N RAMASAMYAPPEL Vs. KISHORE KUMAR GOKAL DAS

JUDGEMENT

(1.) First Appeal 111 of 1995 is directed against the order-dated 31.1.1995 passed by the Tamil Nadu State Consumer Disputes Redressal Commission in Original Petition No. 218/94. The complainant is the appellant herein.

(2.) Facts of the case lie in a narrow compass. The complainant, owner of a plot entered into a Housing Property Development Agreement with the opposite party builder and developer on 28.1.1992 for construction of Deluxe Category Residential Flats and allotment of 52% of the built up area in the form of flats to the complainant, the consideration, there for being the transfer of ownership to the opposite party of the undivided 48% of the land with an apparent value of Rs. 12,42,600/-. In order to ensure due performance of the agreement, the opposite party deposited a sum of Rs. 5,00,000/- with the complainant as Earnest Money Deposit to be returned by the latter after the satisfactory completion and handing over of the flats to the complainant. On 27.11.1993, the complainant received a letter from the opposite party informing him that the 4 flats were ready for delivery and requesting him payment of Rs. 5,82,247/- which included the Ear- nest Money Deposit of Rs. 5,00,000/- to be re- funded and the additional sum of Rs. 82,247/- to be paid for other works done by the opposite party. The complainant alleged that the claim of Rs. 82,247/- was unjust and illegal. Subsequently, however, there was some negotiations between the parties and on 7.2.94, the opposite party delivered possession of Flats 1A and the complainant gave a cheque for Rs. 5,00,000/- in favour of the opposite party. It was alleged by the complainant that as the opposite party tried to encash the cheque without handing over the keys of the other flats, he ordered stop payment on 9.2.94 of the cheque issued by him. Thereafter, the complainant reportedly purchased a pay order for Rs. 5,00,000/- on 3.5.94 in favour of the opposite party. But the opposite party did not hand over possession of the remaining three flats. Further according to the complainant the opposite party failed to hand over possession on or before 7.10.93 i.e. 18 months after the MMDA approval was obtained and therefore was liable to pay liquidated damages at Rs. 5,000/- for every month's delay till the date of delivery. The complainant also claimed Rs. 1,91,166/- as loss worked out at Rs. 5,100/- per month per flat. Besides, he made allegation that the original title deed was not returned and that the opposite party illegally constructed the partition wall on the rear side detaching the portion of his land and attaching it with the neighbouring plot for monetary gains. The complainant, therefore, filed a complaint before the State Commission praying direction to the opposite party to hand over the possession of the remaining 3 flats, to return the original title deed, to remove the partition wall, to pay (i) all taxes, levies and duties, (ii) Rs. 55,000/- as liquidated damages, (iii) Rs. 1,67,857/- for damages on delay in handing over the three flats, (iv) Rs. 23,309/- as damages for delay in handing over flat 1A, (v) Rs. 2,07,851 /- as loss of utility of the complainant's capital in his undivided 52% share of the land, and (vi) Rs. 5,00,000/- for mental pain and agony besides costs. The opposite party raised the objection that the complainant is not a "consumer" under the Act and disputed the allegation of deficiency of service on merits. According to opposite party, MMDA approval was given only on 27.8.1992 and as per the agreement, the opposite party was to hand over possession on or before 27.2.94, whereas he intimated the complainant as early as on 27.8.93 that the flats were ready. The complainant was illegally retaining the Earnest Money Deposit and countermanded the cheque he gave after taking possession of one of the flats. The opposite party also stated that he was not aware of the pay order stated to have been issued by the complainant. The opposite party contended that there was no delay on his part and that the partition wall was not provided in the complainant's land and denied the other deficiencies pointed out by the complainant pertaining to non-provision of garage, safety grills and Pooja and utility rooms as these were not to be provided as per the agreement. The opposite party also justified his claims for Rs. 82,247/-.

(3.) The State Commission after a thorough examination of the matter concluded that the dispute was a consumer dispute but that there was no deficiency of service on the part of the opposite party as the opposite party had in- formed the complainant that the flats were ready for occupation, 3 months prior to the due date of 27.2.94 and also held that the specific deficiencies pointed out by the complainant could not be maintained on the basis of the agreement. The State Commission took note of the opposite party's prayer for payment towards, (i) the excess of built up area to the extent of 17 sq.ft. costing Rs. 4,751.16, and (ii) the M.E.S. Corporation, M.M.W.S. & Sewerage Board expenses of Rs. 60,000/-for the four flats. The Commission, there- fore, directed, (a) the complainant to pay to the opposite party a sum of Rs. 5,64,751.16 comprising, (i) Rs. 5,00,000/- of Earnest Money Deposit, (ii) cost of excess built up area amounting to Rs. 4,751.16, and (iii) payments to M.E.S. Corporation and M.M.W.S.S.B. of Rs. 60,000/-, (b) the opposite party to produce before the State Com- mission the duplicate set of keys for all the four flats and hand over the same to the complainant at the time of handing over the keys for the remaining three flats which will be done when the complainant deposits before the State Com- mission the aforesaid decretal amount of Rs. 5,64,751.16 for payment to the opposite party, and (c) the opposite party to hand over the title deeds to the complainant at the time of delivery of keys of the remaining 3 flats.