Marlene Misracomplaina vs G Sridhar Reddy

THE Complainant has filed this Complaint against the opposite parties (for short ''OPs'') for recovery of damages alleging several ''deficiencies'' in the matter of delivery of possession of the constructed building and defects in the construction.

THE facts in this case are as follows: The Complainant in pursuance of an Agreement of Sale between her and OP -1 agreed to sell 50% undivided right, title and interest in the said property to OP -1 for a sale consideration of Rs. 80,00,000 and that she had received a sum of Rs. 20,00,000 towards part payment of the said sale consideration. As set out in the said Agreement at Clause 13 therein, the remainder sale consideration of Rs. 60,00,000 was to be paid by OP -1 to OP -2, inter alia, to construct a building housing residential apartments on the said property and thereafter deliver 50% of the total built constructed area including and not limited to the common area, terrace, garden, car park area and other saleable area and amenities and facilities in the said apartment building. Subsequently and in pursuance of and as provided in the aforesaid agreement of sale the Complainant along with OP -1 entered into a Construction Management Agreement on 28.3.1998 with OP -2. The further averments in the Complaint are that OP -2 had not commenced the construction of the apartment building despite being handed over possession of the said property immediately after executing the aforesaid agreement and there is a delay in commencing the construction work and handing over possession of the constructed flats. The further case of the Complainant is that there is a shortfall in the delivery of constructed area to the Complainant. It is further stated that the Complainant was forced to accept partial delivery of apartments that too in an incomplete manner. It is also the case of the Complainant that she had to spend considerable amount as there were several defects in the construction and inferior quality materials were used. Therefore, the Complainant is entitled for payment under different heads as set out in the Complaint. The OPs have filed their version denying the averments made by the Complainant in her Complaint. According to the OPs, the delay in commencing the construction work was due to the fact that there was a delay in the approval of the plan by the corporation. The further defence taken by the OPs in their version is that the OPs have delivered one apartment in the ground floor in the month of October, 2000 and three apartments in the 1st, 2nd and 3rd floors in March, 2001 and there is no defect in the construction work. It is further stated in the version that the total constructed area works out to 15,413 square feet out of which an area measuring 7720 square feet is occupied by the apartments delivered to the Complainants share and that an area measuring 7,685 square feet is occupied by the apartments which have come to the share of OP -1.

THE Complainant has filed an Affidavit by way of evidence and has produced certain documents in support of her claim. The OPs have also filed Affidavit and produced documents in support of their defence.

ON the basis of pleadings, the point that arises for consideration is: Whether the Complainant is entitled for compensation as prayed for in the Complaint on establishing the ''Deficiency in Service'' on the part of the OPs? The parties have entered into a Construction Management Agreement, which is produced as Exhibit R -1. According to the Complainant as per Clause 13 of the Agreement if the completion of construction is delayed due to the wilful default on the part of the third party beyond the period set out in Clause (2), the Complainant shall be entitled to compensation of Rs. 15,000 per month or part thereof during the period of such delay in addition to the rent free accommodation provided to the Land Owner. Clause 9 of the Agreement provides for rental accommodation to the Complainant not exceeding Rs. 15,000 per month from the date of possession of the Schedule A property till the hand over of the constructed area. Under Clause 12 of the Agreement, the construction shall be completed within 18 months from the date of securing the approval of the plan from the concerned authorities. According to the OPs, the delay in commencing construction was due to the changes in the design and delay in the approval of the plan. From the averments in the version and the Affidavit it is seen that the Corporation approved the plan on 9.7.1998. The commencement certificate was issued on 23.11.1998. As per the Agreement the construction was to be completed within 18 months from the date of issuance of the commencement certificate. If the date 23.11.1998 is taken into consideration as the date to commence the construction, the OPs were required to hand over possession of the constructed area within 18 months from 23.11.1998 and the period of 18 months expired on 22.5.2000. Admittedly, Flat A in the ground floor was delivered to the Complainant on 30.10.2000. Therefore, there was a delay of about 5 months in delivery of possession. As per the terms of the contract, the Complainant is entitled for Rs. 15,000 per month, if there is delay due to the wilful default. In order to show that there is any such wilful default on the part of the OPs, the Complainant has not adduced any evidence to that effect. In that view of the matter, even though there is ''Deficiency in Service'' on the part of the OPs in not handing over possession within the agreed period, the Complainant is not entitled for compensation of Rs. 15,000 per month.

