CD No.76 of 1993

16th February, 1999

Petitioner Counsel: Mr. S. PRABHAKAR
Respondent Counsel: Mr. V. VENKATESWARA RAO

JUDGMENT

K. RANGA RAO, Member :- The allegations in the complaint filed under Section 17(a)(1) read with Section 12 of the Consumer Protection Act, 1986 are as follows:

2. The opposite party is a partnership firm engaged in the promotion and construction of flats. With an intention to purchase two flats, the complainants paid a sum of Rs.35,000/- to the opposite party on 18-2-1991 towards advance for reserving two economy flats bearing Nos.304 and 305 in the second floor (i.e., one flat in the middle portion on the rear side and the other in the North East corner) and also Rs.12,000/- towards registration charges. Subsequently the complainants paid Rs.19,000/- on 9-4-1991. Rs.29,000/- on 10-4-1991 and Rs.5,000/- on 14-12-1991. Thus the complainants paid a total sum of Rs.1,00,000/-. The complainants also supplied to the opposite party three lorry loads of bricks (10,500 Nos.) at the rate of Rs.725/- per 1,000 Nos. and the total cost of the same is Rs.7,613/-. Again the complainants supplied to the opposite party two truck loads of 3/4" size of metal worth Rs.3,600/- and the opposite party agreed to adjust the total amount of Rs.11,213/- in the cost of the flats. The complainants have to pay a balance sum of Rs.1,08,607/- towards the balance of sale consideration for the flats. Though the complainants requested the opposite party to execute the construction agreement for the said flats, the opposite party has been postponing the same on one pretext or the other even though the complainants paid more than half of the sale consideration. The complainants came to know that the opposite party was trying to sell the flats to the third parties with a view to make wrongful gain. The complainants are ready and willing to pay the balance of the sale consideration to the opposite party. The complainants got issued a legal notice dated 25-11-1992 calling upon the opposite party to execute the registered construction agreement so as to enable the 1st complainant to obtain housing loan and to complete the construction after removing the construction material from the complainants' flats and also asking the opposite party not to alienate the flats to the 3rd parties. But the opposite party though received the notice has not given any reply. The complainants came to know that the opposite party has got into litigation with third parties and in fact attempted to offer the complainants' flats as security to the third parties. Therefore the complainants filed a third party affidavit in CMA No.1836 of 1991 before the High Court of Andhra Pradesh to protect their interest. The Honourable High Court took a serious view of the conduct of the opposite party and adjourned the case after directing the opposite party to settle the matter with the complainants out of Court on or before 16-2-1993. The negotiations with the opposite party failed. The opposite party was demanding exorbitant amount without attempting to complete the construction of the flats. The complainants are left in lurch. The opposite party has indulged in unfair trade practice. The complainants are put to financial loss, mental agony and hardship and inconvenience on account of the delay in completing the construction of the flats. Mr. T. Jagadeeswara Rao, Managing Partner of the opposite party shifted his residence from Vijayawada to Hyderabad and abandoned the work in June, 1992. Other flat purchasers were constrained to complete their unfinished work at their own expense. The complainants estimate the damage for mental agony and inconvenience at Rs.75,000/-. The complainants would have got rent of Rs.1500/- per month for each flat and Rs.3,000/- for both the flats per month from 1-9-1991 till the date of complaint. They are estimating the total loss at Rs.54,000/- at the rate of Rs.3,000/- per month for 18 months. The complainants therefore prayed for a direction to the opposite party to pay a sum of Rs.1,11,213/- together with interest at 18% per annum from the date of payment till the date of realisation and also further sum of Rs.75,000/- as compensation for mental agony and Rs.54,000/- towards loss of income from 1-9-1991 to 22-3-1993, and costs.

3. Though sufficient time was granted by this Commission the opposite party has not filed his counter. At the time of enquiry the complainants filed sworn affidavit in support of their claim and the original receipts showing payment of amounts and also copy of the registered sale-deed dated 10-4-1991 executed by One Pillutla Sundararama Sastry in favour of the complainants for 2/44 undivided share in the land measuring 57.872 square yards in a total extent of 1273.2 square yards for a consideration of Rs.29,000/- and the xerox copy of the plan of the flats and also xerox copy of the registered notice dated 25-11-1992 issued on behalf of the complainants. There was no representation for the opposite party. The Counsel for the complainants was heard.

4. The point for consideration is whether there is deficiency in service on the part of the opposite party and to what relief the complainants are entitled?

5. The 1st complainant is the father and the complainants 2 and 3 are the sons of the 1st complainant. The case of the complainants is that the opposite party promised to construct two flats at a cost of Rs.1,10,000/- each and that the complainants paid a total sum of Rs.1,00,000/- and supplied some material like bricks and metal worth Rs.11,213/-, that the opposite party has not executed the construction agreement inspite of several demands made by the complainants, that the land owner executed a registered sale-deed for 2/44 undivided share of the land for construction of the flats for the sale consideration of Rs.29,000/- and conveyed the title to get the complainants flats constructed and that the opposite party has not completed the construction till now. The complainants therefore prayed for a direction for refund of the amount paid by them together with damages. The opposite party has not filed counter though Mr. V. Venkateswara Rao filed vaklat for the opposite party. The original receipts and the registered sale-deed for the undivided share of the land show that the complainants paid a total sum of Rs.1,00,000/- to the opposite party. Out of the said amount, Rs.29,000/- is the sale consideration for the undivided share of the land. In the registered notice dated 25-11-1992 the complainants categorically mentioned that they supplied the material worth Rs.11,213/- for the purpose of construction. So the total amount comes to Rs.1,11,213/-. The opposite party has not given any reply to the notice. Therefore we accept the case of the complainants and hold that the complainants paid a sum of Rs.1,00,000/- by way of cash and sum of Rs.11,213/- by way of construction material. The total amount comes to Rs.1,11,213/- including the amount of Rs.29,000/- being the sale consideration for the undivided share of the land. The opposite party is liable to refund the said amount with interest from the date of the notice in as much as the opposite party has not completed the construction. However, we are of the opinion that the complainants have to reconvey the undivided share of the land in favour of the vendor after the opposite party repays the amount and the complainants are not entitled to compensation for mental agony and loss of rents since the complainants have not paid the total consideration to the opposite party.

6. In the result, the complaint is allowed in part and the opposite party is directed to pay to the complaints a sum of Rs.1,11,213/- with interest at 18% per annum from 25-11-1992, the date of legal notice issued by the complainants to the opposite party till the date of realisation and costs of Rs.2,000/-. The complainants shall reconvey the undivided 2/44 share in the land conveyed to them under registered sale-deed dated 10-4-1991 vide document No.1814 of Vijayawada Sub Registrar by the power of attorney agent of Pillutla Sundararama Sastry within one month from the date of payment of the said amounts by the opposite party. The registration charges and the stamp duty shall be borne by the opposite party.

Complaint partly allowed.