PERFECT CONSTRUCTIONS Vs. BHARAT VASANT KORGAONKAR

JUDGEMENT

(1.) Appellant was the opposite party before the State Commission where the complaint filed by the respondent/complainant was partly allowed, aggrieved by which this appeal has been filed by him.

(2.) Undisputed facts of the case are that the complainant entered into an agreement with the 1st appellant, M/s. Perfect Constructions - a partnership firm represented by the 2nd appellant for purchase of a flat under a scheme floated by the appellant. This agreement was entered into between the parties on 29.1.1996 under which the possession of the flat was to be given within nine months i.e. by October, 1996. When handing over of the possession was nowhere in sight, the complainant filed a complaint before the State Commission, alleging deficiency in service and praying for several reliefs. The possession was handed over in December, 1999 on the directions of the State Commission. After hearing the parties, perusing material on record and affidavits filed by way of evidence, the State Commission held the appellant deficient in rendering service and directed the appellant to pay interest @ 12% p.a. for the period of delay, Rs. 25,000/- towards making good the construction defects and Rs. 5,000/- as costs. It is against the order that this appeal has been filed by the appellant. It is argued by the learned Counsel for the appellant that the State Commission failed to appreciate the full facts of the case. It is his contention that as per record the appellants for the first time offered possession in June, 1997. The delay was on account of two facts - one that the complainant had been requesting for changes in the flat and secondly instalments were not being paid in time by the complainant in the absence of which the complainant had no locus to ask for the possession. Even then, they offered the possession in June, 1997 on making the payments. Two sub-points were also made. First, that since the occupancy certificate was obtained in December, 1997 and even if it is accepted that the flats were ready only on 1.4.1998 then interest should not be granted beyond 1.4.1998 and secondly the delay in handing over the possession from 15.3.1999 to 1.12.1999 was occasioned by the appointment of Local Commissioner. This period shold have been exempted for the period for which interest has been granted by the State Commission. In fact, it is the complainant who should have been penalized for the delay in paying instalments. The State Commission should also have directed the complainant to Rs. 50,000/- outstanding against him. The order of the State Commission is bad on all these grounds hence need to be set aside.

(3.) We have seen the material on record and heard the arguments of the learned Counsel for the appellant. The basic facts of the case are not disputed. Award of Rs. 25,000/- for making the cost of defects reputed by the Local Commissioner have not been seriously challenged. What is in dispute and challenged is the period for which interest has been granted by the State Commission. According to the petitioner at best no interest should have been granted as there was no delay on their part. Delay if any was on the part of the complainant who did not pay the instalments as per the terms of the Agreement. His fall-back position is that interest should not run beyond 1.4.1998 and lastly no interest in any case should have been given for the period 15.3.1999-1.12.1999 i.e. delay caused by the appointment of Local Commissioner by the State Commission. It is admitted position that there has been delay in making payments by the complainant for which relief has been given by the State Commission while fixing the period of interest awarded to the complainant. It is also admitted position that somewhere in July, 1996 the complainant asked for certain changes which is as per Clause 4 of the agreement. The time of handing over the possession was to go up to October, 1996. If the complainant asked for what the State Commission found to be minor changes this could not be said to be a contributory factor in delay in handing over the possession. Two things clearly go against the appellant. The Occupation Certificate could be obtained only in December, 1997 before which to expect someone to take over the possession would be a naivete. Interestingly, this fact was not told to the State Commission by the appellant. When the complainant goes to see the spot, he finds several defects. It is in these circumstances, he files a complaint. Defects do exist as evidenced by the Local Commissioner. Possession is given on the direction of the State Commission only on 1. 12.1999. By February, 1997, all the instalments had been paid by the complainant at least by now he was entitled to get the possession of a defect-free flat after getting the occupancy certificate by the appellant. This was not obtained till December, 1997 and on seeing the flat defects were noticed by the complainant which were not removed. Only this certificate would have entitled the complainant to get water, sewage and electricity connection. Possession could be taken only after the question of defects had been appreciated and settled. Complainant could not be expected to take possession for newly built flat having defects. This issue was settled only after the report of Local Commissioner was available. The onus of deficiency in rendering service to the complainant is clearly of the appellant. The order of the State Commission is just, proper and equitable and does not call for our interference. This appeal is dismissed. No order as to costs. Appeal dismissed.