DEH PRASAD RAO vs BASKARA CONSTRUCTIONS

THE case of the complainant is that as an employee of the Reserve Bank of India he joined a scheme floated by some officers of the Bank. THE scheme envisaged the construction of residential complexes consisting of 48 units. For the service of construction of the residential complex; arranging for registration of undivided interest in the land; procuring of appropriate planning and building permission from the relevant authorities; and other incidental services were to be rendered by the 1st opposite party firm for consideration. THE other opposite parties 2 to 4 are the partners of the 1st opposite party. THE 1st opposite party identified a plot of land measuring 19 grounds 904 sq. ft in R.S. No. 3189 at Purasawalkam, Beracah Road, Kilpauk, Madras- 12 and arranged for the purchase of the same. THE residential complex to come up on this land was advertised by the 1st opposite party to have compound wall all round, five-passenger lift for every four flats in each floor etc. THE complainant entered into an agreement to purchase a flat on the first floor of the second block bearing No. B12. He also paid the opposite parties a sum of Rs.2,88,336/- as against the contracted price of Rs. 2,81,125/-. In spite of clear provisions in the agreement dated 11.9.1987 for delivering the plot within 18 months from the date of sale deed namely 5.12.1988, the flat was not completed and delivered. Many of the common amenities of the complex were not completed. THErefore the complainant filed O.P. No. 19/1994 before this Commission seeking delivery of the flat and compensation. THE opposite parties came forward with a proposal to settle the matter. THE opposite parties also agreed to refund the sum of Rs. 4,711/- being excess payment made by the complainant. THErefore a joint memo of compromise dated 4.8.1994 was entered into. THE opposite parties handed over possession of the incomplete flat and agreed to complete the remaining works within a period of one month from that date. Basing on this memo of compromise, the complaint was disposed of by this Commission. On 24.8.1994 the complainant issued a letter by registered post calling upon the opposite parties to complete the works listed in that letter. Since the opposite party did not take any steps to complete the pending works, the complainant was constrained to file an Execution Petition in E.P. No. 54/94 to punish the opposite parties for non-compliance with the order of the Commission. But this Commission dismissed the Execution Petition with the observation that it was opened to the complainant to file a fresh complaint in respect of the deficiencies in the flat. THE complainant had a licensed Surveyor appointed to assess the value of the deficiencies. He submitted his report duly listing the incomplete items of work and valuing the same. THE complainant sent a letter dated 18.7.1995 to the opposite parties enclosing the Engineer''s Certificate which may be read as part and parcel of this complaint and calling upon them to complete the pending works but till date there has been no response from the opposite parties. On these allegations the complaint has been filed for directing the opposite parties to pay to the complainant a sum of Rs. 7,30,800/- or complete all the pending items of work as per the Certificate of the Engineer dated 28.11.1994; to pay compensation for loss suffered by the complainant, etc.

IN the written version filed by the opposite parties it is denied that they received any excess amount. It is submitted that long prior to E.P. No. 54/94 the possession had been delivered to the complainant and there was no deficiencies in the flat. The complainant and his colleagues instituted some proceedings in the High Court and there was an order from the Corporation of Madras to stop all works, and in spite of this the opposite parties have constructed the flat and had delivered the same. The complainant individually cannot demand for construction of compound wall and laying the road and they were meant for the entire 5 blocks of flats owned by 80 owners. There was no deficiency in service on the part of the opposite parties and hence the complaint is liable 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 can be granted to the complainant.

Point: It is not in dispute that earlier the complainant filed O.P. No. 19/94 against the opposite parties and in that a joint memo of compromise was filed and upon that an order of this Commission was passed. That order reads as follows : "This is a complaint under Section 17 read with Section 12 of the Consumer Protection Act. 2. A joint endorsement has been made to the following effect: ''Possession had been delivered on 4.8.1994, works remaining to be done will be completed within a month.'' 3. Accordingly, it is ordered as follows : (1)Possession having been delivered on 4.8.1994, the remaining works shall be done and completed within one month by the opposite parties. (2)There will be no order as to costs."

Now, possession of the flat had been delivered. The only grievance of the complainant is that there were certain incomplete works and that had to be finished by the opposite parties. As seen from the order of this Commission in O.P. No. 19/94 even as per the joint endorsement of compromise between the parties there were some works remaining incomplete. Since the opposite parties has not finished the incomplete works after the order in the said O.P. an E.P. was filed. But the incomplete works had not been enumerated. This Commission dismissed the E.P. giving liberty to file a fresh O.P. In the present O.P. an Advocate Commissioner had been appointed and he has submitted the report dated 25.11.1996. In that report the Commissioner has mentioned that some defects are still existing and he has also mentioned some items as the defects which have been subsequently rectified by the complainant himself. The complainant''s case is that a qualified Engineer engaged by him had also enumerated the defects but this Engineer''s report cannot be relied on without examining him. But so far as the Commissioner''s Report is concerned the opposite parties had not filed any objection and therefore there is no reason to disbelieve that report. In that report mention of some common amenities viz., compound wall, watchman shed have been made as incomplete. It is true that those amenities were for all the flat owners but a perusal of the building agreement between the parties to 11.9.1987 shows that even under this agreement the opposite parties are bound to provide the said common amenities and those common amenities have been described as follows in Schedule "D". "Road portion shall be paved and asphalted while pathways shall be paved with cement flooring as may be suggested by architect. Compound wall to a height of about 5'' from ground level shall be provided on all four sides. A main gate with two equal leaves. A watchman''s shed shall be provided inside the compound."

Therefore the opposite parties have to provide the said common amenities. As regards the other deficiencies in the flat, as stated above, the Commissioner''s Report shows that many of the defects according to the complainant have been rectified by himself. The learned Counsel appearing for the complainant before us said that the complainant himself had rectified all the deficiencies inside the flat. Hence as regards those alleged deficiencies in the flat only the amount spent by the complainant can be given. But in this proceeding there is no evidence as regards those expenditures. As regards the compensation prayed for, the above facts stated show that it was only due to the mistake on the part of the complainant the E.P. could not be executed and the order in the O.P. had been passed only upon a joint compromise memo and in that memo nothing about any compensation had been mentioned.

CONSIDERING thus, we pass an award directing the opposite parties to complete the common amenities mentioned in Schedule "D" of the agreement within 3 months from today. As regards the alleged deficiencies in the flat the complainant is at liberty to file a suit if he so desires claiming whatever amount he has spent for that. In case such a suit is filed we believe that the time taken before this Commission in the proceedings will be considered for the purpose of limitation. We also award a cost of Rs. 1,000/- of this complaint which amount the opposite party shall pay within 3 months. Complaint disposed of.