OLGA SEQUEIRA vs PRIME PROPERTIES PVT. LTD.

MR. Justice Dr. Eurico Da Silva, President-The complainant who is residing at Pune and working in Kuwait booked with opposite party by an oral agreement, dated 4.3.1995, the construction of a single bedroom flat bearing No. A2-4, admeasuring 65.50 sq. mtrs., in their Project known as Colonia San Francisco located at Calangute for a total consideration of Rs. 4,50,875/-. The flat was to be situated by the poolside and delivered ready for use and occupation within a period of 3 years from the date of the agreement, i.e., on or before 4.3.1998. The complainant paid to the opposite party a sum of Rs. 50,000/- by cheque bearing No. 473803 dated 4.3.1995, and the opposite party issued a receipt, dated 4.3.1995, bearing No. 0380. The opposite party promised to send the Original Agreement duly signed as soon as it was processed. The opposite party, however, failed to comply with this promise. By letter, dated 1.8.1995, the opposite party stated that the Project would commence shortly but maliciously mentioned therein that the flat booked by the complainant was D-8 instead of A2-4. The schedule of payments for the aforesaid flat A2-4 was as follows : In spite of that the complainant made a further payment out of it in the sum of Rs. 85,252/- by cheque dated 23.9.1995 which was received and encashed by the opposite party. Subsequently, MR. Antonio Fernandes, Director of the opposite party demanded over the telephone some more payment in cash as part of the next instalment. The complainant, however, informed him that the payment of the next instalment would be made by cheque only and suggested him to send a demand letter as soon as the next instalment was due. He also requested for the written Agreement which had not been so far forwarded.

THE opposite party, despite part payment already made by the complainant who is still willing to perform his part of the contract, is refusing to perform its part of the contract and has not made any construction on the site. In terms of the Agreement, the flat was to be delivered ready not later than 4.3.1998. THE opposite party was silent about the delivery of the premises although the complainant having come to Goa on several occasions and requested the opposite party to complete the construction. THE complainant has spent Rs. 1,00,000/- towards travelling to and fro and staying in Goa. THE flat of 60 mtrs. in Calangute would fetch a minimum of Rs. 300/- per month. THE complainant is entitled to a compensation of Rs. 81,000/-, at the aforesaid rate, from 5.3.1998 till date. THE complainant is also entitled to receive the flat complete in every respect to the specific performance of the agreement. Further, towards inconvenience and suffering the complainant is also entitled to a compensation of Rs. 10,000/-. Thus the complainant prayed for a direction to the opposite party to complete the Flat A2-4 in every respect and deliver it to the complainant forthwith as well as the payment of Rs. 81,000/- with 18% interest till full and final realisation, a further payment of Rs. 300/- per day till delivery of the flat fully complete and ready for use and occupation plus Rs. 1,00,000/- for expenses towards travelling and staying in Goa and Rs. 10,000/- for mental pain and suffering. The opposite party which was sought to be served with the summons addressed to its correct address refused to accept the same. As such the summons were returned as "Unclaimed" by postman''s endorsement dated 25.1.1999. We, therefore, held that in the circumstances the service was deemed to have been completed and the matter was directed to proceed ex parte against the opposite party.

On the day of the final hearing, the opposite party again remained absent and only Mr. Monteiro, learned Counsel for the complainant, argued on the matter.

WE have heard learned Counsel and also perused the file. Admittedly the opposite party has chosen not to contest the claim and as such the facts pleaded by the complainant are deemed to have remained uncontroverted. WE however find that apart from the basic claim made by the complainant regarding deficiency of service in timely delivering the Flat A2-4, which was supposed to be rendered by the opposite party, all other additional prayers cannot be specifically satisfied for lack of material evidence to support the same. So far as actual booking of the Flat A2-4 is concerned from the material on record, we are satisfied that by an oral agreement arrived at between the parties on 4.3.1995 the opposite party undertook to construct for the complainant one single bed room flat, admeasuring 65.50 sq. mtrs., in their Project known as Colonia San Francisco, at Calangute, for total sum of Rs. 4,50,875/-. The documents on record, namely the receipt dated 4.3.1995 showing a payment made by the complainant to the opposite party''s partner A. Fernandes of Rs. 50,000/- and one more receipt, dated 23.9.1995, also issued by the same Partner in respect of an additional payment of Rs. 85,252/- towards the next instalment due regarding Flat A2-4 substantially establishes the actual execution of the Agreement referred to by the complainant which although was orally arrived at on 4.3.1995 was supposed and required to be executed in writing as per the undertaking given by the opposite party itself. This much is reflected in the letter dated 1st August, 1995 addressed to the complainant by one J.A. Tito Vaz, who styles himself as Director of the opposite party wherein although the number of the flat appears to have been wrongly mentioned the opposite party reiterates its commitment to commence the work of construction shortly and renews the promise to send the written Agreement which was being processed as soon as it was ready. This being the position, it is clear that once the booking of the flat and the part payment of the amount due towards its construction has been unmistakably proved and established on record, the complainant is to be deemed as a consumer within the meaning of the Consumer Protection Act, 1994 (hereinafter called Act) and as such entitled to the services promised by the opposite party as per the terms of the Agreement indicated by the complainant which have not been specifically denied by the opposite party. We are, therefore, inclined to hold that, besides the total amount of consideration of Rs. 4,50,875/- to be paid by the complainant in instalments referred to in para 11 of the complaint, no other obligations rested on him or her to claim from the opposite party the full compliance of the terms of the same Agreement, namely, its liability to deliver the possession of the Flat A2-4 within 18 months, complete in all respects, on or before 4.3.1998, as contended by the complainant.

ON the other hand and consquent upon the opposite party''s failure to take any definite stand on the complainant''s claim regarding the suit construction which is shown to have not even started so far, it is clear that the opposite party is not in a position to timely deliver the flat complete in all respects as prayed for by the complainant. We are therefore compelled to hold that this unjustified action of the opposite party in recklessly dishonouring its commitments after encashing substantial sums of money towards its price amounts not only to an unfair trade practice but also a blatant case of deficiency in service. This being the position, it is obvious that the complainant is undoubtedly entitled to the main relief sought for, namely, for a direction to the opposite party to complete the Flat A2-4 in all respects and deliver it to the complainant forthwith. So far the other prayers made by the complainant we find that he or she has been unable to adduce any cogent evidence to substantiate the claim for compensation under various heads, namely, travelling and staying expenses. We are, however, of the opinion that although the complainant is certainly bound to be adequately compensated both for material loss and also for mental agony, harassment and inconvenience suffered by the action of the opposite party, the same compensation can be substantially covered by awarding a reasonable rate of interest on the amount paid by the complainant towards the booking of the flat, besides awarding also a consolidated sum towards the several items sought to be indemnified. In the result, we allow the complaint and direct the opposite party to deliver forthwith the possession of the Flat A2-4 to the complainant, duly completed in all respects, and to pay to him or her interest at the rate of 18% per annum on the amount of Rs. 1,35,262/- from the respective date of the payment of its instalments till the date of actual delivery of possession of the flat to the complainant. Further the opposite party shall also pay a consolidated sum of Rs. 50,000/- to the complainant towards mental agony, harassment and inconvenience within 30 days from today, failing which the said amount will carry similar interest at the rate of 18% till its full realisation, besides costs which are quantified at Rs. 3,000/-. Order accordingly. Complaint allowed.