M.Suryanarayana vs SHAKUNTALAMMA

THE case of the complainant is that the first opposite party who is the owner of the premises bearing No. 2-2-1167/8/14, situated at Tilak Nagar, Hyderabad admeasuring 650 sq. yards entered into a development agreement with the second opposite party, the builders on 26.8.1992, according to which the second opposite party agreed to construct stilt plus three floors making in all 12 flats with a total constructed area of 10,250 sq. ft. and transfer 40% of the constructed area in favour of the first opposite party. THE first opposite party empowered and authorised the second opposite party to enter into agreements with third parties in respect of the remaining share of constructed area.

THE opposite parties 3 and 4 are partners of second opposite party. THE fourth opposite party approached the complainant to purchase flats under construction. Accordingly the complainant agreed to purchase flat No. 304A on 1.5.1993. THE total consideration payable for the flat is Rs. 3,11,500/-. Though the complainant has paid the total consideration, the opposite parties did not complete the construction nor delivered possession of the flat. Hence the complainant seeking for a direction to the opposite parties to complete the construction and hand over possession of the flat to him by executing a registered sale deed for the undivided share of land and also to pay an amount of Rs. 18,000/- p.a. till delivery of possession, to pay compensation of Rs. 1 lakh for the inconvenience caused due to delay or in the alternative to return the amount of Rs. 3 lakhs paid with interest at quarterly rests at 20%, award compensation of Rs. 1 lakh towards mental agony, and Rs. 50,000/- towards loss of rent. In the written version filed by the first opposite party while admitting the agreement dated 26.8.1992 stated that the second opposite party has to deliver possession of her share of land within 12 months to her from the date of taking vacant possession of the property. However, the second opposite party paid only a sum of Rs. 1 lakh on signing the agreement and committed breach by not paying the balance of Rs. 2 lakhs within the stipulated period and in case of failure the first opposite party will be constrained to cancel the agreement. As second opposite party committed default of the terms of the agreement dated 26.8.1992, she cancelled the said agreement by its letter dated 5.4.1995. Thereafter the first opposite party herself completed the construction of 7 flats which were assessed by the Municipal Corporation of Hyderabad.

In O.S. No. 1645/1997 on the file of XI Junior Civil Judge, City Civil Court, Hyderabad, it was found that the second opposite party is the actual defaulter, whereupon the second opposite party preferred C.M.A. No. 184/1997 and also sought for temporary injunction in I.A. No. 297/1997 which was rejected.

THE third opposite party filed a separate counter. It is admitted that the second opposite party sold a flat of 830 sq. ft. to the complainant for a sum of Rs. 3,11,500/-. Construction of the work was delayed because of the attitude of the first opposite party who not only failed to execute G.P.A. but also stopped construction work. THE first opposite party has been living in two flats on the first floor while the remaining flats were occupied by the first opposite party. THE allegation that development agreement was cancelled by the opposite parties 1 and 2 is false. THE fourth opposite party was threatened and obtained the signatures on some blank papers and letter heads on which they created bogus documents. THE complainant has to pay a sum of Rs. 2,38,500/- for 26.05 sq. yards of undivided share of land. Since the second opposite party is the builder it has not filed any separate written version since the opposite parties 3 and 4 who are its partners have filed their written versions.

THE fourth opposite party filed a separate counter almost supporting the written version filed by the third opposite party. In addition to that it is stated that after the execution of the agreement dated 1.5.1993 by the second opposite party, this opposite party withdrew from the partnership firm. The complainant filed Exs. A-1 to A-4 besides filing his affidavit. The opposite parties filed Exs. B-1 to B-41 besides filing their affidavit. The point for consideration is whether there is any deficiency in service on the part of the opposite parties ?

EX. A-1 is the agreement dated 26.8.1992 entered into between the first opposite party, the owner and the second opposite party rep. by the third opposite party and one Aabhas Chandra s/o C.L. Tiwari, the brother of the fourth opposite party, wherein it is agreed that the first opposite party is the owner of 469 sq. yards of site where development and construction of apartments have to take place. It is further agreed therein that 40% of the constructed area subject to a minimum of 4,100 sq. ft. shall be retained by the first opposite party. So also 60% of the undivided share of land shall be transferred in favour of the second opposite party or their nominees. The second opposite party shall deposit a sum of Rs. 3 lakhs in two instalments i.e., Rs. 1 lakh at the time of the agreement and the balance of Rs. 2 lakhs within a period of three months after signing the agreement.

