M P BHAYA Vs. MALTI YOGESH KARIA

JUDGEMENT

(1.) THIS is an appeal filed by the complainant in Complaint No. 419 of 1992 on the file of the State Commission, Maharashtra, at Bombay praying that the Order passed in the case by the State Commission may be modified by granting to the complainant relief of delivery of possession of the flat which had been promised by the opposite party to be built and delivered over to him within eight months from 29.7.89 on which date an agreement had been entered into between the complainant and the opposite party who is a builder. Under the terms of the said agreement the complainant had permitted the builder to enter upon the land belonging to him to construct a building consisting of ground floor flat which was to be built and delivered over to the complainant and also four other flats which the builder was free to sell to others. The grievance with which the complainant approached the State Commission was that despite the complainant having duly complied with all the obligations under the agreement the opposite party had defaulted in completing construction of the ground -floor and delivering possession of the said flat to him even though he proceeded to complete the construction of the remaining flats and sold those flats to strangers without obtaining the concurrence of the complainant as was contemplated in the agreement. The complainant has, therefore, approached the State Commission with the plea that there was clear deficiency in service on the part of the opposite party builder and that he should, therefore, be awarded the relief of delivery of possession of the flat incomplete habitable condition alongwith compensation for the delay in performance of the service agreement. The opposite party (Builder) remained ex -parte before the State Commission despite two notices having been duly served on him intimating him about the date of posting of the proceedings. Strangely, the State Commission while disposing of the case ex -parte did not grant the complainant the reliefs as prayed for in the petition but only directed that the opposite party shall refund to the complainant the sum of Rs. 8,46,000/ - representing the value of the ground -floor as specified in the agreement together with interest at the rate of 18% per annum. Aggrieved by the said order the complainant has come up in appeal before this Commission with this appeal.

(2.) NO appeal has been filed by the opposite party as against the ex -parte order passed against her. In our anxiety to see that the dispute between the parties could be satisfactorily settled by ensuring that the complainant duly gets the delivery of the possession of the flat an order was passed by this Commission on 26th February, 1996 directing that the respondent shall complete the construction of the portion of the building that is to be allotted and delivered over to the complainant as per the terms of the agreement dated the 29th July, 1989 and should put the complainant in possession of the said portion after making the building completely habitable in all respects within a period of two months from the said date. It was clearly indicated in that order that if the said direction was not complied with by the builder action under Section 27 of the Consumer Protection Act, 1986 was liable to be taken against her after the aforesaid period of two months. By the same order the appeal was directed to be posted to this date for further consideration. Accordingly, this appeal has come up before us today.