M.D.BHOOPATHY vs SARADA

THIS First Appeal has been filed against the order dated 6th September, 1993 of the State Consumer Disputes Redressal Commission, Tamil Nadu in O.P. No. 558/92. The Appellants-herein were the Opposite Parties before the State Commission, the first Opposite Party being the husband, the second Opposite Party his wife and the third and fourth Opposite Parties their sons. The Respondents herein were the Complainants before the State Commission, the first Complainant being the wife and the second Complainant her husband.

THE Complainants who are the owners of house ground and premises No. 105, Habibullah Road, T. Nagar, Madras-17 of an extent of 3 grounds 1380 sq. ft. entered into four agreements dated 6.4.90, 9.4.90, 10.4.90 and 11.4.90 respectively with each of the Opposite Parties for the sale of l/4th share of the aforesaid property excluding l/14th undivided share, for Rs. 6,75,000/-, the total consideration thus being Rs. 27,00,000/-. The Complainants and the Opposite Parties entered into another agreement on 14.4.1990 by which the were to put up an apartment building in the said land after demolishing the existing building and also construct two pent houses, one of 1500 sq. ft. for the Complainants and the other of 2000 sq. ft. for the Opposite Parties in the proposed building. The Complainants were to pay at the rate of Rs. 300/- per sq. ft. for the penthouse. The Complainants had also executed a Power of Attorney in favour of the Opposite Parties for signing the plans, forms and applications for obtaining necessary sanction from the concerned authorities. However, while the Opposite Parties constructed an apartment building consisting of ground, first, second and third floors and sold the flats, they failed to put up the pent house for the Complainants. The Complainants therefore filed a complaint before the State Commission for directing the Opposite Parties to put up the pent house or pay compensation to them. The State Commission went into the questions of (i) maintainability of the complaint, (ii) whether there has been any deficiency of service or negligence on the part of the Opposite Parties and (iii) the extent of compensation to which the Complainants were entitled. The State Commission held the following: (i) The Opposite Parties had purchased the premises in question excluding l/14th undivided interest in the land for the construction of an apartment building and had entered into an agreement with the Complainants for the construction of the pent house for them. This was a service falling within the ambit of the Consumer Protection Act, (ii) Although under Clause 5 of the agreement dated 14.4.1990, the Complainants had to apply to the Planning Authority for permission to construct the apartment building, the Opposite Parties by virtue of power of attorney executed in their favour by the Complainants had applied for and obtained permission for the construction of the apartment building of ground floor plus first, second and third floors. Therefore, they could not take the plea that it was the responsibility of the Complainants to obtain the necessary permission for the construction of the pent house. The agreement dated 14.4.1990 only said that there will be an apartment building and two pent houses and if the rules did not permit the construction of more than the ground plus 3 floors, the Opposite Parties must have obtained permission for putting up the apartment building for ground plus two floors only and for the construction of the pent houses on the top floor which they failed to do, (iii) The contention of the Opposite Parties that the Complainants are entitled to only a sum of Rs. 25,000/- as liquidated damages is misleading as the stipulation for payment of liquidated damages by the defaultors figured only in the 4 agreements for the sale of the premises and on such clause figured in the agreement for the construction of the penthouse. Having regard to these points, the State Commission held that on account of negligence and deficiency in service on the part of the Opposite Parties, the Complainants were deprived of pent house measuring 1500 sq. ft. Since the Complainants'' averment that the prevailing market rate per sq. ft. was Rs. 900/- was not disputed by the Opposite Parties in their counter or counter affidavit, the State Commission accepted the said value as unrebutted. In the result, the State Commission ordered the Opposite Parties to get the necessary permission from the Government, construct and hand over a pent house measuring 1500 sq. ft. to the Complainants in the said apartment building within 3 months from the date of receipt of its order and receive the agreed cost of Rs. 4,50,000/- therefore, or in the alternative, pay to the complainants the sum of Rs. 9,00,000/- as compensation. The State Commission also directed the Opposite Parties to pay a sum of Rs. 2,000/- as costs to the Complainants.

AGGRIEVED by this order of the State Commission, the Opposite Parties have preferred this Appeal before us. The delay of one day in the Appeal stands condoned. When the Appeal came up on 23.8.1995, it was adjourned to 29.8.1995 at the instance of the Counsel appearing on both sides on the ground that there is a possibility of an amicable settlement through negotiations. However, no such possibility was reported when the case was taken up for final hearing on 29.8.1995.

IN the appeal, the Appellants raised the following points: (i) The price agreed for the entire property was Rs. 27 lakhs divided into four equal parts of Rs. 6,75,000/- as consideration under each of the agreements dated 6.4.90, 9.4.90, 10.4.90 and 11.4.90 and inspite of the Respondents retaining 1/14th undivided share, the entire sale consideration of Rs. 27 lakhs was paid to them, (ii) In the agreement dated 14.4.1990, it was mutually agreed that for the 1 / 14th undivided share retained by the Respondents, two pent houses one each for the Complainants and Opposite Parties would be constructed, (iii) The said agreement was a contingent agreement. The construction itself was agreed to be made in the 4th floor for which Government alone was competent to accord sanction, (iv) The second Respondent had claimed at the time of the agreement that he would be able to get the sanction using his influence. In their version, the Respondents have made following submissions: (i) The sale agreements dated 6.4.90,9.4.90,10.4.90 and 11.4.90 respectively for a consideration each of Rs. 6.75 lakhs with the Appellants was for the sale of 1 /4th undivided share, excluding 1 / 14th undivided share in the land, (ii) The idea of retaining l/14th share of undivided land was only to have the pent house of 1500 sq. ft. and that otherwise they would have sold the entire land, (iii) The Appellants did not prepare and submit the plan showing the pent house which shows their reluctance and negligence in rendering service to the Respondents who have parted with their valuable land. We have gone through the records carefully and heard the Counsels. The four agreements dated 6.4.90,9.4.90,10.4.90 and 11.4.90 are for the sale of the house ground and premises excluding l/14th undivided interest in land by the Respondents-Complainants to the Appellants - Opposite Parties. What was agreed upon in the fifth agreement was the construction of apartment building and pent houses and there is no mention in this agreement about the number of floors. The Appellants should therefore have honoured the agreement by planning and putting up only that number of floors including the penthouse permissible under rules. There is also no record to substantiate the averment of the Appellant that the second Respondent claimed to get the Government''s permission for the construction of the pent house on the fourth floor. Similarly the averment of the Appellants that the Complainants retained l/14th undivided share of the land for the pent house is not supported by any clause in any of the agreements or any other document before us. However, we find force in the submission of the Respondents that in the present situation, they would not be able to procure either land or building at the said area at the cost agreed.

IN the facts and circumstances of the case, the State Commission was right in holding that there was negligence and deficiency of service on the part of the Appellants. We do not find any merit in the Appeal. We therefore, uphold the order of the State Commission and dismiss the Appeal. The Respondents are awarded Rs. 3,000/- as costs of the present proceedings.