R. Lakshminarasimha Rao, Incharge President
Both the appeals bear similar facts and as such they are being disposed of by a common order. F.A.No.963 of 2012 is taken as lead case.
The complaint is filed by the appellant for a direction to the respondents to pay Rs.10,00,000/- either jointly or severally to the appellant towards penalty for delay in construction and delivery of possession of the flat, loss of rental income, mental agony and deficiency in service and continue to pay an amount of Rs.50,000/- per month towards loss of rental income from the date of filing of complaint i.e. February, 2010 till the respondents deliver the full constructed flat together with costs.
The appellant submitted that he purchased flat no.205 from the respondents at Aditya Windsor and paid advance and later he paid entire sale consideration and obtained a registered sale deed dated 01-3-2008. The appellant submitted that at the time of booking the flat, the respondents promised that the apartment will be delivered by October, 2008 and it was not delivered in October, 2008 and the appellants father visited the apartment and there was no proper response from the concerned. The appellant submitted that in the first week of July, his father visited the complex and found that the flooring was not completed, plastering not completed, electricity fittings not done, common area not developed, drainage system not completed and lift not erected. The appellant submitted that that he was losing Rs.50,000/- towards rent as he was residing in a busy commercial area. The appellant submitted that he got issued notice on 17-7-2009 and filed the complaint.
The respondent No.1 filed counter. A memo was filed by respondent No.2 adopting the counter filed by the respondent No.1. The respondents admitted the purchase of the flat by the respondent and submitted that the flat No.205 was delivered to the appellant in December, 2009 itself. The respondent submitted that the complainant is not a consumer as defined under section 2(1)(c) of Consumer Protection Act, 1986 and as such the complaint is liable to be dismissed with costs. The respondents submitted that the appellant is due a sum of Rs.3,95,000/- and the respondent is getting the work done in the flat with his workmen i.e. interior decoration and therefore the allegation that the flat was not delivered is incorrect. The respondents submit that the construction work is of more than 5 floors consisting of 50 flats and it will take minimum 36 months to finish the construction work and also the delay in construction is due to reasons beyond their control and as the appellant is a defaulter, he cannot attribute any deficiency in service and prayed for dismissal of the complaint.
The appellant filed his affidavit and additional affidavit and Exs.A1 to A11 and on behalf of the respondents, the Managing Director of the respondent company filed his affidavit and additional affidavit and relied on Exs.B1 to B5.
The District Forum dismissed the complaint on the premise that there is no whisper in Ex.A3 that before what time the respondents should complete the construction and there is no time limit.
Feeling aggrieved by the order, the appellant filed appeal contending that the District Forum failed to consider Ex.A2, sale deed and also that the respondents admitted that some delay occurred due to construction of 5 floors. The appellant further contended that the District Forum failed to appreciate that no evidence was filed to show that the appellant is due to respondents and prayed to allow the appeal.
The point for consideration is whether the order of the District Forum is vitiated by mis-appreciation of facts or law?
The appellant entered into agreement of sale with the respondents for purchase of Flat bearing number 205 at Aditya Windsor, situate at Kondapur village of Sherlingampalli Mandal, Rangareddy district. As per the terms of agreement of sale, the appellant having paid a sum of Rs.1,00,000/- agreed to pay balance sale consideration on or before 15.02.2008. The respondents agreed to deliver possession of the Flat within one month from the date of payment of balance sale consideration by the appellant.
It is not known the exact date of payment of balance sale consideration made by the appellant, the respondents executed sale deed in favour of the appellant on 01.03.2008. The appellant entered into agreement of sale with the respondents on 07-2-2008 and as per the terms of the construction agreement, the appellant has to pay the amount of Rs. 47,00,000/- and the respondents have to deliver possession of the flat to the appellant by 15-2-2008. Relevant terms of the agreement of sale read as under:
œThat the party in the First part shall deliver the property mentioned in schedule B to the parties of the second part within a period of 12 months from this date upon receipt of balance sale consideration?.
The appellant claimed for direction for completion of pending work and for compensation to the tune of Rs.10,00,000/-. Before the District Forum, the appellant has contended that the respondents had not delivered possession of the Flat to him and in the ground of appeal, the appellant would state that the respondents delivered possession of the Flat to him in the month of December, 2009. The grounds of appeal read as under:
œThe lower Forum failed to appreciate that the Opposite parties have agreed at the time of entering into the Agreement, they will deliver the flat No.205 before October, 2008. The admission of the opposite parties that they had delivered the same in the month of December 2009. This admission is sufficient to allow the complaint?.
The internal work of the Flat was entrusted to M.Durganand under agreement, ExA3 for consideration of Rs.53,00,000/-. The District Forum held that after completion of construction work, they delivered possession of the Flat under ExB1 and B2. The construction work of the Flat undertaken by the respondents is different from that which was entrusted to Durga Prasad under ExA3. The District Forum observed as under:
œTherefore, as observed by us, the completion of the works that were entrusted to contractor under Ex.A3 or (are) different from the works to be completed by the opposite parties. We have already observed that Ex.A2 clearly shows that delivery of possession of semi finished apartment to the complainant and the works were entrusted to the contractor completion. Therefore, the said contractor is necessary party and admittedly he was not made a party to this complaint?.
As mentioned in the aforementioned paragraphs, the appellant has no basis for claiming compensation and it is pertinent to note that the agreement of sale is different from construction agreement as also the agreement of sale would lose its significance once the sale deed is executed. We do not find any infirmity in the finding returned by the District Forum which concluded that the appellant failed to prove any delay in delivery of possession of the Flat and as there is no delay in delivery of possession there can be no negligence or deficiency in service on the part of the respondents.
For the foregoing reasons, this Commission is of the view that the appellant has failed to establish any deficiency in service on the part of the respondents in the matter of sale of the flat or the issue relating to delivery of possession of the Flat to him. The appeal is devoid of any merit and as such is liable to be dismissed. For the very same reasons ,the appeal, F.A.No. 964 of 2012 is held liable to be dismissed.
In the result, both appeals are dismissed confirming the order of the District Forum. There shall be no separate order as to costs.