Skip to main content

It is the duty of the builder to mention the date of delivery of possession in the agreement

In Adrian Pereira v. Anita Ronald Lewis, the appeal was filed by the Appellant - Opposite Party under Section 19 of the Consumer Protection Act, 1986 against the order dated 29.09.2015 passed by the Maharashtra State Consumer Disputes Redressal Commission, wherein the Complaint was partly allowed and the Opposite Party was directed to handover possession of the subject flat to the Respondent - Complainant after receiving the balance consideration amount from the Respondent - Complainant.

On 07.12.2001, a registered agreement was executed between the parties for sale consideration of Rs. 16.50 lakh. Though not written in the agreement, it was understood that possession was to be delivered to the Complainant by December 2002. But, no satisfactory progress was made up to 15.02.2003. The Opposite Party assured possession of the flat within three months i.e. on or before 31.05.2003. Despite the assurance, no progress was made and therefore the Complainant wrote a letter on 26.05.2003 to the Opposite Party for opting out of the project and for refund of the entire amount paid. The letter was ignored, the refund was not made. On 17.10.2006, i.e. about 3 years and 5 months of the said letter seeking the refund of the amount paid, the Complainant received a letter from the Opposite Party alleging that she had cancelled the agreement and paid only Rs. 11 lakh, which she could collect with interest @ 9% p.a. The Complainant refused, and called upon the Opposite Party to hand over possession of the said flat by accepting the balance consideration. The Complainant filed a Complaint with the State Commission  which was partly allowed. The Opposite Party filed an Appeal before the NCDRC.

The contention of the Opposite Party was that the subject agreement was cancelled by the Complainant vide letter dated 26.05.2003 and that that the agreement has no mention of date of delivery of possession of the said flat to the Complainant.

NCDRC on perusal of the said letter observed that it is evident that for more than two years, there was no construction work / development at the site of the project. The Complainant was also paying interest on the amount paid to the Opposite Party builder firm, therefore, the Complainant requested the Opposite Party to return the entire amount paid. However, the Opposite Party slept over the matter. In the absence of the entire amount being refunded, with reasonable interest, within reasonable time, it cannot be contended that the agreement stood cancelled.

Referring to the judgment of the Hon'ble Supreme Court in Fortune Infrastructure v. Trevor D'Lima and holding deficiency of service on the part of the builder, the NCDRC held that it was the duty of the Opposite Party itself to mention the date of delivery of possession in the agreement and failure to do so necessarily requires to be read against the Opposite Party. In all contingencies, the Complainant could not have been made to wait indefinitely for possession. 

Comments

Post a Comment

Most viewed this month

The recovery of vehicles by the financier not an offence - SC

Special Leave Petition (Crl.) No. 8907  of 2009 Anup Sarmah (Petitioner) Vs Bhola Nath Sharma & Ors.(Respondents) The petitioner submitted that  respondents-financer had forcibly taken away the vehicle financed by them and  illegally deprived the petitioner from its lawful possession  and  thus,  committed  a crime. The complaint filed by the petitioner had been  entertained  by  the Judicial Magistrate (Ist Class), Gauhati (Assam) in Complaint Case  No.  608 of 2009, even directing the interim custody of the vehicle (Maruti  Zen)  be given to the petitioner vide order dated  17.3.2009.  The respondent on approaching the Guwahati High  Court against this order, the hon'ble court squashed the criminal  proceedings  pending   before  the  learned Magistrate. After hearing both sides, the Hon'ble Supreme Court decided on 30th...
7 comments
Read more

Court approached in the early stages of arbitration will prevail in all other subsequent proceedings

In National Highway Authority of India v. Hindustan Steelworks Construction Limited, the Hon'ble Delhi High Court opined that once the parties have approached a certain court for relief under Act at earlier stages of disputes then it is same court that, parties must return to for all other subsequent proceedings. Language of Section 42 of Act is categorical and brooks no exception. In fact, the language used has the effect of jurisdiction of all courts since it states that once an application has been made in Part I of the Act then ―that Court alone shall have jurisdiction over arbitral proceedings and all subsequent applications arising out of that agreement and arbitral proceedings shall be made in that Court and in no other Court. Court holds that NHAI in present case cannot take advantage of Section 14 of the Limitation Act, 1963 for explaining inordinate delay in filing present petition under Section 34 of this Act in this Court.
Post a Comment
Read more

Procedure to be followed on admissibility of additional evidence at appeal stage

In The Corporation of Madras vs M. Parthasarathy & Ors., the trial court had allowed the respondent company to file evidence in the form of photocopies and had dismissed all the four suits filed by the respondents with costs as the evidence were in the form of photocopies and were objected to by the respondents. On appeal the Additional District Judge allowed the respondents to file additional evidence in the form the original documents of the earlier admitted photocopies and based on the same allowed the appeal. In its turn the High Court also dismissed the appeal filed by the appellants who in turn approached the Supreme Court. The Supreme Court decided that the first Appellate Court committed two jurisdictional errors in allowing the appeals.  Referring to earlier judgements of the Supreme Court in Land Acquisition Officer, City Improvement Trust Board vs. H. Narayanaiah & Ors., , Shalimar Chemical Works Ltd. vs. Surendra Oil & Dal Mills (Refineri...
Post a Comment
Read more