GABRIEL FERNANDES Vs. JOSE JOAO DOMINGOS GODINHO

JUDGEMENT

(1.) The complainants have filed this complaint against the opposite party [o. P. ] alleging deficiency of service for non-delivery of possession of one flat and one shop and have claimed compensation of Rs.16,80,000/- or alternatively to be put in possession of the said flat and shop.

(2.) The complaint in short is that the complainant had engaged the services of the opposite party for development of their property bearing Plot No.1 admeasuring 650 sq. m. of the property known as "hospitalcho Molo" in village Se Old Goa, Ilhas. The parties executed an agreement dated 13.3.1994. As per the said agreement, the opposite party, in consideration of the development and sale of the remaining premises in the building to be constructed on the said property, was to deliver to the complainants duly constructed with occupancy certificate and sale deed within 18 months the following premises : (a) one shop admeasuring 16 sq. m. on the ground floor, and one flat admeasuring 88 sq. m. on the first floor, both in a building called "city Avenue Complex" at Boca de Vaca, Panaji; and (b) one shop admeasuring 18 sq. m. on the ground floor of the building called "vailankanni Apartments" proposed to be constructed in the plot belonging to the complainants. Soon after the execution of the agreement, the opposite party informed the complainants that he would not be constructing the "city Avenue Complex" personally but that the same would be done by one Khan Realtors Pvt. Ltd. and requested the complainants to execute an agreement with the said Khan Realtors wherein the opposite party would be the confirming party. The opposite party represented to the complainant that the commitment to deliver the premises in "city Avenue" would be honoured by him through the said Khan Realtors. Accordingly, the complainants executed an agreement dated 10.8.1995 with the said Khan Realtors with the opposite party as the confirming party. The opposite party commenced development of the said plot of the complainants in December, 1994 after obtaining construction licence on 16.12.1994. The opposite party was unable to deliver possession of the said premises within the stipulated time. In part performance of the agreement, the opposite party delivered possession of the shop in "vailankanni Apartments" on 27.12.1997. The opposite party assured the complainants that the flat and shop in "city Avenue" would be delivered shortly. As the possession was not delivered till October, 1998, the complainants insisted with the opposite party to atleast pay compensation of Rs.50,000/- in addition to the amount of Rs.20,000/- paid earlier. Accordingly, the opposite party, on 7.10.1998, delivered 3 cheques for total amount of Rs.50,000/-. When the first cheque was presented, the same was returned unpaid for insufficiency of funds. The opposite party, on being confronted by the complainants, pleaded not to present the other two cheques for encashment as he was unable to arrange funds on account of financial difficulties. The opposite party took back the three cheques and instead issued 10 undated cheques of Rs.5,000/- each. Of these, two cheques amounting of Rs.10,000/- were encashed and the others were not presented at the request of the opposite party who claimed to be facing a financial crunch. In September, 1999, the opposite party informed the complainants that he was not in a position to deliver the flat and shop in "city Avenue" as the construction thereof was not completed by Khan Realtors.

(3.) The complainants have prayed for possession of the said flat and shop or alternatively for compensation of Rs.16,80,000/- being cost of identical built-up space in the same locality. The complainants also prayed for compensation of Rs.2,000/- per month from January, 1998 till the actual delivery of the flat and shop. The complainants also prayed for direction to the opposite party to pay the amount of Rs.40,000/- being the amount of unencashed cheques.