State Consumer Disputes Redressal Commission
Mr. Silvestre Vinoco Pinto E Braganza, vs M/S Souza Estate Developers, on 25 March, 2010
THE STATE CONSUMER DISPUTES REDRESSAL COMMISSION THE STATE CONSUMER DISPUTES REDRESSAL COMMISSION PANAJI GOA Present: Smt. Sandra Vaz e Correia ...Presiding Member Smt. Caroline Collasso ... Member. Complaint No. 4/2008 1. Mr. Silvestre Vinoco Pinto e Braganza, Alias Vinoco Braganza. 2. Smt. Antonette Braganza Both R/o Canca, Bardez, Goa. Represented by their Power of Attorney Mr. Reduzinho Francisco Xavier, Tamaturgo Pinto Braganza. Complainants v/s M/s Souza Estate Developers, A partnership firm, by its partner and Constituted attorney Mr. Luis de Souza, r/o Church View Building, 1st Floor, Fr. Agnelo Road, Altinho, Panaji, Goa. .. Opposite Party For the Complainant ..Shri A. Rodrigues , Advocate For the Opposite Party .. Advocate R. Chodankar. Dated:25-03-2010 ORDER
[Per Smt. Caroline Collasso, Member]
1. The case of the complainants in brief is that they had entered into an agreement dated 29th September 1999 with the opposite parties who are developers and builders (M/s Souza Estate Developers a partnership firm), under which the opposite parties were permitted to put up a housing construction on the property at Canca, Goa, belonging to the complainants. Under the said agreement the opposite parties were to hand over to the complainant three shops (12 sq.mts each) and three flats (100 mts each), two flats on the first floor and the third on the second floor. The complainant states that under clause 5 of the agreement the opposite parties had agreed to deliver possession of the said six units to the complainant within 24 months of the date of which the Panchayat approved the building plans, with a grace period of six months for reasons of force majeur. This clause further stipulates that in the event they failed to hand over possession of the said units within a total period of thirty months, the opponents had to pay monthly compensation to the complainant at the rate of Rs.3000/- for each flat and Rs.2500/- for each shop for delay in handing over the possession for the first three months after expiry of the period of thirty months and thereafter at double the aforesaid monthly rate for each flat/shop. The complainant states that on completion of the ground floor of the building the opposite parties abandoned the construction as regards the upper floors. The opposite parties have failed to deliver the three shops and three flats till date. The opposite parties have also failed to pay any compensation to the complainant till date for the delay in handing over the said premises and this failure to deliver the premises and pay the compensation, amounts to deficiency of service under the Consumer Protection Act. The complainant addressed a legal notice dated 24-04-2008 calling upon the opposite parties to comply with the terms of the agreement.
On failure of the opposite parties to do so the present complaint was filed.
2. The complainant prayed:
a) that the opponents be directed to make good the deficiency in service by handing over possession of the three shops on the ground floor of the building constructed on survey number 17/14 of Canca village to the opponents and paying to the complainants, compensation at the rate of Rs.2,500/- per month for the first three months and thereafter at Rs.5,000/- per month from October 2002 till date of handing over of possession.
b) That the opponents be directed to make good the deficiency in service by constructing the balance building and handing over possession of the remaining three flats to the opponent and to pay compensation to the complainants for delay at the rate of Rs.3000/- per month for the first three months and then Rs.6000/- per month from October 2002 till the date of handing over of possession.
c) That the opponents be directed to pay further damages to the complainants in the sum of atleast Rs.5 lakhs for mental anxiety, tension and stress caused by their deficiency in service.
d) For costs of the case; and e) For such further and other reliefs as the nature and circumstances of the case may be.
3. The opposite party in his written version raised preliminary objections on issues such as the complaint being malafide and vexatious; complainant having suppressed material facts and thus approached this Commission with unclean hands; lack of jurisdiction since complicated questions of facts and law arise which should be adjudicated in a Civil Court; that complainant does not fall within the definition of a consumer as defined under the Consumer Protection Act.
