M P Bhaya vs Malti Yogesh Karia

THIS is an appeal filed by the complainant in Complaint No. 419 of 1992 on the file of the State Commission, Maharashtra, at Bombay praying that the Order passed in the case by the State Commission may be modified by granting to the complainant relief of delivery of possession of the flat which had been promised by the opposite party to be built and delivered over to him within eight months from 29.7.89 on which date an agreement had been entered into between the complainant and the opposite party who is a builder. Under the terms of the said agreement the complainant had permitted the builder to enter upon the land belonging to him to construct a building consisting of ground floor flat which was to be built and delivered over to the complainant and also four other flats which the builder was free to sell to others. The grievance with which the complainant approached the State Commission was that despite the complainant having duly complied with all the obligations under the agreement the opposite party had defaulted in completing construction of the ground -floor and delivering possession of the said flat to him even though he proceeded to complete the construction of the remaining flats and sold those flats to strangers without obtaining the concurrence of the complainant as was contemplated in the agreement. The complainant has, therefore, approached the State Commission with the plea that there was clear deficiency in service on the part of the opposite party builder and that he should, therefore, be awarded the relief of delivery of possession of the flat incomplete habitable condition alongwith compensation for the delay in performance of the service agreement. The opposite party (Builder) remained ex -parte before the State Commission despite two notices having been duly served on him intimating him about the date of posting of the proceedings. Strangely, the State Commission while disposing of the case ex -parte did not grant the complainant the reliefs as prayed for in the petition but only directed that the opposite party shall refund to the complainant the sum of Rs. 8,46,000/ - representing the value of the ground -floor as specified in the agreement together with interest at the rate of 18% per annum. Aggrieved by the said order the complainant has come up in appeal before this Commission with this appeal.

NO appeal has been filed by the opposite party as against the ex -parte order passed against her. In our anxiety to see that the dispute between the parties could be satisfactorily settled by ensuring that the complainant duly gets the delivery of the possession of the flat an order was passed by this Commission on 26th February, 1996 directing that the respondent shall complete the construction of the portion of the building that is to be allotted and delivered over to the complainant as per the terms of the agreement dated the 29th July, 1989 and should put the complainant in possession of the said portion after making the building completely habitable in all respects within a period of two months from the said date. It was clearly indicated in that order that if the said direction was not complied with by the builder action under Section 27 of the Consumer Protection Act, 1986 was liable to be taken against her after the aforesaid period of two months. By the same order the appeal was directed to be posted to this date for further consideration. Accordingly, this appeal has come up before us today. We are informed today that the aforesaid direction issued to the builder as per our order dated 26.2.96 has not been complied with despite the mandatory nature of its wording. In the circumstances, we consider that the appeal has to be disposed of on merits in accordance with law. In our opinion there has been clear deficiency in service on the part of the builder in the matter of carrying out his obligations under the agreement dated the 29th July, 1989. The appellant before us had duly permitted the complainant to make use of his land for the purpose of building portions and the complainant had taken full advantage of the same and constructed and sold to strangers as many as four or five flats while at the same time she did not take the slightest interest in the matter of completing the construction of the ground floor flat which was to be delivered over to the complainant. It is submitted before us by Mr. Raju Ramachandran, learned Advocate who appeared on behalf of the builder that only sanitary, electrical fittings as well as other finishing works are yet to be carried out. There is absolutely no satisfactory explanation put forward by the opposite party, for what appears to us to be a deliberate delay on the part of the builder in the matter of completing of construction of the flat belonging to the owner of the land which had given licence to the petitioner builder to enter thereon and make the constructions. Hence we are clearly of opinion that the complainant is entitled to an order under the amended provision of Section 14 of the Consumer Protection Act, 1986 directing that the deficiency in service should be rectified by the builder by completing construction of the flat and delivering possession of the same to the complainant within a period of two months from today. Because of the delay and the non - cooperative attitude adopted by the builder despite repeated approaches made to her by the complainant we are of the view that the complainant should adequately compensate for all the mental agony, harassment and hardship undergone by him in addition to the award of interest on the aforesaid amount at Rs. 8,46,000/ - representing the value of the flat. Accordingly we direct that the opposite party (respondent herein) shall pay to the appellant (complainant) a sum of Rs. 50,000/ - by way of compensation for mental agony, harassment and the indefinite amount of inconvenience caused to the complainant, in addition to interest @ 18% per annum on the aforesum of Rs. 8,46,000/ - from 1st April, 1990 till the date of actual delivery of possession. In modification of the order passed by the State Commission there will be an order in the appeal on the above terms. The appellant shall be entitled to receive a sum of Rs. 5,000/ - by way of costs of this appeal from the respondent. Ordered accordingly.