M.K.KALYANI vs DURAI CONSTRUCTIONS

THE case of the complainant-M.K. Kalyani is that she entered into an agreement with the opposite party on 30.6.1994 under which the opposite party agreed to sell 1400 sq. ft. of land @ of Rs. 1,000/- per sq. ft. THE complainant paid a sum of Rs. 1,50,000/- as advance. THE opposite party undertook to construct on the said land of 1400 sq. ft. and handover possession to the complainant. THE opposite party also showed the complainant the proposed plan of the construction and told her that he would get the MMDA approval shortly. But after some time, i.e., in February, 1995, the opposite party informed the complainant that the MMDA approval for the plan had come and that he had sent a construction agreement for signature of the complainant. On going through the said agreement, the complainant was shocked to find that only 1215 sq. ft. was mentioned therein that too inclusive of common amenities. She refused to sign the agreement and she insisted that she must be given a flat of 1400 sq. ft. THEn the opposite party spoke in terms of cancellation of the original agreement and sent four unsigned Banker Payment Orders for a sum of Rs. 1,70,030/- as refund of the advance amount with interest. This act of the opposite party is legally unsustainable. Thus, the opposite party is indulging only with a mala fide intention of selling the flat at a higher price to some other person. This act of the opposite party amounts to deficiency in service. On these grounds, the complaint has been filed claiming compensation under different heads all totalling to Rs. 10,20,000/-.

THE opposite party contended that to bring it in consonance with the Building Rules which were now and then revised, the area of construction had to be increased or reduced. Due to such reason, the original plan for construction prepared by the opposite party had to be revised and the revised plan had to be submitted to MMDA for approval, and due to this, the opposite party was able to give the complainant a flat of 1215 sq. ft. only inclusive of common areas. THEre was absolutely no motive in the reduction of the plinth area. After making the initial payment of Rs.1,50,000/- on 30.6.1994, the complainant had not evinced any interest in making any further payments. Under these circumstances, the opposite party decided to return the amount of Rs. 1,50,000/- received from the complainant as part of the land cost. THErefore, to avoid any litigation, the opposite party sent a draft for Rs. 1,70,030/- to the complainant for the said sum of Rs. 1,50,000/- with interest thereon at 18% p.a. Although there was no deficiency in service on the part of the opposite party, the complainant has chosen to come to this Commission. As such, there is no deficiency in service on the part of the opposite party, and hence, the complaint is liable to be dismissed. The points that arise for .consideration are: 1. Whether the opposite party was deficient in service as alleged by the complainant? and 2. If so, what relief can be granted to the complainant? ,

On 30.6.1994, there was an agreement under which the opposite party undertook to sell a land of 1400 sq. ft. to the complainant and for that they received a sum of Rs. 1,50,000/- as advance. According to the complainant, the opposite party undertook to construct and give a flat of 1400 sq. ft. to the complainant. In the sale agreement for land Ex. A-2, it is mentioned that. "The Vendors undertake to obtain a sanction of the building plan from M.M.D.A./ Corporation of Madras within a reasonable period and this Agreement is subject to the approval of the building plan by the concerned Authorities."

According to the opposite parties, due to changing rules regarding the building plan, the opposite party could get the plan of the building for flats of 1215 sq. ft. The opposite party has written a letter Ex. A-4 dated 9.2.1995 to the complainant which is as follows: "Madam, I trust this finds you in good health and cheer. I have already informed you that the building plan for No. 9, Masimalani Street. T. Nagar, Madras-17 has already been sanctioned on 12.1.1995 and I have been expecting you to call on us. You were also informed that as per the revised plan approval the flat allotted to you will have an area of 1226 sq. ft. which is include of the common areas. Kindly arrange to call on us and have undivided share of 1226 sq. ft. registered in your name. You are also requested to pay the balance sum of Rs. 4.5 lakhs (Rupees four lakhs and fifty thousand only) immediately. With kind regards."

In this letter, the opposite party has informed the complainant that the flat allotted to the complainant would have an area of 1226 sq. ft., and the complainant has also been requested to pay the balance amount of Rs. 4.5 lakhs for the land cost. To this letter admittedly, the complainant has not sent any reply at all. While so, the opposite party has written another letter Ex. A-5 dated 22.2.1995 again reminding that the complainant would be allotted a flat of 1215 sq. ft. and that she must pay immediately the balance land cost of Rs. 4.80.240/-. It is further written therein that if the complainant was not enthusiastic in getting the flat, the opposite party was prepared to return the advance amount of Rs. 1,50,000/- paid by her and he would not mind even paying interest thereon at 12% per annum. Further the complainant has been informed that the work had already been commenced. The opposite party had enclosed a draft construction agreement with mis letter. It is only after that the complainant had sent to the opposite party a letter Ex. A-7 dated 3rd March, 1995 stating among other things that the opposite party promised to provide her a flat measuring 1400 sq. ft. excluding the common open space and a sheltered car park. In her letter the complainant has newly added two things viz; common open space and a sheltered car park while there was no agreement regarding these items earlier. The complainant has further stated that she would like to have a discussion with the opposite party in the matter. Even though she has been informed by the opposite party that work had already been started, she has not requested the opposite party not to proceed further nor has she taken any action to prevent him to go on with the work. Admittedly, the entire construction work of the building has been completed and 9 flats in the building have already been sold. Thus, the complainant has allowed the opposite party to proceed with the work and complete it without taking any action to prevent the construction. While so, she has come forward with the present complaint filed on 19.5.1995. During the course of enquiry, it was informed to us and it was not disputed that the complainant was promised to be given a three-bed room flat and all the six 3-bed room flats are uniformly of the plinth area of 1215 sq. ft.

CONSIDERING all these circumstances, it is clear to us that no deficiency in service on the part of the opposite party has been proved. However, during the course of the hearing of the case, the learned Counsel for the opposite party submitted that he was prepared to refund the advance amount of Rs. 1,50,000/- and he would also pay another sum of Rs. 1,50,000/- to purchase peace. Considering these, we pass an award for a sum of Rs. 3,00,000/-. We direct the opposite party to pay to the complainant the said amount within a month from today. Orders passed. _______________