THOMAS REIZ ZUZARTE vs CHARI CONSTRUCTION AND REAL ESTATE DEVELOPERS And BUILDERS

BY Agreement dated 2nd August, 1996 the opposite party undertook to construct for the complainants a flat bearing No. F-4, admeasuring 93 sq. mtrs., on the first floor of a proposed building located in the property known as "Adverica" at Socorro, Porvorim, Bardez, Goa for a total consideration of Rs. 6,44,000/-. At the time of the signing of the Agreement an amount of Rs. 96,600/- was paid by the complainants and the balance consideration of Rs. 5,47,400/- was to be released according to the progress of the work as per Clause 3 of the said Agreement. Accordingly the complainants went on paying the instalments as and when the same were demanded by the opposite party. The flat was to be given in possession to the complainants within 18 months from the date of the signing of the Agreement. Thus, the opposite party received the entire consideration except the last instalment which was to be paid at the time of delivery of its possession. Since the opposite party did not given possession of the flat within the stipulated time the complainants wrote a letter, dated 18.11.1998, informing him about his default inspite of they having made all the payments well in time, as per the Agreement. The opposite party received the letter but persisted in his failure to give possession of the flat inspite of, on several occasions, they having pressed with him to comply with his promises. Therefore, the complainants wrote another letter, dated 17.2.1999, once again calling upon him to hand over possession of the flat. The opposite party inspite of receiving the letter did not comply and instead stopped the construction activities at the site. Therefore, a legal notice, dated 3rd April, 1999, was addressed to the opposite party seeking the handing over the vacant possession of the flat, complete in all respects, after obtaining the necessary Occupancy Certificate. This notice also did not yield any results. Hence this complaint was filed asking for a direction to the opposite party to deliver vacant possession of the flat after making right all the defects and deficiencies enumerated in paras 11 and 12 of the complaint in strict compliance of the terms of the Agreement dated 2nd August, 1997. A further prayer was also made for compensation of a sum equivalent to 18% interest per annum on the amount advanced to the opposite party, from 2nd January, 1998 till the date of handing over possession of the flat, in alternative, for an amount of Rs. 4,000/- per month from the aforesaid date till the actual possession of the flat.

THE opposite party resisted the suit and in the written version alleged that the allegations made in the complaint were false. He alleged that the time of 18 months to complete the flat has been orally extended on a mutual understanding that he should provide additional alteration to the flat besides what has been stipulated in the Agreement. As such the opposite party has provided a fress balcony admeasuring 6 sq. mtrs., switches with points free of charge, kitchen with masonary, kitchen platform made in large bathrooms with additional alteration and other miscellaneous works, worth about Rs. 60,000/-. This additional work was done free of cost as compensation for the delay in the completion and deliver the possession of the flat. It was further alleged that the internal construction work was 90% complete while the remaining portion would be executed as soon and delivery of the possession would be given to the complainant within 3 months from the receipt of the reply dated 12.4.1999. As such it was contended that there was no intentional delay in handing over possession of the flat and the complainants were not entitled to compensation as claimed by them. On the day of the hearing only the complainants'' learned Counsel argued the matter in view of the fact that the opposite party remained present in person and declined to advance oral submission, the reason why he was directed to file written arguments which were subsequently presented and placed on record.

We have gone through the records and considered the submissions of the complainants'' learned Counsel as well as the written arguments of the opposite party. There is no dispute that, by Agreement dated 2nd August, 1996 the opposite party was bound to give possession to the complainants of flat No. F-4, admeasuring 93 sq. mtrs., within 18 months from the date of the execution of the Agreement i.e., on or around 2nd January, 1998. Admittedly, the complainants have paid, as per the terms of the Agreement, all the instalments due except the last instalment towards the full cost of the flat which was sold to them for the price of Rs. 6,44,000/- and, out of the same, an amount of Rs. 96,600/- have been paid at the time of the signing of the Agreement. The last instalment was supposed to be paid at the time of handing over possession of the flat. The payment of the instalments are proved by the complainants through the receipts issued by the opposite party which are placed on file. The complainants''case that the opposite party failed to comply with the promise of delivering the possession of the flat in all respects has been also established not only by the affidavit of the complainant No. 1 which did not merit any substantial rebuttal on the part of the opposite party. Indeed, the opposite party''s contention that the time limit, agreed to complete the flat and give possession to the complainants, was extended on his providing additional amenities to the complainants, was denied by the said complainants and there is nothing on record to substantiate that any amenities, besides the ones stipulated in the Agreement, were added by the opposite party in the execution of the Agreement and/or that such promise was acceded by the complainants against the extension of time to complete the flat. On the contrary, the record shows that the construction is far from being completed and, instead, a number of defects which were pointed out by the complainants in paras 11 and 12 of their complaint have been vague and half heartedly denied by the opposite party on the ground that 90% of the internal work is complete. Further the complainants have also pleaded that not only the normal construction work has been delayed but also, at the time of the filing of the complaint, the opposite party had just abandoned the Project and left them without any hope of getting possession of the flat, which has been almost paid in full, in a near future. The photographs relied by the complainants give a clear picture to the extent of the non-compliance on the part of the opposite party, of the strict terms of the Agreement dated 2nd August, 1996. We are thus satisfied that these photographs speak by themselves and give a fitting reply to the empty promises of the opposite party about the expeditious completion of the flat subject to the complainants'' co-operation in this regard. We are unable to understand, in the facts and circumstances of the case, what this co-operation would mean to the opposite party when he has not been able to deny that the complainants have strictly fulfilled with all the terms of the Agreement when the cost of the flat has been almost fully realised by the opposite party. We see no reason to accept that the complainants owe any further obligation towards the opposite party except to pay the outstanding balance amount of its cost at the time of the handing over of the flat, complete in all respects, with a competent Occupancy Certificate. The opposite party has grossly failed throughout these years in deliver good service to the complainants inspite of proceedings having been instituted against them in this Commission seeking redressal on account of defective workmanship in the construction of the flat and failure to honour his commitment to deliver possession of the flat in a condition of being occupied by them for their residence.

IN the circumstances, we hold that the opposite party committed gross deficiency in service in persistently disregarding the complainants'' demands and putting them on substantial loss, hardship and inconvenience for which they are certainly bound to be compensated. In the result, we allow this complaint and direct the opposite party to deliver possession of the suit flat within 30 days from the date of pronouncement of this order, complete in all respects, together with its Occupancy Certificate and to pay compensation, by way of interest, at the rate of 18% per annum, on the whole amount advanced to the said opposite party, right from 2nd January, 1998 till the date of handing over possession of the flat, besides costs which quantify at Rs. 2,000/-. Order accordingly. Complaint allowed.