SUSHAM LATA Vs. S SUNDARAMAHALINGAM

JUDGEMENT

(1.) The complainant Smt. Susham Lata, entered into two agreements on 7.9.1994 with the opposite party under which the latter undertook a sell a plot of land for a sum of Rs.2,45,625/- and put up a construction thereon at a cost of Rs.4,89,375/-. On the date of the agreement the complainant paid a sum of Rs.50,000/- to the opposite party. Under the construction agreement the opposite party shall construct and deliver possession of the building before the end of December, 1995. The case of the complainant is that the construction work was at a very slow pace and in spite of that the complainant paid a sum of Rs.25,000/- on 21.3.1995 and another sum of Rs.1,00,000/- on 18.8.1995 and besides the complainant paid a sum of Rs.43,000/- on 15.9.1995 towards the cost of stamp duty and registration for the undivided share of the land. While so, on 22.3.1996, the opposite party called upon the complainant to pay a sum of Rs.1,75,000/- stating that the construction work had come up to the finishing (occupation) level. But it was not correct, and therefore, the complainant issued a reply dated 29.3.1996 pointing out various defects in the construction. However, the complainant sent a banker's pay order for a sum of Rs.1,50,000/- alongwith said letter. But to the shock and surprise of the complainant the opposite party issued a letter dated 5.4.1996 claiming that the flat was ready in 1995 itself and inspite of repeated reminders the complainant failed to pay the balance amount of Rs.5,60,000/- and take delivery of the flat. The complainant sent a reply dated 8.4.1996 stating that the claim of the opposite party was contrary to the facts, but the said letter was returned unserved. After that the opposite party started working on the laying of the floor and completing the kitchen work. The complainant met the opposite party and he agreed to register the undivided share on 17.4.1996 on part payment of the balance amount. The complainant was ready with the money on 17.4.1996, but the opposite party did not turn up. The complainant had sent a registered notice on 18.4.1996 but it was returned. The complainant kept on informing the representatives of the opposite party that once the construction was completed in all respects, she was prepared to pay the entire amount and take delivery of the flat. But to the shock and surprise of the complainant, the opposite party issued a letter dated 5.6.1996 cancelling the allotment of the flat and returning the pay order for Rs.1,50,000/- sent by the complainant on 29.3.1996, alongwith another pay order for Rs.1,75,000/-. The complainant was always ready and willing to pay the balance of Rs.5,60,000/- : Out of this the complainant had already paid Rs.1,50,000/- but the same had been returned by the opposite party. If this amount had been accepted the balance payable would only be Rs.4,10,000/-. On these grounds the complaint has been filed.

(2.) The opposite party contended in its written version that the complainant paid only a sum of Rs.25,000/- towards the land cost and he failed to pay the balance amount and also the registration charges. As per the agreement entered into between the parties the complainant had to pay the cost of building at various stages of construction stipulated in the agreement, but the complainant failed to comply with that condition and in all he paid a sum of Rs.1,75,000/-. The opposite party denies that the complainant paid a sum of Rs.43,000/- towards stamp duty and registration. It is true that the opposite party sent a letter dated 22.3.1996 to the complainant asking her to send a sum of Rs.1,75,000/- but that was a mistake and that mistake was rectified by another letter dated 5.4.1996 in which a sum of Rs.5,60,000/- was claimed asking the complainant to take possession of the flat. The entire construction was completed in spite of non-payment of the amount. It was found from the discussion the opposite party had with the husband of the complainant that they were not able to pay the amount in spite of the readiness of the flat, and hence the opposite party returned the pay order for Rs.1,50,000/- sent by the complainant and also returned the entire advance payment of Rs.1,75,000/- on 5.9.1996 and the complainant had received the two payments on 6.6.1996. In these circumstances, the contract between the complainant and the opposite party had come to an end. Therefore, the complaint was liable to be dismissed.

