SIVALENKA KAMAKSHAMMA vs NISCHINT CONSTRUCTIONS

THE complainant entered into an agreement dated 2.2.1994 with the first opposite party for purchase of flat No. 102 of an area of 2,197 sq. ft. in the ground floor of ''Ashwood Villa'' including undivided 100 sq. yards of land together with one parking place for a total consideration of Rs. 8,25,000/-. She paid the entire consideration on 1.2.1994. But the opposite parties who are the Construction Company, its proprietrix and her husband respectively failed to complete the construction within 12 months as agreed or deliver possession of the same. THE complainant also paid a sum of Rs. 1,00,000/- for modifications and improvements as suggested by her in the apartment and obtained a receipt from the first opposite party on 25.3.1994. THE third opposite party as G.P.A. executed a sale deed dated 20.5.1994 in favour of the complainant conveying the undivided share of 100 sq. yards. On raising protests by the complainant the third opposite party agreed to complete the construction in all respects and hand over the same by 31.12.1995 as per the minutes recorded in the meeting held on 5.9.1995. But he did not keep up his promise. Hence the complainant gave a notice on 25.5.1996 to the first opposite party seeking to complete the unfinished work immediately for which there was no reply. She filed O.P. No. 814/1996 before the District Forum and withdrew the same on 15.3.1999 with a view to seek more comprehensive reliefs and damages for an amount exceeding Rs. 5 lakhs. Subsequently the complainant filed C.D. No. 40/1999 before this Commission. She filed an application to amend the complaint and this Commission by its order dated 21.4.1999 permitted the complainant to withdraw the complaint with a liberty to file a fresh complaint. Hence she filed this complaint seeking in all a sum of Rs. 17,45,000/- by way of damages against the opposite parties.

IN the counter filed by the opposite parties while admitting the execution of the agreement of sale and receipt of Rs. 8,25,000/-, denied payment of Rs. 1 lakh subsequently. It is further stated that the complaint is barred by time. C.D. No. 814/1996 filed by the complainant before the District Forum was dismissed and the appeal F.A. No. 222/1999 preferred by the complainant was also dismissed by this Commission at the admission stage on 10.5.1999. The complainant later filed C.D. No. 40/1999 in this Commission which was also dismissed as withdrawn keeping the question of limitation open. Not only that the complainant''s GPA filed W.P. No. 8971/1999 before the Hon''ble High Court of Andhra Pradesh and obtained interim directions on 29.4.1999 seeking stay of regularisation of deviations in the construction from the approved plan. Because of this and other W.P. No. 24188/1995 filed by her attorney the construction was delayed for which the opposite parties are not responsible. There is an arbitration clause in the agreement in case of any dispute. It is finally stated that the opposite parties are ready and willing to discharge their part of obligation subject to withholding of harassment and withdrawing of litigation by the complainant and her lawful Attorney. The complainant filed Exs. A-1 to A-13 and affidavit of her G.P.A. The opposite parties filed the affidavit of the third opposite party and G.P.A. of opposite parties 1 and 2.

The point that arises for consideration is whether there is any deficiency on the part of the opposite parties, if so to what extent ? Since the original complainant died her Legal Representative is brought on record as per the orders of this Commission in C.D. I.A. No. 1492/2001 dated 30.1.2002. 4A. The execution of agreement dated 2.2.1994 marked Ex. A-1 is admitted. The consideration of Rs. 8,25,000/- paid by the complainant is also not denied. But the sum of Rs. 1 lakh paid by the complainant on 25.3.1994 for modifications and improvements is denied. A receipt dated 25.3.1994 marked Ex. A-6 issued by the third opposite party is filed. Hence payment of Rs. 1 lakh is also proved.

