AT HYDERABAD.

F.A. 165/2006 against C.C 35/2005, Dist. Forum, Ranga Reddy    

Between:

1. M/s. Sai Constructions 

Plot No. 53 & 54, SSV Residency

Shop  No. C-01, Cellar

L.B. Nagar Colony

Neredmet, Secunderabad-36

Rep. by its Managing Partner

G. Venkatesh Yadav

2. G. Venkatesh Yadav

S/o. G. Venkaiah, Age: 34 years,

Construction Business

H.No. 27-64/5/1

Devi Nagar, R.R. Dist.

3. Kamalla Mallesh

S/o. Beeraiah,  Age: 33 years,

Construction Business

H.No. 30-1481, Vinayak Nagar

Malkajgiri Municipality

R.R. District, Hyderabad.

4. S. Krishna, S/o. S. Nagaiah

Age: 53 years, Railway Employee

R/o. 11-4-23, Chilkalaguda

Secunderabad.

5.  S. Sai Kumar, S/o. S. Nagaiah

Age: 36 years, Railway Employee

R/o. 11-4-23, Chilkalaguda

Secunderabad.                                            ***                         Appellants/

                                                                                                Opposite Parties  

And

Janaki Venkat Naidu

@ Janaki Venkat Gopal

S/o. Janaki Govindu Gopal

Age: 38 years,

R/o. 12-7-112/7/3,

Kesavanagar Colony

Secunderabad.                                           ***                         Respondent/

                                                                                                Complainant

Counsel for the Appellant:                          Mr. V. Gourisankara Rao

Counsel for the Resps:                               M/s. . I. S. Sheshavataram.

QUORUM:

                          HON’BLE SRI JUSTICE D. APPA RAO, PRESIDENT     

&

                                            SMT. M. SHREESHA, MEMBER

WEDNESDAY, THIS THE TWENTY  EIGTH  DAY OF  JANUARY TWO THOUSAND NINE

Oral Order: (Per Hon’ble Justice D. Appa Rao, President)

                                                          *****

          Aggrieved by the  order of the Dist. Forum in directing the builders and others to deliver Flat No. 306  besides Rs. 1,96,000/- towards rent with interest @ 9% together with compensation of Rs. 5,000/- and costs.

          The case of the complainant in brief is that  he purchased  a  flat No. 306 in  Sri Sai Venkateswara Residency  from the appellants under registered sale deed Ex. A1 Dt. 7. 12. 2001 on payment of sale consideration of Rs. 3 lakhs.  Since it was in a semi finished condition, the appellants had promised that the apartment would be handed over within two months, and as such he paid Rs. 64,000/- towards balance of work to be completed by 5. 2. 2004 as demanded by them.   The appellants did not complete the work, however, promised to deliver the possession by giving an undertaking  on 5.2.2004.  On that he gave a  legal notice on  11.2.2005  for which they did not give any reply.  On that he filed the complaint.

          The appellants  did not contest despite notice being served on them.  

The complainant  filed his affidavit evidence  and got Exs. A1 to A12 marked. 

The Dist. Forum after considering the evidence placed on record opined that the complainant was entitled to  possession of flat as per sale deed Ex. A1 Dt. 7.12.2001 besides  Rs. 1,96,000/-  with interest @ 9% p.a., from 7.2.2002 and rent  @ Rs. 1,000/- p.m. from 7.2.2002 to 27.4.2005 and @ Rs. 1,500/- p.m. from  28.4.2005 till the date of realization  together with compensation of Rs. 5,000/- and costs of Rs. 5,000/-.

Aggrieved by the said decision,  the builders preferred this appeal contending that they had completed the flat in all respects and ready for occupation.   Despite the fact that they registered the flat in a semi-finished condition on 7.12.2001  the complainant paid the balance amount of  Rs. 2,60,000/- only on 5.2.2004.   The cheque that was issued  on 27.12.2001  could not be encashed as the bank itself was closed.  The amount could  be paid only on 5.2.2004 two years after execution of registered sale deed.   They did not collect any excess amount much less  Rs. 1,96,000/-.  Due to abnormal delay in payment of balance amount they could not deliver the possession.   In fact, they were entitled to Rs. 20,000/- towards extra works such as laying of bath room tiles, kitchen platform etc.

