SHASHI CONSTRUCTIONS vs NIRMALA MOKADAM

THIS appeal was late by 10 days. After going through the application for condonation of delay, it was condoned.

THIS First Appeal has been filed by Dr. Nirmala Mokadam, Flat No. 2, MIG Colony, Giripeth, Nagpur, appellant, against the order of the State Commission in Complaint No. 150 of 1992 on 9.3.93. The facts of this case are summarised as follows: Dr. Mokadam entered into an agreement with a builder, namely, M/s. Shashi Constructions, Gajanan Apartments, of which the opposite party Smt. Shashirekha Pampanwar, is the proprietor, for the development of the FSI on her flat in lieu of one flat measuring 815 sq. ft. of her choice costing Rs. 2.20 lakhs and carry out modification of the ground floor at her cost. As the plan for the construction work on this excess FSI could not be sanctioned in time, a second agreement was executed between the parties on 21st August, 1989 which is document No. 2. The first agreement is document No. 1. Under the Agreement of the 21st August, 1989, the builder was to give to the complainant the basement floor measuring 66.14 sq. meters and the constructed portion of the ground floor, measuring 181 sq. meters. The case of the complainant is that since she had already constructed the ground floor as well as the 1st floor she allowed the opposite party to utilise only the remaining FSI for construction of multiple flats. The complainant was to get the possession of the mezzanine floor apartment, die basement and a store-room duly constructed in all respects by the opposite party. This property, namely, mezzanine floor apartment, the basement and store-room was valued at Rs. 2.30 lakhs. There were some disputes as regards conditions of the agreement between the parties initially, but finally a mutual settlement was arrived at on the 11th March, 1991 as mentioned in paragraph No. 3 of the agreement dated 11.3.91 to the effect that "the party No. 2, M/s. Shashi Constructions undertakes to complete the portion to be handed over (namely, basement and apartment) to the party No. 1, the complainant, within six months from the date of execution of the undertaking failing which the party No. 2 will be liable to, pay to the opposite party No. 1 a compensation of Rs. 500/- per month. If the complainant does not accept the work of construction for the aforesaid basement and apartment done by the opposite party, then the opposite party reserves the right to retain the basement and apartment (both together and the payment of the same will be made to the complainant as per development agreement dated 21st August, 1989). The case of the complainant is that in spite of this clear understanding and undertaking given by the opposite party, the complainant has neither been placed in possession of basement and apartment by the opposite party nor the compensation of Rs. 500/- per month and the amount of Rs. 2,20,000/- plus Rs. 2,30,000/- has been paid to the complainant.

THE State Commission after going through the record and hearing the learned Counsel for both the parties came to the conclusion that as there was an agreement for giving possession of a certain constructed property in lieu of the FSI given by the complainant to the opposite party, for the construction of flats, there was an agreement to provide service by the opposite party to the complainant for consideration.

HAVING decided that, the State Commission also came to the conclusion that the complainant was not put in possession as agreed to between the parties on the basis of undertaking of the 22nd August, 1991 and hence the opposite party was responsible for deficiency of service and consequent liable thereupon. They accordingly allowed the complaint and directed the opposite party, namely, the Builder, Smt. Shashirekha Pampanwar to pay Rs. 4.50 lakhs in lieu of flat, mezzanine floor apartments, basement and store room within two months from the receipt of the Order. The opposite party was also directed to pay to the complainant. Rs. 500/- per month, as agreed, from the 22nd September, 1991 till full payment is made. In addition, to a compensation of Rs. 50,000/- was also awarded for the delay and loss caused to her as a result of negligence in the service. The complainant was also allowed Rs. 500/- as costs. The contention of the applicant herein, Dr. Nirmala Mokadam, is that she was to be paid for the possession of mezzanine floor apartment, basement and store-room within six months of the 3rd agreement dated the 11th March, 1991 which has been mentioned earlier in this order. In that agreement, according to her, there was no mention for payment of any amount in lieu of the constructed property. Her prayers in this appeal are (a) handover the possession of the mezzanine floor apartment, basement along with store room in complete form; (b) Rs. 2,000/- per month for mezzanine floor and Rs. 5,000/- for basement and store for the period of 2 years till possession is given; (c) interest on the cost mezzanine floor basement and store, which is approximately Rs. 4,91,42,265/- at today''s market price, at the rate of 18% till realisation; (d) in case, amount is paid and not the property, it should be at today''s market price instead of Rs. 4.50 lakhs; and (e) the cost of appeal Rs. 10,000/-.

AS against the relief sought in this appeal, we find that the State Commission on 9.3.83 directed the opposite party to pay Rs.4,50,000/-as against Rs. 4,91,000/- assessed at today''s price by the complainant and also Rs. 500/- per month, as was agreed between them in the agreement dated 11th March, 1991, along with Rs. 50,000/-as compensation for delay, harassment etc. The State Commission further directed that if the amount awarded by them is not paid to the complainant within two months, then it shall carry an interest at the rate of 18% per annum till the final payment is made.

THE main point in this appeal is whether she should be given the possession of the constructed portion, as agreed, or in lieu thereof a certain amount. In the present appeal, she herself has estimated the present value at Rs.4,91,000/-against which Rs. 4.50 lakhs were awarded in March, 1993 by the State Commission. We have carefully perused the record of this case and heard the learned Advocate for the parties. We see no reason to interfere with the award of the State Commission.

THE State Commission has directed a payment of Rs. 500/- per month from the 22nd September, 1991 as was agreed between the parties, whereas the demand of the complainant is a payment of Rs. 2,000/- plus Rs. 5,000/- on this account. In this regard also we see no merit in the contention of the complainant. Accordingly this appeal is dismissed and the Order of the State Commission is confirmed. No order as to costs.

THIS decision also disposes of the First Appeal No. 245 of 1993 because it is on the same issues and also between the same parties.