- (1.) THE complainant's case is as follows: The opposite arty is a promotor of multi storeyed residential and residential cum commercial complex. The opposite party entered into an agreement to develop the property comprised in T. S. No. 229, Block No. 11, Mullam Village, Perambur Purusawalkam Taluk, Chennai, with the owners thereof and inserted advertisements in the local dailies and circulated brochures inviting applications for purchase of flats to be put up in the proposed multi storeyed residential complex. Carried away by the advertisements and brochures, the complainant entered into an agreement with the opposite party for construction of a flat and a Memorandum of Understanding was signed on 16.3.2000. The opposite party agreed to execute a deed of sale by transfer by sale of a proportionate common undivided share in the land and further agreed to put up a building pursuant to the builder's agreement dated 7.5.2000. The opposite party agreed to put up a flat for the complainant in the 3rd floor with two covered car parks in the ground floor for a total consideration of Rs. 19,30,500 inclusive of the land cost. There was a payment schedule, according to which the complainant made the initial payment of Rs. 1 lakh on 16.3.2000 and Rs. 7 lakhs for the deed of transfer by sale of a proportionate common undivided share in the land. The complainant bore the stamp duty and registration charges. The opposite party agreed to make ready the flat for occupation in all respects before 24.4.2001 and further undertook to pay compensation @ Rs. 5 per sq. ft per month for the entire period of delay. As demanded by the opposite party, the complainant has made the payments. There was delay on a couple of occasions in making payment because of the failure of the opposite party in informing the complainant of the completion of stages of work. As on date, there is only a shell of the flat on the 3rd floor which has been earmarked for the complainant without partition walls, flooring, fittings and fixtures and other amenities, which were all undertaken to be provided as per the terms of the agreement dated 7.5.2000. Hoping that the agreement would be honoured and the flat will be made ready for occupation by the appointed date, the complainant intimated his employer viz., BHEL that he would be vacating the company premises by April, 2001. Hence on account of the failure of the opposite party to make the flat ready for occupation, the complainant was put in a fix. Thus enormous delay has been caused. There is thus deficiency in service. The opposite party is therefore liable to compensate the complainant @ Rs. 5 per sq. ft. per month from 24.4.2001 till date. The complainant also prays for a further sum of Rs. 1 lakh towards mental agony and pain and also financial loss. The construction as put up has also suffered from various defects such as quality of building materials used being sub standard. Further, there has been deviations from the approved plan in not providing splay on the South Western corner of the builing and projection of wash area adjoining the kitchen. The complainant therefore prays for a direction to the opposite party for the defects to be cured and to make ready the flat for occupation and to pay compensation @ Rs. 5 per sq. ft. per month from 24.4.2001 till date and make payment of Rs. 1,00,000 as compensation for mental agony, strain and stress and financial loss suffered and a sum of Rs. 10,000 as cost of the litigation.
(2.) THE opposite party pleaded as follows: The complainant has not paid the cost of construction as per the stages mentioned in the construction agreement and therefore the question of handing over of the flat does not arise. The complainant wanted to get the sub contract from the opposite party in respect of the works done by the opposite party. The complainant being a servant in a Central Government Undertaking was prohibited from undertaking any sub contract. The complainant's suggestion to award him a sub contract in the name of his wife was not accepted by the opposite party. Therefore, with a view to reap vengeance the complainant has now filed this application. It is true that there was a Memorandum of Understanding entered into on 16.3.2000. The complainant paid an advance of Rs. 1 lakh. The total sale consideration of land cost and construction cost was fixed at Rs. 19,30,500 excluding the registration charges. It is also true that a builder's agreement was entered into on 7.5.2000. The complainant has so far paid Rs. 12,29,000 including the land cost and construction cost as against Rs. 19,30,000. The complainant has failed and neglected to pay the balance of Rs. 7,01,500. The opposite party has completed the works to the tune of Rs. 15,72,500. After deducting the sum of Rs. 12,29,000 , a sum of Rs. 3,43,500 has been invested by the opposite party which amount the complainant has not paid so far. Therefore, the opposite party has not proceeded with the construction work. The complainant is liable to pay the aforesaid sum of Rs. 3,43,500 together with interest and without making payment of the same, the complainant cannot seek any relief, much less ask for possession of the flat. It is true that there was delay on the part of the opposite party and there is an agreement to pay damages calculated @ Rs. 5 per sq. ft. per month for the entire period of delay. The question of delay will arise only if the complainant pays the entire amount due under the agreement. Since the complainant has not paid the entire amount, the question of delay does not arise and there is no liability upon the opposite party to pay damages. As on the date of the complaint, a sum of Rs. 7,01,500 is still due from the complainant. The opposite party has been repeatedly making demand upon the complainant to make the payment, but the complainant has caused inordinate delay at every stage. The unwarranted interference by the complainant led to the cessation of the work. The allegation that there is only a shell of the flat No. B of the 3rd floor earmarked for the complainant without partition walls, flooring, fitting and fixtures and other amenities is not true. The complainant has withheld and omitted to pay the balance amount. Hence, he cannot question the same. There are six flat owners other than the complainant. All the other flat owners have paid the money and the work has also been completed. As far as the opposite party is concerned, there is no deficiency in service. The complainant is not entitled to any relief. The complainant is liable to pay the balance cost of Rs. 7,01,500 together with interest.
(3.) THE lower Forum by its order dated 7.10.2003 directed the opposite party to hand over the flat to the complainant to pay a sum of Rs. 1,81,050 as compensation towards delay for the period of 30 months and also directed the further payment of Rs. 25,000 as compensation for mental agony and Rs. 2,000 as costs. Aggrieved by the said order, the opposite party has now preferred the present appeal. The point for consideration is whether the order of the lower Forum is liable to be set aside ?;