KASHIAMMA vs M.HUSSAIN

THIS complaint has been filed under Section 12 of the C.P. Act to issue direction to O.Ps. jointly and severally to pay to the complainant a sum of Rs. 5,00,000/- received by them as advance under agreement of sale dated 10.7.1997 with interest thereon at 20 per cent per annum from the date of the agreement till payment and to pay a further sum of Rs. 10,00,000/- as liquidated damages for breach of contract committed by O.Ps. with a cost of Rs. 5,000/-.

THE allegations made in the complaint are that O.Ps. proposed to construct a multi-storey apartment complex known as "Golden Apartments" by advertising in leading dailies. THE complainant on coming to know of this, appraoched O.Ps. with an offer to buy one residential apartment in the proposed complex. After mutual discussion the complainant and O.Ps. entered into an agreement of sale dated 10.7.1997 wherein O.Ps. had agreed to sell one residential apartment with undivided share for a total sale consideration of Rs. 10,00,000/-. As on the date of the agreement the complainant paid a sum of Rs. 5,00,000/- in cash to O.P. 3 namely, Mohd. Iqbal. THE receipt was issued on 14.7.1997 by O.P. 3 in addition to the acknowledgement made in the agreement of sale. As per the terms of the agreement of sale the complainant was required to pay the balance consideration of Rs. 5,00,000/- after the sale deed was registered in 4 instalments as detailed in clause 2 of the agreement of sale. As per the terms of the agreement O.Ps. were required to execute sale deed and register the same within 18 months from the date of the agreement i.e., on or before 10.1.1999. THE agreement further stated that the registration of the sale deed is subject to the condition that the same is done after the construction work of entire apartment/complex is completed. It was further agreed that the construction of the entire complex should be completed within 18 months from the date of the agreement failing which the vendor is liable to refund the advance amount paid with interest at 20 per cent from the date of agreement and also to pay penalty of Rs. 10,00,000/-. The complainant further submitted in the complaint that even after the expiry of the time stipulated in the agreement O.Ps. have failed to fulfill their obligations under the agreement. The construction of the apartment was incomplete and it has reached up to the roof slab of the first floor.

By a registered notice dated 18.2.1999 issued through their Advocate, the complainant demanded for refund of the amount of Rs. 5,00,000/- paid by her as advance with interest thereon at 20 per cent per annum from the date of the agreement till payment and also to pay a sum of Rs. 10,00,000/- being the liquidated damages estimated at the time of the contract as possible loss suffered by the complainant. Even though the said notice was served on the opponents, they failed to reply and failed to comply with the demand of the complainant. Hence the complainant has filed the present complaint seeking the above reliefs mentioned above. Along with the complaint the complainant has produced the agreement of sale entered into between the parties, receipt issued by O.P. 3 and copy of the registered lawyer''s notice issued to O.Ps.

IN response to the notice issued by this Commission O.Ps. through their Advocate have filed written version denying all the allegations made in the complaint. They not only denied the agreement of sale entered into between them and the complainant on 10.7.1997, but denied even their doing construction work. They also denied the fact of receiving a sum of Rs. 5,00,000/- advance from the complainant. They requested the Commission to dismiss the complaint. On behalf of the complainant affidavit has been filed and the documents mentioned above have been produced. The Advocate appearing on behalf of O.Ps. filed a memo stating that since O.Ps. did not contact him further after issuing registered notice of retirement he has filed a memo of retirement which may kindly be accepted by this Commission. After making sure that registered notices have been issued to the opponents by the Advocate we accepted the said memo and permitted the Advocates to retire from the case. We also directed the office to issue notice to O.Ps. and accordingly notices have been issued to them which could not be served. As per our direction the LA appearing on behalf of the complainant has taken out a notice in Kannada newspaper and after being satisfied about the said publication we are proceeding with this complaint.

IT is clear from the agreement entered into between the parties that the complainant has agreed to purchase one apartment by paying a sum of Rs. 10,00,000/- out of which a sum of Rs. 5,00,000/- has been paid by the complainant to O.Ps. on 14.7.1997. This recital is mentioned in the agreement of sale. In addition to this there is a receipt issued by O.P. 3 for receiving the said amount. As per the agreement of sale the balance sale consideration of Rs. 5,00,000/- has to be paid by the purchaser in 4 instalments i.e., first instalment of Rs. 1.25 lakhs will be paid after 12 months from the date of registration of the sale deed, 2nd instalment of Rs. 1.25 lakhs will be paid after 12 months after the 1st instalment, 3rd instalment of Rs. 1.25 lakhs will be paid after 12 months from the date of 2nd instalment, and 4th instalment of Rs. 1.25 lakhs will be paid after 12 months from the date of 3rd instalment. IT is also agreed between the parties that the sale deed will be executed for Rs. 10,00,000/- and the said sale deed will narrate that the entire sale consideration has been received. IT is further agreed that the said sale deed will be registered within 18 months from the date of agreement of sale. The registration of the sale deed is subject to the condition that the same is done after the construction work of the entire apartment is completed. IT is further agreed that the construction of the entire complex should be completed within 18 months from the date of the agreement of sale failing which the vendor is liable to refund the advance amount paid with interest at 20 per cent from the date of agreement and also to pay penalty of Rs. 10,00,000/- and this will be without prejudice to the right of the purchaser to complete the work of apartment at her cost and deduct the same from the balance sale consideration. The above clauses make it clear that O.Ps. have to complete the work within the stipulated period mentioned therein which they have not done. As could be seen from the documents produced by the complainant a sum of Rs. 5,00,000/- has been received by the opponents. Though the opponents have filed written version denying all the allegations no affidavit has been filed by them and they have not participated in this proceedings. The documents and the materials placed by the complainant remained unassailed. Hence placing reliance on the materials placed by the complainant we have no other go except to allow this complaint. Accordingly this complaint is allowed. We direct O.Ps. to refund the said amount of Rs. 5,00,000/- received from the complainant with interest thereon at 20 per cent per annum from the date of the agreement i.e., 10.7.1997 till payment. We also further direct O.Ps. to pay Rs. 10,00,000/- as liquidated damages for breach of contract committed by O.Ps. We further direct O.Ps. to pay a sum of Rs. 3,000/- as cost of this proceedings. O.Ps. to comply with the order of this Commission within a period of 2 months from the date of receipt of the copy of this order. Complaint allowed.