Full Judgment
SHRI. S. CHANDRAMOHAN NAIR : MEMBER
The above appeals are preferred against the order dated 5.8.2010 of CDRF, Ernakulam in C.C. 410/08 wherein and whereby the opposite party is under direction to refund Rs. 2lakhs to the complainant together with interest at 12% per annum from the date of receipt of the above amount till realization with compensation of Rs. 1,00,000/- Appeal 616 is filed by the complainant for enhancement of the compensation and appeal 653/10 is filed by the opposite party for setting aside the order of the Forum.
The case of the complainant before the Forum was that he entered in to a contract with the opposite party for the sale of an apartment proposed to be constructed by the opposite party for Rs, 10,00,000/- and an amount of Rs. 2 lakhs was received on the date of entering into contract on 21.8.2007 and that it was agreed that the balance amount would be paid on or before 28/2/08. The complainant has alleged that the opposite party agreed to provide 2 acres of agricultural land in Madurai (Tamil Nadu) in connection with the sale of the apartment. The complainant had sent a letter on 15.3.08 that he was ready to perform his part of the agreement and that the opposite parties did not respond to the said letter and the apartment was not given to him as agreed by the opposite party. The complainant has sent a notice on 4.9.08 also for which the opposite party informed the complainant that the opposite party was ready to execute the sale deed if the complainant was ready to pay the then present rate of the apartment. The complainant has further alleged that he could have saved rent @ Rs. 10,000/- from 28.2.08 till the date of complaint and alleging deficiency in service, the complainant was filed for directions to the opposite party to pay total compensation of Rs. 17,05,000/- with cost of the proceedings.
The opposite party contested the matter by filing version. But it was admitted that the complainant had paid Rs 2lakhs and it was submitted that the complainant did not pay the balance amount at the agreed time and that the opposite party was ready to execute the sale deed only on condition that the complainant must pay the then existing rate of the apartment and that they had issued a cheque for Rs. 2,21,667/- to the complainant on 21.10.08. Submitting that there was no deficiency in service, the opposite party prayed for the dismissal of the complaint.
The evidence consisted of the oral testimony of the complainant as Pw1 and Exts. A1 to A12 on his side. There was no oral and documentary evidence on the side of the opposite party.
Heard both sides.
It is the admitted fact of both the parties that an agreement was entered in to on 21.8.07 for the sale of an apartment to be constructed by the opposite party for a sum of Rs. 10 lakhs. The agreement is marked as Ext. A1. It is also agreed by both parties that Rs. 2 lakhs was paid by the complainant initially. Dispute arises with regard to the subsequent payments. The complainant would say that he was ready and willing to pay the balance amount to the opposite party and evidencing the same Ext. A3 letter was sent to the opposite party. We find that the opposite party had replied only to the lawyer notice sent by the complainant wherein they had informed the complainant that they are ready to execute the sale deed if the complainant was ready to pay the then existing price. The learned counsel for the appellant/opposite party argued before us that there was no readiness and willingness on the side of the complainant to pay the balance amount before 28.2.2000 itself and in such a situation the complainant cannot be heard to say that the opposite party had violated the terms of agreement. He has also relied on the decision of the Honble Supreme Court in JP Vs. Ramadas Rao (2010(4)KLTSN 89 (C.C. No. 103)SC)and argued before us that the readiness and willingness to pay the balance amount should be continuous and proved by the complainant and in the instant case the complainant was not willing to pay the balance amount as he had no means for the same. The learned counsel argued before us that the complainant was sending notices only to circumvent the situation of having not paid the balance amount in time.
On hearing the counsel for respondent and also on going through the records we find that the condition in the A1 Agreement was to pay the balance amount on or before 28.2.2008. It is true that the complainant has sent a letter as Ext. A3 that he was ready to pay the balance amount to the opposite party. We find that Ext. A3 letter is dated 15.3.08. The complainant has no case that though he was ready to pay the amount on or before 28.2.08 the opposite party was unwilling to accept the amount and it was consequent to the said denial of receipt of money that he had issued the notice. we find that the opposite party had not sent a reply to the said A3 notice . However it is found that the complainant has sent a lawyer notice on 4.9.08 against which the opposite party has issued a reply stating that the apartment could be given only on paying the then existing rate. On an appreciation of the entire facts and circumstances we find that the opposite party accepted the amount of Rs. 2lakhs from the complainant and the apartment has not been given to the complainant by the opposite party. The Forum below had directed to refund the said amount of Rs,. 2 lakhs with 12% interest from the date of the above amount till realization with compensation or Rs. 1lakhs. The learned counsel for the appellant/opposite party attacked the award of compensation over and above the directions to pay interest. It is true that if interest is ordered separate compensation is not usually directed to be paid by the delinquent parties. But in the instant case we find that the opposite party has not informed the complainant that the apartment was ready and the complainant was directed to pay the balance amount within the time stipulated. The amount was with the opposite party and the said amount was utilized for construction purposes. Hence it is only just and proper that the Forum below had awarded compensation. But the learned counsel for the appellant /opposite party has submitted before us that there was no readiness and willingness on the part of the complainant to pay the balance amount. We find that there is force in the said argument of the learned counsel. There is lapse on the part of the complainant also in proving his case that he was ready and willing to pay the balance amount within the stipulated time. All the same there is default the part of opposite party in proving that the apartment was ready for sale on or before 28.2.08 and the sale deed could be executed. Hence we find that the sum of Rs 50,000/- will be reasonable to be awarded as compensation to meet the ends of justice.
The complainant/appellant has filed appeal 616/10 for enhancing the compensation. The facts and circumstances reveal that apart from sending two letters as Ext. A3 and A5, there was no evidence adduced by him to show that he had sufficient money and he was ready to pay the amount for the execution of the sale deed on 28.2.2008. In the said circumstances we find no scope in allowing the appeal and the same is dismissed.
In the result the appeal 616/10 is dismissed. Appeal 653/10 filed by the opposite party is allowed in part with the modification aforesaid. Thereby the opposite party is directed to refund Rs. 2,00,000/- (Rs. Two lakhs only) to the complainant with 12% interest per annum from the date of receipt of the amount till payment with compensation of Rs. 50,000/-(Rupees fifty thousand only). In the nature and circumstances of the present appeal the parties are directed to suffer their respective costs.
The office is directed to return the LCR along with a copy of this order to the Forum below urgently.