M/S Padmaja Construction vs P. Annapurna

THERE is an application seeking condonation of delay filed by the petitioner. As delay is of only 9 days, same stands condoned.

PETITIONER /Opposite Party being aggrieved by order dated 25.9.2012, passed by Andhra Pradesh State Consumer Disputes Redressal Commission, Hyderabad (for short, ''State Commission '') has filed present revision petition. Brief facts are that respondents/complainants entered into a development agreement with petitioner on 03.05.2007 to develop and construct residential flats and hand over possession. Petitioner agreed to construct and give flat of 1250 Sq. Ft. in second or third floor within 24 months with a grace period of four months. The petitioner completed the construction in December,2009 and the advance of Rs.2,00,000/- taken from the respondents was also returned on 12.12.2009 but did not handover the property due to which respondents are sustaining loss of Rs.25,000/- per month till date. On that, respondents gave legal notice claiming possession, Rs.5,00,000/- towards loss of rents from October,2008 to May, 2010, Rs. 2,00,000/- towards mental agony. Petitioner gave a reply stating that it was ready to deliver the flat provided respondents paid Rs.61,000/- towards electrical charges and municipal taxes paid by it. Alleging that all this amounts to deficiency in service, respondents claimed possession of the property besides Rs.7,00,000/- towards damages for mental agony with interest at 24% p.a. and costs.

NOTICE of complaint was issued to the petitioner for 24.11.2010, which was received back with the Postal remarks "Not claimed " and posted the matter for respondents evidence. Thereafter, respondents filed an application for amendment of the complaint. Notice of this application was issued to the petitioner. On behalf of petitioner, Mr.D.Krishna Prasad, Advocate appeared and filed his Vakalatnama and stating that he did not propose to file counter and will argue the matter on the basis of allegations made in the complaint. Thereafter, application for amendment of the complaint was allowed by the District Forum on 28.2.2011 and matter was adjourned to 14.3.2011. On that date, amended copy of the complaint was filed and matter was adjourned to 6.4.2011 for filing of counter on behalf of the petitioner. On that date, petitioner did not file the counter and sought time. Accordingly, matter was adjourned to 18.4.2011 for filing of counter, subject to payment of Rs.200/- as cost. On 18.4.2011, again counter was not filed and cost not paid and there was no representation on behalf of the petitioner before the District Forum and accordingly, matter was posted on 6.5.2011 for respondents '' evidence. Thus, petitioner did not file any counter/reply to the complaint before the District Forum nor did it pay the adjournment cost.

THEREAFTER , District Forum, vide order dated 21.07.2011 partly allowed the complaint of the respondents and passed the following directions; "(1) That complaint is partly allowed directing the Opposite Party to deliver the flat admeasuring 1,250 sq. ft. in the 2nd floor and in case if it is not possible for the Opposite Party to handover the flat in 2nd floor, it is directed to handover the flat in 3rd floor without demanding any amount from the Complainants. (2) The Opposite Party is directed to pay an amount of Rs. 9,000/-per month from the month of December, 2009, till the flat in the 2nd or 3rd floor is delivered. (3) The Complainants are entitled to costs of Rs.2,000/from the Opposite Party. This order is to be complied within four weeks from the date of receipt of this order ".

Since District Forum disallowed compensation towards mental agony and rent at Rs.25,000/- per month instead of Rs.9,000/- per month along with interest @ 24% p.a. from December, 2009 till the date of possession, respondents filed appeal before the State Commission.

STATE Commission, vide impugned order disposed of the appeal with direction to the petitioner ; "It is not known as to why the complainants having succeeded in the complaint, while preferring appeal did not choose to file additional documents for claiming rent at a higher rate. In the first place it could have taken possession and recover whatever amount that was awarded by the District Forum. therefore, it cannot be said that the opposite party was at fault. Absolutely, we do not see any merits in the appeal except a direction to the opposite party to deliver possession of the flat in third floor immediately, together with costs that were awarded by the District Forum. In the result, this appeal is disposed of with a direction to the opposite party to hand over possession of the flat immediately, and pay rent as directed by the District Forum together with costs within four weeks from the date of receipt of this order. "

HENCE , this revision petition. We have heard learned counsel for the petitioner and gone through the record.

IT is contended by learned counsel for the petitioner that due to the fault of the respondents in not paying the extra cost for extra area of the flat and Municipal Tax, the flat is lying vacant and as such petitioner is not liable to pay any rent to the respondents as awarded by the fora below. Other contention is that petitioner cannot be made liable to deliver possession of the flat unless respondents pay extra cost of Rs.51,000/- incurred by it on the construction of the extra area of flat and Rs.5,000/- towards the Municipal tax paid by the petitioner.

DISTRICT Forum, while allowing the complaint held ; "The Opposite Party admitted in his reply notice Ex.A10 that the flats were constructed long back and not in the month of December, 2009 as contended by the complainant and it was ready to deliver the flat in the 3rd floor as per the terms of Ex.A1. If that be the case of the Opposite Party, it is for the Opposite Party to show as to why it did not inform the complainants in writing that it was ready and willing to deliver the flat as per the terms of Ex.A1 and as to why it was kept quite till the date of receipt of original of Ex.A5 notice, dated 22.06.2010. No reasonable or at least possible explanation is forthcoming to prove that aspect. In the facts and circumstances of the case and also after going through the documents relied upon by the Complainants, it is to be held that the non delivery of the flat to the complainants as the terms of the Ex.A1 Development Agreement after completion of the construction of the flats in the site belongs a deficiency of service on the part of the Opposite Party ".

District Forum further held ; "Since the Opposite Party failed to deliver the flat either in the 2nd floor or 3rd floor as per the terms of the Ex. A1 after completion of the construction of the flats even before the month of December, 2009, it is liable to pay rent @ 9,000/- per month form the month of December, 2009 to till the date of delivery of the flat, either in the 2nd floor or 3rd floor. The Opposite Party shall not demand Rs.61,000/- as claimed in the reply notice Ex. A10 for the reason that it failed to deliver the flat soon after the completion of the construction of the flats. Because of non delivery of the flats to the Complainants as per the terms of the Ex.A1 Development Agreement, the complainants are subjected to harassment and mental agony besides being sustained monetary loss ".

As apparent from the record, petitioner did not file any written statement before the District Forum nor it paid the adjournment cost and as such matter was decided by the District Forum in the absence of the petitioner. Thus, petitioner has no defence in this case.

IT is also an admitted fact that petitioner never challenged the order passed by the District Forum. Hence, order of District Forum has become final.

FURTHER , as per Development Agreement petitioner, has to construct and deliver the possession of the flat to the respondents after due construction. Till date, petitioner has not handed over possession to the respondents. This plea taken by the petitioner in the present revision that respondents have to pay extra cost for the extra area constructed by the petitioner, cannot be taken into consideration since petitioner has no such defence before the District Forum nor same has been proved by the petitioner. Under these circumstances, we do not find any ambiguity, infirmity or illegality in the impugned order. The present petition has no merits at all and same is hereby dismissed with cost of Rs.10,000/-.(Rupees Ten Thousand only)

PETITIONER is directed to deposit the cost by way of demand draft in the name of ''Consumer Welfare Fund '' as per Rule 10A of Consumer Protection Rules,1987, within eight weeks from today. In case, petitioner fails to deposit the cost within prescribed period, then it shall be liable to pay interest @ 9% p.a. till its realization.

LIST on 19.07.2013 for compliance.