PVT. LTD. vs CHANDRAKANT T. SHARMA

THIS is an appeal against the order of District Forum, Nagpur dated 17.5.94. In a complaint filed by Chandrakant Sharma alleging deficiency in the service of a builder viz. M/s. Rutudhwaj Construction Pvt. Ltd., hereinafter referred to as ''Builder'', Nagpur, the District Forum by the impugned order directed the builder to hand over the possession of the flat completed in all respects to the complainant with the compensation amount at the rate of 50 paise per foot since 14.4.90 till possession. Admittedly the complainant had booked the flat with the Opposite Party for a consideration of Rs. 1,44,000/- and paid initial consideration of Rs. 15,000/- on 4.11.87 and Rs. 11,000/- on 19.1.88. It is also alleged that the agreement contains a stipulation to complete the construction within two years from the date of the commencement of the year which was scheduled to start on 14.1.88. The complainant alleged in his complaint that he paid the cost of flat amounting to Rs. 1,44,000/- by different cheques along with the cost of registration amounting to Rs. 3000/- but builder failed to construct the flat and hand over the possession to him. The complainant, therefore, claimed in his complaint the compensation amounting to Rs. 14,832/- for delayed construction work and the possession of the flat. By the impugned order, the District Forum directed the builder to hand over the possession of the flat complete in all respects within a month with compensation at the rate of 50 paise per sq. ft. p.m. since 14.4.90 till the date of possession. THIS order has been impugned in this appeal by the builder.

WE have heard Mr. Samarth, Advocate for the appellant and Mr. A.L. Kehanjoda, Advocate for the respondent. In appeal, the contention has been raised by the appellant that the complainant failed to make the payment against consideration as per schedule and, therefore, he has committed the breach of the conditions of the agreement. It is also contended that the entire amount of Rs. 1,44,000/- should have been paid by the complainant within a period of two years from the date of commencement of the construction i.e., on 14.1.88. Thus, the payment was to be made by the complainant on or before 13.1.90. However, according to the appellant, Rs. 36,000/- were paid till 20.1.90. It is, therefore, contended that the complainant having a failed to pay the consideration as per the schedule he was required to pay along with the delayed payment of interest at the rate of 2% p.m. as per Clause No. 5. It is also contended that after 19.1.88, the complainants stopped in making the payments and did not pay the single amount upto 22.8.90. The argument made by Mr. Samarth is that Clause No. 5 was not taken into consideration by the District Forum which has resulted into failure of justice. Another limb of argument of Mr. Samarth is that because of the failure on the part of the complainant, to make the payment on schedule, the progress of construction was affected for want of finance. On the basis of these circumstances, it is contended that the negligence due to delay in construction is referrable to the complainant and the builder cannot be held accountable on that ground. Another most important ground in appeal is that the flat in question was ready and the complainant was requested to take the possession in writing before the filing of this complaint. But the complainant refused to take the possession on the ground that the separate electric meter was not installed in the name of the complainant. It is also maintained before us that the flat is ready and complainant can take it into his possession any time but since the complainant is avoiding to take the possession of flat on flimsy reasons, the builder is not liable for the delay in placing the complainant is possession. It is also contended that the electric supply and water supply is not within the control of the builder and, therefore, he cannot be made liable for the delay in providing the electricity and water connection. We find considerable force in the aforesaid submissions made by the Advocate, Mr. Samarth. The appellant can be made liable for the delay provided the negligence is proved due to the deficiency in his service. But in the instant case, we find that considerable amount of negligence lies with the complainant for two reasons. Firstly, he did not adhere to the schedule of payment to the builder and secondly, he did not enter into possession of the flat when it was offered to him by the complainant. It is, however, true that the builder has agreed to pay 50 ps. per sq. ft. for the delayed period but the delay must be proved to be referrable due to negligence on the part of the builder alone. We find that the delay in the construction and possession cannot be solely and exclusively attributed to the builder, in view of the payment schedule.

Undisputedly, the complainant is entitled to the possession of the flat as it is stated to be duly completed in construction. Therefore, we agree with the finding of the District Forum that the complainant is entitled to be placed in possession of the flat. However, we do not agree with the finding of the District Forum that complainant is entitled to the compensation at the rate of 50 ps. per sq. ft. since 14.4.90 till the possession is given as no negligence has been proved beyond reasonable doubt against the Builder. There is however, another aspect of limitation. The complaint was filed by the complainant. If the complaint is filed in the year 1993. There is no date available on record as to when the complaint is filed after 18.6.93 then the claim for the grant of 50 ps. per sq. ft. since 14.4.90 will be barred by limitation. However, if the complaint is filed prior to 18.6.93, then it will have to be ascertained whether the complaint has been filed within a period of three years from 14.4.90, because obviously, the claim for compensation at the rate of 50 ps. sq. ft. will be barred by limitation if filed beyond prescribed limitation as discussed above by us.

ON consideration of the impugned order, and the record we find that the District Forum has to record the finding as regards the issue as to whether the complainant has made the payment on schedule date and if not whether the builder is entitled to receive the interest at the rate of 2% p.a. over the deposited instalments. Similarly, finding has to be reached as regards the point of limitation as discussed above. In order to clarify these two points mentioned above, the complaint is required to be remitted to the District Forum, Nagpur for fresh decision. Hence, we pass the following order: ORDER The appeal is partly allowed. While maintaining the finding of placement of possession of the flat, the finding of the District Forum for the grant of compensation to complainant under the impugned order, is hereby set aside. The issue of grant of compensation depends on the finding on two points referred to us as above. The District Forum is directed to hear the parties again with reference to the schedule of payment for the liability of payment of compensation to complainant and after hearing the parties, then reach the finding as regards the grant of compensation.

PARTIES shall bear their own costs. Appeal partly allowed.