DEVAIAH CHOURIRA vs CYMA EXPORTS PVT. LTD.

IN this complaint, the complainant has sought the following reliefs : "14. Under the circumstances mentioned above, the complainant most humbly prays that this Hon''ble Authority may be pleased to take appropriate action against the respondent and direct the respondent to complete the flat in question and direct the respondent to complete the sale transaction by executing the registering the Deed of Sale and put the complainant in possession of the flat in question within a month from this date. Further, this Hon''ble Authority may be pleased to direct the respondent to pay the damages of Rs. 8,00,000/- together with interest at 18% per annum from 7.11.1979 till the date of realisation of the amount to the complainant because of the failure of the respondent to complete the construction of the flat as stipulated in the agreement. This Hon''ble Authority maybe pleased to take any other appropriate action against the respondent under the facts and circumstances of the case."

THE complainant averred that in pursuance of an advertisement and publicity given by the opposite party the builder, the complainant applied for a flat and the opposite party allotted a flat bearing No. 2, on the ground floor in Rajanigandha of Garden Apartments, at No. 21, Grant Road, Bangalore -1, for a price of Rs. 2,95,000/- in the month of Nov. 1979. THE complainant made an advance payment of a sum of Rs. 5,000/- to the opposite party, at the time of executing the agreement for sale, as per Ex. C-1. The complainant paid a sum of Rs. 5,000/-to the opposite party towards the price at the time of executing the agreement for sale, as referred above, and agreed to pay the balance consideration amount of Rs. 2,90,000/-, as per the terms specified under Clause 4 of the argeement for sale, Ex.C-1, in instalments at various stages of construction. As per the terms of the agreement, Ex. C-1, the opposite party was to complete the construction of the apartment and deliver the possession of the same to the complainant, on or before 30.6.1980.

The complainant, thereafter, paid further sums of Rs. 2,75,280/-at different stages by the end of August 1983.

THE complainant and the opposite party entered into a further agreement on 22.8.1983 for certain alteration in the agreement, Ex. C1. As per agreement dated 22.8.1983, the complainant was allotted Flat No. 2 on the first floor of the building Rajanigandha instead of Flat No. 2 on the ground floor in the said building and the sale consideration was fixed at Rs. 2,80,000/-. THE alteration agreement came to be registered as per Ex.C-5. In the said" agreement, Ex.C-5, at para 2, the opposite party has specifically admitted the receipt of a sum of Rs. 2,80,250/- from the complainant by the said date. The complainant, thus in all, made a payment of a sum of Rs. 2,80,250/- to the opposite party by 22 8 1983. As per the terms of the agreement, the opposite party was to complete the construction by 30.7.1984 and handover the possession of the said flat to the complainant.

IT is the further case of the complainant that the opposite party did not commence and complete the construction and deliver the possession of the flat to the complainant as stipulated under the agreement for sale, Ex. C-5. The complainant nextly averred that the various flat owners who had thus made the payment to the opposite party, constituted an Association, called "Garden Apartment Owners'' Association" and through that Association began to put pressure upon the builder-opposite party to commence the construction of the apartment and to complete the construction at an early date, which fact is evident from the notice issued through his Advocate by the complainant, on 24.10.1990 as per Ex.C-8. A meeting was held between the opposite party and the office bearers of the Garden Apartment Owners Association on 18.4.1986, as per Ex.C-15, wherein the opposite party agreed to commence the work of construction on 1.5.1986 and complete the construction of the flats in Rajanigandha apartments by 1.1.1987. The opposite party had even agreed, as per Clause 4, in Ex.C-15, in the said minutes of the meeting that he would not claim any cost escalation from the complainant and others. The opposite party even thereafter did not commence the construction.

COMPLAINANT further averred that the opposite party even upto this day has not completed the construction and inconsequence of which the COMPLAINANT sufferred heavy loss and mental agony.

COMPLAINANT , nextly averred, that when the apartment holders including the COMPLAINANT began to put pressure upon the opposite party to complete the construction immediately, the opposite party began to demand cost escalation. The opposite party claimed a sum of Rs. 1,44,000/- towards cost escalation, by its letter dated 9.1.1991, as per Ex. C-10(a) from the COMPLAINANT. Complainant averred that the opposite party had no right to demand cost escalation when there is no provision under the terms of agreement, as per Exs. C-1 and C-5 and the opposite party had specifically agreed, as per Ex. C-15, that he would not demand any cost escalation.

