HENRY ANGELO D'SOUZA vs MAC ENTERPRISES

THIS complaint is filed by the complainant against the opposite party on the following grounds : Sometime in the year 1993, the opposite party advertised for the sale of flats in a building situated at Basa to be known as (sic.) according to the brochure released, the building complex was to be provided with several amenities, including swimming pool and a In House Restaurant, dish antenna and rent back facilities which led the complainant to decide to purchase the entire second floor, comprising of four flats of Block-B of the Project. Accordingly, the complainant executed four Agreements for sale with the opposite party all of which were identical and executed in printed forms, with only the day, name of the purchaser and flat numbers and schedule of payment to be inserted by hand. The first two Agreements, both dated 4th October, 1993 and pertained to Flat No. B1S2 and Flat No. B1S3, were on the second floor of Block-B, each admeasuring 42 sq. mtrs. of built up area. The third Agreement was dated 14th January, 1994 and pertained to Flat No. B1S1, also on the second floor, while the last Agreement was dated 15th January, 1994 and pertained to Flat No. B1S4 similarly on the second floor both admeasuring 42 sq. mtrs. of built up area. In terms of Clause-10 of the Agreements, the opposite party was to deliver possession of the flats, complete in all respects, within 18 months from the date of signing the Agreements. There was a further provision of extension of time by 6 months only. Therefore, the possession of the flats ought to have been delivered to the complainant by 15th October, 1995. The complainant was very prompt in making payment of the instalments due but, inspite of this, the opposite party did not complete the building in time. The complainant had paid to the opposite party, since the date of signing the Agreements upto March, 1997, a total sum of Rs. 15,54,000/-. However, the opposite party, by letter dated 26th December, 1996, acknowledged payments of certain sums of money which did not correspond to the actual amount paid. On 20th March, 1997, the opposite party wrote a letter to the complainant asking him to pay a further amount of Rs. 37,600/- towards handing over of the flats. He was then informed that the Occupancy Certificate had been applied and the same would be issued very soon. Accordingly, the complainant made the payment demanded and the opposite party handed over the keys of the flats. But on inspection several deficiencies and defects in the construction were noted and, therefore, the complainant returned the keys to the opposite party to rectify the defects. On 28th October, 1997, the keys of the flats were again given by the opposite party to the complainant but, on a joint inspection, it was found that several pending works were not carried out. The complainant, therefore, by letter dated 28th October, 1997, gave a list of deficiencies existing in the flats which included swimming pool, dish antenna, landscaping, car parking facilities, 24 hours water and security and in house restaurant and club house, facilities which had been not at all provided. The complainant further stated that he had purchased the flats with the intention of availing of the rent back scheme which could help him earning his livelihood from renting out these flats. It was with this view that he invested such a large sum of money in the Project. The failure of the complainant to launch the Scheme had caused to him a tremendous financial loss. Besides, no Occupancy Certificate had been secured so far thus making absolutely impossible and illegal for any person to occupy the flats. The complainant had also spent Rs. 1,20,000/- for furniture to be utilised for the flats as he wanted to avail of the rent back scheme and let out the flats to tourists. All this furniture was lying unutilised causing him further financial loss. He therefore, prayed, besides a direction to the opposite party to complete the flats in all respects and correct the defects pointed out in the letter dated 28th October, 1997, to put it in an usable condition with electricity and water supply. A further direction was sought for to provide him with all amenities mentioned in the Agreement and to secure Occupancy Certificate in respect of the flats. A further prayer was also made to direct the opposite party to execute a proper Deeds of Sale or Conveyance, transferring the ownership of the flats and proportionate rights in the land to the complainant. In addition, he claimed interest under various heads, namely, interest @ 18% per annum on the sum of Rs. 13,16,400/- paid by him from 15th October, 1995 till the date of payment and further interest @ 18% on the sum of Rs. 2,37,600/-, computed from 1st April, 1997 to the date of payment. Besides, one more prayer was made for interest @ 18% per annum on the sum of Rs. 1,20,000/- computed from 1st April, 1997 till the date of payment.

