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M. Lakshma Reddy vs. M/s Vishnu Homes and Builders dated 2012-08-13

 

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION
NEW DELHI
 
REVISION PETITION No. 3354 OF 2009
(From the order dated 27.08.2009 of Andhra Pradesh State Consumer Disputes Redressal Commission, Hyderabad in First Appeal no. 1136 of 2006)
1. M. Lakshma Reddy
 
Son of M. Chandra Reddy
 
2. M. Vashi Krishna
 
Son of M. Lakshma Reddy                                                  Petitioners
 
Residents of Flat no. 501, House no. 8-3-236/1
 
Murali Krishna Enclave, Yousufguda Main Road
 
Hyderabad - 500 045
 
versus
 
M/s Vishnu Homes and Builders
and Developers
Represented by its Managing Partners                                Respondent
K. Krishna Prasad and K. Sambasiva Rao
205, Nilgiri Block, Aditya Enclave
Ameerpet, Hyderabad - 500 016
 
BEFORE:
 
HON'BLE MR. ANUPAM DASGUPTA                     PRESIDING MEMBER
HON’BLE MR. SURESH CHANDRA                                              MEMBER
 
For the Petitioners                                    Mr. K. Maruthi Rao, Advocate
For Respondent                               Mr. Amol N. Suryawanshi, Advocate
 
Pronounced on  13th August 2012
 
 
ORDER
 
Anupam Dasgupta
 
 
 
This revision petition challenges the order dated 27.08.2009 of the Andhra Pradesh State Consumer Disputes Redressal Commission, Hyderabad (in short, ‘the State Commission’) in First Appeal no. 1136 of 2006. By this order, the State Commission marginally enhanced the amount awarded by the District Consumer Disputes Redressal Forum III, Hyderabad (in short, ‘the District Forum’) to the petitioners in complaint case no. 254 of 2004 filed by the petitioners.
 
2.     The petitioners filed a consumer complaint against the opposite party (OP - respondent in this petition) alleging that the latter was guilty of deficiency in service inasmuch as it did not comply with several provisions of the development agreement between the parties. The OP contested the complaint and denied all the material allegations.
 
3.     After considering the pleadings, evidence and documents brought on record, the District Forum awarded compensation of Rs.50,000/- and cost of Rs.2,000/- to the complainants and rejected all other reliefs prayed for in the complaint.
 
4.     Aggrieved by this, the complainants went up in appeal before the State Commission which enhanced the compensation to Rs.57,000/-. It is against this order that the complainants have filed this revision petition.
 
5.     We have heard Mr. K. Maruthi Rao, learned counsel for the petitioners and Mr. Amol N. Suryawanshi, learned counsel for the respondent and considered the documents placed on record as well as the written arguments submitted by both the learned counsel.
 
6(i)   Both the Fora below have returned a finding of deficiency in service (delay in handing over possession of built up area) against the respondnet/OP, which the latter has not challenged.
 
(ii)    The dispute in the revision petition is thus limited to the amount of compensation that the respondnet/OP ought to have paid to the petitioners/complainants on account of the delay in handing over possession of 19,225 sq. ft. of constructed area to the petitioners in the building built by the OP on the land of the petitioners, in accordance with the provisions of the Development Agreement.
 
(iii)    The relevant clause of the Development Agreement reads as under:
 
“12.       The second party shall complete the construction of 50% of built up area pertaining to the share of first party within 20 months from the date of obtaining sanctioned plan or after taking over vacant possession of the schedule property whichever is later. If the second party unable to complete the construction beyond the said period, the second party shall pay a sum ofRs.3/- per sq. ft for the area entitled by the first party for the delay cost (sic –caused?) till such time the first party share of built up area to be handed over. Further the second party agreed to pay a sum of Rs.5,000/- to the first party towards the rent from the date of handing over vacant possession of schedule property till such time the built up area of the first party share is handed over.”
 
[Emphasis supplied]
 
7(i)   According to the complainants, though they handed over possession of their land/property to the OP on 27.12.1997, the latter applied to the Municipal Corporation of Hyderabad for sanction of the building plan in September 1999, which was received on 01.10.1999. This resulted in delay in handing over possessions of the petitioners’ share of the constructed area. However, as rightly pointed out by the State Commission, in view of the specific provision of the clause 12 quoted above, reckoning the period of delay in handing over the complainants’ share of the constructed area by the respondent could start only with effect from the end of 20 months after the date of sanction of the building plan (01.10.1999) and not the date of handing over possession of the land/property (27.12.1997). It is not disputed that reckoned from the date of sanction of the building plan, this delay was of six months.
 
