V.R. SUBRAMANIAN vs SMT. P. PUSHPAKANATHAM

This revision petition has been filed by the petitioner against the order dated 3.7.2015 passed by the Tamil Nadu State Consumer Disputes Redressal Commission, Chennai (in short, ''the State Commission'') in Appeal No. 296 of 2014 - Mr. V.R. Subramanian, Proprietor, M/s. V.R.S. Builders Vs. Smt. P. Pushpakantham by which, appeal was partly allowed.

Brief facts of the case are that the complainant/respondent entered into an agreement with the opposite party/petitioner on 3.11.2004 for the construction of house on plot bearing No. 39

measuring an extent of 1869 sq. ft. situated at No. 71, Chettipuniya Village for the construction of ground floor to an extent of 675 sq. ft at a total construction cost of Rs. 3,71,000/-. In addition to the above said amount, a further sum of Rs. 7,000/- towards rain harvesting, Rs. 20,000/- towards bore well and motor, Rs.7,000/- towards overhead tank and Rs. 15,000/- towards electricity connection and in all a sum of Rs. 4,35,000/- has been mutually agreed to the complainant and the opposite party. On the date of signing of the agreement dated 3.11.2004 the complainant paid a sum of Rs. 10,000/- as advance and agreed to pay the balance amount within 4 months in instalments subject to progress in the construction for availing loan from the Union Bank of India and obtained a loan of Rs. 4,25,000/- and executed necessary documents. The complainant''s banker had released a total sum of Rs. 4,15,000/- directly to the opposite party for the construction and the opposite party had agreed to complete the construction on or before 15.10.2005. But the opposite party failed to do so. Alleging deficiency on the part of OP, complainant filed complaint before District Forum. OP resisted complaint, denied the allegation stating that due to the delay in payment by the complainant the building could not be completed within the time and because of that the material costs for construction was increased in three folds and thereby the opposite party is ready and willing to refund the amount paid by the complainant and the construction work was stopped due to the non-payment of the amount by the complainant. Denying any deficiency on his part, prayed for dismissal of complaint. Learned District forum after hearing both parties allowed complaint and directed OP to duly complete construction on receipt of balance Rs. 10,000/- and further directed to pay Rs. 25,000/- as compensation and Rs.5,000/- as cost of litigation. Appeal filed by OP was partly allowed by learned State Commission vide impugned order and compensation of Rs. 25,000/- was reduced to Rs. 15,000/- against which, this revision petition has been filed along with application for condonation of delay.

Heard learned Counsel for the parties finally at admission stage and perused record.

Petitioner has filed application for condonation of delay of 55 days on account of unprecedented rains and floods in Chennai and other parts of the State and prayed for condonation of delay. For the reasons mentioned in the application, we deem it appropriate to condone delay and delay of 55 days in filing revision petition stands condoned.

Learned Counsel for the petitioner submitted that on account of unprecedented rise in cost of construction material, petitioner is not in a position to complete construction; hence, revision petition be allowed and petitioner be directed to refund received amount with interest. On the other hand, learned Counsel for the respondent submitted that as per direction of learned District forum respondent has made payment of balance amount to petitioner; even then, petitioner has not completed construction and there is no justification for refund of received amount with interest; hence, revision petition be dismissed.

It is not disputed that both parties entered into agreement and as per agreement, OP was to construct on the plot of complainant. It is also not disputed that complainant made entire agreed payment except Rs.10,000/- and as per direction of learned District Forum also made payment of Rs.10,000/-, but OP has not completed construction.

Learned Counsel for the petitioner submitted that on account of unprecedented rise in construction material, petitioner is not in a position to complete construction and in such circumstances, order for specific performance cannot be granted and he may be permitted to refund money with interest. He has placed reliance on judgment of Hon''ble Apex Court in (1999) SCC 77 - K. Narendra Vs. Riviera Apartments (P) Ltd . in which it was held that when specific performance of contract is impracticable decree for specific performance of agreement should not be granted and in such case compensation should be awarded. Aforesaid case is not applicable to the facts and circumstances of present case, as in the aforesaid case part of land to be sold as per agreement was acquired by the State which was non-saleable; so construction of multi-storeyed building and in turn offering of some of the flats to the plaintiff became impracticable and at the same time further observed that value of land have arisen astronomically more than 148 times; so, decree for specific performance was not granted and in the alternate compensation was granted. In the case in hand, only because price of construction material has increased, it cannot be inferred that completion of construction is impracticable on the part of petitioner. When petitioner has received payment for construction he ought to have completed construction well in time to avoid increase of price of construction material. Not only this, complainant received balance payment as directed by District forum before 2 1/2 years and still not carried out construction which is clear deficiency on his part and in such circumstances, petitioner cannot be permitted to refund money with interest.

We do not find any illegality, irregularity or jurisdictional error in the impugned order and revision petition is liable to be dismissed.

Consequently, revision petition filed by the petitioner is dismissed at admission stage with no order as to costs.