BHAGYASHRL A LOHIT Vs. HARIVUAY BUILDERS

JUDGEMENT

(1.) This is a complaint alleging the deficiency in the service of the opposite parties, the Builder and Developer.

(2.) Shortly stated the facts are that the complainant had hired the services of opposite party No.1 (O. P. I) for the development of land and for construction of the bunglow. The proposed bunglow was to be constructed on the 174.48 sq. mts. plot, as per the map enclosed with the complaint. The complainant paid the consideration to opposite party No.1 amounting to Rs.83,000/- towards the price of land and obtained the receipt in his favour. The statement showing the payment to O. P. is placed on record vide document No.9. Thereafter contract for the proposed construction of bunglow was made for the net amount of Rs.1,00,000/-. The statement of payment for the cost of construction is also placed on record vide document No.9. The separate receipt passed by the O. P. I towards the payment of land price and construction costs are placed on record vide Document No.1 to 3. Thus, O. P. I having received from the complainant the land cost and the construction cost did not deliver the physical possession of the proposed bunglow to complainant within. stipulated period of 18 months from the receipt of the amount. The complainant repeatedly asked the O. P.1 to deliver possession of the bunglow but the O. P.1 avoided to place complainant in possession.4. It is also alleged that O. P.1 has constructed the bunglow Unit 'a' and left out less area for unit 'b' which was to be constructed for complainant. It is also alleged that O. P.1 inducted O. P.3 as a tenant in Bunglow No. B and thus cheated him. The complainant has, therefore, claimed the refund of construction cost of Rs.1,00,000/- with interest at the rate of 22% and Rs.4,00,000/- as penal compensation with costs of Rs.10,000/-.5. In response to the Notice u/sec.13 (2) of the C. P. Act, the O. P. I and 2 filed their written versions on 19.11.91 denying the claim of complainant. Similarly, O. P.3 filed separate written version on 29.10.91. The O. P. I raised the preliminary objection about the maintainability of the dispute before this Commission and also stated that there was no agreement or contract between the complainant and himself. It is further pleaded by O. P. that the payment made by the complainant was not for rendering the service of the construction of the bunglow. In short, according to the opposite party, this Commission has no jurisdiction and the dispute lies before the Civil Court. The complaint was fixed for hearing at Nagpur Camp on 19.11.91. It was adjourned and the hearing was fixed on the next day i. e. on 20.11.91. On 20.11.91, some affidavits were filed by the O. P. The complainant had prayed for the amendment of the complaint. Hence, the complaint was adjourned. The complaint was again refixed for final hearing on 23.4.92. The intimation of the. final hearing of the complaint was sent to both the parties by registered post on 5.3.1992. Intimations were sent by R. PA. D. The opposite parties received the notices sent by registered post and even after receipt of the notices remained absent on the date of hearing i. e. on 23.4.92. It is interesting to note that the learned Counsel for O. P.1 sent application praying for adjournment on the ground that he had to attend the 61st Birth Day Ceremony of his uncle at Bangalore and the learned Advocate for the O. P.2 has also sent the application praying for adjournment on the ground that his grandfather is ill. The reason of the absence of Advocates of O. Ps. is not convincing. There is no reason as to why O. Ps. were absent. In our view it is the reason of absence by opposite parties is relevant and not the difficulties of their agents. We therefore, rejected both the applications of the Advocates. Clear intimation was given in the said notice that if the opposite parties fail to appear either in person or through their authorised Agent, the Commission would proceed to decide the complaint ex-parte. This Commission, therefore, in absence ofthe opposite parties and their authorised Agent, already proceeded ex parte on 23.4.92. The complainant filed his rejoinder in the form of affidavit on 23.4.92 verifying the allegations made in the complaint.6. We have heard Ms. M. V. Masodkar, Advocate for the complainant and also gone through the allegations in complaint and written version of the opposite parties and documents on record.7. As regards the objection raised by the opposite parties regarding the jurisdiction of this Commission, the law has been settled by the National National Commission in the case of U. P. Avas Nigam V/s. Garima Shukla, 1991 1 CPJ 1. The activity of developing of lands and allotment of flats/plots falls within the definition of Sec.2 (o) 'service' under the C. P. Act, 1986. In view of this legal situation in our view, the complaint is maintainable before this Commission under the provisions of the Consumer Protection Act.8. It was further objected by the O. P.1 that there was no agreement or contract in between the complainant and the O. P.1 for construction of the bunglow and that no payments were made to render the services of the O. P. I to construct the bunglow for complainant. This objection does not hold any water in view of the receipts placed on record by complainant. The receipts at document Nos.2 to 7 clearly show that Harivijay Builders received from complainant the amount for rendering the service of construction of apartment. A1though