C.Varghese vs ANAND DEVELOPERS

THIS is the complaint filed by the complainant against the opponents for the possession of her flat. We heard Mr. Joseph Varghese, Advocate for the complainant and Advocate Mr. H.G. Misar for the O.P.

BRIEF facts of the case are as follows : Originally the complaint was filed by Mr. A.M. Varghese. After the death of Mr. A.M. Varghese his legal heir was brought on record. The complainant wanted to purchase a flat. So he approached to O.P. for booking and he booked the flat No. 102, Ist floor admeasuring area of about 965 sq. ft. for the consideration of Rs. 7,49,805 on 30.1.1995. The complainant paid Rs. 2,00,000 as earnest money. According to complainant at the time of booking of the flat O.P. orally agreed and assured that the construction of the building would be completed within a period of two years and delivery of the flat would be given immediately thereafter on obtaining occupancy certificate. Thenafter O.P. stopped construction work and kept the building incomplete for more than two years. Thereafter O.P. and complainant entered into an agreement dated 5.10.1999 for the flat No. 102, 1st floor admeasuring area bout 696 sq. ft. (built up) in the society known as New Bombay Safalya Co-op. Hsg. Society, Navi Mumbai. Complainant''s contention is that the O.P. had taken signature of the complainant on a blank agreement, details were filled without the consent and knowledge of the complainant. The O.P. sent a letter to the complainant dated 5.7.2002 showing the reduced area of flat i.e., instead of 965 sq. ft. it was shown 696 sq. ft. Again O.P. sent letter dated 18.12.2000 for payment of Rs. 18,842 from the complainant. O.P. informed the complainant by letter dated 5.7.2002 that construction of the flat has been completed and complainant should pay Rs. 96,623 towards balance amount and Rs. 1,23,000 towards escalation charges. Thus, total amount of Rs. 2,19,623 was claimed from the complainant. According to complainant he has already paid excess amount of Rs. 1,75,328 to the O.P. In spite of this excess payment the O.P. further demanded sum of Rs. 1,20,000 towards CIDCO development charges, maintenance, electric connection, water connection and other taxes. The O.P. had issued a letter dated 5.7.2002 to the complainant to take the possession of the flat. Complainant stated that the flat was not ready with amenities mentioned in the para No. 10 of the complaint and as per the agreement. So he did not take the possession. After waiting for a long period, the complainant has issued a letter through Advocate dated 15.7.2002 informing that he has paid all instalments and he is not responsible for escalation charges. Thereafter complainant has filed this complaint. The complainant is claiming: 1. To hand over the possession of the flat No. 102 admeasuring area about 965 sq. ft. as per allotment letter, without any defects or shortage in amenities or area as provided in the said agreement dated 30.1.1995. 2. To direct the O.P. to reduce price of the said flat, in proportion to the area of the flat i.e., Rs. 7,49,805 to Rs. 4,77,855 for an area of 696 sq. ft. 3. To award interest @ 24% p.a. on Rs. 1,75,328 being the additional amount paid by the complainant to the O.P. 4. About compensation.

O.P. appeared and resisted the claim of the complainant by filing written statement and affidavit. According to O.P. there is no cause of action to file this complaint. Complaint is barred by limitation. According to O.P. he was always willing to perform his part, but complainant had been avoiding to fulfil his part. Complainant did not take the possession of the flat by paying balance amount and raised dispute about less area. O.P. further submitted that after getting the payment from the complainant, he used it in the construction of the building. The contention of the O.P. is that he always tried to complete the construction with quality works and when it was completed the complainant sought time for paying the balance amount and for taking the possession of flat. The dispute in respect of area was raised by the complainant with mala fide intention. The complainant has signed the agreement as he agreed with the contents of the agreement. Dispute regarding escalation charges was mutually agreed by both the parties as per agreement. The O.P. has prayed that complaint is not maintainable on the ground that it is barred by limitation.

In the written statement, O.P. stated that complaint is barred by limitation and while arguing the matter Mr. Misar , Advocate for O.P. submitted that the complaint is premature as the agreement was executed in the year 1999 and within 36 months possession was to be given, as per the clause in the agreement. The construction was completed upto October 2002 i.e., within 36 months and the complainant has filed the complaint in August 2002, so it is premature complaint.

