GAMA BUILDERS vs ANTHONY GABRIEL D'SOUZA

THIS appeal is filed by the appellant builder against the order passed by the District Consumer Disputes Redressal Forum, North Goa in Complaint No. 244/98 dated 7.2.2000 allowing the complaint of the respondents to refund the consideration amount of Rs 3,05,000/- with interest at the rate of 18 per cent per annum and compensation of Rs. 5,000/- for mental torture and agony and to pay cost of Rs. 1,000/-.

FOR convenience sake the appellant is referred to as the builder opposite party and the respondent as complainants hereinafter. Briefly stated the facts of the case giving rise to the present appeal are that complainant No. 1 entered into Agreement of Sale dated 22.9.1995 with the opposite party builder which was registered. Subsequently, the complainant executed Agreement of Rectification of Sale Deed dated 25.5.1996 whereby complainants offered to purchase flat bearing No. C-52 situated on the second floor of Block C of the building known as Gama Pinto Residency to be erected in the property bearing Chalta No. 38 of P.T. No. 149 for a consideration of Rs. 4,65,000/-. The complainants paid to the opposite party Rs. 3,05,000/- under receipt. Complainants issued notice to the opposite party to cancel the Agreement for Sale and rectification of the Sale Deed for inability to make payments of further instalments. The opposite party also failed to deliver the possession of the flat within 18 months from the date of execution of the agreement. Subsequently, the present complaint has been filed claiming refund of the consideration amount.

The opposite party in the objections filed before the District Forum, North Goa admitted that the construction was not completed within the stipulated time on account of unavoidable circumstances. He has also contended the complainants did not pay the entire instalments. There is breach of agreement.

PARTIES filed their Affidavits and the District Forum, North Goa passed the order on 7.2.2000 allowing the complaint for refund of the consideration amount with interest and damages as mentioned above. Aggrieved by the said order the present appeal has been filed by the opposite party the builder. Written submissions have been filed by the respondent complainant Counsel and the Counsels were also heard in the matter.

FROM the contentions of the opposite party, it is seen that there was an agreement between the complainant No. 1 and opposite party for constructing and giving the flat. Complainants hired the services of the opposite party to construct the flat and an amount of Rs. 3,05,000/- was also paid. The contention of the opposite party that the complainant is not a consumer, in the circumstances of the case cannot be accepted. It is also not necessary that the owners of the plot should have been made a party for the reason that the complainants have claimed refund of the advance amount of consideration made for the purchase of the flat to be constructed by the opposite party. There is no material to say that the flat was agreed to be purchased for the commercial purpose. The agreement is silent on that aspect. The execution of the agreement is admitted. The complainants awaited delivery of possession, however, the opposite party did not give possession till the stipulated time of 18 months. Hence there is deficiency in service. No doubt the opposite party has contended that there was recession in economy and he could not construct in time. In these circumstances the complainants have asked as per Clause 8 of the agreement for the refund of the amount given to the opposite party for construction of the building. The failure to deliver possession of the flat within 18 months from the date of execution of the Agreement of Sale dated 22.9.1995 in terms of rectification of the Agreement amounts to deficiency in service and also the claim is made by the complainants for the refund of the consideration amount which was received from the opposite party for which para 7 of the Agreement of Sale gives a right to the complainant. The Counsel for the complainant respondent has relied on I (2002) CPJ 17 (NC)=2002 NCJ 35 (NC), National Consumer Disputes Redressal Commission, New Delhi in Syed Vajidali Sangamncheri v. Mrs. Khadija Naruddin Bengali, it has been held that housing not completed as agreed-House still not habitable-Order to refund the amount deposited with interest at the rate of 18 per cent per annum till date of payment and Rs. 50,000/- by way of compensation. In view of the ratio decidendi of the above decision there is no merit in the ground of appeal filed by the opposite party appellant assailing the order passed by the District Forum. Hence, we proceed to pass the following order: "The appeal fails and the same is dismissed with cost of Rs. 2,000/-." Appeal dismissed with costs.