the scheme showing apartment number, block number and the floor are left blank in the receipt, it makes no difference because numbering is often done subsequently. In any case, the purpose of collecting the amount from the complainant has been specified in the aforesaid receipts. In addition to this, the complainant has placed on record document No.8 showing the site plan and also identified the area of his Bunglow as Block 'b' by red ink. The statement of payment vide document No.9 clearly gives us the picture that Rs.83,000/- were paid by the complainant towards the cost of the land and Rs.1,00,000/- towards the construction cost. The Opposite Party 1 has stated in their written version that the document Nos.5, 6 and 7 are forged. But, there is no evidence to establish the forgery as regards these documents. The O. P.1 is in possession of the counter-foils of his receipts and could very well produce the originals before this Commission to falsify the claim of the complainant. In absence of any evidence to show that the documents are forged there is no reason for this Commission to accept the allegations of the complainant which are duly supported by affidavit filed on behalf of the complainant on 23.4.1992. There is also on record the copy of the agreement of development and sale of the land executed between the O. P.1 and 2. The complainant has also placed on record a copy of the notice sent by her Counsel to the O. P. dated 10.4.1992 demanding the possession and the compensation. The said notice is in reply to the notice of O. P.1. It has also been stated on be half of the O. P.1 that the cost of the bunglow would be much more than Rs.1,00,000/- and, therefore, the claim of the complainant is false. We are surprised to find that in the written version opposite party No.1 denied the receipt of amount towards the cost of construction. There is on record a pamphlet published by O. P. I indicating their intention to construct the bunglow/apartments on the land in question. The said document is at Sr. No.1. Considering the allegations made in the complaint, duly supported by affidavit and documents on record, we find that the complainant has proved her case and further proved that there was deficiency in the service of the O. P.1 in relation to construction of the bunglow within the stipulated time having received the full consideration from the complainant. There has been inordinate delay on the part of the O. P.1 to complete the construction of bunglow and place complainant in possession as agreed. The O. P.1 received the huge amount of Rs.1,83,000/- from the complainant in the year 1989. Thus, in our view, the complainant has established the deficiency in the service of O. P. Having received huge amount towards consideration to render the necessary service to O. P. in the matter of construction of a bunglow the O. P. has been found negligent in rendering the required service to the complainant. We further find that the delay caused in construction and handing over possession to complainant is due to the negligence of O. P. I. The complainant is, therefore, entitled for a compensation for deprivation of use and occupation of the Bunglow as a result of negligence in the service of the O. P. I.9. The complainant has claimed in his complaint a direction to execute the sale deed of the land share of the plot in question and also to restrain the O. P. I and 2 not to transfer the land share till the decision of this complaint. We are unable to grant this amount since we are not sure whether the construction has been completed or not. The complainant has also claimed Rs.36,000/- as compensation which also cannot be granted in absence of evidence. Similarly, the complainant has claimed Rs.69,000/- towards the collection of excess amount which claim also cannot be granted in absence of evidence. However, the claim of the complainant for the refund of costs of construction for Rs.1,00,000/- deserves to be granted with interest. We also find that the complainant is also entitled to claim back Rs.83,000/- paid to O. P. I towards the purchase of land for the purpose of construction of a bunglow with interest. The complainant has claimed Rs.4,00,000/- as compensation for the loss suffered by her due to the negligence of O. P. for not constructing the bunglow. It is obvious that the complainant had to reside in a rented premises and had to pay rent during the aforesaid period. The complainant claimed Rs.1,500/- p. m. towards payment of rent during the aforesaid period and claimed compensation on that ground. We find that the complainants claim is justified. Thus, it would meet the ends of justice if the complainant is awarded the compensation of Rs.2,00,000/- to cover the loss suffered by her towards the payment of rent as well as compensation for harassment and mental tension. Hence, we pass the following order : -ORDER 10. The O. P. I shall refund to the complainant the amount of Rs.83,000/- and Rs.1,00,000/- towards the land cost and construction cost together with interest at the rate of 12% p. a. from the dates of payment of those amounts till realisation. The opposite party No.1 is also directed to pay to the complainant Rs.2,00,000/- as compensation for the loss. The O. P.1 is also directed to pay to the complainant Rs.2,000/- as cost of this complaint. The aforesaid amounts be paid to the complainant within 30 days from the receipt of this order failing which the amount of compensation shall carry interest at the rate of 12% p. a. till realisation.