Sousa And Sons Realty Constructors And Developers vs Millicent Colaco And Glenn B Pereira

FIRST Appeal 574 -575/94 has been preferred against the order dated 13.7.94 passed by the Goa State Consumer Disputes Redressal Commission in Complaint Nos. 37 of 1993 and 54 of 1992.

THE complainants in these two cases had booked with the opposite party a flat each in Mayfair Apartments at Panaji, Goa under two separate agreements. In complaint No. 37 of 1993, the opposite party had agreed through agreement dated 9.5.89 to undertake the construction of the flat before 1.6.90 and give possession of the same to the complainant for a consideration of Rs. 6,12,500/ -. The complainant stated that she made a total payment of Rs. 5,71,646.25 and the last instalment of Rs. 40,853.75 was to be made at the time of handing over possession. The opposite party failed to deliver possession on 1.6.90 as agreed and hence the complainant prayed before the State Commission for reliefs of possession, interest on the amount of Rs. 5,71,646.25 and other expenses. In Complaint No. 54 of 1992, the opposite party agreed through agreement dated 8.12.88 to complete construction of the flat before 1.6.90 and give possession of the same to the complainant for a consideration of Rs. 6,14,700/. The complainant had made a total payment of Rs. 5,73,699.50 and the balance last instalment of Rs. 41,000.50 was to be made at the time of handing over possession. However, the possession was not delivered and hence the complainant prayed before the State Commission for the reliefs of delivery of possession and compensation by way of interest for the delay. The opposite party raised points about the maintainability of the complaints and also contended that some additional work was suggested to be carried out by the representatives of the complainants. Considering the material on record and after hearing he parties, the State Commission requested the Chief Engineer of the Public Works Department, Panaji to inspect and report to the Commission on the progress of construction of flats in question. The Report submitted by the Engineer of the PWD showed there were many short -comings. The State Commission rejected the contention that the complaint was not maintainable before the Consumer Forum as it pertained to immovable property and cited the law that if property is not delivered within the stipulated period the delay so caused is denial of service and that such a dispute is not in respect of immovable property. Having regard to the fact that in the instant case, the possession had been given to the complainant on 29.1.94 because of the complaint filed before the State Commission, the Commission held that there has been colossal negligence and deficiency in service on the part of the opposite party as a result of which the complainants were deprived of their legitimate claim of entry into possession. The Commission, therefore, directed the opposite party to pay interest at the rate of 18% per annum from 1.6.90 till 29.1.94 to (i) complainant in Complaint No. 37 of 1993 on Rs. 5,71,646.25 and (ii) complainant in Complaint No. 54 of 1992 on Rs. 5,73,699.50 and costs in each case.

IN his appeal before us against this order of the State Commission, the appellant Builder has referred to a correspondence from the respondent -complainant in Complaint No. 37 of 1993 which shows that on account of certain purported difficulties advanced by the appellant, the respondent had reluctantly agreed for extension of time for completion and delivery of the flat by 31.12.91. In the reply version to the appeal, the said respondent -complainant has admitted that since the appellant could not hand over possession as per the agreed date and in order to avoid the unpleasant situation of going through the ordeal of litigation and further mental torture and agony, she acceded to the request of the appellant and extended the date of handing over possession till December, 1991. Apart from this point and besides reiterating that the respondent -complainant in both cases kept on asking for additions/alterations and that delay was beyond the control of the appellant, no other fresh point has been taken in the appeal.

WE have heard the submissions of the Counsel on both sides and taken into account the material on record. We agree with the findings of the State Commission that there has been inordinate delay on the part of the appellant in handing over possession of the flat to the respondents herein. Considering the fact that in Complaint No. 37 of 1993, possession was not handed over even after the expiry of the extended date of 31.12.91, the finding of the State Commission about deficiency in service on the part of the appellant is not disturbed. However, keeping in view the extension of time mutually agreed upon by the parties, interest ordered by the State Commission in this Complaint will have to be reckoned only from 1.1.92 and not from 1.6.90. We find no merit in the appeal against the order of the State Commission in the other complaint i.e. Complaint No. 54 of 1992. In the result, the appeal in respect of Complaint No. 37 of 1993 is partly allowed and the order of the State Commission is modified to the extent indicated above; appeal in respect of Complaint No. 54 of 1992 is dismissed and the order of the State Commission confirmed. No costs. Ordered accordingly.