WE have perused the written statement. This contention was not mentioned in the W.S. and affidavit of the O.P. Both statements of O.P. i.e., complaint is barred by limitation and complaint is premature are contradictory with each other. So it is having no substance. Points for deciding the complaint is as per prayer clauses. (1) To and over the possession fo the flat as per the allotment letter. Admittedly the complainant booked the flat with the opponent for the consideration of Rs. 7,49,805. Initially there was no agreement between the complainant and the O.P. But there was no demand letter about execution of agreement or any efforts taken by the complainants showing willingness or demanding to execute the agreement for sale. On the basis of allotment letter, dated 30.1.1995 complainant demanded 965 sq. ft. area. On 5.10.1999, both the parties entered into the agreement. In the agreement, area of the flat was shown 696 sq. ft. instead of 965 sq.ft. which was shown in the allotment letter. According to the complainant, he paid the amount for the flat for 965 sq. ft. area and not for 696 sq. ft. Complainant stated that the O.P. without his consent and knowledge wrote down the less area in the agreement. We have perused the allotment letter as well as agreement also. We do not digest the reasons given by the complainant that he has signed the agreement without knowledge, without perusing the documents, how can one sign the documents. The contract or agreement means both sides agreed the contents, terms and conditions of the agreement, which are binding on both the parties. So we are of the view that the contention of the complainant to hand over the possession as per allotment letter dated 30.1.1995 for 965 sq. ft. area is not proper. Hence it is not tenable in law. So we direct the opponent to hand over the posession of the flat to the complainant after payment of balance amount of Rs. 69,742 to the O.P. for the area of 696 sq. ft. We have perused receipts on record, which comes to Rs. 6,80,063. The price of the flat is Rs. 7,49,805 and balance amount is Rs. 69,742.

(2) Second prayer of the complainant is to reduce the consideration price of the flat from Rs. 7,49,805 for the area of 965 sq. ft. to Rs. 4,77,855 for the area of 696 sq. ft. (3) Third prayer is to award interest @ 24% p.a. on Rs. 1,75,328 for the additional amount paid by the complainant to the O.P. As we are not considering the prayer clause No. 1 i.e., payment of Rs. 7,49,805 for the area of 965 sq. ft. both the prayers became infructuous.

(4) Fourth prayer is for compensation. The complainant booked the flat on 30.1.1995 and paid Rs. 2 lakh as earnest mony to the O.Ps. Complainant has paid almost half the price of the flat till the year 1997 and the O.P. used this amount for four years without giving her the actual possession. The O.P. has issued a letter to the complainant for completing that flat in the year 2002 after four years of the last payment. So we are of the opinion that there is delay in delivery of possession of the flat for about 4 years, it amounted deficiency in service under Section 2(1)(g) of Consumer Protection Act, 1986. So complainant is entitled to get compensation of Rs. 5,000 per year for four years i.e., Rs. 20,000. O.P. demanded escalation charges by issuing a letter dated 5.7.2002 to the complainant, demanding balance amount including escalation charges. On carefully perusing the agreement there is a Clause No. 4(ix) that escalation charges shall be payable which shall not include into purchase price. As the complainant signed the agreement for sale, the terms and conditions therein are binding on her.

IN respect of escalation charges, the Hon''ble Supreme Court has observed in the case of Kanpur Development Authority v. Smt. Sheela Devi & Ors. etc. reported in I (2004) CPJ 12 (SC)=I (2004) SLT 91=1986-2004 Consumer 8103 (NS) that however cases where there is limit for fixing the escalation of cost, normally the price of house or flat cannot exceed the limits so fixed. The determination of cost of house/flat or escalation of cost cannot be arbitrary or erratic. The authority has to broadly satisfy by placing material on record to justify the escalation of cost of house/flat. Whether the delay was caused by the allottee or the authority itself is also a factor which has bearing in determination of the cost of house/flat. The unforeseen cause or the reason beyond control of the authority in a given case may be another factor to be kept in view. IN the presnt case O.P. has not produced any document to show escalation cost. So in our view the O.P. is not entitled to any amount on account of escalation costs in terms of Claus 4(ix) of the agreement. Considering the above facts and circumstances and perusing the record, we pass following order : ORDER 1. Complaint is partly allowed. 2. O.P. is directed to hand over the possession of flat No. 102 on 1st floor admeasuring area of about 696 sq. ft. to the complainant with full amenities as per the agreement within six weeks from the date of receipt of this order. OR If there is no flat available, to refund the amount @ 9% p.a. from the date of filing of the complaint within six weeks from the date of receipt of this order, failing which it will carry interest @ 12% p.a. 1. O.P. is also directed to pay Rs. 20,000 as compensation and Rs. 1,000 as cost to the complainant within six weeks from the date of receipt of this order. 2. Copies of the order be furnished to the parties. Complaint partly allowed.