M K KALYANI Vs. DURAI CONSTRUCTIONS

JUDGEMENT

(1.) The case of the complainant-M. K. Kalyani is that she entered into an agreement with the opposite party on 30.6.1994 under which the opposite party agreed to sell 1400 sq. ft. of land @ of Rs.1,000/- per sq. ft. The complainant paid a sum of Rs.1,50,000/- as advance. The opposite party undertook to construct on the said land of 1400 sq. ft. and handover possession to the complainant. The opposite party also showed the complainant the proposed plan of the construction and told her that he would get the MMDA approval shortly. But after some time, i. e. , in February, 1995, the opposite party informed the complainant that the MMDA approval for the plan had come and that he had sent a construction agreement for signature of the complainant. On going through the said agreement, the complainant was shocked to find that only 1215 sq. ft. was mentioned therein that too inclusive of common amenities. She refused to sign the agreement and she insisted that she must be given a flat of 1400 sq. ft. Then the opposite party spoke in terms of cancellation of the original agreement and sent four unsigned Banker Payment Orders for a sum of Rs.1,70,030/- as refund of the advance amount with interest. This act of the opposite party is legally unsustainable. Thus, the opposite party is indulging only with a mala fide intention of selling the flat at a higher price to some other person. This act of the opposite party amounts to deficiency in service. On these grounds, the complaint has been filed claiming compensation under different heads all totalling to Rs.10,20,000/-.

(2.) The opposite party contended that to bring it in consonance with the Building Rules which were now and then revised, the area of construction had to be increased or reduced. Due to such reason, the original plan for construction prepared by the opposite party had to be revised and the revised plan had to be submitted to MMDA for approval, and due to this, the opposite party was able to give the complainant a flat of 1215 sq. ft. only inclusive of common areas. There was absolutely no motive in the reduction of the plinth area. After making the initial payment of Rs.1,50,000/- on 30.6.1994, the complainant had not evinced any interest in making any further payments. Under these circumstances, the opposite party decided to return the amount of Rs.1,50,000/- received from the complainant as part of the land cost. Therefore, to avoid any litigation, the opposite party sent a draft for Rs.1,70,030/- to the complainant for the said sum of Rs.1,50,000/- with interest thereon at 18% p. a. Although there was no deficiency in service on the part of the opposite party, the complainant has chosen to come to this Commission. As such, there is no deficiency in service on the part of the opposite party, and hence, the complaint is liable to be dismissed.

(3.) The points that arise for. consideration are: 1. Whether the opposite party was deficient in service as alleged by the complainant? and 2. If so, what relief can be granted to the complainant? ,