4. On facts, the opposite party stated that prior to the execution of the present agreement between the parties, the complainant had entered into similar agreement with another party M/s Afreen Developers which had to be cancelled and for which he had to pay this party a sum of Rs.300,000/- and produced necessary documents to back this claim. The opposite party admitted that the agreement was entered into between him and the complainants and as per the agreement the consideration for the property was a sum of Rs.17,00,000/- which was to be paid by allotting and transferring built up areas agreed upon in the building to be constructed. The opposite party stated that the entire building could not be constructed due to a 33 KV single circuit line (high tension electricity wire) which passed across the property where the building was to be constructed and this fact was to the knowledge of the complainants right from inception. The opposite party stated that he had applied for permission from the Village Panchayat for construction of the building consisting of ground and two upper floors.
The Department of Electricity objected to the grant of the No Objection Certificate (NOC) for construction due to the presence of the high tension line and that for any construction, the line would have to be shifted. The opposite party vide letter dated 11-04-2000 did approach the Assistant Engineer, Department of Electricity at Porvorim for this shifting, however the Department failed to do so till date. In the meanwhile the Panchayat granted NOC for part construction of the building.
5. The opposite party stated that as part of the agreement, they had to settle a tenant family who resided on the property of the complainants and had to allot two single bedroom flats to them. During the period of the demolition of their tenement and construction of the two flats for the tenants, the opposite party shifted them to premises belonging to the attorney of the complainant and also paid him rents during this period. The opposite party completed and handed over the flats for the tenants on the ground floor and annexed Sale Deeds in support of this claim. In compliance with the NOC for part construction the opposite party completed the ground floor of the building at the cost of Rs.20,00,000/-. Thus the opposite party stated that they have incurred an expenditure of over Rs.35,00,000/- towards cancellation of earlier agreement with M/s Afreen Developers to pay rents and construct two flats to the tenants, besides fees for architects, engineers etc. whereas the complainant have not invested anything in the construction, the same being purely a development agreement. The opposite party stated that in the hope that the high tension wire would be shifted, he commenced the work and the inability to complete the rest of the building was only due to this non shifting of the line by the Electricity Department. The opposite party stated that of the three shops on the ground floor which was completed, one shop each was to be handed over to the complainant and his two brothers Mr. Reduzinho and Mr. Bras Antonio. This fact is mentioned in the agreement. The opposite party stated that the shop nos. 4 and 5 were ready long back and he had requested the complainants to take possession of the same.
In fact one shop i.e. shop no.2 which was to be handed over to Mr. Reduzinho (Attorney of the complainant) was handed over to him and he in turn sold the same shop back to the opposite party/builders. The opposite party annexed receipts of this transaction of sale by Reduzinho to the opposite party and stated that this fact was suppressed by the complainant and his attorney holder.
6. The opposite party also raised the issue of the complaint being time barred and prayed for dismissal of the complaint on grounds that the complainant has not made out a case of grant of reliefs.
7. On an application by the opposite party, the complainant came to be cross-examined by way of questionnaire. This reply to the questionnaire is not stated on oath and signed by one R. P. Braganza above the typed words advocate for the complainant.
8. In reply to the question posed to the complainant on the existence of the 33 KV high tension line, the complainant admitted its existence but added that it was the duty of the opposite party to shift the same. To a specific question to the complainant that due to the existence of the high tension line the construction could not be completed, the complainant stated that this statement was false as the opposite party can construct the building and has done so upto the ground floor. On the issue of handing over one shop to one brother Mr. Reduzinho, the attorney of the complainant, it was admitted that consideration in the sum of Rs.1,52,320/- was received in lieu of shop no. 2. With regard to the question that shop nos.4 and 5 were offered to the complainants and yet they did not take possession of the same, the complainants replied that that the request was made orally but no notice to take possession was given.
9. The affidavit-in-evidence of the complainant reiterates the facts as stated in the complaint. The opposite party in addition stated that the agreement was entered into in the year 1999, and the complainant has raised the issue in the year 2008 belatedly and frivolously, though he was aware that the construction could not be completed due to the high tension electricity line.
