JERONIME PIRES Vs. ASHA CONSTRUCTION CO

JUDGEMENT

(1.) First Appeal No. 401/95 is directed against the order dated 3rd May, 1995 in Complaint No. 146/93 of the Maharashtra State Consumer Disputes Redressal Commission at Bombay.

(2.) Since we are inclined to remand the case for satisfactory adjudication, we will notice only bare facts. An agreement was entered into on 29th of June, 1982 between M/s. Asha Construction Co., through its partner Arun Sawdekar, opposite parties before the State Commission and Shri Pires Jeronime Roldao, (the complainant) under which the opposite parties being builders agreed to sell on ownership basis Unit No. 2 in Block No. C on the second floor of Plot No. 41 at Village Valnai, Orlem, Marve Road, Malad (West), in Greater Bombay more particularly described in Schedule I attached with the said agreement. The total consideration was Rs. 78,500/- payable in instalments linked with the progress of construction to be paid to the builders in the manner set out in Clause 4 of the said agreement. Clause 5 provided that the builders under normal conditions agreed and undertook to hand-over possession of the said Unit No. 2 on or before December, 1983 subject, however, to the availability of cement, steel and other building materials and subject to any act of God such as earthquake, floods or any other natural calamity, act of enemy, war or any other cause beyond the control of builders including issue of notices, orders, rules and notifications of the Government and/or public authority. The complainant stated that he had made payment of Rs. 5,000/- at the time of execution of the said agreement and made three further payments by instalments of Rs. 18,500/- on 20.10.82, Rs. 18,500/- on 4.11.82 and Rs. 18,000/- on 19.11.82 by pay orders issued in favour of the opposite parties. The complainant further stated that he had paid Rs. 5,000/- on 30.3.90 and Rs. 10,000/- on 7.12.90 and a further payment of Rs. 10,000/- on 15.12.90. Reference is made in the complaint to the correspondence exchanged and the notices served by the complainant on the opposite parties pointing out that inspite of assurances the opposite parties have failed and neglected to perform the obligations under the contract. The complainant further stated that in March, 1991 the opposite parties demanded a sum of Rs. 6,600/- in cash and further sum amounting to Rs. 12,850/- which was paid by three cheques. It is then alleged that on 12th March, 1991, the opposite parties handed over possession of the said flat to the complainant without completing the pending work leaving the same half completed and /or incomplete, the internal and external work was left incomplete and basic amenities such as water and electricity were not provided by the opposite parties. It is further alleged that the said building had not received the occupation certificate and/ or completion certificate. The complainant further alleged that despite written requests the opposite parties have failed to complete the external plastering work in the said building and the entire outer brick layers are exposed to the vagaries of nature, thereby resulting in heavy leakage and cracks in the walls and flooring. The complainant claimed the relief of a direction to the opposite parties to complete the construction of the said flat as per the terms of the said agreement dated 29.6.82 and to provide to him all the amenities as agreed upon. The complainant asked for the reimbursement of the amounts spent in the completion of the internal work in the said flat and also for a direction to the opposite parties to refund to him the excess amount of Rs. 25,950/- paid to the opposite parties besides claiming a compensation of Rs. 2.00 lakhs for the deficiency in service and wrongful conduct of the opposite parties.

(3.) The opposite parties filed their written version. The execution of the agreement dated 29.6.82 was admitted. It was pleaded that the opposite parties could not complete the construction work within the agreed period for various reasons. It is pleaded that the opposite party handed over possession of the said flat to the complainant on 12th March, 1991 and at that time the work of the said building was almost complete, except four items of the work mentioned in the letter dated 12th March, 1991 which the complainant agreed to complete himself for which deduction was already given from the total cost of the flat. It is pleaded that the complainant did not raise any objection to that but on the contrary readily agreed to what was stated in the said letter. The opposite parties denied that the internal and external work had not been completed or basic amenities i.e. water and electricity were not provided by the opposite parties as alleged. The opposite parties denied that they failed to fulfill their contractual obligations or caused any loss to the complainant and they failed to provide service as agreed.