PABLO BARTHOLOMEW vs TRILOK NATH MAKKAR

THIS is an appeal against the order of 24th August, 1992 passed by the State Commission of Delhi in Complaint Case No. 17/91. The order of the State Commission is quite elaborate. In this order the State Commission came to the finding that, keeping in view the disputes between the parties about the facts of the case, it would be necessary that the parties and their witnesses should be cross-examined and that a Commission should be appointed to find out whether the defects in construction of the building were got removed by the complainant and at what costs. In view of this the State Commission felt that it would not be possible to arrive at a just conclusion without an elaborate trial by a Civil Court. This was not possible in summary proceedings before the Consumer Forum. The State Commission, therefore, directed that the complainant should file a suit in a Civil Court and establish his claims there.

FOR disposal of the appeal the relevant facts are that there was an agreement to sell a flat (first floor) Property No. 97, Kailash Hills, East of Kailash, New Delhi for a total consideration of Rs. 13.5 lakhs. This agreement is not dated but it appears from the payments that this must have been executed on or after 30th March, 1989. The consideration paid by the transferee/vendee as per clause-1 of the agreement was as under: Sale consideration of Rs. 13.50 lakhs. Against the consideration the following payments are said to have been made as per the said agreement. Rs. 1,00,000/- vide Cheque No. 482621 dated 15.1.1989 on American Express Bank, New Delhi. Rs. 2,00,000/- vide Cheque No. 482624 dated 14.2.1989 on American Express Bank, New Delhi. Rs. 3,00,000/- cash on 14.2.1989. Rs. 1,35,000/- vide cheque No. 487201 dated 4.3.1989 on American Express Bank, New Delhi. Rs. 3,00,000/- cash on 30.3.1989 It would be seen from above that a sum of Rs. 10.35 lakhs were paid by 30th of March, 1989.

OUT of these, a sum of Rs. 6 lakhs was paid by cash (Rs. 3 lakhs on 14.2.1989 and Rs. 3 lakhs on 30th March, 1990). The balance amount of Rs. 4.35 lakhs was paid by cheques.

AS per the above agreement the vendor/transferor was not entitled at any point of time to raise any further demand for any reason whatsoever, no escalation admissible on the sale consideration. The balance amount of Rs. 3.15 lakhs was to be paid by 30th April, 1989 after the premises was fully equipped with fittings, fixtures and amenities as per the contract. The complainant Third Party had been also entitled to get the fittings and fixtures etc. fixed at the cost of the seller/transferor and recover damages of Rs. 1.00 lakh. If the flat was not delivered complete in all respect by 30th April, 1989, the vendee/transferee was entitled to Rs. 500/- per day for the delay.

THERE was delay in delivery of the flat by 134 days. A second agreement was executed between the parties on the 11th September, 1989. This fixed the total consideration at Rs. 7.15 lakhs and the schedule of payments as per the agreement was specified as under:

AS per clause 2 of this agreement, transferee had given the vacant physical possession of the flat to the buyer/transferee. Clause 13 of this agreement recorded that the constructions and the infrastructure "is of the highest quality and also as per the Building Bye Laws and if at any time, it transpires otherwise, the First and Second Party shall be liable for any loss/inconvenience caused to the Third Party in this regard".

THE Appellant filed a complaint before the State Commission in 1990, that the possession of the flat was delayed and thereafter he had to hire accommodation for about five months for which he paid rent at Rs. 15,000 / - per month. Further that after the possession of the flat was delivered he found that the flat had not been constructed according to the agreement and that there were defects and shortcomings in construction. He claimed a sum of Rs. 67,000/-on account of delay in handing over the possession of the flat and a sum of Rs. 1,96,773 /-on account of shortcomings rectified and he claimed a sum of Rs. 1,00,000/- on account of damages in terms of the contract. He thus claimed a sum of Rs. 3,63,773/-.

THIS complaint was dismissed by the State Commission for the reasons recorded in the beginning of this Order. In short the State Commission held that it was not possible to do justice to this complaint in the summary proceedings by the Consumer Forum and the complainant should seek his redress in Civil Court. At the hearing the Counsel for the Respondent could not explain whether the agreement of 12th September, 1989 superseded the first agreement or whether the liability of the Respondent under the first agreement for damages, for delay etc. continued. This was relevant inasmuch as the vendee/transferee had taken possession of a fully built flat in September, 1989. Ordinarily the shortcomings in fixtures and fittings and patent defects in construction would have been noticed at the time of taking possession of the flat. The agreement of September, 1989 also does not mention the liability of the transferor/vendor to compensate the transferee/vandee for that delay. More importantly, from a careful examination of the payments made under the agreement of March/April 1989 and September, 1989, it would appear that there is no mention of the payment of Rs. 6,00 lakhs in cash made on the 14th February, 1989 and 30th March, 1989 in the second agreement of September, 1989 nor there is any mention of the said amount having been refunded to the transferor or transferee. Thus the total payment made as per the agreement of September, 1989 was Rs. 7.15 lakhs whereas under the first agreement a sum of Rs. 10.35 lakhs had already been paid. Further as per the second agreement of September, 1989 a sum of Rs. 2.80 lakhs was paid during April and August, 1989. If this is added to the amount paid under the first agreement, the total consideration paid comes to Rs. 13.15 lakhs by September, 1989 whereas consideration payable under the agreement of September 1989 is only Rs. 7.15 lakhs.

IT would be abundantly clear from the above that elaborate evidence would have to be taken on these points. This will be in addition to the finding of the State Commission that elaborate evidence will have to be taken to determine the defects and deficiencies in the flat, whether they have been got removed by the Appellant-Complainant and at what costs. In view of above, we uphold the Order of the State Commission that this complaint cannot be satisfactorily adjudicated upon by a Consumer Forum. The complainant will be at liberty to seek redress by way of a suit in a competent Civil Court if he is so advised. The appeal stands above dismissed on the limited ground above mentioned. There is no Order as to costs.