10. Detailed written arguments were submitted by both parties.
The complainant in the arguments on the issue of laches and limitation raised, stated that the premises not being handed over, the cause of action is continuing. We agree with this proposition of law. On the aspect of impossibility of performance of the agreement due to the existence of the high tension line, the complainant reiterated that the opposite parties were well aware of its existence right form the beginning and it was for the opposite party to take steps to ensure the line was shifted and that the electricity line would not come in the way of further raising the same building on the same plinth. The complainants also indicate their willingness to take possession of shop nos. 4 and 5 if the opposite parties are ready to hand over the same to them. It is to be seen that the relationship between the parties herein commences with an agreement for development and sale dated 29-09-1999. Complainant is the owner of the plot admeasuring 1525 sq. meters on which there is an old residential house occupied by a tenant Shri Yeshwant Chandro Halarnkar and his wife, and respondents were the purchasers/developers agreeing to develop the said property under the terms and conditions spelt out in the said agreement.
11. Inter alia the developers/respondents were to independently settle the occupiers of the said house for which purpose a separate agreement had been entered into wherein the said occupants would vacate the house and subsequently were to be satisfied with two residential flats having a super built up area of 60 square meters each on the ground floor of the said building to be constructed by the opposite party developer.
12. The crux of the contention between the parties hereto, is the agreement between the two under which the consideration for the deal was a total amount of Rs.17 lakhs which was to be paid as under:
It is hereby agreed by the parties hereto that in consideration of Rs.17,00,000/- (Rupees Seventeen lakhs only) agreed to be paid by the Prospective Purchaser/Developers to the Prospective Vendors, the Prospective Purchaser/Developers do hereby agree to allot and transfer in favour of the Prospective Vendors the following built up units in the said property viz:-
(i) Three flats of built up area of 100.00 sq. metres each, out of which two shall be on the first floor and the third on the second floor of the proposed scheme;
(ii) Three Shops of built up area of 12.00 sq. metres each, on the ground floor of the proposed scheme.
The above mentioned flats shall be allotted in the following manner:-
(a) Flat no.1 on the first floor and shop no.2 on the ground floor shall be built for Shri Reduzinho and his wife Melanie;
(b) Flat no.2 on the first floor and shop no.4 on the ground floor shall be built for Shri Silvestre and his wife Antonette;
(c) Flat no.3 on the second floor and Shop no.5 on the ground floor shall be built for Shri Bras Atanasio).
13. Further under clause 5 of the agreement the opposite party/developer had agreed to deliver possession of the ` said 6 units to the complainant/prospective vendors within 24 months from the date of approval of plans by the Village Panchayat of Verla Canca or the concerned authority. In the event that the developers (opposite party) failed to deliver possession of the said six units within the above time stipulated due to any action of God or Nature or force Majeure or for any reasons beyond the control of the developers (opposite party), the said developer (opposite party) would get additional six months extension for delivery of possession of the said 6 units. In the event that the developers (opposite party) failed to hand over possession of the said 6 units within the time stipulated as above being 24 months, the developers (opposite party) would be liable to pay an amount of Rs.3000/- for each flat every month as compensation for delay for handing over possession of the flats and Rs.2500/- for each shop every month as compensation for delay for handing over possession of the shops beyond the period of 30 months for the first three months and thereafter double the amount as compensation from the end of the third month upto the time of handing over actual possession thereof. Again in clause 6 it is reiterated that the developers (opposite party) agreed to complete the development and construction of the said 6 units within twenty four months plus six months from the date of approval of plans for the Village Panchayat of Verla Canca. Again under clause 13(a) it is stated inter alia that the developers (opposite party) shall obtain the building plans approved from the Village Panchayat of Verla Canca and thereafter on obtaining the licence to commence the development or construction work. Clause 14 of the agreement also stipulates that the developers would be entitled to construct buildings in the said property in accordance with plans to be sanctioned by the Village Panchayat Verla Canca or any other concerned authorities and thereafter sell them.
14. Hence from the various clauses in the said agreement for development cum sale it is made abundantly clear that the period of 24 plus 6 months would commence from the date of approval of plans by the Village Panchayat Verla Canca or the concerned authority and not from the date of execution of the said agreement (emphasis added).
