SOUTHERN INVESTMENT PVT LTD Vs. M THOMAS ABRAHAM

JUDGEMENT

(1.) Appellant was the opposite party before the State Commission where the respondent/complainant had filed a complaint alleging deficiency in service on the part of the appellant.

(2.) Undisputed facts of the case are that the respondent who was an NRI, with a view to buy an apartment, entered into an agreement with the appellant on 26.9.1996. This contract envisaged payment of price of land as also for the flat. There was a schedule of instalment fixed as the part of the contract which envisaged the delivery of apartment by August, 1998. It was the case of the complainant that having paid 8 instalments to the tune of Rs. 13,14,780, which included 7 instalments to the flat as also undivided interest in land, the flat was found to be nowhere ready for delivery. They were shocked to receive a letter dated 2.11.1997 (page 208 of the paper book) wherein payment of instalments were re-scheduled and so was the date of delivery going upto February 1999. Since this change of terms and rescheduling was not acceptable and when complainant asked for refund of money with interest and when the appellant indicated readiness to refund the money but without any interest and when matter could not be solved with regard to the interest/damages, a complaint was filed before the State Commission, who after hearing the parties through an exhaustive order directed the appellant to refund the deposited amount of Rs. 13,14,780 along with interest @18% p.a. from the date of respective deposits till the time of payment along with cost of Rs. 5,000. Aggrieved by this order, this appeal has been filed before us.

(3.) We heard the learned Counsel for the parties at considerable length and perused the material on record. Plea of the appellant is three-fold. One that the time is not the essence of the contract; second that deficiency, if any, lies with the respondent/complainant as he was not regular in paying the instalments on schedule - in fact he had not paid the last 3 instalments and thirdly, additional/extended period for delivery was also justified/required to complete the flat for delivery, after making the necessary additional construction/modifications, suggested by the complainant.