BEFORE THE CONSUMER DISPUTES REDRESSAL FORUM, ERNAKULAM.

Date of filing : 04/03/2010

Date of Order : 30/11/2011

Present :-

Shri. A. Rajesh, President.

Shri. Paul Gomez, Member.

Smt. C.K. Lekhamma, Member.

C.C. No. 110/2010

Between

And

O R D E R

A. Rajesh, President.

1. Briefly stated, the case of the complainant is as follows :

On 10-02-2006, the complainant and the opposite parties entered into an agreement for the construction of flat No. 14-B having 1922 sq.ft. on the 14^th floor of the opposite party's project by name 'Wood Ford'. Prior to the agreement, the complainant paid a sum of Rs. 50,000/- and Rs. 3,31,914/- on 16-01-2006 and 24-01-2006 respectively. The opposite party agreed to complete the construction within 24 months from the date of starting of the construction. The opposite party further agreed to compensate the complainant @ Rs. 6 per sq.ft. for the delay in delivery of the possession of the flat. In October 2007, though the opposite parties collected Rs. 34,37,226/- ie. 90% of the total cost from the complainant, the opposite parties did not even complete 50% of the work. On 11-01-2010, the opposite parties intimated the complainant that the project is getting ready for possession. As on 11-01-2010, the last instalment alone had to be paid whereas the amount due to the complainant was Rs. 2,30,640/- as the monthly compensation payable. Thus, the complainant is before us seeking direction against the opposite parties to pay interest @ 18% for the deposited amount till the completion of the work of the flat or to pay a total compensation of Rs. 7,87,752/- together with Rs. 5,000/- being the costs of the proceedings.

2. The version of the opposite parties :

The opposite parties admit the execution of the agreements for the construction of the flat in question and for the undivided share in the property. The agreement contains reciprocal obligations in which the complainant is bound to pay and then the opposite parties need to construct the apartment as agreed. The agreement shows that time is not the essence of the contract as per clause 6, 12 (b) and (c), Clause 14, 20 and 23. The complainant had defaulted and delayed in paying the instalments. That was the reason for the delay in construction of the apartment. As on 13-09-2010, the complainant had to pay a balance amount of Rs. 5,08,334/- with interest to the opposite parties. The complainant is not entitled to get any of the reliefs as sought.

3. The complainant was examined as PW1 and Exts. A1 to A9 were marked on his side. The witness for the opposite parties was examined as DW1. The counsel for the parties filed argument notes. Heard the respective counsel.

4. The points that arose for compensation are :-

1. Whether the complainants are entitled to get interest for Rs. 34,37,260/- the amount being paid towards consideration of the flat?

2. Whether the opposite parties are liable to pay a compensation of Rs. 7,87,752/-?

5. Point No. i. :- At the instance of the complainant, vide order in I.A. No. 106/2010 dated 07-04-2010, this Forum directed the opposite parties to hand over the possession of the flat to the complainant provided the complainant pays Rs.1,90,957/-. The opposite parties preferred Revision Petition No. 19/2010 against the above order before the Hon'ble Kerala State Consumer Disputes Redressal Commission, Thiruvananthapuram. The Hon'ble Commission passed the following order :

“In the circumstances, the order of the Forum is modified directing the complainant to provide bank guarantee for Rs. 3,00,000/-. It was submitted that Rs. 1,90,957/- has been already paid to the opposite parties. On furnishing bank guarantee by the complainant/respondent within 15 days from the date of receipt of this order the opposite parties shall give possession of the apartment ie. flat No. 14-B of 'Woodford' Apartments to the complainant/respondent. The revision petition is disposed of accordingly.”

6. Admittedly, the transaction between the parties took place on the basis of Ext. A2 agreement, both the parties vehemently relying on the terms and conditions in the agreement. Even on having gone through carefully, through the terms and conditions in the agreement, we are at a loss to find any clause which entitles the complainant to get interest for the deposited amount which had been paid towards price of the flat. In the absence of any specific clause, we are not to entertain the contention of the complainant on this point.

7. Point No. ii. :- The complainant in this complaint claimed the following amounts from the opposite parties :

a ) Deprivation of an accommodation

valued at rental - Rs. 3,96,000

b) Compensation payable at the rate along

with interest @ 18% p.a. - Rs. 2, 86,752

c) For the mental agony suffered - Rs. 1,00,000

d) Costs of the proceedings - Rs. 5,000

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Rs. 7,87,752/-

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8. It is not in dispute that Ext. A2 agreement between the parties was executed on 10-02-2006. Clause 14 in Ext. A2 reads as follows :

“THE Party of the First Part have agreed to complete the entire construction of flat/Residential Complex within a period of 24 months from the date of starting the construction with an additional grace time of three months. The Party of the First Part also agrees to compensate the Party of the Second Part @ Rs. 6/- per sq.ft. per month in case of any delay in construction beyond the above stipulated period provided the Party of the Second Part makes the stage payments without any default.”

The complainant contended that the opposite parties ought to have completed the construction within the period mentioned in Clause 14 from the date of agreement. On the contrary, the opposite parties maintain that time is not the essence of Ext. A2 contract. The learned counsel relied on the decision rendered by the Hon'ble Apex Court in M/s. Hind Construction Contractors Vs. State of Maharashtra 1979 (2) SCC 70 and Saradamani Kandappan & Another Vs. S. Rajalakshmi and Others 2011 (3) KHC SN 3 (SC).

9. No documentary evidence is before us to show the exact date of starting of construction of the apartment. PW1, the complainant deposed that he is not aware of the actual date of commencement of the construction of the complex. The opposite parties as well do not mention the same. However, DW1 the witness for the opposite parties deposed that the construction had been started in early 2007 (emphasis supplied). So, the testimony of DW1 alone is evidence to show that date of commencement of the construction of the apartment complex. Primarily the above decisions are not applicable in this case, especially so because time alone is the essence of contract in the instant case.

10. Admittedly, the possession of the flat handed over to the complainant on 13-09-2010. The opposite parties contended that the complainant failed to pay the instalments promptly and so they are not liable to pay any compensation as per Clause 14 in Ext. A2. The learned counsel contended that damages to be awarded for delay in completion is the value of use of the land, which is normally the rental value, he relied on the decision of the Hon'ble Supreme Court in Gaziabad Development Authority Vs. Union of India and Another (2000) 6 SCC 113. We follow. The contention of the opposite parties that the complainant failed to remit the instalments promptly is no sustainable, since the opposite parties failed to issue any demand to the complainant. Moreover, DW1 deposed that they have been collecting the instalments promptly through the Bank account of the complainant. As per settled position of law, this Forum is not to strike down or add to the clauses in Ext. A2 agreement.

11. Be the things as it may, we pass the following order :

1. The complainant shall pay the last instalment to the opposite parties as wanted. After payment the complainant is at liberty to get back the bank guarantee released.

2. The opposite parties shall pay compensation as per Clause 14 in Ext. A2 agreement for the period from January 2007 clearing the grace period to 13-09-2010 the date of delivery of possession of the flat to the complainant.

The order shall be complied with, within a period of one month from the date of receipt of a copy of this order.

Pronounced in open Forum on this the 30^th day of November 2011.

Sd/- A. Rajesh, President.

Sd/- Paul Gomez, Member.

Sd/- C.K. Lekhamma, Member.

Forwarded/By order,

Senior Superintendent.

A P P E N D I X

Complainant's Exhibits :-

Opposite party's Exhibits :: Nil

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