RAJANI HOMES BUILDERS vs DATTAPRASAD N.BHAT

THE challenge in this appeal is the order of the District Forum, South Goa, dated 5.5.1999 in Complaint No. 109/97. By the aforesaid order the Forum has partly allowed the respondent''s complaint and directed the appellants to pay to him a compensation of Rs. 44,350/- on account of the delay in delivering possession of the flat with interest @ 18% per annum from 18.8.1997 till the date of filing of the complaint with costs of Rs. 500/- within 30 days from the date of receipt of the order failing which the same should carry interest @ 18% per annum from the date of the order. A further direction was made to provide the flat with an independent electrical connection with meter box and test report of the wiring with a proper circuit diagram, within 30 days from the date of the receipt of the order.

THE complaint was filed by the respondent on account of deficiency in service in respect of a flat No. A-F1 on the first floor of the building "A" under the name "Barretto Arcade" which was to be constructed by the appellant at Aquem Village for a total consideration of Rs. 3,00,000/-. As per the agreement the appellants were to deliver the possession of the flat within 18 months from the date of the signing of the agreement on or before 27.2.1995. It was alleged, however, that possession of the flat was handed over to the respondent only on 18.8.1997 and this also in an incomplete condition. It was further alleged that the appellant No. 1 entered into an agreement with the appellant No. 2 entrusting the construction project to them but both the appellants failed to complete the unfinished work. THE appellant No. 1 filed his affidavit which was adopted by the appellant No. 2. It was pleaded that the delay in delivering possession was due to the respondent''s, delay in paying the instalments in time. Besides the respondent required extra work to be done which was also not paid. THE respondent never demanded earlier the possession of his flat, even after the expiry of agreed period as he was aware of his delayed payments. THE electric connection was kept in abeyance because the respondent had failed to honoured the cheque issued to them. We have heard learned Counsel for the appellants and the respondent in person. We have also gone through the records and perused the impugned order. Although the appeal filed by the appellant No. 1 is barred by limitation on account of delay for more than 60 days, we are inclined to condone this appeal due to the fact that the appeal of the complainant/appellant No. 2 is in time. However, on substance we see no merit in this appeal. We are satisfied that the learned Forum has adverted to the relevant material available in the file and after rejecting the respondent''s claim for compensation under various heads for deficiency in service for lack of reliable evidence rightly concluded that the appellant was to be held responsible for the non-timely completion and delivery of possession of suit flat to the said respondent. Admittedly, as per the terms of the Agreement, dated 27th August, 1993, the possession was to be handed over to him on 27.2.1995 and there is no dispute that instead it was only on 18.8.1997 that the same was actually given to the respondent. The appellants'' contention that this was due to the financial constrains arising out of the fact that not only the other purchasers but also the respondent himself has defaulted in regular payment of the instalments due, does not find any support on the evidence on record and have been, therefore, rightly negativated by the learned Forum. Indeed the statement of payments which is available on the file establish the contrary and shows that the respondent has been fairly punctual in payment of his dues according to the revised schedule. Therefore, the question of the respondent being held as defaulter does not seem to arise at all. Further the circumstance of the respondent having not made any demand to obtain possession of the flat, earlier as per the original terms of the agreement is irrelevant for the purpose of this appeal which challenges only the compensation awarded by the Forum, on account of delay in completion of the flat and delivery of its possession to the said respondent. The record indicates that even at the time of giving late possession the respondent refused to record his satisfaction on the quality and standard of the workmanship as well as with regard to the full completion of the flat as per the terms and specification of the agreement and that the appellants have undertaken to make good within a short period of time whatever deficiencies were then pointed out by the respondent. Being so it is obvious that the respondent''s failure to make the aforesaid demand does not defeat his right to claim whatever compensation was available to him as per the express Clause 9 of the Agreement dated 27th August 1993, once the appellants were not able to either plead and/or prove that, at any point of time, they have sought for extension of time to deliver possession of flat consequent upon the revised schedule of payments secured by the respondent. Instead the contents of the letter dated 3.12.1993 addressed to the respondent by the said appellants reiterate that the possession would be given to him within the time limit, i.e. on or before 27th February, 1995 and that the delay in starting the construction would not affect the date of handing over possession of the flat to the respondent and in case any delay occurred beyond 27th February, 1995 the appellants should be bound to pay the penalty stipulated in the agreement. On the other hand from the details of the stages of construction of the work supplied by the appellant to the respondent, by their letter dated 22.3.1995, 14.6.1996 and 12.2.1997, it flows that the respondent had already paid to the appellants more than 50% of the total cost of the construction even prior to the casting of the first slab of the building. Therefore, the learned Forum''s observations that throughout the correspondence exchanged between the appellant and respondent they have never made any reference to delay in the payments on the part of the respondent and, therefore, there seems to be no justification for the appellant to take almost two and half years beyond the agreed schedule to complete the construction are, in our view, perfectly sound and justified in the facts and circumstances of the case. Hence, the appellants cannot escape their liability of paying penalty for the period of the delay running from 27.2.1995 to 18.8.1997 and to that extent the findings recorded by the Forum with regard to the compensation of Rs. 44,350/- cannot be faulted. Lastly, we are also in agreement with the finding of the Forum that the allegation of the appellant that the respondent had unduly failed to pay to them an amount of Rs. 36,000/- on account of extra work of covering the open terrace and, therefore, the separate electric connection to the flat was withheld by them is not justified. The learned Forum has rightly held that in this regard the appellants have not been able to discharge the burden of proof to establish that the work covering the open terrace had been actually done and that, on the contrary, the letter dated 14.8.1997 addressed by them to the respondent was indicating that the work of the covering of the open terrace was still due to be undertaken.

In the result, the appeal is bound to fail and is hereby dismissed with, however, no order as to costs. Order accordingly. Appeal dismissed.