MANOHAR B GHOSALKAR Vs. TRIMURTI ASSOCIATES

JUDGEMENT

(1.) THIS appeal is directed against the order dated 26.8.1993 of the Maharashtra State Commission in Complaint No. 567/92. The complainants - husband and wife are appellants herein and the opposite party, one Trimurti Associates, a sole proprietory concern is the respondent.

(2.) THE facts of the case as gathered from the records are as follows. An agreement was entered into between me complainants and opposite party. On 16.6.1986, according to which the latter agreed to provide by 31.10.1987 a constructed flat admeasuring 570 sq.ft. with all amenities for a consideration of Rs. 1,71,000/ - and the complainant paid to the opposite party on 13.6.1986 a sum of Rs. 34,200/ - being 20% of the agreed cost of construction. The complainants alleged that the opposite party advised them not to get the agreement registered as there was a likelihood of getting additional F.S.I. The development of the plot itself started only after two years. In 1990, the opposite party told the complainants to enter into a new agreement at an increased rate of Rs. 900/ - per sq. ft. in view of the rise in the cost of construction. The complainants however insisted on making payment as per the agreement and requested the opposite party to honour its part of the agreement but the opposite party avoided the complainants. According to the complainants, substantial progress in the construction was made from 1991 onwards and the opposite party demanded a further increased rate of Rs. 1,400/ - per sq. ft. from the complainants. In December, 1991, the opposite party allegedly offered them a paltry amount as compensation if the latter cancelled their booking. The complainants wrote to the opposite party on 13.7.1992 that they had already paid 20% of the cost of the flat and that the opposite party had not made any demand for further payments as per the agreement and requested the opposite party to send the demand letter so that they could make further payments. When there was no response from the opposite party, the complainants filed a complaint on 3.10.1992 before the State Commission alleging deficiency of service and praying that the opposite party be directed to accept from them the balance amount of Rs. 1,36,800/ - and give them possession of the flat. The opposite party which acknowledged the receipt of the notice of the State Commission neither filed its version nor made its appearance on the date of hearing. Under the circumstances, the State Commission proceeded ex -parte against the opposite party. Since the allegations made by the complainants were not controverted by the opposite party, the Commission held that the complainants had proved that they had booked the flat on payment of Rs. 34,200/ - on 13.6.1986. The Commission took note of the fact that the complainants did not pay the subsequent instalments to the opposite party and that the flats were not yet constructed and directed the opposite party to refund to the complainant the amount of Rs. 34,200/ - together with interest at 18% per annum from 13.6.1986 till the date of realisation.

(3.) THE main points made by the respondent in its version are : (i) the agreement dated 16.6.1986 was entered into on the understanding that there will be proportionate increases in the price of the flat for increases in prices of building material and land cost, (ii) the project could not progress further because of non -payment of dues in time by the prospective flat purchasers and the appellants had also not paid any of the instalments as per the agreement although they were informed orally at different stages of construction to pay the instalments and therefore, they had forfeited their rights, title and interest under the said agreement, and (iii) the appellants were not entitled to any relief except, the return of money with interest as directed by the State Commission.