Jose Maria De Jesus vs Esar Builders

THE complainants are residents of Altinho, Panaji, Goa. The opposite party is a firm of builders carrying out the business of Real Estate Development.

IT is the complainants case that by an agreement dated 9.2.1993, they engaged the services of the opposite party for the construction of a residential flat bearing No. G -1 in Block A -6 on the ground floor of the building known as ESSAR GALAXY (hereinafter called ''the suit premises'' for brevity). The cost of the suit premises was fixed a Rs. 4,07,000/ -. Clause 7 of the agreement stipulated that possession of the flat would be delivered to the complainants by December, 1994. However, the opposite party did not complete the suit premises nor delivered possession of the same on the due date. The opposite party agreed to pay to the complainants compensation of Rs. 1,500/ - per month for the period of delay. The opposite party by a letter dated 10.4.1996 undertook to give possession of the suit premises latest by 31.3.1996 and also acknowledge that a sum of Rs. 22,500/ - was due to the complainants on account of delay. However, the flat was not completed even in April, 1996, and the complainants brought this to the notice of the opposite party and requested a rise in the compensation from Rs. 1,500/ - to Rs. 3,000/ - from April, 1996 onwards. However, the opposite party did not complete the construction of the suit premises nor delivered possession of the same. The opposite party also constructed a huge water tank in front of the flat thereby materially reducing its value. The complainants alleged tremendous financial loss on account of delay in delivery of possession as they had taken house building advance from the Government as well as loan from Confin Homes Ltd. The complainants paid to the opposite party a sum of Rs. 3,35,900/ - and only an amount of Rs. 71,100/ - remained to be paid. The complainants issued several letters to the opposite party including a legal notice on 1997 demanding delivery of possession of the suit premises completed in all respects along with Occupancy Certificate, electricity and water connection and compensation for delay. The complainant prayed for a direction to the opposite party to deliver possession of the suit premises completed in all respects and for compensation of Rs. 3,000/ - per month and for further compensation towards damages. 3. Resisting the complaint, the opposite party put up its defence that Para 7 of the agreement provided that the time for delivery of possession could be extended in case of certain circumstances or reasons specified therein. The opposite party denied that a huge water tank had been constructed in front of the suit premises and that under the agreement, the complainants had agreed to any variations and modifications in the plan as the opposite party may consider necessary. The opposite party denied its liability to pay compensation for delay in delivery of possession. The opposite party alleged that obtaining Occupancy Certificate for the suit premises was delayed on account of the insistence of the Municipal Council to pay the Infrastructure Tax prior to issue of Occupancy Certificate.

ON the day of hearing Mr. A. Couto, Counsel for the complainants and Mr. S. Vahidulla, Counsel for the opposite party argued at length and reiterated the position taken by the parties both in the pleadings and the Affidavit -in -Evidence synoposis of argu -ments were also filed.

WE have gone through the records and considered the submission of the learned Counsel. In the light of the rival contentions, the following points arise for determination in order to arrive at a conclusion for disposal of the complaint : (i) Whether there has been failure on the part of the opposite party to deliver possession of the suit premises within the stipulated date and the extended dates agreed by the parties ? (ii) Whether the complainants are entitled for the reliefs claimed in the complaint ? (iii)Whether the sump tank in front of the suit premises has been constructed in accordance with the approved plans. Point (i) Possession of the suit premises was to be delivered by the opposite party to the complainants by December, 1994. It is an admitted fact that possession of the suit premises was not delivered within the stipulated time. In fact the opposite party in their letter dated 20.6.1997 have admitted that completion of the suit premises was delayed and offered to compensate the complainants for the delay and also agreed to deliver possession of the flat by 30.6.1997. However, it appears that the suit premises were not ready for possession even on 3.9.1997 when the complainants issued a legal notice and even in December, 1997 when this complaint was filed. It appears to us from the records that Occupancy Certificate for the suit premises was obtained only on 18.9.1998 about 4 years after the stipulated date. We agree with the learned Counsel for the complainants that the suit premises can be considered to be ready for occupation by the Municipal Council by issuing the Occupancy Certificate.

WE do not agree with the Counsel for the opposite party that the demand for payment of Infrastructure Tax by the Competent Authority amounts to a ''notice, order, rule or notification of the Government and/or other public or Competent Authority''. As contemplated in Clause 7 of the Agreement, the Goa Tax on infrastructure was imposed on the provision of infrastructure to multi -family dwelling buildings in the State of Goa, and in no way hindered or obstructed the continuation of the construction of the suit premises.

COUNSEL for the complainants pointed out that possession of the suit premises has not been delivered till date, and this has not been disputed by the opposite party. We, therefore, find the 1st point in the affirmative. Point (ii)

IT is an admitted fact that the complainants have paid an amount of Rs. 3,35,900/ - and amount of Rs. 71,000/ - remains to be paid. The complainants have prayed for direction to the opposite party to deliver possession of the suit premises. In our considered opinion, in the facts and circumstances the complainants are entitled for such a direction.

THE complainants have prayed for compensation of Rs. 3,000/ - per month from June, 1997 till the date of possession. The opposite party in their letter dated 20.6.1997 agreed to pay rent compensation at the rate of Rs. 3,000/ - per month provided all claims and charges are totally withdrawn. The opposite party also confirmed their offer to compensate for the delay caused. In our opinion, the opposite party has admitted its liability to pay compensation at the rate of Rs. 3,000/ - from June, 1997. The complainants have also claimed an amount of Rs. 1,32,957/ - towards damages and additional compensation. In our opinion, the transaction between the complainants and the opposite party was an ordinary commercial contract wherein the compensation payable by the parties in case of default was stipulated. The complainants, therefore, are not entitled to any compensation on this account. Point No. (iii)

THE complainants have alleged that a huge water sump tank had been constructed in front of the suit premises and that the same was not shown in the plan annexed to the agreement for sale. In their written version, the opposite party has denied this allegation and stated that the location of the tank was as per the design of the Architect. They also submitted that they were entitled to complete the buildings on the annexed plan with such variations and modifications as the opposite party considered necessary.

CLAUSE 1 of the agreement dated 9.2.1993 permits the opposite party only to amend the plan annexed to the agreement however, so as to not reduce the total built up area of the suit premises. The complainants consent to variations and modifications in the plan cannot extend to the site plan of the entire project. The complainants have annexed a copy of the approved Building Plan to their objections to the Commissioners Report wherein no sump well is shown in front of the suit premises, however, the same is shown within the rear set -back of the project. Although the Commissioner has opined that the location of the sump tank is advantageous as it is approachable by water tankers, we are of the opinion that the approved plans which existed at the time of execution of the agreement ought to have been suitably revised with the consent of the affected party i.e. the complainants. In our opinion, therefore, the complainant is entitled to a direction to the opposite party to remove the said RCC sump tank. In view of what is discussed above, we pass the following order : (i) The opposite party is directed to deliver possession of the suit premises completed in all respects along with Occupancy Certificate, water and electricity connection within 30 days. (ii) The opposite party is directed to pay to the complainant an amount of Rs. 3,000/ - per month from June, 1997 till the date of delivery of possession within 30 days and this amount to be set off against the balance consideration payable by the complainants to the opposite party. (iii)The opposite party is directed to remove the RCC sump well existing in front of the suit premises and to restore the said area to its original within 60 days. (iv)The opposite party is directed to pay the complainant an amount of Rs. 3,500/ - as cost of the proceedings. Order accordingly. Complaint disposed of. ___