ANTHONY ESTIBEIRO vs PRIMOS BUILDERS

THIS complaint has been filed by the complainant for a direction to the opposite parties to refund a sum of Rs. 6,29,000/- advanced by him for purchase of flat from opposite parties with interest @ 9% per annum, liquidated damages of Rs. 500/- and additional damages of Rs. 30.000/-.

THE case put forward by the complainant is that on 18.12.1995, he entered in to an agreement with the opposite parties for purchase of flat F- 4 situated on the first floor or building Block "A" to be constructed by the opposite parries at Merces for a price of Rs. 6,29,000/- and the entire amount was paid on the date of execution of written agreement and it was agreed that possession of flat should be given in 18 months from the date of agreement. It was also agreed if for any reason, the builder is unable to give possession of flat, the purchaser was entitled to give notice to the builder terminating the agreement with four weeks and the builder was bound to refund the entire amount with 9%. interest alongwith the liquidated damages of Rs. 500/-. Within a period of 18 months, no work was undertaken by the opposite parties and therefore he was obliged to issue notice to him terminating the agreement and calling upon him to refund the amount advanced by him. The opposite parties have admitted the execution of agreement and they also admitted that on the date of execution of agreement, they received a total sum of Rs. 6,29,000/- and they could not commence the construction is also admitted for their own reasons. As to why they were not able to complete the project as agreed to need not bother us in this case. It has been pleaded that in another project at Corlim, flats are ready for occupation and they offered the flats to the complainant but he did not accept the same and therefore, the complaint is liable to be dismissed and in alternative the respondent is willing to pay Rs. 6,29,000/- with interest @ 9% per annum in reasonable instalments within a period of 4 or 5 years or as this Hon'ble Commission may find proper in the circumstances of the case.

We could see that practically many of the aspects of the complaint have been admitted by the opposite parties. That there was agreement as pleaded and that the opposite parties received a sum of Rs. 6,29,000/- and that they were not able to commence the project and therefore, the complainant was entitled to seek refund the amount with interest have not at all been controverted in the written version of the opposite parties. The very fact that the opposite parties offered another project is again no ground to refuse the refund of amount advanced to them under the agreement in question. Therefore, we are satisfied that the complainant is entitled to an order for refund of Rs. 6,29,000/- with interest thereon @ 9% per annum from the date of agreement till the date of payment.

IT is to be seen whether the opposite parties are entitled to the instalments sought for. No concrete material as such has been placed regarding the financial status of opposite parties and as to how exactly the sum of Rs. 6,29,000/- advanced by the complainant was utilised by the opposite parties has also not been explained. In the circumstances, we are satisfied that no case is made out for grant of instalments extending to 4 to 5 years as mentioned in the written version of the opposite parties. IT appears to us in the circumstances of the case, the direction to -pay half amount within 3 months from this date and the other half within 6 months from this date would be appropriate. The complainant has claimed liquidated damages of Rs. 500/- and additional damages of Rs. 30.000/-. That the complainant is entitled for liquidated damages of Rs. 500/- is not disputed by the learned Advocate for opposite parties. When the parties have agreed about the particular amount is payable under this head of liquidated damages, it appears to us we cannot accept the claim of additional charges. Even otherwise no basis has been laid to support the claim. Therefore, we are satisfied that the complainant is entitled to refund of Rs. 6,29,000/- and liquidated damages of Rs. 500/-. He is not entitled to additional damages of Rs. 30,000/-. In the result, we direct the respondents to refund a sum of Rs. 6,29,000/- with interest thereon @ 9% per annum from the date of agreement namely 18th December, 1995 till the date of payment in two equal instalments. We further direct the opposite parties to pay liquidated damages of Rs. 500/-. The sum of Rs. 500/- warded as liquidated damages shall be paid within one month from this date failing which it shall carry interest @ 12% per annum from this date till the date of payment. We direct that the sum of Rs. 3,14,500/- with interest thereon @ 9% per annum shall be paid within three months from this date and the balance amount of Rs. 3,14,500/- with interest @ 9% per annum shall be paid within 6 months from this date till the date of payment. If the opposite parties commit default in payment of instalments as above, then the entire amount due shall carry current interest @ 12% per annum from this date till the date of realisation of these amounts. That is in addition to 9% interest up to this date. Complaint disposed of.