R.VEDAMMAL vs VISWASHANTHI BUILDERS

THE complainant and the 1st opposite party Viswashanthi Builders entered into an agreement on 9.3.89 for sale of 1/16th undivided share of land bearing. No. 69, LDG Road, Little Mount, Saidapet to the complainant and to construct a building of 750 sq. ft. thereon. According to the complainant both for the land and for the building the cost was agreed to be Rs. 2,55,000/-. In pursuance thereof the complainant had paid several sums of money all aggregating to Rs. 1,60,000/-. THE 1st opposite party has executed a Sale Deed of 1/16th share of the land as agreed. But the 1st opposite party has not started the construction. While so on 6.4.94 the 1st opposite party called upon the complain- ant to pay a sum of Rs. 1,70,000/-. As per the terms of the agreement the complainant was liable to pay only a sum of Rs. 95,000/- at the time of handing over possession of the flat. On 22.2.95 the 1st opposite party sent a cheque for Rs. 1,40,000/- to the complainant stating that the agreement had been cancelled. THE 1st opposite party had no right to cancel the agreement. Thus there was complete deficiency in service on the part of the opposite party. Since the 2nd opposite party is the partner of the 1st opposite party firm, she is also liable and responsible. On 16.3.95 the complainant sent a Lawyer''s notice to the opposite parties stating that she is prepared to honour her commitment and ready and willing to pay the balance amount of Rs. 95,000/- and called upon the opposite parties to deliver the flat within 7 days from the date of notice or in the alternative pay to her a sum of Rs. 5,40,000/-. On these grounds the complainant has prayed for direction to the opposite parties to pay her a sum of Rs. 5,40,000/-, with interest thereon @ 24% p.a. from the date of petition till payment and Rs. 1,00,000/- for mental agony or in the alternative to deliver the flat.

THE opposite parties contended in the written version that as per the agreement the complainant shall pay a sum of Rs. 60,000/- for l/16th share of the land and Rs. 2,55,000/- for the cost of construction of the flat. Even from the beginning the complainant was irregular in payment of the amounts in time. THE averment in the complaint that she made a payment of Rs. 40,000/- by way of cheque in the month of March, 1989 is false. In all the complainant has paid a total sum of Rs. 1,40,000/- and not Rs. 1,60,000/-. THE total amount payable by her was Rs. 3,15,000/-. Expecting prompt payment as per the terms of the agreement by the complainant the opposite parties executed a Sale Deed conveying l/16th share of the land. THEre was no delay in the construction of the building in spite of there having been a title suit pending in respect of the land in question in the High Court. At all stages the opposite parties were issuing regular notices to the complainant demanding payment of the amounts as the complainant has consistently committed defaults in payment of monies. In these circumstances, the 1st opposite party exercised its right on 22.2.95 in the agreement treating the same as cancelled and refunded the entire sum of Rs. 1,40,000/- by way of a cheque paid by the complainant. Even without deducting the amounts to which the 1st opposite party was lawfully entitled to deduct. THE complainant received the cheque, encashed the same and appropriated the said amount. THErefore the complainant is estopped from making any claims now in the complaint. Thus the complainant has no longer any right to make any claim from the opposite party. In these circumstances the com- plaint is liable to be dismissed. The points that arise for consideration are: (1) Whether there was deficiency in service committed by the opposite parties? (2) If so, what would be the relief the complainant would be entitled to ?

Point No. 1: Ex. B 1 is the agreement entered into between the complainant and the 1st opposite party. A reading of it would clearly show that the complainant has agreed to pay a sum of Rs. 60,000/- for l/16th share and Rs. 2,55,000/- for the cost of the construction. While so the complaint reads that for both the land as well as the cost of construction the complainant had to pay Rs. 2,50,000/-. This clearly shows that the complainant is not coming with true facts and has filed the complaint with unclean hands. Para 4 of the Agreement gives the different amounts payable at different stages of construction of the building. Ex. B2 is a letter-dated 4.8.89 sent by the 1st opposite party to the complainant. In this it is clearly stated that in spite of the fact that some of the allottees have not paid the amounts in time the construction is progressing and the allottees have been requested to make payments without delay. Ex. B3 is another letter-dated 16.11.90 sent by the 1st opposite party to the complainant. The 2nd para of this latter is to the following effect: "In the instant case the present stage of work is Fourth Stage. You have paid so far Rs. 90,000/- in stages and the balance of Rs. 1,00,000/- is due from you. Though we have called on you several times to pay up this amount without delay to enable us to complete the flat in all respects and to deliver possession to you, you have not thought it fit to do so. We are, therefore, constrained to issue this final notice to you to effect payment of the outstanding immediately on pain of having to discharge the entire outstanding with interest @ 24% per annum as per Clause No. 6 of the agreement from the date of the last payment effected by you."