THE further case of the Complainant is that there are defects in the construction and the Complainant accepted delivery of possession subject to certain works to be completed by the OPs. From the correspondence vide Exhibit R -3 it is seen that Flat A in the ground floor was delivered to the Complainant on 30.10.2000. The possession of Flats B C and D on the 1st, 2nd and 3rd floors, respectively, were delivered to the Complainant on 10.1.2001. The OPs have produced an acknowledgement issued by the Complainant on taking delivery of possession of Flat A vide Exhibit R -4. The said document reads as follows: ''Taken delivery of Apartment Unit bearing No. A, Ground Floor, situated in the apartment building located at No. 139, Defence Colony, Indiranagar, HAL II Stage, Bangalore, subject to the following works to be undertaken as detailed hereunder: (1) Electricity, Water, Sewerage consumption charges, Building Account until individual meters are connected at domestic rates. (2) General maintenance of common amenities must be borne by the builders till such time balance constructed areas being my entitlement with serviceable civic amenities are handed over to me. (3) Clearance of debris, etc., to be cleaned from within and outside the premises. (4) 8 or more required number of manhole covers to be fitted on different chambers. (5) Car Park/s to be identified and cleaned out for occupation as soon as possible. (6) Internal work such as chipped tiles, etc., to be replaced. (7) General internal and external clearing and tidying to be done. (8) All other omissions as per normal practice of the trade have to be made good to the satisfaction of owners in terms of the Construction Management Agreement dated 12th February, 1998. (9) Obtaining occupancy certificate from the Bangalore Mahanagar palika. (10) Rest to be completed as per the Construction Management Agreement dated 12th February, 1998. Bangalore, Sd/ - Date: 1.11.2000 (MARLENE MISRA) Received above statement on behalf of Uma Sowmya Builders. Sd/ - (JAMES PINTO)'' A reading of the aforesaid document discloses that the Complainant had taken possession of the Flats subject to certain works to be completed by the OPs. The Complainant has produced certain documents along with the Affidavit filed on 22.3.2005 to show that the Complainant had spent certain amounts in order to get the works completed and to get the defective works rectified. In addition, the Complainant has also produced certain photographs of the building in question as per Exhibit C -8. From these photographs it is seen that there are cracks in the tiles laid for flooring. The OPs have not produced any material to show that the works to be completed as found in Exhibit R -4 have been completed by them. In the absence of any evidence produced by the OPs to show that they have attended to the works referred to in Exhibit R -4 after delivery of possession, there is no reason to disbelieve the evidence given by the Complainant to show that she had spent about Rs. 1,20,000 for the completion of the works and to rectify the defects in the construction. Therefore, we are of the view that the OPs are liable to pay Rs. 1,20,000 as damages under this head to the Complainant.

THE Complainant has also prayed for damages of Rs. 5,00,000 towards loss incurred by her as stated in the Complaint. But in support of the said contention the Complainant has not produced any evidence. In addition, the Complainant has also prayed for compensation of Rs. 9,00,000 on the ground that the OPs have delivered lesser area than the agreed area as per the Agreement. In support of this plea also the Complainant has not adduced any evidence to prove her case.

BESIDES this, the Complainant has also claimed liquidated damages and other reliefs. But in support of these claims also no evidence has been adduced by the Complainant.

HENCE , we are of the considered view that the Complainant is entitled for damages of Rs. 1,20,000 from the OPs. In the result, we pass the following Order: (1) The Complaint is allowed in part. (2) The OPs are directed to pay Rs. 1,20,000 to the Complainant jointly and severally with interest at 9% per annum from the date of the Complaint till realization. (3) The OPs are also directed to pay Rs. 2,000 to the Complainant towards the costs of these proceedings. Complaint partly allowed.