OLGA SEQUEIRA Vs. PRIME PROPERTIES PVT LTD

JUDGEMENT

(1.) Mr. Justice Dr. Eurico Da Silva, President-The complainant who is residing at Pune and working in Kuwait booked with opposite party by an oral agreement, dated 4.3.1995, the construction of a single bedroom flat bearing No. A2-4, admeasuring 65.50 sq. mtrs. , in their Project known as Colonia San Francisco located at Calangute for a total consideration of Rs.4,50,875/-. The flat was to be situated by the poolside and delivered ready for use and occupation within a period of 3 years from the date of the agreement, i. e. , on or before 4.3.1998. The complainant paid to the opposite party a sum of Rs.50,000/- by cheque bearing No.473803 dated 4.3.1995, and the opposite party issued a receipt, dated 4.3.1995, bearing No.0380. The opposite party promised to send the Original Agreement duly signed as soon as it was processed. The opposite party, however, failed to comply with this promise. By letter, dated 1.8.1995, the opposite party stated that the Project would commence shortly but maliciously mentioned therein that the flat booked by the complainant was D-8 instead of A2-4. The schedule of payments for the aforesaid flat A2-4 was as follows : 30% 1,35,262/- 15% 67,631/- 15% 67,631/- 10% 45,087/- 10% 45,087/- 10% 45,087/- 5% 22,543/- 5% 22,543/- In spite of that the complainant made a further payment out of it in the sum of Rs.85,252/- by cheque dated 23.9.1995 which was received and encashed by the opposite party. Subsequently, Mr. Antonio Fernandes, Director of the opposite party demanded over the telephone some more payment in cash as part of the next instalment. The complainant, however, informed him that the payment of the next instalment would be made by cheque only and suggested him to send a demand letter as soon as the next instalment was due. He also requested for the written Agreement which had not been so far forwarded.

(2.) The opposite party, despite part payment already made by the complainant who is still willing to perform his part of the contract, is refusing to perform its part of the contract and has not made any construction on the site. In terms of the Agreement, the flat was to be delivered ready not later than 4.3.1998. The opposite party was silent about the delivery of the premises although the complainant having come to Goa on several occasions and requested the opposite party to complete the construction. The complainant has spent Rs.1,00,000/- towards travelling to and fro and staying in Goa. The flat of 60 mtrs. in Calangute would fetch a minimum of Rs.300/- per month. The complainant is entitled to a compensation of Rs.81,000/-, at the aforesaid rate, from 5.3.1998 till date. The complainant is also entitled to receive the flat complete in every respect to the specific performance of the agreement. Further, towards inconvenience and suffering the complainant is also entitled to a compensation of Rs.10,000/-. Thus the complainant prayed for a direction to the opposite party to complete the Flat A2-4 in every respect and deliver it to the complainant forthwith as well as the payment of Rs.81,000/- with 18% interest till full and final realisation, a further payment of Rs.300/- per day till delivery of the flat fully complete and ready for use and occupation plus Rs.1,00,000/- for expenses towards travelling and staying in Goa and Rs.10,000/- for mental pain and suffering.

(3.) The opposite party which was sought to be served with the summons addressed to its correct address refused to accept the same. As such the summons were returned as "unclaimed" by postman's endorsement dated 25.1.1999. We, therefore, held that in the circumstances the service was deemed to have been completed and the matter was directed to proceed ex parte against the opposite party.