SUDARSHAN JAGANNATH SINGH Vs. SAINATH ENTERPRISES

JUDGEMENT

(1.) THIS complaint is filed jointly by Shri Sudarshan Jagannath Singh and his wife Smt.Veena Sudarshan Singh. Both resident of Powai Vihar Complex, Building No.4, B -103/104, A.S. Marg, Powai, Mumbai 400 076 against M/s.Sainath Enterprise of Mulund (West), Mumbai. According to Complainants Opponent was building residential flat premises. Hence, they approached Opponent and at his instance booked two different flats. The Opponent prepared two separate agreements, one for the Complainant No.1 and another for the Complainant No.2. Complainants agreed to purchase Flat Nos.103 -B and 104 -B respectively in Building No.4 to be constructed in Powai Vihar Complex. Both the agreements were entered into by the Complainants with the Opponent on 12.04.1993. However through there were two agreements and the flat numbered as two flats, the premises covered under both the agreements consisted of only one single flat admeasuring 800 and 500 sq.ft. respectively. In accordance with the two agreements, the Opponents were bound to construct one single flat admeasuring 1300 sq.ft. built -up area and possession was to be handed over to the Complainant by July, 1993. The Opponent did not complete construction in time and handed over possession on 05.12.1997. The Opponent constructed the flats covered under both the agreement as one single flat with main entrance door, one kitchen and provided one electric meter with Consumer No.G -11492374 and other amenities meant for one single flat. According to Complainants for delayed payments the agreement stipulated interest @12% per annum but Opponent demanded interest @18% per annum for delayed payment from the Complainants. So Complainants are also entitled to claim interest @18% per annum from the Opponents for inordinate delay on their part in handing over possession of the flat. Total cost of the flat was Rs. 9,10,000/ -. The Opponent agreed to hand over possession by July, 1993 but possession was given on 05.12.1997. Therefore, Complainant pleaded that they are entitled to claim interest @18% per annum from August 1993 to November, 1997 amounting to Rs. 7,09,800/ -. Complainants further pleaded that instead of total area of the flat which would have been 1300 sq.ft., on measurement they found actual flat area of 1100 sq.ft. So area of 200 sq.ft. was found short. Therefore, Opponents are bound to refund excess amount paid by the Complainants @Rs. 700/ - per sq.ft. amounting to Rs. 1,40,000/ -. They also pleaded that Opponent agreed to provide teak wood doors but they provided commercial quality flush doors and difference in costs comes to Rs. 35,000/ - for 8 doors. They demanded the said amounts from the Opponent, but opponent refused to do so and therefore, they sent registered notice through Advocate K.N.S. Pillai on 29.03.1999 and claimed amount of Rs. 8,84,000/ - along with Rs. 1,000/ - as notice charges. After receipt of notice the Opponent addressed letter dated 09.4.1999 and took up a contention that they had given a writing for full satisfaction of the work before taking possession of the flat. The Complainants pleaded that they were forced to record satisfaction note before handing over possession of the flat by the Opponent. They pleaded that even additional lift is not provided by them though they admitted and therefore, the Opponent should be directed to provide additional lift.

(2.) OPPONENT filed written version and denied the allegations made by the Complainants. According to Opponent there was no compulsion for the Complainant to enter into two different agreements, one in his name and one in his wife's name for Flat Nos.103 -B and 104 -B. This was done to suit convenience of Complainant. Opponent also pleaded that there was no compulsion to construct a singly flat of 1300 sq.ft. The possession of the flat was taken by the Complainants with due inspection and electric meter was installed at his request with larger capacity and amperage. The Opponent pleaded that Complainants were not entitled to get interest @18% for any delay in handing over possession because Complainant came for registration in the year 1998 and deed of confirmation was executed on 4th July, 1998 by the Complainant. Opponent pleaded that on 12.05.1999 Complainants requested for allotment of specific parking space and even at that time he had not made any grievance for delay in handing over possession because Complainants were knowing that legal proceeding was pending and it was ultimately decided in favour of the Opponent. Opponent even deposited Rs. 10,00,000/ - with the corporation. The Opponent pleaded that there was no shortage in the area given and therefore, the Complainant is not entitled to get refund of Rs. 1,40,000/ - as alleged. Opponent pleaded that Complainant had given three cheques for the total amount of Rs. 49,500/ - and he had requested not to present in the Bank for encashment. So, Complainants have not yet paid the said amount of Rs. 49,500/ -. Opponent pleaded that there is no shortage in area, there is no delay on its part. Even second lift has been installed and Complainants had not paid the total amount as per the agreement and the Opponent has to still recover Rs. 49,500/ - from the Complainants. The Opponent therefore pleaded that complaint should be dismissed with costs.

(3.) BOTH parties filed affidavit and documents. Complainants even filed brief notes of arguments. Opponents did not file brief notes of arguments.