F.A.No.1791/2007 against  C.D.No.266/06 DISTRICT  FORUM-II,Visakhapatnam.

Between

Bandaru Narayana Murthy,

Prop. Sri Venkateswara Engineers,

R/o.1-78-14, Plot No.73, MIG-2, Sector-3,

MVP Colony, Visakhapatnam-530 017.                    …Appellant/

                                                                           Opp.party

               And

Koovelimadom Sivaraman Viswanathan,

S/o.K.R.Sivaraman, aged about 43 years,

R/o.Sector III, MVP colony,

Visakhapatnam.                                                … Respondent

                                                                         Complainant

Counsel for the Appellant             M/s.K.V.Simhadri

Counsel for the Respondents                M/s. Durga Prasad.

 QUORUM:THE HON’BLE JUSTICE  SRI D.APPA RAO, PRESIDENT

And

                  SMT M.SHREESHA,  HON’BLE  MEMBER

        WEDNESDAY, THE THIRD DAY OF NOVEMBER ,    

TWO THOUSAND TEN

Oral Order :( per  Smt M.Shreesha,  Hon’ble Member)

                                                            ****

 Aggrieved by the order in C.D.No.266/06 on the file of District Forum II, Visakhapatnam, the opposite party preferred this appeal.

The brief facts as set out in the complaint are that the complainant  paid Rs.1 lakh on 2.5.98, Rs.50,000/- on 20.8.98 and  Rs.50,000/- on 29.8.98 to the opp.party towards  the sale consideration  out of total sale consideration of Rs.4,94,400/- for flat no.202. An agreement was executed and an amount of Rs.1,50,000/- was omitted out of the amount paid to the opposite party as it  was set a part for lift and electrical connection.  The opposite party demanded the complainant to pay Rs.4,49,500/- at the time of registration of the sale deed for which the complainant obtained a house loan on 23.1.2002 and the sale deed was executed.  Though the opposite party agreed to complete the flat in all respects within 9 months from the date of the agreement i.e. 12.1.02 and  received the total consideration, opp.party failed to complete the construction as agreed. When the complainant asked the opposite party in December 2004, the opp.party issued a cheque dt.7.12.2004 for an amount of Rs.1 lakh towards  part of the compensation  for the abnormal delay in delivery. The complainant submits that he suffered a loss of Rs.6,815/- per month towards rentals.   The opposite party pleaded with him not present the cheque and the complainant also did not want  to precipitate the  issue, but the opposite party abandoned  the project in the middle of December,2005. The complainant got issued a legal notice dt.19.1.2006 calling upon the opposite party to complete  flat no. 202 in all respects and to pay compensation of Rs.10,000/- from October 2002 till the delivery of the flat and other damages.  The complainant got a detailed abstract  estimate  from an Architect for the balance unfinished works for a sum of Rs.2,25,000/- for completion.  The opp.party replied to the legal notice after two months i.e. 11.3.2006 denying the allegations by the complainant.   Hence the complaint seeking direction to the opposite party  to pay a sum of Rs.5,11,230/- towards the loss  of rentals for 42 months  and the cost of the balance work to be done, to continue  to pay @ Rs.6,815/- from the date of filing of the complaint till the date of completion of the  balance work or till realization of the cost   whichever is earlier, to pay  compensation of Rs.1 lakh and costs of Rs.10,000/- .   

        Opp.party filed counter denying the allegations but admitting that the complainant agreed to purchase a flat  for Rs.4,94,400/-  and defaulted in paying Rs.4,44,400/- and therefore the agreement of sale dt.12.1.02  has been rescinded. The complainant forfeited  the above advance amount of liquidated damages of Rs.49,400/-  which is due by the complainant as per clause 6 of the agreement. Thereafter the complainant purchased the unfinished flat  under  sale  deed dt. 23.1.2002 and the  unfinished flat was sold to the complainant and it was upto him to complete the works.  The opp.party further contended the sale of the unfinished flat was on 23.1.2002  and this complaint was filed two years after the limitation period.  The cheque dt.2.12.2004 does not pertain to any transactions of this matter  and that there is no deficiency in service on his behalf.