Complainant, further averred that the opposite party, by its letter dated 9.1.1991, Ex. C-10 (a) suggested the Complainant to cancel the agreement and if the escalation cost of Rs. 1,44,000/- were to be paid by the Complainant, he would revive the cancelled agreement.

HE basis of tHEse averments, tHE complainant sought tHE relief as narrated above. Opposite party filed its version and admitted the fact that the complainant was allotted a flat as averred by the complainant in the complaint. The Opposite party also admitted the fact of receipt of money from the complainant as averred by him at para 7 of its version.

OPPOSITE party, further averred that it could not complete the construction of apartments due to various reasons beyond its control. The O.P. has in this regard, at para 8 of its version, averred thus : "8. With reference to paragraph 4 of the complaint, the Respondents could not hand over the possession of the said flat on the stipulated date i.e. 30th June, 1984 or any date thereafter because of the reasons beyond their control as recorded by him in his letter dated 12th June 1990. The reasons are as follows : Between 1.11.1979 to 28.2.1983, the cement was non-available due to control. The Government had taken a decision to allot only 1000 bags of cement per quarter to each high-rise complex irrespective of the total requirements. For Garden Apartments, the total requirements amounted to 1,50,000 bags. The construction was also delayed due to the work stopped by the Municipal Corporation because of cancellation of all high rise building plans in 1980 till they were re-sanctioned in 1981. Between September 1983 to December 1984, the construction of high-rise buildings were stopped by the Government by public notice immediately after the collapse of Gangaram Complex on or about 9th September 1983 which caused stoppage and delay in construction. Between January 1985 and September 1989, the construction was delayed due to the refusal by the Municipal Corporation to grant occupation certificate due to the State Government circular of 1984 questioning the validity of plans/buildings having height more than 55 feet. Thereafter non-availability of construction material as well as non-payment of the costs of escalation by the complainant and other has been the main cause of the Respondents being unable to complete the said project."

Opposite party further averred that it was justified in demanding cost escalation from the complainant considering steep rise in steel prices, building materials and cost of labour etc. Opposite party further averred that this Commission has no jurisdiction to entertain the complaint, as the ''complainant'' cannot be classified as a ''consumer'' and the complaint would not amount to ''complaint'' under the pro visions of the Consumer Protection Act, 1986.

OPPOSITE party, on the basis of these averments, sought the complaint to be dismissed.

DURING enquiry, the complainant filed the affidavit of the complainant in evidence. The documents produced by the complainant were marked in evidence as Ex. C-1 to C-15. The opposite party did not lead any evidence nor filed the affidavit in evidence nor got any documents marked on its part. The learned Counsel for the opposite party on the date of hearing, that is, on 4.10.1993, filed a memo agreeing to refund the sum of Rs. 2,80,250/-with interest at 18% p.a. from 1.1.1987, the said memo, reads as under : "The undersigned Advocate for the opposite party submits that the opposite party has no objection for the Hon''ble Commission passing an order directing the opposite party to refund the principal amount of Rs. 2,80,250/- with interest at 18% per annum from 1.1.1987 till date of payment on the above said principal sum. Wherefore it is respectfully prayed that this Hon''ble Commission be pleased to pass an order in the above said terms in the interest of justice and equity."

We have perused the pleadings of the parties and the documents filed by the complainant and heard the learned Counsel for the parties.

HAVING regard to the pleadings of the parties and submissions made by the parties, the only point that arises for our consideration is "whether there was any deficiency in service rendered by the opposite party and in conse2loss or injury and, if so, to what compensation the complainant is entitled to?" The preliminary objection regarding maintainability of the complaint taken by the opposite party was heard on 26.11.1991 and it was held that this Commission has jurisdiction to entertain the complaint and to proceed with the enquiry. That order was made on 30.11.1991 holding that the Commission had jurisdiction to entertain the complaint.

