HYGREVER HOME AND HEART LIMITED Vs. M CHOCKALINGAM

JUDGEMENT

(1.) THE complainant's case is as follows:

(2.) THE opposite party pleaded as follows: The complainant has not paid the cost of construction as per the stages mentioned in the construction agreement and therefore the question of handing over of the flat does not arise. The complainant wanted to get the sub contract from the opposite party in respect of the works done by the opposite party. The complainant being a servant in a Central Government Undertaking was prohibited from undertaking any sub contract. The complainant's suggestion to award him a sub contract in the name of his wife was not accepted by the opposite party. Therefore, with a view to reap vengeance the complainant has now filed this application. It is true that there was a Memorandum of Understanding entered into on 16.3.2000. The complainant paid an advance of Rs. 1 lakh. The total sale consideration of land cost and construction cost was fixed at Rs. 19,30,500 excluding the registration charges. It is also true that a builder's agreement was entered into on 7.5.2000. The complainant has so far paid Rs. 12,29,000 including the land cost and construction cost as against Rs. 19,30,000. The complainant has failed and neglected to pay the balance of Rs. 7,01,500. The opposite party has completed the works to the tune of Rs. 15,72,500. After deducting the sum of Rs. 12,29,000 , a sum of Rs. 3,43,500 has been invested by the opposite party which amount the complainant has not paid so far. Therefore, the opposite party has not proceeded with the construction work. The complainant is liable to pay the aforesaid sum of Rs. 3,43,500 together with interest and without making payment of the same, the complainant cannot seek any relief, much less ask for possession of the flat. It is true that there was delay on the part of the opposite party and there is an agreement to pay damages calculated @ Rs. 5 per sq. ft. per month for the entire period of delay. The question of delay will arise only if the complainant pays the entire amount due under the agreement. Since the complainant has not paid the entire amount, the question of delay does not arise and there is no liability upon the opposite party to pay damages. As on the date of the complaint, a sum of Rs. 7,01,500 is still due from the complainant. The opposite party has been repeatedly making demand upon the complainant to make the payment, but the complainant has caused inordinate delay at every stage. The unwarranted interference by the complainant led to the cessation of the work. The allegation that there is only a shell of the flat No. B of the 3rd floor earmarked for the complainant without partition walls, flooring, fitting and fixtures and other amenities is not true. The complainant has withheld and omitted to pay the balance amount. Hence, he cannot question the same. There are six flat owners other than the complainant. All the other flat owners have paid the money and the work has also been completed. As far as the opposite party is concerned, there is no deficiency in service. The complainant is not entitled to any relief. The complainant is liable to pay the balance cost of Rs. 7,01,500 together with interest.

(3.) THE lower Forum by its order dated 7.10.2003 directed the opposite party to hand over the flat to the complainant to pay a sum of Rs. 1,81,050 as compensation towards delay for the period of 30 months and also directed the further payment of Rs. 25,000 as compensation for mental agony and Rs. 2,000 as costs. Aggrieved by the said order, the opposite party has now preferred the present appeal.