That was the instalment for which the due date was 30.11.1992. That shows that the last instalment was paid three months behind the schedule. Similarly the prior three instalments also have been made belatedly, all by five months. This only shows that the payment of instalments were not made according to the schedule but much later. But however the opposite party has received the amounts. It is not the case of the complainant that the execution of work has not started. In para 4 of the complaint it is stated that the execution of work was at snail''s pace. In the written version the opposite party has contended that the entire building has been already built. It is not the case of the complainant that she has paid the entire amount as per the schedule in the agreement but the construction has not been finished. While the opposite party has time for completing the construction till February 1994, the complainant has stopped payment of instalments due on 30.11.92, 30.1.93 and 30.3.93. This being the case, we do not think that there is any definite case for the complainant to say that there was deficiency in service on the part of the opposite party. Even as stated in the complaint, the opposite party has executed the sale deed on 31.3.94 in respect of the undivided share of land with incomplete superstructure thereon. Withholding the instalments payable by the complainant under the agreement, it does not lie in her mouth to say that the opposite party has not completed the construction and therefore they are guilty of deficiency in service. Thus, we find no merit in the complaint.

IN the result, therefore, the complaint is dismissed. However, there will be no order as to costs. Complaint dismissed. _______________