IT is admitted that the flat has to be delivered within 12 months, but it is not done. The reason assigned by the opposite parties is that the complainant''s G.P.A. resorted to litigation and as such there was delay. This aspect was elaborately considered in C.D. No. 57/1999 disposed of today holding that the litigation resorted to by the G.P.A. of the complainant cannot be a ground to delay the construction of the flats since there was no injunction or order of stay in those proceedings from proceeding with the construction of the complex in accordance with the sanctioned plan. Further the G.P.A. has filed the writ petition in his individual capacity but not as G.P.A. of this complainant. As such this ground is not available to the opposite parties to explain the delay. Therefore, in our view that cannot be a ground to delay the construction. It is next submitted that the complainant has filed C.D. No. 814/1996 before the District Forum and withdrew the same on 19.3.1999. The appeal filed thereon in F.A. No. 222/1999 was dismissed by this Commission on 10.5.1999. Later she filed C.D. No. 40/1999 before this Commission which was dismissed as withdrawn keeping the question of limitation open. Therefore, this complaint is not maintainable. We cannot accept this contention. In none of those matters either the District Forum or the State Commission has gone into the merits of the case. Hence following the decision of the Apex Court in New India Assurance Co. Ltd. v. R. Srinivasan, I (2000) CPJ 19 (SC), that as long as the Redressal Forum does not dispose of the complainant on merits, a fresh complaint is not barred, provided the cause of action lies within the period of limitation. Hence this objection is devoid of merits.

IT is next contended by the opposite parties that the complaint is barred by time. The agreement is dated 2.2.1994. Payments are made upto 25.3.1994 as seen from Ex. A-6 and undivided share of land was conveyed under registered sale deed on 20.5.1994. In the written version it is clearly admitted that the opposite parties are ready and will discharge their part of obligation subject to withholding of harassment and withdrawing litigation by the complainant and her lawful attorney. Therefore, the opposite parties admit to comply their part of obligation. In our view the same cannot be subject to withholding of harassment or withdrawing the litigation by the complainant and her lawful attorney. The litigation launched by the complainant''s attorney is found to be lawful in C.D. No. 57/1999 referred to above. Even otherwise the complainant cannot be responsible for the litigation embarked upon by her attorney in his individual capacity. Secondly even the complainant is entitled to take recourse through a Court of law whenever she has a genuine grievance. Therefore, the opposite parties cannot treat the genuine grievance as harassment and call upon the complainant to withdraw the same. In our view this contention does not merit acceptance. Inasmuch as the opposite parties admit to comply their part of the obligation under the agreement both in the counter as well as in the counter in C.D. 814/1996 the complaint is not barred by time. Hence this ground also fails. The next objection is what is the relief to be granted to the complainant. The complainant seeks possession of the flat along with car parking space. There cannot be any impediment in granting this relief. Regarding the value of unfinished work, the complainant claimed a sum of Rs. 4,60,000/-.

THIS Commission appointed Mr. U.Ch. Satyanarayana, a retired Chief Engineer to inspect the premises and to estimate the cost that would be incurred for completing the unfinished works in C.D. I.A. No. 425/1999 on 10.9.1999. He accordingly filed his report estimating the total cost for completing the unfinished work for flat No. 102 at Rs. 2,50,000/-. Even giving an allowance of 20 percent for market fluctuations i.e., Rs. 50,000/-, the complainant is entitled to claim a sum of Rs. 2 lakhs under this head. The said sum of Rs. 2,00,000/- shall be paid by the opposite parties to the complainant. The complainant also claimed damages for use and occupation of flat from 1.2.1995 to 31.3.1999 at Rs. 15,000/- per month and thus estimates this loss to Rs. 7,35,000/-. But in C.D. No. 814/1999 she claimed loss of income at the rate of Rs. 6,000/- per month from the date of proposed delivery till the date of filing of the complaint with interest at 24 per cent. We also feel that a sum of Rs. 6,000/- per month would be reasonable.

ACCORDINGLY we allow Rs. 6,000/- per month from 1.12.1995 to 31.3.1999. The opposite parties are directed to pay the said sum with interest at 18 percent from 31.3.1999. So also the opposite parties are directed to pay the compensation at the rate of Rs. 6,000/- per month from 1.4.1999 till possession is delivered to the complainant. The complaint is accordingly allowed in part to the extent indicated above with costs of Rs. 5,000/-. Time for payment six weeks. Complaint partly allowed.