SUSHMA UMESH vs SYED MOHD. QADIR ALI

THIS complaint has been filed by Smt. Sushma Umesh against the opposite parties, a private limited company known as Karamat Shoping Complex. The opposite parties are builders and are engaged in the building of chambers after taking rent for a period of 30 months from the allottees. The complainant applied for taking on rent a chamber in Karamat Market Complex on the second floor of ''A'' Block. The area of the chamber was 382.43 sq. ft. The application for the purpose was submitted on 22.2.1989-. The opposite party had fixed Rs. 5/- per sq. ft. the rent of the chamber and promised the chamber to be built by 1.1.1991 by which date the final instalment was to be paid after measurement of the chamber was taken and verified by the parties concerned.

ON 22.2.1989 the first instalment of Rs. 11,472.90P. was paid to the opposite party No. 2 through a cheque drawn on State Bank of India. The remaining three instalments of Rs. 11,472.90 each were paid through cheques drawn on the same bank on 3.8.1989, 6.2.1990 and 6.7.1990. When the complainant went to pay her final instalment to the opposite party then only an amount of Rs. 6,500/- was demanded which was also paid but the receipt of the amount was not acknowledged and the opposite party informed the complainant that the possession would be given on 1.1.1991. The possession of the chamber was to be given as per terms and conditions contained in Brochure as brought out by the opposite party. The opposite party had promised to the complainant that full construction alongwith arrangement for electricity will be done in respect of the chamber but neither the chamber was fully constructed by the due date nor the possession was handed over to her. The opposite party was approached through letter and personal attendance by the complainant but the chamber was not deliberately fully constructed nor the possession was handed over inspite of the fact that a amount of Rs. 52,391.60 had been paid to the opposite party by 30.12.1990. The complainant, therefore, lodged the claim before this Commission praying for immediate possession of the chamber in question and 2% p.m. interest on the amount deposited i.e. Rs. 52,391.60 The complainant has also claimed Rs. 4,000/- per month towards financial loss occurred to her because of non-delivery of the possession of chamber which till the date of filing of the claim comes to Rs. 76,000/- and further amount of Rs. 400/- per month till the date of delivery of possession. Compensation for physical and mental harassment amounting to Rs. 10,000/- was also demanded alongwith the interest., In the written statement the opposite party, Syed Mohd. Qadir Ali, Managing Director of M/s. M.I. Builders admitted that the company had agreed upon the let out the construction raised on realising 30 months advance rent. The complainant applied for the allotment of chamber on 22.2.1989 having an area of 382.43 sq. ft. on the second floor of Karamat Shoping Complex. It was also admitted that the rent of the allotted premises was agreed upon @ Rs. 5/- per sq. ft. per month. Last instalment of 6 months advance rent was to be deposited by the complainant on completion of the chamber proposed to be allotted. It was admitted that the complainant having agreed to have the chamber in the existing area on the agreed rent of Rs. 5/- per sq. ft. paid a sum of Rs. 6,500/- through cheque No. 348157 and she had assured that she would come back to take possession on 9.2.1991. The complainant did not turn up despite intimation sent to her on the address given in the application form. The complaint has been filed in order to absolve the complainant from the payment of rent that has accrued w.e.f. February, 1991. The construction of the complex including the area of the chamber allotted to the complainant had already been completed by December 30,1990. The chamber was white washed and the electric wiring was also made. Despite various efforts made in this regard by the opposite parties to contact the complainant it was only in September, 1991 that they sent a detailed reply clarifying their position to the complainant and prior to that no effort was made by the complainant to have the possession of the chamber allotted to her. The adjacent shops/chambers were also let out by December, 1990 and the allottees are paying the rent of the respective premises. The opposite party is ready to give the possession of the allotted premises to the complainant although she has failed to occupy the premises despite repeated reminders and notices. As per terms contained in the application form the complainant is liable to pay 10% of the total amount paid in case she makes an application for cancellation. The complainant could not contacted. The complainant has not turned up to take possession of the allotted chamber inspite of the fact that the opposite party is still keen to deliver the possession to her and it is the complainant who is delaying the matter for which opposite party cannot be penalised. The complaint is, therefore, misconceived and is liable to be dismissed.

In the rejoinder affidavit the complainant stated that at no occasion she promised to opposite parties that she will come on 9.2.1991 to take possession of the chamber. The chamber was still not made and there was no question of taking possession of Chamber No. A-1. The opposite party did nothing in regard to construct the chamber according to their promises and, therefore, the possession of the same could not have been taken. The chamber allotted to complainant is not constructed till date.

