N M Bhashyam vs Prabhakar Vasudev Joshi

THIS First Appeal is directed against the Order dated 16.2.95 passed by the Goa State Commission in Complaint Case No. 58/93 directing the opposite party, Appellant herein to pay the balance amount of Rs. 15,050/ - together with the interest at the rate of l8% on the sum of Rs.41,000/ -from 2.5.84 upto the date of full payment and interest at the rate of 18% on Rs. 15,000/ - from 28.5.93 till the date of payment.

THE filing of the appeal is delayed by a period of 7 days and it is accompanied by an application supported by an affidavit for condonation of delay in filing the appeal. It is deposed that the Appellant entrusted all the relevant documents in the case to his local Counsel Mr. K.V. Vyas for taking steps for filing the appeal before the National Commission but the Counsel fell ill and could not take timely action and subsequently died on 23.6.95 at Goa. As there is no fault on the part of the Appellant and there is no inaction, the delay is condoned. The appeal is entertained. The complainants have also filed cross objections which according to the consistent view by this Commission, are not maintainable and are hereby rejected.

THE facts may briefly be noticed. The Appellant herein is carrying on construction activity under the name and style of M/s. Kavita Housing Construction. According to the complainants they entered into an agreement on 7.4.84 with the opposite party for the purchase of a flat admeasuring 63m2 in the ground floor of the building to be identified as Kavita Housing Complex proposed to be constructed for a consideration of Rs. 1,26,000/ - out of which an amount of Rs. 10,000/ - was paid on 2.4.84 and another sum of Rs. 31,000/ - was paid on 2.5.84. The possession of the flat was agreed to be delivered within 24 months after the commencement of construction, but the date of commencement has not been specified in the agreement. Subsequently the parties entered into another agreement on 2.10.87 by which the complainants agreed to purchase a Duplex Bungalow admeasuring 80m2 in Caranzalem, another scheme of construction proposed by the opposite party for a consideration of Rs. 2,35,000/ - and the possession was to be delivered within 15 months of the commencement of the construction. According to the complainant the Bhoomi Puja was performed in October, 1987 and once again on 24.3.93 where after they said Rs. 5,000/ - on 31.3.93 and Rs. 10,000/ - on 25.5.93 making a total payment of Rs. 56,000/ -. The complainants alleged that the opposite party failed to commence the construction and wanted the complainant, to execute one more agreement for another flat in another scheme of the opposite party but the complainants refused and called upon the opposite party to deliver possession of the flat under the agreement dated 2.10.87. The complainants alleged that as the opposite party neglected and failed to perform the service of construction and handing over the possession of the flat, they are guilty of deficiency in service.

THE opposite party in its written version before the State Commission admitted the execution of the agreement dated 7.4.84 by them with the complainants for the flat for construction for Rs. 1,26,000/ - as also the second agreement signed by the parties on 2.10.87. It is however, stated that the complainants did not keep up their commitments in terms of payment as agreed with the result the agreement was cancelled for non -performance of the payment schedule. It is further alleged that the opposite party on completion of the land development somewhere in 1991 informed the complainants to accept a single bed room flat on first floor of Flat No. 1 which was approved by the authorities in February, 1991 and construction was about to be started in 1993 but the complainants did not agree and insisted for a two bed room apartment. Thereafter, according to the opposite party, they started construction work in S. No. 71/6 and offered the complainants a flat at the prevailing market rates and supplied to the complainants the proposed agreement of sale which was not executed. The opposite party admit all the payments except Rs. 31,000/ -. It is pleaded that opposite party with a view to help the complainants gave an official receipt for Rs. 31,000/ - though no money was received by the opposite party. They denied the other allegations of the complainants. The State Commission came to the conclusion that they are not impressed by the argument put forward that the receipt dated 2.5.84 for an amount of Rs. 31,000/ - was issued by the opposite party to the complainants for the purpose of producing the same to the Bank without in fact receiving the payment. It was further held that from the evidence produced on record it is established that the opposite party has failed and neglected to provide service to the complainants as stipulated in the agreement dated 7.4.84 and 2.10.87 inspite of having received part consideration from the complainants and thus this amounts to deficiency in service. The complainants admitted having received an amount of Rs. 40,250/ - out of the amount of Rs. 56,000/ - paid by the complainants to the opposite party. The State Commission, therefore, directed the appellant to pay the balance of Rs. 15,050/ - together with the interest at the rate of 18% on the amount of Rs. 41,000/ - from 2.5.84 upto the date of full payment and interest at the rate of 18% on Rs. 15,000/ - from 28.3.93 till the date of repayment.

WE heard the learned Counsel of the Appellant on 6.11.95 and have gone through the record. The Appellant as well as the complainants have submitted written arguments which have also been taken into consideration.

THE contention of the Counsel for the Appellant is that the State Commissions order flows from the two agreements admitted to have been executed between the parties on 7.4.84 and 2.10.87. Reference is invited to the provisions contained in Section 24A of the Consumer Protection Act, 1986 which lay down that the Commission shall not admit a claim unless it is filed within two years from the date on which the cause of action has arisen. It is urged that the complaint was barred by limitation and ought to have been rejected on that basis. As already noticed the possession of the flat was to be delivered after 24 months of the commencement of the construction under the first agreement dated 7.4.84 and within 15 months of the commencement of the construction according to the second agreement dated 2.10.87. Both the agreements do not specify the date of commencement of the construction. It is not the case of the Appellant that the construction of the building was commenced. The cause of action could arise only in favour of the complainants after the commencement of the construction by the Appellant and non delivery of the possession within the period of 24/15 months. It is the Appellants own case in the reply version that the construction work could not be commenced till 1992 /93. The Appellant on 6.2.89 informed the complainants that Sanad for conversion of land has been received and the Appellant was taking steps to obtaining the development permission. Thereafter on 6.5.92 the complainants were informed that the Appellant had got all the requisite permissions for starting building and asked the complainants to get in touch with the Appellants for further negotiations and that is the time when the draft agreement was handed over to the complainants. It is the own case of the Appellant that even though the complainant paid Rs. 15,000/ -, the complainant did not sign the proposed 1993 agreement of sale. The cause of action did not arise on execution of the two agreements but when the Appellant insisted in 1993 for a fresh agreement, the complainants rightly felt the opposite party is not going to give service of The construction and handing over possession of flat even after receiving payment of Rs. 5,000/ - on 31st March, 1993 and Rs. 10,000/ - on 25.5.93. Thus the complaint is clearly within limitation. The next submission is that the sum of Rs. 10,000/ - was paid in advance and has specifically been cited in Clause 12 of the agreement made on 2.10.87, that had Rs. 31,000/ - been paid to the Appellant the same would have been paid by cheque and also cited in the agreement but this was not done and that the complainants did not raise any objections that they had paid in addition Rs. 31,000/ -. The State Commission rightly relied upon the official receipt for Rs. 31,000/ - given by the Appellant. The parties do not execute documents without intending them to do so. No objection was raised by the Appellant till the filing of the version before the State Commission. The finding of the State Commission that an amount of Rs. 31,000/ - was paid by the complainants is upheld. For the above reasons, the appeal fails and is dismissed leaving the parties to bear their own costs of this appeal. Appeal dismissed.