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KARNATAKA STATE CONSUMER DISPUTES
REDRESSAL COMMISSION, BANGALORE
Hon’ble Mr. Justice D.R. Vithal Rao, President;
Mr. K.R. Ramaswamy Iyengar & Mrs. Susheela Cheluvaraju, Members
DEVAIAH CHOURIRA—Complainant
versus
M/s. CYMA EXPORTS PVT. LTD.—Opp. Party
Complaint No. 13 of 1991—Decided on 28.10.1993
A builder's failure to complete construction and deliver possession of a flat as per the agreement amounts to deficiency in service and the builder is liable to pay compensation to the complainant.
Headnote:
CONSUMER PROTECTION ACT, 1986 - SECTION 2(1)(d) - DEFICIENCY IN SERVICE - BUILDER'S FAILURE TO COMPLETE CONSTRUCTION AND DELIVER POSSESSION OF FLAT - COMPENSATION AWARDED WITH INTEREST.
Fact of the Case:
The complainant had paid Rs. 2,80,250/- to the builder for a flat in an apartment building, but the builder failed to complete the construction and deliver possession of the flat as per the agreement. The builder claimed that the delay was due to various reasons beyond its control, such as scarcity of cement, steep rise in the price of building materials, and stoppage of construction by the Municipal Corporation.
Finding of the Court:
The court held that the builder had failed to establish the circumstances to justify the delay in completing the construction of the flat and handing over the possession of the same to the complainant. The court found that the services rendered by the builder were deficient in nature and that the complainant had suffered loss and injury due to the negligence of the builder.
Issues: Whether there was any deficiency in service rendered by the builder and, if so, to what compensation the complainant is entitled to.
Ratio Decidendi: The court held that the builder was liable to pay interest on the sum paid by the complainant from the date when the possession of the flat should have been delivered till the date of actual delivery of possession. The court also awarded costs of Rs. 2,500/- to the complainant.
Final Decision: The complaint was allowed with costs. The builder was directed to pay interest at the rate of 18% p.a. on the sum of Rs. 2,80,250/- from 1.1.1987 till the date of delivery of possession of the flat to the complainant in a condition fit to occupy the same. The builder was also directed to pay a sum of Rs. 2,500/- to the complainant towards the costs of the proceedings.
Mr. Justice D.R. Vithal Rao, President — In this complaint, the complainant has sought the following reliefs :
“14. Under the circumstances mentioned above, the complainant most humbly prays that this Hon’ble Authority may be pleased to take appropriate action against the respondent and direct the respondent to complete the flat in question and direct the respondent to complete the sale transaction by executing the registering the Deed of Sale and put the complainant in possession of the flat in question within a month from this date. Further, this Hon’ble Authority may be pleased to direct the respondent to pay the damages of Rs. 8,00,000/- together with interest at 18% per annum from 7.11.1979 till the date of realisation of the amount to the complainant because of the failure of the respondent to complete the construction of the flat as stipulated in the agreement. This Hon’ble Authority maybe pleased to take any other appropriate action against the respondent under the facts and circumstances of the case.”
2. The complainant averred that in pursuance of an advertisement and publicity given by the opposite party the builder, the complainant applied for a flat and the opposite party allotted a flat bearing No. 2, on the ground floor in Rajanigandha of Garden Apartments, at No. 21, Grant Road, Bangalore -1, for a price of Rs. 2,95,000/- in the month of Nov. 1979. The complainant made an advance payment of a sum of Rs. 5,000/- to the opposite party, at the time of executing the agreement for sale, as per Ex. C-1.
3. The complainant paid a sum of Rs. 5,000/-to the opposite party towards the price at the time of executing the agreement for sale, as referred above, and agreed to pay the balance consideration amount of Rs. 2,90,000/-, as per the terms specified under Clause 4 of the argeement for sale, Ex.C-1, in instalments at various stages of construction. As per the terms of the agreement, Ex. C-1, the opposite party was to complete the construction of the apartment and deliver the possession of the same to the complainant, on or before 30.6.1980.
4. The complainant, thereafter, paid further sums of Rs. 2,75,280/-at different stages by the end of August 1983.
5. The complainant and the opposite party entered into a further agreement on 22.8.1983 for certain alteration in the agreement, Ex. C1. As per agreement dated 22.8.1983, the complainant was allotted Flat No. 2 on the first floor of the building Rajanigandha instead of Flat No. 2 on the ground floor in the said building and the sale consideration was fixed at Rs. 2,80,000/-. The alteration agreement came to be registered as per Ex.C-5. In the said” agreement, Ex.C-5, at para 2, the opposite party has specifically admitted the receipt of a sum of Rs. 2,80,250/- from the complainant by the said date.
6. The complainant, thus in all, made a payment of a sum of Rs. 2,80,250/- to the opposite party by 22 8 1983. As per the terms of the agreement, the opposite party was to complete the construction by 30.7.1984 and handover the possession of the said flat to the complainant.
7. It is the further case of the complainant that the opposite party did not commence and complete the construction and deliver the possession of the flat to the complainant as stipulated under the agreement for sale, Ex. C-5.
8. The complainant nextly averred that the various flat owners who had thus made the payment to the opposite party, constituted an Association, called “Garden Apartment Owners’ Association” and through that Association began to put pressure upon the builder-opposite party to commence the construction of the apartment and to complete the construction at an early date, which fact is evident from the notice issued through his Advocate by the complainant, on 24.10.1990 as per Ex.C-8.
9. A meeting was held between the opposite party and the office bearers of the Garden Apartment Owners Association on 18.4.1986, as per Ex.C-15, wherein the opposite party agreed to commence the work of construct
