MOHIMIT ENTERPRISES vs AMAR GANESH JOSHI

-THIS revision petition is filed by M/s. Mohimit Enterprises against the common order dated 22.7.1999 passed by the Goa State Commission in Appeal No. 9/1999 filed by the petitioner/opposite party was dismissed and Appeal No. 12/1999 filed by the respondent/complainant was allowed.

BRIEF facts of the case are: The original complainant/respondent Mr. Amar Ganesh Joshi has inspected the site and after verification decided to purchase a flat. Petitioner No. 2, Umakant Shanta Nagwekar is a small scale contractor/builder doing construction work on a small scale in the name of Mohimit Enterprises, Petitioner No. 1. As per the agreement dated 10.6.1993 the petitioners agreed to construct a flat admeasuring 81 sqm. in area on the second floor of the building known as "Landlifa Apartments" situated at St. Inez., Panaji, Goa. The total consideration of Rs. 3,68,550 was agreed to be paid in instalments of Rs. 15,000 on the date of signing and execution of the agreement, an amount of Rs. 60,000 to be paid within 30 days of the execution of the said agreement, an amount of Rs. 2 lakh within 60 days of the execution of the agreement, and to pay the remaining Rs. 93,550 at the time of hading over the possession of the flat. The flat was required to be handed over within 4 months from the date of the agreement, i.e., by 10.10.1993. The first two instalments were made timely by the respondent. The third instalment of Rs. 2 lakh was required to be paid on or before 9.8.1993, but this was paid in two sub-instalment of Rs. 1,50,000 on 28.1.1994 and of Rs. 50,000 on 28.3.1994 and that there was technically some delay in payment of the third instalment. Due to this delay the petitioner did not hand over the possession within the stipulated time. The respondent vide letter dated 18.3.1995 asked the petitioner to hand over the possession of the flat in the first week of April 1995 and undertook to make the balance payment at the time of taking possession. The respondent also requested the petitioner to provide him occupancy certificate. He further enquired whether electricity and water connections to the suit flat had been provided or not. But the petitioner did not respond to this. Hence, the respondent personally came from Bombay (his posting place) to Goa for taking the possession of the flat. But due to non-completion of the work he did not take the possession.

The petitioner managed to get the occupancy certificate only in December 1995 and informed the respondent to take the possession of the flat. Relying on this, the respondent paid further a sum of Rs. 75,000 by cheque dated 16.1.1996. When he went to take the possession, he found that the flat was still incomplete and so he did not take possession. However, the respondent was surprised to receive the letter dated 29.5.1996, giving a list of extra works which were valued at Rs. 57,233.50. Vide letter dated 4.6.1996, the respondent pointed out certain defects which were still to be done and disputed the extent of the extra work but agreed to pay a sum of Rs. 17,500 towards the extra work of tiles. The respondent also agreed to pay the charges in respect of electricity and water connections and the balance sum of Rs. 18,500 towards the price as stipulated in the agreement. The petitioner informed the respondent that the escalation prices towards the extra items now come to Rs. 67,233. By letter dated 12.7.1996, the respondent refused to pay the amount more than Rs. 25,000. This was subsequently raised by him to Rs. 35,000. In reply, the petitioner threatened to cancel the agreement in case the respondent did not make the entire payment. It is alleged by the petitioner that due to non-payment by the respondent, the petitioner suffered heavy loss in the business and became bankrupt.

AS against this, the learned Counsel for the respondent contended that the petitioner managed to get the occupancy certificate to the said building from Panaji Municipal Corporation only in December 1995 although the main works in the said building were still incomplete. He further submitted that after obtaining the said occupancy certificate the petitioner vide letter dated 2.1.1996 asked him to make payments and taken possession of the said flat. Relying on the assurance of getting occupancy certificate that the building work is complete the respondent sent a cheque of Rs. 75,000 on 16.1.1996 to the petitioner. Thereafter, the respondent came down to Goa and was shocked to see the flat as the construction work was still incomplete. Moreover, the water and electricity connections were also not provided to the flat which are the basic amenities. Learned Counsel for the respondent submitted that the respondent requesed the petitioner to complete the remaining work and promised to pay the small balance amount at the time of possession. After hearing the arguments, the State Commission decided that though substantial payments were made by the respondent, since there was a delay in the payment of third instalment, the date of handing over the possession should be deemed to have been pushed forward to four months from the date of payment of the complete third instalment. Thus, it held that the date of handing over should be deemed to be 22.7.1994. It further held that the builder could obtain the completion certificate only after one and a half years thereafter, i.e. in December 1995. The respondent could not have taken possession of the flat without the mandatory completion certificate.

IT also held that there is no evidence that the respondent asked for any extra works in the said flat. IT, therefore, held that there was deficiency in service, and ordered that the flat should be delivered to the respondent on the later paying Rs. 18,500 and Rs. 35,000 to the petitioner. IT also directed the builder to take up the possession of the flat and pay Rs. 50,000 to the respondent for the mental harassment caused him by inordinately delaying for years in handing over the possession of the flat and for threatening cancellation of the agreement. The petitioner has filed a written statement before the Commission mentioning the various items or extra work done by him. This include marble, mosaic tiling in grey shade for floors, concealed wiring with some additional light points, full length open Verandah, aluminium sliding window shutters, addition of European WC pipeline, adding of WC and bath, shelf of kitchen and painting with colour wash. Irrespective of whether there is a written agreement between the parties to do this extra work, it is evident that this extra work has been carried out in the suit flat. Therefore, equity demands that the respondent pay Rs. one lakh towards the balance payment of Rs. 18,500 and for this extra work in all. The petitioner argued that on the failure of the respondent to make complete payment, he had to borrow an amount of Rs. 3 lakh as a private loan from a person to whom the suit flat was given in September 1996 as collateral security. He has also argued that the amount of Rs. 4,10,000 was deposited before this Commission from borrowed fund.

FROM the facts discussed above, it is quite apparent that petitioner is bound to deliver the possession of the flat to the complainant. However, with regard to payment of the balance amount, complainant is required to pay in all Rs. one lakh.

IN this view of the matter, this revision petition is partly allowed. The order passed by the State Commission is modified as under: (a) Petitioner shall deliver the possession of the flat in dispute to the complainant within a period of eight weeks from the date of order. (b) Before taking possession of the flat respondent (complainant) shall pay Rs. one lakh for the extra work carried out by the petitioner. (c) The order passed by the State Commission directing the petitioner to pay Rs. 50,000 as compensation is set aside. Revision petition stands disposed of accordingly. There shall be no order as to costs. R.P. disposed of.