          It is an undisputed fact that the appellant had executed  Ex. A1 registered sale deed on 7.12.2001 for sale of Flat No. 306 for a total consideration of  Rs. 3 lakhs.   In the sale deed the property that was conveyed was in a semi-finished condition was made a mention.  On the very same day they entered into  a construction agreement evidenced under Ex. A2.   In the very agreement the builder had undertaken to complete the works  within one month and  hand over the possession to the vendee.   On the very same day the builder issued a receipt having received cheque for Rs. 3 lakhs on  Sri Satya Sai Co-operative Urban Bank Ltd., Secunderabad.  They have also issued a receipt Ex. A5  Dt. 5. 2. 2004 for Rs. 2,60,000/- towards full and final settlement of sale consideration.   When the possession was not delivered, he issued  Ex. A6 legal notice Dt. 11.2.2005  directing the builders to handover the possession together with damages.   Despite notice the appellants did not give any reply nor handed over the possession.   On that the complainant filed the complaint.   The appellants did not choose to contest despite service of notice and thereupon the Dist. Forum passed the impugned order.   The appellants did not mention as to why they did not choose to contest the matter. 

However, it admitted that it had completed the construction in all respects and ready for occupation.  It denied having received any excess amount.   The consideration covered under the sale deed was not paid till 5.2.2004,  and the cheque issued  on 7.12.2001 could not be encashed as the bank itself was closed. 

          Evidently, the amount covered under the sale deed was received as long back as on 5.2.2004.  Whatever be the reason, the appellants did not issue any notice to the complainant stating that the cheque was returned nor could be encashed.   However, it has no relevancy,  in view of the fact that the builder  had received the entire amount under Ex. A3  on 5.2.2004   the builder ought to have delivered possession of the property immediately.   There is no reason why  the possession was not delivered despite the fact that it was ready for occupation.

          The builder alleges that the complainant had to pay Rs. 20,000/- towards tiles etc. which it  had laid subsequently.  Absolutely, no evidence was let in  to prove the said fact.

          Learned counsel for the  appellants  represented  that the flat was delivered to the complainant on 20. 9. 2006 subsequent to  filing of the appeal evidenced under a memo filed in the court.  The said fact was not disputed.   Therefore the said relief need not be granted. 

          However the relief that was granted pertaining to payment of rent  on the ground that the possession was not handed over and   had the possession been  handed over  the complainant could have been  able to let  it out and thereby earning some rent.   The Dist. Forum directed the appellant to pay the rent from 7.2.2002 forgetting the fact that the complainant himself paid the balance of sale consideration  on 5.2.2004 evidenced under  Ex. A3.   Since the very complainant did not pay he could not ask either for possession of flat  or for rent to be paid from  7.2.2002.   If any rent that could be awarded, it could only from 5.2.2004 till the date of  possession i.e., 20.9.2006.  The very complainant  claimed  an amount of   Rs. 1,000/-  per  month  towards   rent.  

There is no evidence to show that rents were hiked in the year 2005 and therefore rent could be awarded @ Rs. 1,500/- per month .   Considering the circumstances, we direct the appellant to pay  @ Rs. 1,000/- p.m. from 5.2.2004 to 20.9.2006 together with compensation of Rs. 5,000/-  and Rs. 5,000/- towards costs as awarded by the Dist. Forum.  The complainant himself issued Ex. A3 mentioning that there were no dues therefore the order of the Dist. Forum directing the appellant to pay  Rs. 1,96,000/- cannot be sustained.  The said order has to be set-aside. 

          In the result  the appeal is allowed in part setting aside the order of the Dist. Forum directing the appellant to pay Rs. 1,96,000/-   The order of the Dist. Forum  is modified as far as direction of possession is concerned since the possession was already delivered on 20.9.2006.   The order of the Dist. Forum in regard to payment of rent is also modified  instead the appellant is directed to pay Rs. 1,000/- p.m. from 5.2.2004 to 20.9.2006.   Rest of the order of the Dist. Forum pertaining to compensation and costs at Rs. 5,000/- each is confirmed.   Appellant is directed to pay costs of Rs. 2,000/- in the appeal.  Time for compliance four weeks.

          .

                   PRESIDENT                                               LADY MEMBER

                                                Dt. 28. 01. 2009.