PRABHAT D TANNIRWAR Vs. VILAS T MESHRAM

JUDGEMENT

(1.) THIS is an appeal against the order of District Forum, Chandrapur dated 22nd June, 1992 passed in Complaint No. 11 of 1992. A complaint was made by present appellant before the District Forum, alleging that he had hired the services of opposite party, the present respondent for construction of a flat for a consideration of Rs. 1,35,000/-. The complainant alleged that the possession of the flat was agreed to be delivered to him by December end of the year 1989. The complainant alleged that till the filing of this complaint, he has not been delivered the possession and hence there has been deficiency in the service of the opposite party. In response to notice under section 13 of the Consumer Protection Act, the opposite party admitted that there was an agreement to construct a flat for complainant for a consideration of Rs. 1,35,000/-. However, according to opposite party, the complainant did not pay Rs. 44,386/- towards the arrears and hence he could not deliver the possession to the complainant. The District Forum by the impugned order rejected the complaint and referred the complainant to approach the Civil Court.

(2.) WE have heard appellant and respondent in person. The appellant has admitted that there is a written agreement executed by the opposite party on 1-3-1989, agreeing to construct a flat for a consideration of Rs. 1,35,000/- and further agreed to deliver the possession by December end of 1989. The appellant therefore, alleged that there has been delay on the part of the opposite party to hand over the possession to the complainant and hence, there is apparent deficiency in the service of the opposite party and therefore, this complaint should not have been rejected and he should not have been referred to the Civil Court by the District Forum. The appellant further submitted that between 20th February, 1988 to 18th August, 1991, he paid the total amount of Rs. 1,53,944/- to the opposite party. The complainant again submitted that Rs. 18,000/- were paid by him yet he has not been handed over the possession by the opposite party. According to respondent the complainant paid him Rs. 1,28,944/- by 18th August, 1991 and he was yet to recover Rs. 44,000/- from the complainant. According to respondent he demanded the amount from the complainant by sending a notice dated 22-12-1991, and we were shown the notice. WE find from the notice that the opposite party demanded Rs. 11,074.80/- for doing extra work. Thus, the total amount of Rs. 11,074.80/- were demanded by a notice dated 22-12-1991. The said notice is not supported by any details as to how the complainant is required to pay Rs. 11,074.80 to the opposite party. No details are mentioned in the said notice and no certificate of any architect or engineer is filed to establish that the opposite party has done any extra work over and above the terms of the agreement. Nowhere has the respondent placed on record that he has done the extra work for the amount of Rs. 11,074.80. Under these circumstances, it is very apparent that the opposite party has raised the claim for extra amount after the expiry of the date of placing the complainant in possession. At the most, the respondent can be said to be entitled for claiming the interest as per the agreement for the delayed payment of the instalment. But that is also not properly claimed by the respondent. Under these circumstances, we clearly find that there has been delay of about more than 2 years for delivery of possession to the complainant in terms of the agreement. The delay in handing over the possession of a flat by a builder to the purchaser is a deficiency in the service, and in that event the complainant is entitled to claim compensation for the delayed allotment of flat. It also amounts to Unfair Trade Practice under section 2(1)(r) of the Consumer Protection Act and the opposite party is liable to pay compensation to the complainant. The Supreme Court of India in the case of (Luknow Development Authority v. M.K. Gupta) (1993)1 C.T.J. 929 (S.C.) has held that the order passed by the said commission in favour of the consumer directing the Luknow Development Authority to pay interest upon the amount deposited by the complainant and hand over the possession of the flat after completing construction work. In the instant case, we find that the complainant made the payment of Rs. 1,53,944/- by 18th August, 1993. It is therefore, clear that at the most the complainant can be liable for the interest of the delayed payment. But that is not the claim of the opposite party. What the opposite party contends is that he has made extra construction and as per the instruction from the complainant and therefore, the extra amount having not been paid by the complainant, he was not delivered the flat in question. However, in our view, the opposite party has totally failed in proving that he had given notices to the complainant about his default of payment and interest. Similarly the claim of the opposite party to have been made extra construction is also not proved by satisfactory evidence on the basis of any certificate from the Architect or Engineer, who did the construction and for what amount. Under these circumstances the opposite party has failed to establish as to what exactly the amount was due against the complainant. At any rate, we find that opposite party has been deficient in not placing the complainant in possession as agreed even he has paid the full consideration of Rs. 1,35,000/- before filing of this complaint. In our view, the opposite party was totally deficient while rendering the service to the complainant and therefore, it caused loss to the complainant in as much as he has not been placed in possession for more than 2 years period. The complainant is therefore, claiming compensation by way of interest at the rate of 18% per annum from the 18th August, 1991 on the amount of Rs. 1,53,944/- till the date of possession. If the opposite party, after paying the interest to the complainant still claims recovery of his arrears for extra work, then in that case, he shall file his submission of claim duly supported by vouchers and certificates of the Architect or Engineer before this commission for payment by the complainant. However, taking into consideration, the delayed period in handing over the possession, we pass the following order. Order