GAYATRI BUILDERS vs SHYAM PRABHAKAR GAIKI & ANR

Sh. Shyam Prabhakar Gaiki and his wife, Smt. Sandhya Prabhakar Gaiki, together, entered into an agreement to purchase a flat measuring 530.76 sq.ft. on the fourth floor of ''Gayatri Sahaniwas'', for a consideration of Rs.2,30,000/- from Gayatri Builders, the OP. The OP also agreed to make extra construction to the area of 270.00 sq.ft. totaling to 712.249 sq.ft. of open terrace. The final cost was decided to be of Rs.3,08,815/-. The complainants paid Rs.3.00 lakhs to the OP on 08.11.1996.

It may be mentioned here that there is no mention of lift in the agreement. Between the parties, a meeting took place in the Office of Sh. Mohrir, the Advocate of OP, on 20.02.1997. The OP agreed to execute the remaining work and install lift, provided the complainants pay Rs.46,000/-. Cheques in the sum of 46,000/- were given to the OP. Possession of the flat was given to the complainants on 20.02.1997.

The grievances of the complainants are these. No Sale Deed has been executed despite payment of full amount, in the sum of Rs.3.00 lakhs and in spite of requests made vide various letters. On the contrary, the OPs stopped work and gave a notice dated 08.12.1997, which was replied on 15.12.1997.

The case of the OPs is this. That for providing lift, extra amount was needed. Few flat-owners paid for the lift, whereas, few flat owners did not pay and there was non-availability of sufficient electricity. The complainants did not pay the installments regularly and hence, the facilities could not be given. The complainants had paid some amount by cash and some amount by cheques, totaling to Rs.2,17,800/-. The OP accepted that a meeting was held in the Office of the Advocate and the complainants gave him cheque in the sum of Rs.46,000/-. After receipt of the said cheque, possession of the flat was given to the complainants. Again, there was no talk about the lift. It is stated that it was agreed in that meeting that for extra area and structure, an amount of Rs.2,50,000/- was to be paid which has not been paid by the complainants. It is alleged that the complainants stopped the payment of the cheques and harassed him. The OP explained that the complainants had paid a sum of Rs.1,30,000/- only and was in arrears of Rs.1,00,000/-, till December, 1994. The water meter, lifts, extra area, were to be provided for extra payment of charges in the sum of Rs.66,000/-, but the complainants paid only a sum of Rs.46,000/-. The electricity supply was to be given after the fitting of private electric meter. It was agreed that the flat-owners would pay the electricity bill to OP which was to pay the final bill to MSEB. The OP paid Rs.100/- p.m., for water charges and the complainants did not pay from 20.02.1997, till now. The complainants are supposed to pay Rs.20,000/- for the extra area given to them.

Aggrieved by the inaction on the part of the OPs, the complainants filed a complaint before the District Forum. The District Forum passed the following orders :- The Complaint of the Complainant is partly allowed.

The Complainant to deposit with the Forum, within two months by way of Pay Order, the amount of Rs.91,015/- payable by the Complainant to the Opposite Party and notify the Opposite party regarding the same. Immediately on receipt thereof, the Opposite Party should execute and register the Sale Deed of the disputed property in favour of the Complainant and the Opposite Party shall be liable to pay any additional costs incurred thereby.

The Opposite party to install the lift in the said building within 2 months of the receipt of this Order.

The Opposite party to pay to the Complainant Rs.10,000/- towards the physical and mental agony suffered by the Complainant and also Rs. 2000/- to the Complainant towards the cost of the complaint".

Aggrieved by that order, the OP preferred an appeal before the State Commission. The State Commission partly allowed the appeal and passed the following orders :- The appeal is partly allowed.

The impugned order is modified as follows,

The appellant to execute sale deed of the flat No. 402 in favour of the respondent, in the span of one month from the date of receipt of copy of this order and withdraw the amount deposited by the respondent in the Forum.The registration charges of the sale deed be borne by the respondent.