(ii)    However, the later part of the same clause (from the word, “Further”) clearly shows that the amount of “rent” was over and above the amount payable @Rs.3/- per sq. ft on account of delay in handing over the constructed area. It is, however, true that neither the rate of Rs.3/- per sq. ft. nor the amount of Rs.5,000/- was specified as “per month” in the Development Agreement, as subsequently contended by the petitioners/complainants in the complaint.
 
8(i)   In our view, to contend/hold that these rates (Rs. 3 per sq. ft. and Rs. 5,000/-) were not “per month” would clearly defeat the very purpose of this clause of the Development Agreement. If the interpretation adopted by the State Commission were to be accepted, the respondent/OP could have, with absolute impunity, delayed handing over the possession of the constructed area falling in the share of the petitioners for any length of time by merely paying Rs.57,625/- and Rs.5,000/-.
 
(ii)    It is settled law that to interpret a clause like this, the best guide would be to ascertain what the intent of the parties to the Agreement was.
 
(iii)    Towards that end, we notice that in paragraph 2 of the complaint, the complainants claimed, inter alia, “… …As per clause No. 12 of the Development Agreement, the construction of 50% of the built up area pertaining to the share of the complainants shall be completed within 20 months, from the date of obtaining sanctioned plan or after taking over possession of the property failing which the Opposite Party has to pay penalty @Rs.3/- per square feet (sic foot) per month apart from rental loss of Rs.5,000/- per month to the complainants.” [Emphasis supplied].
 
(iv)   The OP’s response in its written version to the above-mentioned specific claim in the complaint read: “In regard to para 1 and 2 of the complaint, … … … … the complainants cannot hold the opposite party responsible for the delay in applying and obtaining the permission for construction of the residential complex and accordingly he (sic they) is (sic are) not entitled to claim any penalty at the rate of Rs.3 for sq. ft. apart from rental loss of Rs.5,000/- per month for 25 months amounting to Rs.16,14,900/-. … … …” (vide p. 37, bottom lines of the paper book – emphasis supplied). In other words, though the OP vehemently denied the liability to pay “penalty” or “rental loss” as claimed by the complainants, the denial was not at all because the rates were cited as “per month” rates but only because, according to the OP, there was no delay in handing over possession of the complainants’ share of the constructed area in the building. Thus, from the version of the OP and the essential purpose of any penalty for delay in performance a contractual undertaking, we would conclude that both the rates mentioned in clause 12 of the Development Agreement were per month.
 
(v)    Mr. Suryawanshi has submitted that in their complaint the complainants did not pray for grant of “rental loss” @Rs.5,000/- (per month) and hence they could not seek that relief now. From a plain reading of the prayer clause in the complaint, this appears to be valid. (vi)   However, the submission that the complainants did not seek payment @ Rs.3/- per sq. ft. (per month) for the delay in handing over their share of the constructed area is untenable because, reckoning the delay of 28 months from the date of handing over possession of their land/property, they claimed Rs.16,14,900/- (19,225 x 3 x 28) from the OP, vide first part of the prayer clause in the complaint.
 
(vii)   We agree with the State Commission that in accordance with clause 12 of the Development Agreement, the delay in handing over possession of their share of the built-up area to the complainants had to be worked out from the date of sanction of the building plans and, so computed, the delay was of 6 months. Hence, the entitlement of the complainants to compensation on that count would be Rs.3,46,050/-, rounded off to Rs. 3.46 lakh.
 
(viii)  We also agree with the State Commission’s reasoned finding that no other relief is admissible to the petitioners/complainants.
 
9.     In conclusion, we partly allow the revision petition and modify the order of the State Commission to the extent that the respondent/OP shall pay to the petitioners/complainants Rs.3.46 lakh with interest @ 9% per annum from January 2002 till actual payment as well as costs of Rs.10,000/- for all proceedings so far. This payment shall be made within 4 weeks of the date of this order, failing which the rate of interest shall be automatically raised to 12% per annum.
 
Sd/-
 
……………………………………
 
[Anupam Dasgupta]
 
 
 
Sd/-
 
…………………………………….
 
[Suresh Chandra]

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