(3.) Point : The agreement regarding the land (Ex. A1) and also the construction (Ex. A2) were entered into on 7.9.1994. The cost of the land was agreed to be Rs.2,45,625/-. As per the agreement Ex. A1 the last cost of the flat shall be paid within 3 months from the date of the agreement. On the date of the two agreements that was on 7.9.1994 admittedly the complainant has paid only a sum of Rs.50,000/-. Even if it is taken that the entire sum of Rs.50,000/- was towards the cost of the land the complainant had not paid the balance of the land cost within the said stipulated 3 months time. In Ex. A2 agreement it is mentioned that the construction would be completed before the end of December, 1995. It is also mentioned in the agreement that the complainant shall make payments towards the cost of construction at stages as stipulated in the agreement. And according to that Rs.1,20,000/- shall be paid at the time of construction of foundation; Rs.1,20,000/- at the time of reaching lintel level; Rs.1,20,000/- at the time of reaching roof level; Rs.1,00,000/- at the time of laying mosaic flooring; and Rs.4,375/- being the final payment at the time of completion. According to the complainant he has paid besides the said sum of Rs.50,000/- paid on the date of the two agreements, Rs.25,000/- on 21.3.1995 and Rs.1,00,000/- on 18.8.1995. His further case is that on 22.3.1996, on receipt of a letter from the opposite party asking for a sum of Rs.1,75,000/- she paid a sum of Rs.1,50,000/-. Now in the letter dated 22.3.1996 of the opposite party he had stated that the building had come up to finishing (occupation) level. The complainant had sent a letter dated 29.3.1996 stating (a) that the doors in the varanda, halls, kitchen and entrance had not been fixed; (b) that electrical fittings were not completed; (c) that kitchen and bath room platforms were not completed. This shows that the construction had been substantially completed even if what the complainant stated in her said letter dated 29.3.1996 were true. Now, as per the schedule of payment in the agreement, at the foundation stage the complainant should have paid Rs.1,20,000/-; on reaching lintel level Rs.1,20,000/-; at the time of reaching roof level Rs.1,20,000/-; and at the time laying mosaic flooring Rs.1,00,000/-. Considering the work finished, as found above, the complainant ought to have paid a total sum of Rs.4,60,000/-. But admittedly she had paid only a sum of Rs.2,75,000/- towards the cost of construction. Even according to her, the opposite party in his letter dated 22.3.1996 has asked for Rs.1,75,000/- but she has sent only a sum of Rs.1,50,000/- leaving a balance of Rs.25,000/-. This only shows that as contended by the opposite party the complainant was not able to make payment as per the schedule of payment. Subsequent to the letter dated 22.3.1996 according to the opposite party he had sent another letter dated 24.3.1996 calling upon the complainant to pay a sum of Rs.5,60,000/- with other charges and with interest thereon @ 24% p. a. and take delivery of the flat within 7 days from the date of receipt of the letter failing which the opposite party would be forced to cancel the flat and sell the flat to third parties. A copy of that letter and acknowledgement there for also has been filed and that is not disputed by the complainant. During the arguments it was submitted before us that it was by mistake that in the letter dated 22.3.1996 only a sum of Rs.1,75,000/- was claimed but soon after in the letter dated 24.3.1996 the correct amount of Rs.5,60,000/-had been claimed. This submission of the opposite party appears to be true. As pointed out above even as against the amount of Rs.1,75,000/- claimed in the opposite party's letter dated 22.3.1996 the complainant had paid a sum of Rs.1,50,000/- leaving a balance of Rs.25,000/-. A reading of the agreement Ex. A2 shows that it is provided therein that if the complainant commits default in payment of the amounts as and when it is demanded in accordance with the payment schedule, the complainant would be deemed to be at fault and the opposite party would be entitled to cancel the agreement and the sale of the plot to a third person, and cancel the agreement and transfer of the construction agreement in that person's name. It is argued before us that there was no demand for payment by the opposite party. But the opposite party would contend that demands were made but the complainant was not able to make payments. Before us it was admitted that the complainant was living just in front of the construction. That shows he knew every stage of the construction and therefore, it must be true that the opposite party had made demands for payments but in spite of that payments were not made as per the payment schedule. As we have been supra, even against the claim of Rs.1,75,000/- the complainant has paid only Rs.1,50,000/- leaving a balance of Rs.25,000/-. We have already seen above as against the land cost of Rs.2,45,625/- the complainant has paid only a sum of Rs.50,000/-. It is, therefore, manifest that the complainant was not able to keep up the payment schedule both as regards the cost of the land and also the cost of construction. Therefore, it was he who was at fault and not the opposite party. It is also very relevant to note that the complainant had received back the entire amount paid by him to the opposite party without any protest and only subsequently he had chosen to file the complaint.