VEERARAGHAVAN vs K. BACHAMMAL

THE complainant and the opposite party entered into a construction agreement to develop the complainant''s property into flats. THE complainant paid a sum of Rs. 25,000/- at the time of the agreement. THE construction should have been completed within 15 months from the date of starting of the construction. A general power was given to the opposite party to take all necessary steps towards construction. Even after 3 years, the construction work has not been started. THE opposite party agreed to pay rental compensation of Rs. 3,000/- per month commencing from June, 1998. But the opposite party failed to make payment regularly, but was paying only once in 3 months or 8 months. As against 43 months payment, the opposite party had only paid 6 payments. As a result, the complainant was put to much mental hardship and financial strain. THE complainant would have enjoyed a rental income of Rs. 2 lakhs if the opposite party handed over the flats within two months of commencement of the construction. THE complainant issued a notice and cancelled the agreement. THE opposite party failed to hand over the documents pertaining to the property. Hence, the complaint.

THE opposite party contended that the complainant''s remedy is to move a Civil Court for specific performance. THEre was no agreement to hand over the building within 15 months from the date of entering into the agreement. THE opposite party could commence the project only if the permission is accorded by the CMDA authorities. THE opposite party was regular in payment of rental compensation. On account of the act of State, he was prevented from the commencement of the construction. Hence, the opposite party contended that there is no deficiency in service. The lower Forum directed the opposite party to pay a sum of Rs. 37,000/- and return all the documents pertaining to the scheduled property and to remove the hoardings and watchman shed and to pay a rent of Rs. 1,000/- from the date of cancellation of agreement till removal of the hoardings, watchman and watchman''s shed.

Aggrieved by the same, the opposite party has filed this appeal.

THE facts are not in dispute. THE complainant and the opposite parties have entered into an agreement on 9.12.1998. THE opposite party has agreed that the construction will be completed in 15 months from the date of commencement and he would obtain for necessary sanction for construction of residential apartment at his cost and the owner will not be liable to contribute any amount required for obtaining sanction for the construction of apartment and the owner shall sign all papers and affidavits and the other party is entitled to put up buildings, flats and other structures at his will in the Schedule A property and according to the technical specification in Schedule B property and that he is permitted to negotiate terms to sell the land described in the Schedule A property to various third party purchasers and the owner would sign all the papers and the sale agreements. While this agreement has been executed on 9.12.1998, no steps were taken thereafter and, therefore, on 10.12.2002 the complainant sent notice to the opposite party pointing out the omissions. THE opposite party sent a reply under Ex. A4 admitting the agreement and also admitting he agreed to complete the construction within 15 months from the date of commencement of construction and that the approval papers are pending before the CMDA authorities and that he has paid a sum of Rs. 1,17,000/- towards rental compensation for 36 months till 29.6.2001. To this, a rejoinder was sent by the complainant and she cancelled the general power of attorney as well. THE opposite party namely the appellant herein has thus failed to develop the property and put up flats as agreed by him. THE contention that he agreed to complete the construction within 15 months from the date of commencement of the construction alone cannot be accepted at all. That would mean that he can commence the construction at his convenience even after a decade. That cannot be the spirit of the agreement. Though he has stated that he has submitted papers to CMDA authorities and they are pending, the opposite party has not chosen to produce the records to show that it is on account of any fault on the part of the complainant that the approval is pending. It is stated by the CMDA authority that the existing width of the abutting road is 22'' 9" (6.95m) and is in gross violation of the Development Control Rules requirement. This fact was not something new. THE opposite party has written to the Member-Secretary, CMDA stating that the visible reduction in the width is due to unauthorised encroachment by the opposite plot by a shopping tenant, who has made a lean to roof AC sheet extension in the road portion and the compound wall built along with this lean. Whatever be the reason, the fact remains that there has been no sincere attempt on the part of the opposite party to commence the construction. If the width of the road was not sufficient, it is not know why he should enter into an agreement at all in the first instance. THErefore, he cannot cite a factor for which the complainant was not responsible as a defence to his inaction. Thus, there is a deficiency in this case. The learned Counsel for the appellant would contend that the complainant is not a consumer since the opposite party is not providing a service. The facts in those cases relied upon are quite different. It was a collaboration agreement with the opposite party, who paid non-refundable amount to the complainant and in such circumstances, it was held that he is not a consumer. It was a case of joint venture. They were cases where both the parties had indivisible and impartible ownership rights over the land. Therefore, in such context, the Delhi State Commission held in the decision reported in III (2000) CPJ 377 and II (2003) CPJ 446, that the complainant cannot be held to be a consumer.

BUT what we find is not an agreement of collaboration. The terms and conditions of the agreement are quite different. Further this is a case where the opposite party having entered into an agreement has not even started the construction. Therefore, the complainant had after issuing notice cancelled the general power of attorney. Therefore, the decisions relied upon by the opposite party/appellant cannot apply to the facts of this case. Therefore, in such circumstances, we hold that there is no merit in this appeal. In the result, this appeal is dismissed with costs confirming the order of the Lower Forum. Cost awarded is Rs. 250/-. Time for compliance : Two months. Appeal dismissed.