THE opposite party filed an affidavit to the effect that they are ready to give possession of a constructed chamber in the Karamat Market Complex on receiving an advance rent of 30 months and the Company had agreed upon to let out the construction raised on realising 30 months advance rent. THE chamber was to be constructed by 1.1.1991 and the final instalment was to be deposited after final measurement. No specific date was given for completion of construction of chamber although the chamber was duly constructed by December 1990 and the project was timely completed. It was admitted that the complainant having agreed to have the chamber with the existing area on monthly rent of Rs. 5/- per sq. ft. paid a sum of Rs. 6,500/- vide cheque No. 348157 but the complainant did not turn up despite intimation sent to her on the address given in the application form. THE company sent a notice on 6.2.1991 to the complainant informing that the construction is complete and possession thereof should be taken within 7 days but the complainant failed to take possession. THE fact of the matter is that the complainant has raised frivolous and untenable objections against the construction of chamber. She objected to ''Mehrab'' in the chamber overlooking Clause 8 of the brochure which states that the Company has exclusive rights to alter the design as they think fit and the allottee shall have no objection to it. THE allegations of the complainant that there are electric points in the chamber itself prove that the chamber was constructed and there was no open space. THE offer of the Company clearly states that there will be only electrical points in the chamber. THE doors were not to be provided by the opposite party, instead of that as per terms agreed upon only steel shutters were to be provided and the same was done. THE complainant unreasonably refused to take possession of the chamber. She instead of taking possession of the chamber was interested in transferring the chamber at higher rates as was clear from the complainant''s letters dated 7.5.1991 and 22.7.1991. Affidavit of one Sri Atul Kumar Saxena has also been filed which states that building of Karamat Market was constructed in time and he had taken possession of chamber allotted to him. Building was in workable condition and the project was completed by December, 1990. It was also stated that on account of plan of construction of Nisha Ganj flyover, adjacent to which is the market building in question, price of property in Nishatganj area of Class ''A'' did not escalate.

WE have gone through the evidence on record. WE heard the authorised representative of the opposite party Sri Anupam Mehrotra. None was present from the side of the complainant on 12.4.1996, 2.1.1998, 28.4.1998, 15.1.1999 and on 26.2.1999 when the opposite party was directed to inform the complainant and file proof of having done so, so that the complainant or his Counsel should come on the date fixed for argument on 5.7.1999 but inspite of information to the learned Counsel for the complainant, the complainant was not present on the date of argument. A perusal of the evidence goes to show that M/s. M.I. Builders (P) Ltd., opposite party, floated a project in Nishatganj Lucknow which envisages renting out chamber and shops to the allottees for a consideration. The complainant was one of the applicants and was allotted one chamber in the second floor of ''A'' Block measuring an area of 382.83 sq. ft. She also paid an amount of Rs. 52,391.60 in 5 instalments as was the term and condition stipulated between the two parties. The opposite party admitted the receipt of the payment and the point is not disputed. As per the allegation of the complainant the opposite party did not construct the chamber as promised in time, the chamber was not constructed as per specification agreed upon and the opposite party deliberately avoided the handing over the possession to the complainant of the said chamber. A perusal of the brief specification of the complex (Annexure-1) will show that in addition to other things provision for concealed wiring with copper wire with adequate number of light and fan points and steel shutter doors was to be made in addition to other things by the opposite party. The Company had also exclusive right to alter the design as they think fit and the allottee would have no objection on it. The Company was to reimburse to the allottee the amount in ratio of the cost for the area so reduced and vice versa. During the arguments the opposite party''s authorised representative has admitted that provision for steel shutter has been made in the chamber in question. Therefore, the controversy in regard to the doors of the proposed shop ends as steel shutter has been provided. The complainant in her rejoinder affidavit has admitted that electric points have been given (Enclosures R2, R-2B, R2C). In the scheme of the project except for providing concealed wiring and adequate number of light and fan points, nothing more was to be provided by the builders who is opposite party. The objection of the complainant is that there is a big opening on the front side (''Mehrab'') which is highly dangerous as any one can fall through the same. In this context the plea of the opposite party is that the adjacent next shops have already been taken on rent by other allottees and they have no objection. The affidavit filed by Atul Kumar Saxena gives credence to this fact. A perusal of the correspondence between the two parties does not bring to light any gross deficiency in service by opposite party. On the other hand the letter dated 9.9.1991 (Enclosure to the complaint) reveals that the complainant amongst other pleas wanted the transfer of the chamber in question to a third party at a rate of Rs. 7/- or Rs. 8/- per sq. ft or near about. It further strengthens argument of the opposite party''s representative that due to the flyover constructed over the Nishatganj Road the price of the property in question did not escalate. The letter dated 6.2.1991 (Annexure-1 of the opposite party''s affidavit) clearly shows that the complainant was requested to take possession. It appears either the letter did not reach her or cognizance of the same was not deliberately taken by the complainant. Thus there is no evidence to prove that the construction of the chamber in question had not been completed in time and there has been any delay on the part of the opposite party in handing over the possession. If there was any delay in taking over the possession it was because of certain terms and conditions made by the complainant in her letter which the opposite party did not accede as those terms and conditions were beyond the terms and conditions of the project agreed upon by the two parties on the basis of which the complainant paid the entire amount of money demanded by the opposite party. Since the complainant had deposited the amount of Rs. 52,391.60 quite in time and the same is admitted by the opposite party and opposite party further admitted that it is prepared to handover the possession to the complainant he complainant shall be entitled to the possession of the said chamber. The complaint is thus liable to be allowed partly. ORDER The complaint is thus partly allowed. It is directed that the opposite party shall hand over the possession of the Chamber No. A-3 /1, Second Floor, measuring 382.43 sq. ft. at Karamat Bazar, Nishatganj, Lucknow, within a period of one month from today and formalities if any in regard to the registration and executing other deeds shall be completed within the same period. The complainant is not entitled to any other relief except as has been provided above. In the circumstances of the case there will be no order as to cost. Let the copies be issued to the parties concerned as per rules. Complaint partly allowed.