MRS. DELPHINE MENEZES PANAJI GOA vs VINAY RAYKAR

-THIS is an appeal against the order of 26th of March, 1992 passed by the Goa State Consumer Disputes Redressal Commission in Complaint No. 16 of 1991. By this order the State Commission had directed the Appellant-Opposite Party to pay interest on the amount of Rs. 1.80 lakhs from 14-4-1990 till the date of possession and that the Complainant before the State Commission should be given a flat within a specified period.

THE parties to the dispute had come to an agreement on 12th February, 1990 whereby the Respondent Complainant had agreed to purchase an apartment constructed by the Appellant for Rs. 3.60 lakhs. Out of this, a sum of Rs. 1.00 lakh was paid to the Appellant on the execution of agreement on 12-2-90 and the balance was payable at the time of delivery of the possession. THE possession of flat was to be given not later than two months from the date of signing of the agreement i.e. by 12-4-90. It was also provided that if the building was not completed so as to be ready for use and occupation within the aforesaid stipulated period due to unforeseen circumstances, the builder would be entitled for an extension of three months to complete the same. THE Respondent further paid a sum of Rs. 1.80 lakhs on 14-4-1990. At the hearing we were informed by the Counsel for the Appellant that the possession of the flat has been given to the Respondent Complainant.

According to the Respondent-Complainant the Appellant asked for money to complete the work and therefore, he paid the same Rs. 1.80 akhs on 14th April, 1990. He was, however, to receive interest at 14% per month on the said amount paid in advance.

THERE is, however, no written agreement regarding the amount paid in advance and the interest payable thereon. The contention of the Appellant is that the apartment was complete at the time of signing the agreement on 12-2-1990 in all respects except for fixing sanitary fixtures of white colour as per the agreement in the two toilets and fixing of the European styled commode.

WITHIN 3 days of the signing of the agreement i.e. on 15-2-1990 the Respondent-Complainant asked for certain changes in the toilet : Indian type commode to be installed instead of European commode. According to the Appellant after consulting her engineers, she informed the Respondent-Complainant that the changes in the toilet proposed by the latter were not feasible., According to the Appellant only part of the balance of the amount viz. Rs. 1.80 lakhs were paid leaving a balance of Rs. 80,000/- still to be paid by the Respondent. The Appellant had also denied that there was ever an agreement to pay interest on the amount received in advance of the delivery of the possession of the flat. It was in January, 1991 that the Respondent finally agreed to the Appellant completing the apartment as per the plans. Two questions need to be considered in this case : (i) Whether there was any delay on the part of the Appellant to complete the construction of the apartment and in handing over the flat fit for occupation to the Respondent ? (ii) Whether any interest was payable by the Appellant to the Respondent on the amount received in advance for the completion of the construction of the flat ?

As observed in the order of the State Commission "According to O.P. (Appellant here) the Complainant had suggested change in the toilet fittings and, therefore, there was delay. The O.P. denied the payment of interest". The order of the State Commission does not indicate as to when the construction of the apartment was completed and as to when it was ready for occupation. All that it says is "it is an admitted fact that the Complainant has not been put into possession by the OP nor the notice (15 days) as required to take the possession is given to the Complainant ... The excuse submitted by the OP (Appellant) that the delay was due to change to be made in the toilet appears to be not genuine. It was informed during the course of argument by the OPs that no changes were made in the toilet. Thus it is, therefore, evident that the OP delayed the possession due to sheer negligence on her part with a view to utilise the amount of Rs. 1.80 lakhs without interest. The OP is indulging in delaying tactics to place the complainant in possession by hook or crook."

THE following features of this case are not clear. Why did the Respondent-Complainant advance a sum of Rs. 1.80 lakhs to the Appellant- Builder on 15th of February, 1990 when the balance amount was payable only on the completion of the apartment and delivery of possession fit for occupation ? It is also not understood as to how an advance of such a large amount was made without any written understanding as to the terms of the advance especially the date of delivery of possession of the flat after due completion, the rate of interest and the period after which the same is payable viz. monthly, quarterly etc. It is also obvious that the flat as such could not be completed for occupation so long as the question of the type of WC to be provided was not decided. In this connection it is relevant to note that the only European WC was to be provided as per the approved specifications and the Respondent-Complainant himself wanted a change in the type of toilet commodes to be fitted. THEre is no evidence or finding as to whether the apartments were incomplete in any other respect. On the other hand the Appellant had applied on 12-5-1990 to the Village Panchayat for issuing NOC for occupancy for which purpose she had submitted Architect''s completion certificate. In the light of these facts the finding of the State Commission that the excuse submitted by the Appellant-OP that delay was due to the change in the toilet was not genuine is not sustainable. It would have been a different matter if any other items of construction work were still incomplete in the apartment. A perusal of the correspondence between the parties in the record shows that the non-completion was in regard to the fixing of the toilet; other defects were seepage in certain areas of the flat, improper slope of floor of one of the bath rooms and the chamber of the toilets and water sump being in close proximity leading to risk of contamination of drinking water. It is only on 30th August, 1990 that the Respondent-Complainant states that the delivery of the flat was promised well before March, 1990 itself. It is significant that he paid an amount of Rs. 1.80 lakhs for the completion of flat on 15th February 1990, that is within three days of the first payment on 12-2-90 whereas it was due only on 12-4-90.

FROM the facts on record as well as at the hearing it is not conclusively established that there was delay in the completion of the flat and that the delay in the grant of possession of the flat was for reasons other than the changes to be made in the type of commodes to be installed in the bath rooms at the request of the Respondent- Complainant. The terms and conditions on which the advance of Rs. 1.80 lakhs was given are not known and if the Respondent-Complainant was to receive monthly interest thereon, he kept quiet, when he did not receive the same, for nearly 12 months after the advance. In view of this, no deficiency of service has been clearly established against the Appellant. We, therefore, allow the appeal and set aside the order of the State Commission. There is no order as to costs. Appeal allowed.