IT is not disputed that the opposite party allotted flat No. 2 on the first floor in Rajanigandha apartment building which was to be constructed by the opposite party at No. 21, Grant Road, Bangalore, in consideration of a sum of Rs. 2,80,000/- to the complainant. Ex. C5, is the revised agreement for sale of the said flat entered into between the complainant and the opposite party which gives the details of the amounts to be paid by the complainant and delivery of the flat to be made on its completion of the building construction to the complainant. It is also not disputed that the opposite party had received by the month of August, 1983, in all a sum of Rs. 2,80,250/- from the complainant. This payment is admitted under Ex. C-5, revised agreement for sale and also as per the averments at para 7 of the version of the opposite party. The recital contained at para 2 of the revised agreement for sale, Ex. C-5 read as under: "2. Paragraph 4 of the agreement for sale dated 7th Nov. 1979 shall be deleted and the following paragraph shall be inserted instead.'' ''para 4. The buyer shall pay to the builders the aforesaid consideration in the manner hereinafter appearing; (a) The buyer has paid a sum of Rs. 2,80,250/- till date receipt of which the builder hereby acknowledge. (b) The excess amount of Rs. 250/-paid by the buyer shall either be refunded or adjusted towards cost of additions and alterations if any on or before 30th June, 1984 one week before the said building if ready and fit for occupation upon notice given by the builders to the buyers."

THIS would go to show that the opposite party was to complete the construction of the building and deliver the possession thereof to the complainant on or before 30-6-1984, that is the averment made in the complaint and also the averments in the affidavit of the complainant. The opposite party failed to complete the construction by that date and even thereafter upto this day.

EX. C-15 is the minutes of the meeting held between the opposite party and the office bearers of the Garden Apartment Owners Association, on 18.4.1986 at Bangalore. At Clause 2 of the said minutes of the meeting, the opposite party had agreed to commence the construction of the building from 1.5.86 and complete the construction of Rajanigandha apartment by 1.1.1987. The opposite party, even on 9.1.1991, as per EX.C-10(a), its letter to the complainant, has stated that it had not yet completed the construction and demanded cost escalation from the complainant. The opposite party has stated various circumstances at para 8 of its version, as referred above, which caused delay in completing the construction of the building. The opposite party has stated that there was scarcity of cement and there was steep rise in the price of building. materials. The opposite party has neither produced any material to prove this allegation made by it nor has lead any evidence either oral or documentary. Therefore, the submissions made by the opposite party giving various reasons for the delay in construction of the flat, has remained only at the stage of allegations. The opposite party has failed to establish these circumstances to justify in not completing the construction of the flat and hand over the possession of the same to the complainant as stipulated under Ex. C-5 and in the minutes of the meeting, under Ex. C-15.

The material on record would further go to show that even in the month of April 1986,the opposite party had agreed to complete the construction of the flat at an early date and deliver the possession of the same without collecting any cost escalation by 1.1.1987. It is evident from the material contained in Ex. C-15.

THEREFORE, it is clear that the opposite party has failed to complete the construction and deliver the possession of the flat without valid reason whatsoever. From this material, it is evident that the services rendered by the opposite party are clearly deficient in nature. It is evident from the material on record, as referred above, that the opposite party failed to complete the construction and deliver the possession of the flat to the complainant, as per its promise made, and in our opinion, this lapse is due to the negligence on the part of the opposite party only.

THE complainant, who has made the payment of a sum of Rs. 2,80,250/- by August1983 and so far has not been able to get the said delivery of the possession of the flat from the opposite party, and therefore, the complainant has been put to lot of suffering and injury and so the complainant is necessarily be compensated for the same. It is material on record that in the month of April 1986, the opposite party had agreed to complete the construction of the flat and hand over the possession of it soon thereafter without collecting any cost escalation. So in our opinion, it would be just and proper to award reasonable interest on the sum of Rs.2,80,250/- paid by the complainant to the opposite party towards compensation from 1.1.1987till the date of delivery of the possession of the flat to the complainant in a condition fit to occupy the same with all necessary amenities. ORDER In the result, therefore, this complaint is al-lowed. Opposite party is directed to pay interest at the rate of 18% p.a. on the sum of Rs. 2,80,250/- from 1.1.1987 till the date of delivery of possession of the flat to the complainant in a condition fit to occupy the same. The opposite party shall also pay a sum of Rs. 2,500/- (Rupees two thousand five hundred only) to the complainant towards the costs of the proceedings. The opposite party shall pay the sums so awarded to the complainant within a period of two months from this day. Complaint allowed with costs. ______________