M.THANIKACHALAM J. - (1.) The appellant as complainant filed a complaint before the District Forum against the respondent/opposite party praying for the direction to the opposite party to deliver the constructed flat as agreed in the agreement, to pay Rs.1,05,000/- towards the delay of 42 months as agreed in the agreement, to pay Rs.10,000/- towards mental agony and to pay Rs.15,000/- towards deficiency in service. The District Forum dismissed the complaint, against the said order, this appeal is preferred praying to set aside the order of the District Forum dt.10.02.2009 in C.C.19/2003. This appeal coming before us for hearing finally on 05.04.2011, upon hearing the arguments of the either counsels and perused the documents, as well as the order of the District Forum, this Commission made the following order: The complainant having failed before the District Forum to get the desired order, has come to this Commission as appellant for redressal.
(2.) The complainant entered into a construction agreement, on 03.11.98 with the opposite party, who had agreed to construct and hand over a flat in the ground floor, measuring 900 sq.ft. in Survey No.255/2A in Plot No.65/2, for which, he had received consideration also, acknowledged in the construction agreement itself. As agreed, the opposite party had not handed over the constructed flat, within the stipulated time namely within three months from 18.11.98 on which date possession of the land was given after registration of the undivided share. It was also agreed that the opposite party shall pay to the complainant, a compensation of Rs.2,500/- per month in case of failure to deliver the possession, within the said time. Despite lawyers notice, repeated demands since the opposite party failed to deliver the constructed flat, he has committed deficiency, causing mental agony, for which, direction should be issued against them, to deliver the constructed flat as well directing them to pay compensation as catalogued, in Para 10 of the complaint.
(3.) The opposite party not admitting either the construction agreement or the payment of consideration, opposed the claim, contending that though there was a memorandum of agreement dated 03.1198, drafted, not agreed by the parties cannot be enforced, that the complainant has not paid a sum of Rs.6 lakhs as falsely alleged and recited in the incomplete document, that since there was no valid agreement between the parties for construction of the flat and handing over, supported by consideration the non-delivery of the flat, cannot be construed as negligent act or deficiency in service, praying for the dismissal of the complaint.;