Liability for deficiency in service and breach of agreement under the Consumer Protection Act, 1986.

Mr. Justice M.S. Parikh, President—This appeal arises from order dated 11.4.2001 rendered by the learned Consumer Disputes Redressal Forum, Ahmedabad City, Ahmedabad in Complaint No. 461 of 1999 directing the opponents to hand over peaceful and vacant possession of disputed Flat No. S/9 in the scheme organised by the opponents, to pay compensation on the head of mental agony and hardship in the sum of Rs. 10,000/- and to pay cost of Rs. 5,000/-.

2. It was the case of the complainant before the learned Forum that the opponents organised a scheme of flats on the immovable property which is described in the complaint and advertised such scheme in the newspaper. The complainant who was in need of a house booked flat No. S/9 by making payment of full consideration. The opponent No. 1 executed agreement dated 26.6.1998 assuring the complainant to hand over possession of the flat on 26.9.1998. Opponent No. 1 also agreed to repay the consideration with 18 per cent interest if the possession was not so handed over to the complainant. The construction of the flat in question was completed and the only work which was left out was of fixing tiles in the flat. Yet, the opponents did not hand over possession of the flat in question to the complainant. Therefore, the complainant prayed for issuance of direction for handing over possession of the flat in question to the complainant and to pay compensation in the sum of Rs. 3 lakhs on various heads, alleging unfair trade practice and deficiency in service on the part of the opponents. Although served with the process of the complaint, opponents did not appear before the learned Forum. They also did not contest the complaint in any manner. It was established before the learned Forum that the complainant had made full payment of the consideration of Rs. 3,24,000/- as per the agreements entered into between the parties. First agreement was entered into on 19.11.1993 and the second agreement was entered into on 26.6.1998. By virtue of the second agreement, the opponents assured the complainant to hand over the possession of the flat in question within three months i.e. on or around 26.9.1998. As the opponents did not act according to the said assurance, the complainant was required to file the complaint in question.

3. Considering the material placed before it and the facts and circumstances of the case, the learned Forum came to the conclusion that the opponents were liable to hand over the possession of the flat in question and pay compensation as aforesaid since they committed breach of the agreement and thereby they were deficient in rendering service to the complainant in the matter of construction of flat in question as also in handing over possession thereof to the complainant. [See Lucknow Development Authority v. M.K. Gupta, III (1993) CPJ 7 (SC)=AIR 1994 SC 787].

4. When this appeal came up for hearing before this Commission from time to time, efforts for settlement were made. It did not remain disputed that the flat in question was required to be handed over to the complainant. It also did not remain in dispute that the original opponent No. 1 (appellant) has been occupying the said flat. Only dispute before us was with regard to the actual area of the flat in question. According to the opponents, the area of the flat in question is more than the agreed area and, therefore, the complainant would have to pay more than proposed net consideration/price for the said area. Efforts were made to resolve the dispute by sending the parties to the flat in question but they could not resolve their dispute. A suggestion was also made to appoint an independent Engineer to measure the area but the appellant has not been agreeable to this suggestion. The complainant’s engineer had reported to the complainant and submitted that the area at the site was not more than the contracted area in any manner. Bearing in mind all the facts and circumstances of the case, we see no reason why the opponents shou