IT is further agreed that the second opposite party is at liberty to enter into agreements for sale of 60% of undivided share in the proposed construction by advertising about their intention to sell. Therefore, it is clear that the second opposite party is authorised to enter into the agreements to sell 60% of the constructed area as well as 60% of the undivided share of land. Pursuant to this development agreement, the second opposite party entered into agreement with the complainant. The second opposite party represented by its partner third opposite party and M.K. Shukla entered into an agreement dated 1.5.1993 marked Ex. A-2 where under it agreed to convey 830 sq. ft. area in the second floor for a total consideration of Rs. 3,41,250/- in favour of the complainant. The case of the complainant is that though he has paid the entire consideration, the opposite parties have not completed the construction. The opposite parties 2 to 4 contend that the first opposite party is causing obstruction at every stage and not allowing them to go on with the construction. They filed O.S. No. 1645/1997 on the file of XI Jr. Civil Judge, City Civil Court, Hyderabad for permanent injunction which was decreed on 6.8.2001 only. Even as against this decree, the first opposite party filed A.S. No. 321/2001 and obtained an order of status quo. Consequently the construction could not be proceeded with.

It is alleged by the third opposite party that there was an attempt to murder him at the instance of the first opposite party and, therefore, C.C. No. 195/2002 filed by him is pending before the VI Metropolitan Magistrate, Hyderabad. Of course these are all disputes between the first and the other opposite parties with which the complainant is not really concerned. The complainant is only concerned with the construction of the flat by the opposite parties as per the terms of the Ex. A-2 agreement and delivery of possession. It is his case that he has paid the entire sale consideration but only roof and walls were raised. So also door and window frames were only fixed. The rest of the works are left incomplete.

IT is alleged by the first opposite party that the second opposite party only paid the first instalment of Rs. 1 lakh and failed to pay the balance of Rs. 2 lakhs in spite of several notices. Finally the second opposite party by its letter dated 5.4.1995 informed the first opposite party that they have resolved to rescind and cancel the development agreement dated 26.8.1992 and as such no deficiency can be fastened to the first opposite party. It is the contention of the opposite parties 2 and 3 that the first opposite party fabricated false documents to the effect that Ex. A-1 was cancelled by the fourth opposite party. As we have already observed that the disputes between the owner and partners of the builder/developer have nothing to do with the rights of the complainants, inasmuch as the complainant has paid the entire amount and since the first opposite party authorised the second opposite party to enter into agreement for construction of flats including by advertisement if necessary and as such the complainant is entitled to recover damages for deficiency in service not only from opposite parties 2 and 3 but also from the first opposite party. Hence pursuant to the agreement dated 1.5.1993 and as the entire amount was paid, we are of the opinion that the first opposite party shall convey the undivided share of land as agreed to by her in favour of the complainant.

THE opposite parties 2 to 4 shall complete the construction within a period of six months from today and deliver possession to the complainant through a registered sale deed. For the delay in completing the construction, we are of the opinion that a sum of Rs. 1 lakh should be paid by all the opposite parties to the complainant. The first opposite party also shall not object for the completion of the flat. In case of any dispute between the first opposite party and other opposite parties they have to settle their disputes in a Civil Court but that should not come in the way of completion of the flats.

IF for any reason, the opposite parties 2 to 4 could not complete the balance of work as per the terms of the agreement due to any prohibitory order of the Civil Court, the complainant is alternatively entitled to recover from all the opposite parties jointly and severally, the amount paid by him with interest at 20% p.a. from the dates of respective payment. The complainant is also entitled to a sum of Rs. 25,000/- towards loss of rent and Rs. 15,000/- towards mental agony.

TIME for payment six weeks. In case there is delay in payment of these amounts, the same shall carry interest at 20%. The complaint is accordingly allowed in part to the extent indicated above with costs of Rs. 5,000/-. C.D. Nos. 25 and 26 of 1998 :

These two complaints are filed by two other complainants who also entered into similar agreements with the opposite parties. As facts are almost identical the same relief shall be given to them also.

IT is admitted that the complainant in C.D. No. 25/1998 paid Rs. 2,89,000/- and the complainant in C.D. No. 26/1998 paid Rs. 3,15,000/-. If the main relief is to be obtained or is opted by the complainants have to pay the balance of sale consideration and if alternate relief is to be obtained the amount paid by the complainants shall be paid by the opposite parties jointly and severally with interest at 20% p.a. from the date of their respective payments. The complainants in both the complaints are also entitled to a sum of Rs. 25,000/- each towards loss of rent and Rs. 15,000/- each towards mental agony. Time for payment six weeks. In case there is delay in payment of these amounts, same shall carry interest at 20%. The complaints are accordingly allowed in part to the extent indicated above with costs of Rs. 5,000/- each. Complaints partly allowed.