SONKAR BUILDERS vs KUSUM BHAIRAVNATH JOSHI

APPELLANT was the opposite party before the State Commission, where respondent Ms. Kusum B. Joshi, had filed a complaint alleging deficiency in service on the part of the respondent

VERY briefly the facts of the case are that both the parties had got into an agreement to handover a flat (No. 11) and possession of which was given in May, 1990. After taking possession of the flat, the respondent / complainant found certain deficiencies in the flat; shortfall in area of the flat, possession of which was, given against the area reflected in the agreement and non-refund of excess price paid by the respondent / complainant. When the matter was not getting settled between the parties, a complaint was filed before the State Commission, who proceeded ex parte against the appellant as they neither filed affidavits, nor argued the case, and passed the order in following terms: "Considering this conduct of the OP we are fully convinced that the OP are liable to pay an amount of Rs. 14,625 towards the cost of the less area given in possession which is 65 sq. ft. Similarly the OP is liable to pay Rs. 50,000 which has been spent by the complainant for completion of the flat work along with the compensation of Rs. 10,000 as claimed by her. The OP is, also liable to pay Rs. 10,000 which has been recovered by him in excess than the agreed price. This amount Rs. 14,625 + Rs. 50,000 + Rs. 10,000 + Rs. 10,000 total amount comes to Rs. 84,625 to be paid by the OP to complainant within a period of 8 weeks from today, failing which it shall carry interest @18% p.a. till its realization. With this direction this complaint stands allowed. In these circumstances, Rs. 5,000 as cost to be paid to complainant by the OP within 8 weeks from today, failing which respondent to pay penalty Rs. 100 per day to the complainant till its realization. With this direction this complaint stands allowed."

Aggrieved by this order, an appeal has been filed by the appellant before us, mainly contending that they did not get an opportunity before the State Commission to rebut all the claims/allegations made by the complainant before the State Commission. Instead of remanding the case, we directed the parties to file evidence by way of affidavits which was done.

We heard the learnedCounsel for both the parties at some length. Learned Counsel for the appellant first tried to draw our attention to the following part of the order of the State Commission. "...........the complainant''s husband was attacked by OP and the criminal case was filed against the OP in which the OP has been sentenced to imprisonment for a period of 6 months......". The case purportedly made out is that based on this information State Commission has gone on to pass the orders awarding the amounts mentioned in the order reproduced earlier. The fact is that on an appeal filed by the appellant, he has been acquitted, hence the ''coloured'' award cannot be sustained as the statement of the complainant cannot be relied upon. At the outset we make it clear that we would go on to decide the case on merits, rather than drawing any inference one way or the other, on the question of imprisonment/acquittal of the respondent.

COMING to the first leg of the relief granted by the State Commission, it relates to short-fall in area delivered by the appellant to the complainant. We have seen the two reports brought on record one by the appellant which is at page 42 of the affidavit by way of evidence filed by the appellant. From there clear inference drawn is that the net area of the flat No. 11, i.e., flat in question, is 659.72 sq. ft. It is only after adding 54.86 sq. ft of the proportionate area of passage for flat No. 11, that it is shown to be 714 sq. ft. Para 3 of the agreement entered between the parties read as under: "3. The purchaser hereby agrees to purchase from the builders and promoters and the builders and promoters hereby agree to sell to the purchaser/ shop/godown/office/ flat bearing No. 11 of having a built up area admeasuring GG-26 sq. mts. (i.e. 713 sq. ft.) on the second floor as shown on the floor plan thereof hereto annexed and marked Annexure D)'' in the said Building (hereinafter referred to as the said shop/office/Godown/ Flat at or for a price of Rs. 1,35,470 (Rupees one lakh thirty five thousand four hundered seventy only) including the proportionate price of common area and facilities."