15. It is the consistent case of the respondent/developers that subsequent to this agreement, the process for obtaining requisite licences was initiated. The immediate hurdle to be overcome was a 33 KV single circuit line and one 3 phase service connection wire which passed across the property and would necessarily have to be shifted by the Electricity Department. The attempts made by the respondent/builder to get clearance from the Electricity Department apparently proved futile as is seen by the correspondence on record. Finally the office of the Village Panchayat granted permission vide permission no.VPVC/const.Lic No.15/99-2000/73 dated 08-03-2000 wherein the plans were approved subject to certain conditions inter alia at item No.14: 33 V line passing through the plot should be shifted and NOC from the Assistant Engineer, Electricity Sub Division II, Porvorim should be obtained; item No.15 necessary stipulated vertical and horizontal clearance should be maintained for the electrical line as per I.E. Rules 1956 clause no.79 and 80 during and on completion of the construction.
16. It is to be noted that by letter dated 11-04-2000 addressed to the concerned Asst. Engineer, a request was made by the opposite party to shift the line along the road in order to facilitate the construction of the building and payments if any was offered to be made towards such shifting.
Apparently the opposite parties were not successful in having the said electric wires shifted.
17. In the above circumstances, it is seen that the respondent did construct whatever was possible given the conditions of maintaining horizontal and vertical clearance from the electric line. As such construction of shops and the two residential flats of the tenants on the ground floor was completed and which flats it is seen were delivered to the tenants in terms of the agreement.
18. Further it is seen that the three shops having been completed as per the permission, were offered by the opposite party to the complainant, who have refused to take possession on the ground that only oral request and no written notice was given by the opposite parties to take possession of the said shops.
19. The issue now to be resolved is what meaning has to be attributed to the phrase approval of plans by the Village Panchayat Verla Canca or the concerned authority. The phrase approval of plans would mean such plans as approved by the concerned authorities. Thus in the instant case the approved plans would be construction of shops and flats with the condition that the opposite parties/builders keep the vertical and horizontal clearance from the high tension electrical wire. Thus it will be seen that the entire plans as proposed to be constructed by the respondent/builder do not stand approved even as on today and hence it cannot be said that there are any approved plans of construction for the flats on the first floor and the second floor which according to the said agreement for sale had to be delivered to the complainant/vendors. To this extent the complaint is premature as there is no time limit stipulated in the complaint for obtaining of the permission from the Village Panchayat or concerned authorities. In normal course one would have granted a reasonable period for obtaining period even if not stipulated. But in the instant case the respondent/builder has raised the ground of impossibility because of the Electricity Department not shifting the electric line and which shifting is in their hands. Further, the opposite parties/builders has shown his bonafides by completing that part of the project which was possible such as the ground floor shops and the separate two flats which were handed over to the tenants.
20. Besides it is to be seen that the respondent/builder has also paid an amount of Rs.3,00,000/- to one M/s Afreen Developers for cancellation of an earlier agreement entered into between them and the complainant vendors.
So also the claim of the builders has been that they have spent an amount of Rs.35,00,000/- towards the construction of the shops on the ground floor and the two flats which were handed over to the tenants on the property can be believed.
21. In sum and substance, the vendor/complainant who admittedly are the owners of the plot have not lost a single rupee either by way of investment or by way of land holdings. On the contrary, the land which was encumbered by tenants is now cleared and shops on the ground floor are made available to the owners. Besides the title to the property still vests with the vendor/complainant. In our opinion the agreement is still open as far as the construction of the flats on the first and second floor are concerned. Since the opposite party has spent considerable amount of monies for the development of the said property and to vacate the tenant, we do not believe that he would delay in the shifting of the electricity line if that was in his hands, as his profits in the development depend on this shifting. The opposite party should make concerted efforts to get the electricity line shifted and get the NOC from the Panchayat for completion of the flats as proposed.
22. Thus, since the complete approval of plans by the Village Panchayat Verla-Canca or the concerned authority in terms of the agreement is not obtained, the agreement is still subsisting and to this extent we hold that the complaint is premature.
23. We note that the opposite party has stated that they are willing to hand over the shop nos. 4 and 5 to the two brothers of the complainant. There is no denial of this offer by the complainant only they stated that the opposite party has not put this offer in writing. Thus, the ends of justice would be met if the said completed shops nos.4 and 5 be handed over to the complainant in terms of the agreement.
ORDER The complaint is dismissed being premature.
The shop nos.4 and 5 to be handed over to the complainant in terms of the agreement.
Pronounced.
[Sandra Vaz e Correia] Member [Caroline Collasso] Member