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GAUHATI HIGH COURT
N. CHAUDHURY, J.
M/s. M. Apartment Pvt. Ltd. - Petitioner
Versus
Dr. Rathindranath Sharma – Respondent
R.F.A. No. 10 of 2009
Decided on : 04-06-2015
For the Appellant :K. Khurana, Advocate.
For the Respondents:S. Sattar and Mukhit, Advocates.
Headnote:
Indian Contract Act - Section 55 , 63 and 74 - Contact of Construction - Land – Possession – Decreed - Recovery of amount Plaintiff is that he being owner in possession of a plot of land measuring 1 Bigha covered by Dag No. 584 of K.P. Pata 79 under Mouza Beltola described in schedule A to plaint, entered into written agreement with defendants whereby it was agreed upon between parties that a multi-storied building as per enclosed plan and design prepared by an approved architect and sanctioned by appropriate authorities like GMC and GMDA would be constructed on land in question as per terms and conditions mentioned in agreement and for that purpose an irrevocable Power of Attorney would be executed by plaintiff in favour of defendant - It was agreed that construction would be completed within a period of two and half years i.e., on or before but after the construction had started defendants failed to comply with requirements of agreement and did not hand over Owners Allocation in time - Apartments D and F on second floor were handed over to plaintiff on about 17 months after stipulated time and Apartment A, B and C were handed over to plaintiff on about 20 months after stipulated time - Plaintiff intimated defendants about such default by letters dated but defendants did not give any reply to these letters - Under such circumstances plaintiff was compelled to institute suit for declaration that defendants have failed to perform their part of contract as mentioned in agreement dated that construction carried out by defendants is deficient in respect of toilets in Apartment A1 and D1 and is not upto mark with reference to Clause -14 of agreement - Plaintiff also prayed that Amin Commissioner be appointed to appreciate, analyse and pinpoint defects and to make estimate thereof keeping in view Clause-14 and various other Clauses of the agreement - Consequently a money decree for Rs.5,57,698/- has been prayed for by plaintiff against defendants along with cost and other reliefs - Held, It provides that defendants shall complete construction and hand over owners allocation of 5 flats within two and half years from date of agreement - There is default clause in this term which provides that in case defendants fail to do so, plaintiff would be at liberty to revoke agreement and cancel contract - If a penalty is prescribed in contract itself for a particular breach in that event defaulter will be liable to such penalty as is mentioned in contract only and for that other party would not be required to establish actual damage - Provides that if a promisee fails to perform contract in a given time, promisor may extend time for such performance or may accept instead of it any satisfaction which he thinks fit - Plaintiff did not exercise option available to him by operation of Clause-8 of Exhibit-1 agreement - This amounts to waiver in terms of Section 63 of Contract Act - Once it is found that plaintiff waived his option, in that event default committed by defendants if any for not performing contract in time got automatically condoned - This being the position, the plaintiff cannot be held to be entitled to get any compensation for plaintiff for late construction - In particulars of claims appended to the plaint plaintiff merely mentioned that he sustained rental loss to the tune of per month in case of A, B and C Units and to the tune of Rs.11,000/- per month in case of D2 & E2 units in second floor - But apart from that it has not been pleaded as to how this amount was lost by plaintiff - There is no assessment as to probable rental income from such flats - Plaintiff has not proved that in similar flats of same building such amount of rental are being paid - No witness has been examined to prove rental loss or as to how similar flats of said Apartments fetched such rental income - These findings are not sustainable - Since claim of plaintiff for compensation towards construction of toilet and rental loss have been found to be unsustainable points for determination in this appeal are accordingly decided - Consequently, appeal is allowed and impugned judgment and decree are set aside.
N. Chaudhury, J.
In this first appeal, defendants of Title Suit No. 278 of 2002 have challenged the Judgment and Decree dated 15.12.2008 passed therein by the learned Civil Judge No.1 Kamrup, Guwahati. By that judgment, the learned trial court has decreed the suit of the plaintiff in entirety for recovery of Rs. 5,24,724/- from the defendants. Essential facts involved in the suit are required to be stated first.
2. One Dr. Rathindra Nath Sharma as plaintiff instituted Title Suit No. 278 of 2002 in the court of learned Civil Judge, No.1, Kamrup on 21.11.2002 for declaration and specific performance of contract. Pleaded case of the plaintiff is that he being the owner in possession of a plot of land measuring 1 Bigha covered by Dag No. 584 of K.P. Pata 79 of Village-Japorigog under Mouza Beltola described in schedule A to the plaint, entered into written agreement with the defendants on 24.2.1997 whereby it was agreed upon between the parties that a multi-storied building as per enclosed plan and design prepared by an approved architect and sanctioned by appropriate authorities like GMC and GMDA would be constructed on the land in question as per terms and conditions mentioned in the agreement and for that purpose an irrevocable Power of Attorney would be executed by plaintiff in favour of the defendant No. 1. Accordingly, on 1.3.1997, a registered Power of Attorney being No. 647/1997 was executed by plaintiff authorising the defendant No. 2 to perform the contract. As per the agreement, defendants in lieu of utilisation of plaintiff's property agreed to hand over five Apartments measuring 5611.41 sq. feet in two different floors of the proposed multi-storied RCC building as per specification in Schedule-B to the plaint as well as the agreement dated 24.2.1997. It was agreed that construction would be completed within a period of two and half years i.e., on or before 24.8.1999 but after the construction had started the defendants failed to comply with the requirements of the agreement and did not hand over Owner's Allocation in time. The Apartments D and F on the second floor were handed over to the plaintiff on 12.1.2001 about 17 months after the stipulated time and Apartment A, B and C were handed over to the plaintiff on 15.4.2001 about 20 months after the stipulated time. The plaintiff intimated the defendants about such default by letters dated 6.1.2001 and 2.4.2001 but the defendants did not give any reply to these letters. Under such circumstances, the defendants became liable to make payment of compensation to the tune of Rs. 5,57,698/- as furnished in the particulars of the claims mentioned in the plaint. The plaintiff further claimed that the defendants did not make payment of tax to the GMC to the tune of Rs. 6,474/- which is also a requirement under the agreement. So the plaintiff had to make the payment and hence a decree is liable to be passed against the defendants for realisation of Rs.6474/-as well. In addition to what is stated above, the defendants did not make construction of toilets in Apartments in A-1 and D-2 falling under Owner's Allocation which plaintiff duly intimated to the defendants. But the defendants neither made amend for the shortcomings nor did they reply to the communication of the plaintiff for which plaintiff had to approach technical expert for assessing the estimate for construction of the two toilets. The technical expert estimated the total expenditure at Rs.54224/-. Plaintiff informed this to the defendants but even thereafter nothing has been done. Under such circumstances, plaintiff was compelled to institute the suit for declaration that defendants have failed to perform their part of the contract as mentioned in the agreement dated 24.2.1997, that construction carried out by defendants is deficient in respect of toilets in Apartment A1 and D1 and is not upto the mark with reference to Clause -14 of the agreement. Plaintiff also prayed that Amin Commissioner be appoin