IN its written statement, the opposite party raised the questions of limitation and mis-joinder of the cause of actions considering that the complainant entered into four Agreements with him on separate dates and, therefore, the cause of action in the said Agreements arose on different dates. It was denied that the opposite party had agreed to sell the flats under the rent back scheme although the same scheme was advertised and the amenities to be provided were listed in the specifications and were to be provided when the entire complex was complete. It was further contended that the payment of the instalments due were not made strictly in terms of the Agreements and were always effected with delay. INspite of that the opposite party tried his best to carry on the construction but the same could not be completed due to various reasons beyond his control. One of them, besides the delay in payment of instalments due by the respective purchasers, was the shifting of the existing school in the land where the construction was supposed to be erected, by name M/s. Nath Pai Education Society, which was shifted only in the month of March, 1996. However, the Occupancy Certificate which was applied on 10.3.1997 could not be secured due to several extra legal demands made by the office bearers of the Panchayat although the construction was in conformity with the licence and the Building Rules and Regulations. The opposite party denied the existence of any defects and deficiencies in the workmanship of the construction of the flats. He further stated that, as far as electricity and water supply, this was to be obtained by the concerned individuals for each one of the flats. With regard to the swimming pool, dish antenna, landscape, 24 hours water and security, in house restaurant and club house facilities, these were to be provided after the completion of the Project, as each and every occupant had to contribute towards its expenses and maintenance. The opposite party denied that the flats were not completed and were in an unusable condition. On the day of the final hearing, Mr. A. Couto learned Counsel for the complainant and Mr. N. Bodke, learned Counsel for the opposite party, argued at length.

We have gone through the records and considered the oral submissions of the learned Counsel. Admittedly, the brochure available in the file shows that the opposite party, a builder by profession, had advertised for the sale of flats in the building complex known as "Park Avenue Apartments" to be constructed at Baga, Calangute Road, which was to be provided with several amenities, including swimming pool, in house restaurant and rent back facility. It is the case of the complainant that it was due to this attractive features that he decided to purchase the entire second floor of Block "B" consisting of four flats. In terms of the respective clauses of all the four separate Agreements executed by the parties, between 4th October, 1993 and 14th January, 1994, delivery of possession of the four flats, complete in all respects, was supposed to be handed over by opposite party to the complainant within 18 months from the date of execution of the Agreements with a provision for extension of time period to a maximum of six months. Hence, possession of the four flats was required to be delivered latest by 15th October, 1995. The standard Agreements signed by the complainant and the opposite party in respect of each of the flats expressly contains, in terms of the brochure, a clear reference in its Schedule 3, not only to the salient features of the structural construction and its finishings but also the amenities offered by the builder/opposite party as being available to the purchasers, in this particular case to the complainant, on the execution of the Agreement. These amenities included; (a) Swimming Pool; (b) Dish Antenna, (c) Lanscaped Surroundings; (d) 24 hours of Water and Security; (e) ample Car Parking Space, (f) In House Restaurant and Club House facilities; and (g) T.V. and Telephone Points in every Unit.

THIS being the position, it is obvious that the opposite party, from the moment he signed the first Agreement with the complainant, was bound to strictly comply in full with its terms both in letter and spirit regarding the essential features and the amenities as well to which he was legally committed to implement within the stipulated time provided in the Agreement. The record, however, shows and the opposite party himself admits that, inspite of the time of completion having been expired long back, no such compliance has been able to be provided by him to the complainant till to-day and in this regard not even delivery of possession of the structures complete in all respects, with electricity and water supply arrangements and the competent Occupancy Certificate has been given to the complainant, apart from the failure in making him available with the rest of the amenities advertised in the Brochure and expressly incorporated in the Agreement of each and every flat. It thus follows that this manifest breach, by the opposite party, of almost all the conditions of the valid Agreements duly entered into and executed with the complainant amounts to a gross deficiency in service which makes him liable to compensate the complainant for whatever material loss suffered by him on account of the delay incurred in the compliance of the said Agreements and consequent hardship, inconvenience and harassment which such delay and non-performance of the Agreements is likely of having been caused to the complainant. The opposite party''s contention that the complainant was irregular in the timely payment of the instalments due has not been substantially established through reliable documentary proof and the allegations made in this respect were flately denied by the complainant in his affidavit in evidence. Similarly the defence plea that the delay has occurred due to late shifting of the "Vidya Niketan High School " and also on account of the breach of the Agreement by other purchasers of the premises in the Building Complex in not timely paying their dues towards the matured instalments is again impermissible in view of the terms of the Agreements executed by the opposite party with the complainant which do not provide any relaxation of the time period for delivery of possession on account of any such eventuality. Further, the allegation of the opposite party that Occupancy Certificate of the flats, although applied, could not be secured by him on account of illegal demands made by the office bearers of the Panchayat is also to be summarily rejected as misconceived and incompetent. Apart from a total lack of evidence in this respect, we fail to appreciate for what purpose the opposite party chose to invoke such irrelevant argument before us in order to justify his complete failure to honour the obligations assumed towards the complainant. With regard to the deficiency of workmanship in the suit construction, the evidence put forth by the complainant does not appear to be conclusive to point out specific instances of such deficient workmanship except the circumstance of neither electricity nor water connection having been provided to the suit flats. On this aspect, we are in agreement with the opposite party when he contends that providing permanent electricity and water connection is not certainly the obligation of any builder nor the Agreements executed by the complainant make an express provision in this regard. Needless to say that a duty always rests on the builder to lay down the necessary infrastructure to enable each and individual purchasers of the flats to secure direct connections of their own on payment of the required dues to the Government. In this particular case, the complainant does not seem to be precise on the question as to whether the opposite party failed or not to lay down the required infrastructure to permit the complainant to obtain immediate connections from the concerned Department after paying the necessary charges.