This shows that the first opposite party has in- formed the complainant that the construction of the building is in the 4th stage and there is a sum of Rs. 1,00,000/- due from the complainant and that must be paid immediately. To this letter there was no reply sent by the complainant. After that the 1st opposite party sent Ex. B 4 letter dated 27.7.91 to the complainant. This letter is in the following terms: "With reference to the agreement entered into between us, we wish to state that we have received from you a sum of Rs. 1,40,000/- (Rupees one lakh and forty thou- sand only) in instalments. You are well aware that as per our contract you are bound to pay Rs. 60,000/- at the time of signing the agreement, another Rs. 60,000/- at the time of laying foundation for the building, Rs. 60,000/- at the time of laying the roof and Rs. 40,000/- at the time of starting the masonry work tile brickwork. The construction of the flat "Viswashanthi'' apartment has reached upto the third floor i.e. roof laid for third floor and the masonry work is being completed. As per the agreement entered into between ourselves you are bound to pay Rs. 2,20,000/- (Rs. 60,000/- plus Rs. 60,000/- plus Rs. 60,000/ plus Rs. 40,000/-) for the construction and for the registration of undivided share an- other sum of Rs. 15,000/- in all you are bound to pay Rs. 2,35,000/-. But you have paid only Rs. 1,40,000/-. If every person who booked the flat retains about Rs. 1,00,000/- each with them, I do not know as to how you expect me to complete the work. Apart from that non-payment of the amount is nothing but a breach of contract and I can enforce the terms of the contract by cancelling the contract by re- funding the amount paid by you deducting Rs. 10,000/- towards my damages. I therefore request you, madam, to kindly consider my precarious position and make arrangements for the payment of the balance amount of Rs. 95,000/- at your earliest convenience so that I will finish the construction as quickly as possible and hand over the flat to you. Thanking you in anticipation."

The 1st opposite party reminded the complainant as to what amount she was liable to pay at different stages and she had paid in all a sum of Rs. 1,40,000/- only and unless she and other flat allottees pay the amount in time it would be difficult for him to complete the work, and he has further warned the complainant that for breach of contract he can enforce the terms of the con- tract and he can cancel it, and then he has re- quested the complainant to immediately pay the balance amount of Rs. 95,000/-. To this letter also there was no reply sent by the complainant. Then again the 1st opposite party has written Ex. B5 letter dated 12.3.92 again reminding the complainant that she paid only a sum Rs. 1,40,000/- and she must pay the balance amount and this will be the final notice and if she does not pay the balance amount within 10 days the flat will be allotted to a new buyer. Even to this letter there was no reply by the complainant. Then the 1st opposite party sent Ex. B6 letter dated 24.2.93 in which the complainant was informed that if she failed to make payment of the balance amount by 10th March, 1993 the allotment will be cancelled and the flat will be given to a new customer. The complainant has not chosen to send any reply to this letter also. The 1st opposite party caused Ex. B 7 Lawyer Notice dated 6.4.94 issued to the complainant again warning that that would be the last chance given to the complainant for payment of the balance amount. The complainant did not give any heed to this Lawyer''s notice also. It was then the 1st opposite party sent Ex. B8 letter dated 22.2.95 stating that they had cancelled the allotment and is returning the sum of Rs. 1,40,000/- paid by the complainant. A cheque for Rs. 1,40,000/- has been enclosed in this letter. The complainant has not returned the cheque but she has encashed it and kept the money with her. From all these it is quite manifest that the complainant has as against the sum of Rs. 3,15,600/- payable under the agreement paid only a sum Rs. 1,40,000/- and in spite of several letters and a Lawyer notice by the 1st opposite party, requesting for payment of the balance amount and in- forming the complainant about the stages of the construction and even threatening that if the balance amount was not paid the agreement would be cancelled, she has not cared at all. As mentioned above she has even encashed the cheque sent by the 1st opposite party for Rs. 1,40,000/- stating that the amount paid by her was being returned. Thereafter on 16.3.95 the complainant had thought of sending a notice Ex. A 7 to the 1st opposite party alleging deficiency in service on their part and claiming delivery of possession of the flat. Clearly this notice Ex. A 7 is an afterthought. Clause 7 of Ex. B 1 Agreement provides for cancellation of the agreement in case of default in payment by the allottees. Thus there is absolutely no merit in the case of the complain- ant that there was deficiency in service on the part of the 1st opposite party.

POINT No. 2: In view of the above finding on POINT No. 1 no question of any compensation arises. In the result, therefore, the complaint is dismissed. However, there will be no order as to costs. Complaint dismissed. ________________