After hearing the parties and perusal of material concerned, we are satisfied that as per agreement, what the complainant was entitled to was a built-up area of 713 sq. ft. whereas price mentioned in the agreement related to the built up area including the proportionate price of common area and facilities; this distinction needs to be drawn between the built up area and the common area/facilities. As per report filed by the appellant before us the total built up area of flat No. 11 comes to 659.72 sq. ft., whereas the report of architect filed by the complainant before the State Commission is on record and which gives the details of each of the room, kitchen, passage, balcony, etc, built up area of the flat No. 11 comes to 648 sq. ft. The difference between the two reports of the built up area is only about 12 sq. ft. or so. We have no hesitation in accepting the report of the architect filed by the complainant, as it gives full detailed measurements of each segment of the flat. In view of this we are inclined to accept that the built up area of flat No. 11 handed over to the complainant measured 648 sq. ft against 713 sq. ft. of built up area which was to be given to the complainant as per terms of the agreement. We see no merit in the plea of the appellant that 713 sq. ft. built up area was to comprise of passage, etc. as well. It shall be contrary to the terms of the Agreement. Hence, in our view, the first point of the award does not call for any interference.

COMING to the second awarded amount of Rs. 50,000 on record we see the inspection report of an architect which is also supported by an affidavit and the details of deficiency in the flat having been noted item-wise and also reflected the cost of removing the deficiencies, which is placed at Rs. 66,600 by the architect. This remains unrebutted. State Commission has only awarded Rs. 50,000 against the claimed amount of Rs. 66,600. Learned Counsel for the appellant wishes to rely upon a letter purportedly written by the complainant to the appellant, to the effect...... "I do not have any complaint regarding the construction of the said flat..." Two points need to be noted in this regard. One that photocopy of this letter written originally in Marathi has been shown to us and we find that, the signature attributed to the complainant are not genuine and if we compare this signatures with the signatures of the appellant in the agreement entered between the parties they are quite different. The original has not been produced before us. In any case, the original would not make difference. After comparing the two signatures of the complainant on record we are of the view that the signatures of the complainant in this letter are not the same as they appear in the agreement, on account of which we give no weightage to this letter. In the aforementioned circumstances, the appellant has failed to satisfy us with the help of any proof or other evidence that there were no defects/deficiencies in the flat No. 11, possession of which was given to the complainant by the appellants. Coming to the last awarded amount of Rs. 10,000 , allegedly charged as excess by the appellant from the complainant, we heard the learnedCounsel for the parties especially the learned Counsel for the complainant at some length. This relates to a very queer arrangement. The learnedCounsel for the respondent/complainant wishes to rely upon an affidavit of the Counsel for having made a payment of Rs. 5,000 for which no receipt is on record. We refrain from making any other observation except to say that in the absence of receipt, we are not inclined to agree with the contention of the complainant that they had paid Rs. 5,000 in cash. For the remaining amount of Rs. 5,000 learnedCounsel for the appellant wishes to rely upon the receipt of Rs. 5,000 allegedly signed by the S.S. Sonkar - one of the partners of the appellant firm. If we compare these signatures with the signatures in other receipts issued by the appellant, they do not match at all. We refrain from commenting about the authenticity of this receipt, in view of which, we do not find that Rs. 10,000 were paid at all. Our view is corroborated by two letters issued by the complainant. In one of the letters, complainant state having paid Rs. 65,000 , in the next letter figure of payment is shown as Rs. 55,000. In the aforementioned circumstances, for want of any proof and lack of evidence we are not inclined to sustain this part of the order granting Rs. 10,000 to the complainant. In our view, Rs. 10,000 granted as compensation also calls for no interference, in the facts and circumstances of the case.

IN the aforementioned circumstances, the appellant shall be liable to pay Rs. 14,625 + Rs. 50,000 + Rs. 10,000 awarded by the State Commission along with interest @ 12% instead of 18% p.a. awarded by the State Commission from the date of the order till its realization along with cost of Rs. 5,000 awarded by the State Commission. Admittedly the possession of the flat has been given, hence as per settled law, complainant cannot get interest @18% p.a. Order of the State Commission to pay penalty Rs. 100 per day to the complainant, is also set aside as it cannot be sustained, in view of the reliefs already given to the complainant.

THE appeal is allowed / order of the State Commission stands modified in above terms. No order as to costs. Appeal allowed.