LASTLY, the stand sought to be taken by the opposite party that the amenities mentioned in the Agreement, as integral part of the basic features of the whole Project as advertised in the Brochure, were to be provided only after the completion of the entire Project, as each and every occupant had to contribute towards its maintenance is certainly to be once again outrightly rejected as untenable and misleading. Indeed such attempt on the part of the opposite party does not fit well to the image and reputation of any responsible Builder and constitutes a serious breach of the trust deposited by the prospective purchasers who, obviously misled by the attractive package of amenities and facilities purportedly attached to the Project, have decided to enter into Agreements with the Builder on the expectation that the advertised and thereafter agreed amenities would be very much available to them at the time of taking possession of their premises. In such circumstances, it is evident that the opposite party was required to provide these amenities to each and every owner of the flats sold by him at the time of the delivery of its possession so as to guarantee to them its full enjoyment, right from the date of its occupation. This being the case, there cannot be any doubt that such failure on the part of the opposite party amounts to unfair trade practice and gross deficiency in service calling for an additional compensation which was rightly claimed by the complainant on this behalf. On the subject of non-availability of the Rent Back Scheme, without prejudice of this having been mentioned in the Brochure, there is no specific reference to it in the Agreements and more particularly in the Schedule which refers to the amenities offered by the Project. We are, therefore, not inclined to share the complainant''s view that the said Scheme was part and parcel of the Agreement in its express terms wherefrom the complainant may be able to derive any rights to be compulsory enforced under the Act. In our opinion the Rent Back Scheme seems to have been advertised, like the vague promise of "Attractice Loans", as an enticing exercise to attract prospective buyers for the Project rather than with the intention to make it a basic feature of the Agreement. We find substantial support in drawing this conclusion on the fact that nowhere, either in the Brochure or in the Agreement itself, there is reference to any details as to how and on what terms the said Scheme was to be run in benefit of the complainant as claimed by him. Therefore, the question of he being entitled to a separate compensation under this head on account of the opposite party''s failure to launch any such Scheme does not seem to arise at all. In this view of the matter, we are satisfied that, in the facts and circumstances of the case, this complaint is bound to substantially succeed. Accordingly prayers (a), (c), (d), (e) and (f) of the prayer Clause are fully allowed and the opposite party is directed to deliver possession of the suit flats to the complainant provided with all the amenities referred to under this Head, as per Sub-clause "B" of Scheme I of the Agreement, within 90 days, complete in all respects but with above mentioned clarification with regard to the electricity and water connection. The opposite party is further directed to pay to the complainant a sum of Rs. 1,00,000/- as additional compensation towards extreme hardship, mental torture, anxiety and harassment to which he was subjected by the action of opposite party and on account of this litigation. The payment of interest under prayer (a) as well as of the compensation of Rs. 1,00,000/- shall be effected within 30 days from the receipt of taking notice of this order, whichever is earlier, failing which the amount of compensation will carry interest at the rate of 18% per annum till its full realisation. So far prayer (b) is concerned, the same stands rejected. The opposite party to pay also costs to the complainant which we quantify at Rs. 3,000/-. Order accordingly. Complaint allowed with costs.