The appellant to fit the lift in the building in the span of three months from the date of this order and provide water and electric meter.

Appellant not to pay Rs. 10,000/- as compensation and Rs. 2,000/- as cost.

Both parties to bear their own cost".

We have heard the counsel for the parties. The learned counsel for the petitioner/OP has invited our attention towards few covenants of the Agreement, which are reproduced here, as under :- "30. That the purchaser shall not let or sub-let transfer, assign or part with his/her interest or part with the possession of the said apartment until all the dues payable by the purchaser to the Builder/consenting party under this agreement are fully paid up and only if the PURCHASER has not been guilty of breach or non-observances of any of the terms and conditions of this Agreement and until the purchaser has intimated in writing to the builder/consenting party/Association as the case may be and obtain their prior consent.

That the PURCHASER shall not be entitled to claim and the Building/Consenting party shall not deliver the possession to the PURCHASER of the apartment chosen by him/her unless the entire cost thereof, as herein-before agreed to is fully paid by him/her to the consenting party/Builder in full and final settlement of the account.

That it is mutually agreed that after taking the possession of the apartment by the PURCHASER the PURCHASER shall not be entitled to raise any objection or make any claim against the building/consenting party for alleged non completion of any work or that any particular work has not been done or that it is defective etc. at the time of taking the possession of the apartment by the PURCHASER shall be deemed to be delivery of the prospective apartment as per the specifications, design etc.".

The learned counsel for the OP submitted that some money is yet to be paid by the complainants. He, however, could not say, ''how much'' money is to be paid by the complainants, to the OP. He indulged in ''hubble bubble'' (confused talk) and could not clear the position. The but and ben stance taken by the OP at every stage reveals the falsehood of his cock and bull story. He has resorted to one stratagem after another, somehow to pull the wool in the eyes of Law.

Secondly, the petitioner himself admits that he has accepted Rs.46,000/- for installation of lift. How could he accept Rs.46,000/- only, if some money was due to him by the complainants. He could ask the remaining amount of Rs.1,10,000/-. The story appears to have been made out of whole cloth. It stands established that in the said meeting, held in the Office of the Advocate of the OP, it was settled that the lift would be provided.

We have gone through the papers submitted before us. The site plan shown by the complainants and filed by the OP on the record, clearly go to show that there was provision for lift. It must be borne in mind that the flat is situated on the fourth floor and the complainants cannot climb the stair-case. The State Commission, at para Nos. 16 and 21 of its judgment, has observed as under :- "16. The appellant had made a provision of the lift. He was aware that he was constructing 5 floors on the ground floor which the design shows that a resident would be required to climb 10 stair sets, many times a day. It was incumbent upon him as a fair sale to include the cost of the lift in the sale of the flat only. He cannot now raise a plea that the lift was to be fitted by taking unspecified extra amount from the flat owners. He also cannot now take plea that few paid and few did not, therefore, he cannot fit the lift leaving the payers in lurch and inconvenience for want of remaining payment. It is difficult to presume that the builder would enter in a situation of uncertainity of payment by the flat owners. At the same time, a service provider is also not supposed to put the purchaser in the uncertainity of a facility like lift which is most crucial and essential in a high rise building, beyond three floors.

Based on the evaluation of the facts and evidence, as has come to our notice, we justifiably come to the conclusion that by making a wrong agreement to sale, giving gullible assurance of extra construction and not fitting the water, electricity meter as well the lift the appellant has committed unfair trade and rendered deficiency in service to the respondents. The respondents by paying some amount in cash and stopping the payment have created their own harassment. Thus, on the grounds as discussed above, we intend to partly allow the appeal and reorient the order of the Forum. We also do not consider giving any cost to the appellants. Thus, we pass the order, as below".

We, therefore, uphold the order passed by the State Commission and dismiss the revision petition.