Mac Enterprises vs Shri Dattaram Lotlecar

F.M. Reis, J.—Heard Shri V.A. Lawande, learned Counsel appearing for the Appellant and Shri S. G. Bhobe, learned Counsel appearing for the Respondent. The above Appeal challenges the Judgment and Order passed by the Lower Appellate Court, whereby the appeal preferred by the Respondent was allowed and the Judgment and Decree passed by learned Trial Judge was set aside and the suit filed by Respondent was partly decreed and the Appellants, inter alia, were directed to deliver possession of two flats in the building constructed by the Appellants in the suit property to the Respondent. The Appellants were also directed to pay a sum of Rs.10,000/- per month to the Respondent from 11.07.1996 till the possession of the two flats is handed over to the Respondent.

A suit came to be filed by the Respondent essentially on the ground that there was an Agreement executed between the Appellants and the Respondent whereby the land was agreed to be transferred to the Appellants for the purpose of construction and in view of such rights in the land, the Respondent was entitled to receive two flats in the proposed building to be put up by the Appellants. The Agreement, inter alia, contemplated that such two flats were to be delivered to the Respondent from the date of obtaining final permission from the statutory authorities. As per the findings of the Court below, the final N.O.C. for construction was obtained on 10.07.1994. In view of the breach committed by the Appellants in delivering the said two flats, the suit came to be filed by the Respondent for specific performance and damages in accordance with what was contemplated in the Agreement of Rs.10,000/- per month.

The Appellants have disputed the claim of the Appellants on various ground by filing their written statement. It is the contention of the Appellants that the delay in delivering the flats was on account of the Respondent in not cooperating with the Appellants in putting up with the construction in the suit property. The Appellants further contended that they were not liable to pay any compensation to the Respondent as the delay was on their count and, as such, the question of claiming any amount did not arise at all. It is further the case of the Appellants that the Respondent was also not entitled for any reliefs in the suit.

Learned Civil Judge, Senior Division, Mapusa, after framing of issues and recording of evidence by Judgment and Decree dated 29.01.2010, dismissed the suit filed by the Respondent. Being aggrieved by the said Judgment and Decree, the Respondents filed an appeal before the Lower Appellate Court, which came to be allowed by the impugned Judgment and the suit filed by the Respondents was partly decreed on terms stated herein above. Being aggrieved by the said Judgment and Decree, the Appellants have preferred the present Appeal.

Shri V. A. Lawande, learned Counsel appearing for the Appellants, has assailed the impugned Judgment on the ground that in the written submissions filed before the Trial Court, specific defence was taken by the Appellants to the effect that the suit filed by the Appellants was barred by limitation. Learned Counsel further pointed out that the Agreement was of the year 1993 and as per the terms of the Agreement, the possession of the flat was to be delivered within two years. Learned Counsel further pointed out that the suit came to be filed in the year 1999 and that the suit ought to have been dismissed as time barred. Learned Counsel further pointed out that the Lower Appellate Court also did not consider such aspect whilst passing the impugned Judgment and Decree. The next contention advanced by the learned Counsel appearing for the Appellants is that the Lower Appellate Court has awarded damages of a sum of Rs.10,000/- per month without ascertaining whether such amount is exorbitant as, according to him, awarding such damages would not arise at all. Learned Counsel further pointed out that as the delay was attributed to the Respondent, the question of awarding such damages to the Respondent would not arise. In support of his submissions, learned Counsel has relied upon the Judgment of the learned Division Bench of this Court passed in First Appeal no. 179/2001 dated 09.03.2005 and pointed out that this Court has considered the aspect as to when damages could be awarded.

On the other hand, Shri S. G. Bhobe, learned Counsel appearing for the Respondent, has supported the impugned Judgment. Learned Counsel further pointed out that the Lower Appellate Court has rightly considered the material on record and at para 18, has come to the conclusion that the final permission from the statutory authorities came to be issued in favour of the Appellants on 10.07.1994. The learned Counsel further pointed out that the suit came to be filed in April 1999 and, as such, the question of contending that the suit is barred by limitation is totally misplaced. Learned Counsel further pointed out that the contention of learned Counsel appearing for the Appellants to the effect that the flats were to be delivered withing the period of 24 months from the date of Agreement, was contrary to the terms of the Agreement as the learned Judge at para 17 of the Judgment has clearly come to the conclusion that such period of 24 months is from the date of obtaining of the statutory permission and as such it cannot be said that the suit is barred by limitation. With regard to the next contention of the learned Counsel appearing for the Appellants, Shri Bhobe, learned Counsel appearing for the Respondent, has pointed out that the flats are located at Calangute Village and, according to him, the Appellants have been using the said flats for rent back facilities. Learned Counsel further pointed out that the amount of Rs.10,000/- fixed in the Agreement cannot be said to be exorbitant. In support of his submissions, learned Counsel has relied upon the Judgment reported in Phulchand Exports Ltd. Vs. OOO Patriot, .

Having heard the learned Counsel and on perusal of the record, I find that the contention of Shri V. A. Lawande, learned Counsel appearing for the Appellants that the suit filed by the Respondent is barred by the law of limitation cannot be accepted. The Lower Appellate Court has rightly come to the conclusion that the final permission from the statutory authorities came to be issued to the Appellants on 10.07.1994, as per Exhibit 32 and the suit is filed in April 1999. Hence, the suit cannot be said to be barred by limitation within the provisions of the Limitation Act, 1963. Hence, the contention of Shri Lawande, learned Counsel appearing for the Appellants on that count deserves to be rejected.

The next contention of Shri Lawande, learned Counsel appearing for the Appellants that the Lower Appellate Court has awarded damages of a sum of Rs.10,000/- per month without ascertaining whether such amount is exorbitant is also not acceptable. The Appellants did not deliver the flats within the said period of time as stipulated in the Agreement. The learned Lower Appellate Court at para 18 of the impugned Judgment has noted that the Appellant admitted that the flats were not completed upto 1998. This is much after the time stipulated in the Agreement. As such, right accrued to the Appellants on account of default by the Appellants to claim such compensation as damages fixed in the Agreement. It cannot be stated that the amount fixed in the agreement is exorbitant. Taking into consideration the Judgment of the Apex Court in the case of Phulchand Exports Limited vs. O. O. O. Patriot (supra), I find that the contention of Shri Lawande on that count cannot be accepted. It is also to be noted that the said premises were situated at Calangute Village which is a tourist destination and the Appellant has been using the said flats for all these years without any advantage to the real owner who are the Respondents herein. The amount cannot be said to be excessive or penal in nature by itself. As such, the next contention of Shri Lawande, learned Counsel appearing for the Appellants, to the effect that the damages awarded by the Court are exorbitant, cannot be accepted.

Shri Lawande, learned Counsel appearing for the Appellants, raised another grievance that after delivering the said flats, the Appellants are entitled to get the Sale Deed executed by the said Respondent. With regard to the said contention of learned Counsel appearing for the Appellants to the effect that the Sale Deed would have to be executed after delivery of the possession of said two flats, Shri S,. G. Bhobe, learned Counsel points out that the Respondent is willing to execute the Sale Deed in case the Appellants fulfill the direction in the Decree and after the Decree is satisfied. In view of the above, I find that no substantial question of law arises in the present Appeal u/s 100 of the Civil Procedure Code. I find no merit in the above Second Appeal which stands dismissed.