The District Forum based on the evidence adduced i.e. Exs.A1 to A10 allowed the complaint in part directing the opp.party to pay Rs.2,25,000/- with interest @  12% p.a.  from 11.10.02 i.e. date  of proposed delivery of  finished  flat  till the date of realization    together with compensation of Rs.20,000 and costs of Rs.5,000/-

Aggrieved by the said order, the opposite party preferred this appeal.

        It is the case of the complainant that he entered into agreement for construction of flat with the opposite party   on 12.1.02 and a sale deed was executed on 23.1.2002 for flat no.202 in the second floor ,for which the complainant paid an amount  Rs.4,49,500/-.  It is the complainant’s case that the opp.party did not complete the construction within 9 months from the date of agreement for which he claimed loss of rent at Rs.6,815/- p.m. for 42 months  and also Rs.2,25,000/- towards completion of unfinished works.

        The learned counsel for the appellant/opp.party contended   that the complaint is barred by limitation as the sale deed was executed on 23.1.2002 and the complaint was filed in the year 2006.  It is an admitted fact that the opposite party himself had given a cheque dt.7.12.2004 for Rs.1 lakh which the complainant did not encash on request of the opp.party. This itself evidences that there was a request on behalf of the complainant to complete the construction.  The complainant also got issued a legal notice vide Ex.A8 dt.19.1.2006 for which the opp.party replied vide Ex.A9 dt.11.3.06. Therefore viewed from any angle this complaint  cannot be stated  as barred by limitation.  The learned counsel for the appellant/opp.party  also contended that he could not appear before the District Forum on 1.9.06 and thereafter also during his father’s death on 4.10.06 and the order was passed on 29.9.06 and sought for remand of the complaint to the District Forum.  We do not see any ground for remand as the District Forum has passed the order on merits moreover an opportunity was given  to the appellant/opp.party to file additional evidence at the appellate stage and they were marked as Exs.B1to B7. The learned counsel for the appellant/opp.party  filed full satisfaction memo and receipts vide Exs.B3 and B4 between T.G.Rajaswamy and the opp.party  B.N.Murthy which has  no nexus  with the complainant herein. These receipts are with respect to some third  parties with whom the complainant has no nexus. The sale deed Ex.A5 dt.23.1.02 shows the total consideration as Rs.4,49,500/- which has been paid by the complainant and the internal page  no.2 of the sale deed states as follows:

        “The builder shall complete the construction of the  said apartment  and handover possession of the same within 9 (nine) months  from the date of the Agreement.  In the event of the delay on the part of the Builder in construction  and delivering the possession of the said Residential Complex, the  Builder shall be liable to pay the owner by way liquidated damage, interest  at the rate of 24% per annum.  on the balance of amount paid by the owner  after deducting the cost of construction already  completed as fixed by an  Architect for the  period of delay. “

We observe from this clause that the builder has to complete the construction and handover the flat by 12.10.02 whereas even by the time of filing of the complaint the completed flat was not handed over to the complainant. It is evidenced under Ex.A6 dt.23.1.2002 that the complainant had taken a  housing loan  Rs.4,75,000/- for paying towards the purchase of the said flat. It is nowhere stated in the sale deed that the sale consideration is for unfinished flat.    Therefore the contention of the appellant/opp.party that this amount paid  is  for unfinished flat is unsustainable. Moreover  the opposite party has also handed over a cheque dt.7.12.2004 for Rs.1 lakh which the complainant did not encash on request of the appellant/opp.party.  It is not the case of the opposite party that they did not issue the cheque, their only contention is that the cheque was issued for some other purpose which was not supported by any documentary evidence and therefore it  cannot be  sustained.  The District Forum based on Ex.A10 which is the  an estimate given by Licenced Surveyor of Municipal Corporation, ,Visakhapatnam amounting to  Rs.2,25,000/- for unfinished works, has awarded  the same to the complainant. We observe from the record that an amount of Rs.20,000/- is also awarded towards compensation and we are of the  considered view  that it is just  and equitable  to reduce the interest awarded by the District Forum  from 12% to 9% while confirming the  rest of the order of the Dist. Forum. Time for compliance four weeks.

        In the result this appeal  is partly allowed,  modifying the order of the District Forum by reducing  the interest awarded from 12% to 9% while confirming the rest of the order of the District Forum. Time for compliance four weeks.   

                                                                        PRESIDENT

                                                                        MEMBER

                                                                        Dt.3.11.2010