Manohar B Ghosalkar vs Trimurti Associates

THIS appeal is directed against the order dated 26.8.1993 of the Maharashtra State Commission in Complaint No. 567/92. The complainants - husband and wife are appellants herein and the opposite party, one Trimurti Associates, a sole proprietory concern is the respondent.

THE facts of the case as gathered from the records are as follows. An agreement was entered into between me complainants and opposite party. On 16.6.1986, according to which the latter agreed to provide by 31.10.1987 a constructed flat admeasuring 570 sq.ft. with all amenities for a consideration of Rs. 1,71,000/ - and the complainant paid to the opposite party on 13.6.1986 a sum of Rs. 34,200/ - being 20% of the agreed cost of construction. The complainants alleged that the opposite party advised them not to get the agreement registered as there was a likelihood of getting additional F.S.I. The development of the plot itself started only after two years. In 1990, the opposite party told the complainants to enter into a new agreement at an increased rate of Rs. 900/ - per sq. ft. in view of the rise in the cost of construction. The complainants however insisted on making payment as per the agreement and requested the opposite party to honour its part of the agreement but the opposite party avoided the complainants. According to the complainants, substantial progress in the construction was made from 1991 onwards and the opposite party demanded a further increased rate of Rs. 1,400/ - per sq. ft. from the complainants. In December, 1991, the opposite party allegedly offered them a paltry amount as compensation if the latter cancelled their booking. The complainants wrote to the opposite party on 13.7.1992 that they had already paid 20% of the cost of the flat and that the opposite party had not made any demand for further payments as per the agreement and requested the opposite party to send the demand letter so that they could make further payments. When there was no response from the opposite party, the complainants filed a complaint on 3.10.1992 before the State Commission alleging deficiency of service and praying that the opposite party be directed to accept from them the balance amount of Rs. 1,36,800/ - and give them possession of the flat. The opposite party which acknowledged the receipt of the notice of the State Commission neither filed its version nor made its appearance on the date of hearing. Under the circumstances, the State Commission proceeded ex -parte against the opposite party. Since the allegations made by the complainants were not controverted by the opposite party, the Commission held that the complainants had proved that they had booked the flat on payment of Rs. 34,200/ - on 13.6.1986. The Commission took note of the fact that the complainants did not pay the subsequent instalments to the opposite party and that the flats were not yet constructed and directed the opposite party to refund to the complainant the amount of Rs. 34,200/ - together with interest at 18% per annum from 13.6.1986 till the date of realisation. In their appeal, the appellants - complainants have pointed out that they are middle class consumers and that since the delay in the construction of flat was entirely due to the fault of the respondent, it cannot resile from the agreement and charge a higher price than that agreed upon. The appellants have prayed that the respondent be directed to hand over possession of the flat in dispute at the price mentioned in the said agreement and also that pending the disposal of the appeal the respondent be restrained from alienating or handing over possession of the flat in question to anyone else.

THE main points made by the respondent in its version are : (i) the agreement dated 16.6.1986 was entered into on the understanding that there will be proportionate increases in the price of the flat for increases in prices of building material and land cost, (ii) the project could not progress further because of non -payment of dues in time by the prospective flat purchasers and the appellants had also not paid any of the instalments as per the agreement although they were informed orally at different stages of construction to pay the instalments and therefore, they had forfeited their rights, title and interest under the said agreement, and (iii) the appellants were not entitled to any relief except, the return of money with interest as directed by the State Commission.

WE heard the arguments on both sides on 1.3.1996 and adjourned the matter to 19.3.1996 to enable the parties to explore the possibility of amicable settlement of the case. However, on that date no such possibility was reported. We have carefully perused the available records. It is not disputed that the agreement for the said flat was entered into between the appellants and the respondent on 16.6.1986. It is also not disputed that as per the schedule of payments in the agreement, the appellants had paid on 13.6.1986 Rs. 34,200/ - being 20% of the agreed cost and the balance amount had to be paid at different stages of construction of the flat. However, even according to the respondent, the demand for payments at the stipulated stages were made by them only orally. There is, therefore, no evidence on record to substantiate that the respondent made these demands which were not discharged by the complainants. Consequently, the contention of the respondent that the construction could not be proceeded with in time because of non -payment of dues by the appellants fails. On the other hand although the respondent collected 20% of the agreed cost of construction from the appellants in 1986 itself, it did not take action to fulfill its part of the agreement. While the agreement inter alia stipulates that "under no circumstances the purchaser shall be entitled to claim damages of whatsoever nature on account of delay or default in giving possession of the said flat/shop/godown/garage" there is no clause which provides for escalation in the agreed price of the flat. Yet by the respondent''s own admission in its written reply a meeting was held between all the flat purchasers and the respondent where it was decided that since the price level had gone up, the flat purchasers would receive back their money together with interest and the said agreement would stand duly cancelled This throws light on the intentions of the respondent to get out of the agreement in order to obtain higher price for the flat with the passage of time. That the respondent in fact that did so is seen from its averment that because of non payment of dues in time by the prospective purchasers the said flats under construction were resold by the respondent to other parties with which money and project was proceeded with. In the result the appellants'' simple and rightful desire to have a house for themselves has been frustrated by the conduct of the respondent. We are, therefore, convinced that there has been gross deficiency of service on the part of the respondent. In the facts and circumstances of the case we are of the view that besides refunding the amount of Rs. 34,200/ - with interest as directed by the State Commission, payment of Rs. 25,000/ - to the appellants as compensation for the mental agony and disappointment suffered by them in indefinitely waiting and not getting the flat would meet the ends of justice. We therefore, direct the respondent to pay to the appellants within three months from the date of receipt of this order : (i) Rs. 34,200/ - together with interest at 18% per annum from 13.6.1986 till date of realisation, and (ii) Rs. 25,000/ - as compensation for mental agony and suffering. The appeal is disposed of as above. There is no order as costs. Appeal disposed of.