HIMANSHU THAKORLAL PATEL Vs. GIRISH AND COMPANY

JUDGEMENT

(1.) The opposite party is directed to return Rs.7305/- with running interest @ 15% p. a. from 28.2.85 till the payment is made and shall pay Rs.20,000/- by way of damages and shall also pay the cost of this complaint, which we quantify at Rs.1000/-. The payment should be made within 4 weeks from today. Complaint allowed. That the complainant is member of the scheme floated in the proposed name of Lalbhai Co-op. Hsg. Soc. Ltd. Summons was served to the opposite party on 24.4.93. Thereafter on the date of hearing an application was given for the opposite party asking for 15 to 20 days' time. Time was granted and the matter has been adjourned from time to time to enable the opposite party to file the written statement and evidence. The opposite party has remained absent on several dates and, therefore, we have no alternative except to proceed ex-parte.

(2.) The complainant was a member of the housing scheme organised by the opposite party and has booked a tenament No. A/46 in the year 1983 and paid the amount of Rs.7305/-. The complainant has produced the relevant receipts. There is a letter dated 10.2.84 informing the complainant that he was a member of Lalbhainagar scheme. The construction work had already started and he was further informed to get the receipt changed since there was some change in the ownership and in pursuance of that the complainant has paid the money to Girish and Co. , the present opponent. It appears that the opposite party has not still constructed the tenaments. He was not also given necessary information and he has alleged that the whole approach of the opposite party was to misappropriate the money. Unfortunately, the opposite party, though asked for time, has not filed any written statement and has subsequently not appeared before us. The complainant has prayed for delivery of the tenament and in the alternative for the damages. In absence of any evidence regarding construction of tenament, we do not find it appropriate to direct the opposite party to construct the tenament and deliver the same because that might take a very long time. We are, therefore, of the opinion that if we award damages for not constructing and /or delivering the tenament, the same will serve the interest of justice. There is no direct evidence regarding the damages except the affidavit of the complainant. However, it is a very well known fact that the price of immovable properties has gone very high. The opposite party who might have purchased the land for proposed tenaments will also get a very substantial rise in the price and it may be the reason for not constructing the tenaments. Till today the opposite party has not denied its liability not to deliver the possession of the tenament. In fact, he has not delivered the tenaments to other persons also. We are, therefore of the opinion that the opposite party is guilty of deficiency in service in not delivering the promised tenament. The opposite party is also totally negligent for neither giving any details or particulars of the tenaments nor they have explained why they could not construct the tenaments as promised. In these circumstances, the complainant is entitled for reasonable compensation which we shall have to assess considering the rise in market value.

(3.) The complainant has also filed an affidavit wherein he has stated that he had joined in 'a' type scheme under which the opponent was under obligation to construct tenaments of 6633 sq. yds. According to him the cost of such a tenament would be approximately Rs.250,000/-. Hence he shall have to pay Rs.2 lakhs more if he wants to purchase such a tenament. Alternatively he has also asked for the return of amount of Rs.7305/- which he has paid with 18% interest and Rs.35,000/-by way of pain and suffering. The last payment of Rs.500/- appears to have made on 28.2.85 i. e. about 7 to 8 years prior to the filing of the complaint. He has not taken immediate steps for the possession of the building or the damages thereof. Considering the delay made by the complainant and that the opponent has not even turned up to file a statement, we are of the opinion that the complainant is entitled to the damages but since he has paid hardly 1 /5th of the cost of the tenament, we are not inclined to award full damages. We cannot also accept that a tenament of 60 sq. yds. will cost Rs.2,50,000/- to the complainant. If we take the lowest figure, the value of such tenament will be about Rs.2000/- per sq. yd. We are, therefore, of the opinion that the complainant should be awarded the return of money with interest and some damages taking into consideration the amount paid by him. Since he has paid 1 /5th of the price of the tenament, we award him Rs.20,000 /- as damages. In the aforesaid view of the circumstances, the complainant will be entitled to the return of Rs.7305 /- and interest @ 15% p. a. from the date of his last instalment i. e.28.2.85 till the payment is made. The complainant will also be entitled to the damages of Rs.20,000/- as stated above and cost