P.Muthusway, Chief Executive,                                          .... Appellant
Standard Housing Construction & Finance Company
Vs
K.U.Nair & Anr.                                                               .... Respondents

S.P.BAGLA, MEMBER 

In this appeal the Standard Housing Construction & Finance Co. have come up against the order dated 24.11.1992 passed in O.P. No. 121/92 by the State Commission, Tamil Nadu at Madras wherein they awarded interest of Rs. 26,250/- on an amount of Rs. 2.00 lakhs for the delay in handing over the flat and Rs. 24,543.75 on the amount of Rs. 1,87,000/- for the delay in providing amenities to Mr. K.U.Nair and Mrs. Vijaya Nair who were the buyers of flat from the Appellant herein. 

Briefly the facts of the case are that on the basis of an advertisement published by the Appellant Company the Respondents herein approached the Appellant for the purchase of a flat for which a sale deed was executed between them transferring an undivided share of 467 sq.ft. out of a total of 5600 sq.ft. in favour of Mrs. Vijaya Nair, second Respondent herein. Another undivided extent of 233 sq.ft. was sold in favour of her husband Mr. K.U.Nair, who is the first Respondent. According to the agreement between the parties the flat was agreed to be completed within 8 months, ie., on or before 30th June, 1988. The entire cost of construction of Rs. 2.00 lakhs for the flat has been paid by cheque. It was also provided in the agreement under clause 6 that the Appellant herein would be liable to pay interest at the rate of 15% per annum on this amount of Rs. 2.00 lakhs in case there was any delay in the construction and completion of the flat. Further the Appellant herein agreed to provide certain amenities at a cost of Rs. 1,87,000/-. However, the building could not be completed in time and the flat was handed over to the Respondents herein only on 15.5.1989 after a delay of 10-1/2 months. Therefore, the Respondents herein claimed interest for this 10-1/2 months on the amount of Rs. 2.00 lakhs given for construction as well as on the amount of Rs. 1,87,000/- given for the amenities.

The brief point which the Appellant herein has urged before us that the flat had been completed in time but the Respondents were not taking possession as they were having some discussions with the Appellant for some facilities and amenities. Shri P.Muthuswamy who is the Chief Executive of Standard Housing Construction and Finance Company - Appellant herein appeared in person and stated that he did not do this construction work for any profit motive or on any commercial basis, but did it as a family matter since he retained 3 flats out of the 7 flats for himself and family members and sold the remaining flats to selected few friends amongst which the Respondent herein was one. His contention is that the Respondents did not occupy their flat, though completed in time, for security and other various reasons like getting telephone shifted to their flat from their old residence which is nearly 20 kms away from the concerned flat. Repeatedly, his argument was that there has been nodelay on his part in completing the construction of the flat in time. The delay in occupation of the flat by the respondents was of their own choice as they wanted to shift according to their convenience. Therefore, Shri P.Muthuswamy argued that the award of interest on the amount deposited for construction as well as amenities is not based on correct facts. In the grounds of appeal it has also been stated that the counsel for the Appellant before the State Commission had wrongly noted down the hearing date as 13th November, 1992 instead of 12th November, 1992. When the Appellant approached the State Commission on 13th November, 1992 he was informed that the arguments were over and the case was posted for orders on the 24th November, 1992. The request of the Appellants to set aside the ex-parte order was also dismissed by the State Commission. It has also been urged that in the agreement in para 8 it was very clearly given that "the Party of the Second Part will not be entitled to make any claim if the construction of the flats has been accepted by the Party of the Second Part to their entire satisfaction and has commenced occupation". It is the contention of the Appellant that the party of the Second part after mutual discussion agreed and accepted the construction of the flat and paid Rs. 1500/- extra for full grill in the balcony and occupied the flat on 15.5.1989. The Appellant argued that the State Commission did not notice this clause in the agreement and passed the order without taking into account this material point.

We have gone through the records of this case and heard Mr. P.Muthuswamy who appeared in person and counsel for the Respondents. The brief point is whether the flat has been constructed and amenities provided to the Respondents in time and whether they took the possession as stipulated in the agreement. We find that the contention of the Appellant is not borne out by facts on record. A perusal of the case record shows that as late as 6.10.1988 a letter was sent by the counsel for the Respondents to Shri P.Muthuswamy stating that the flat which was to be delivered by 30.6.1988, in terms of the agreement, had not been delivered till then. This letter gives details about some defects in the construction, etc., as regards provision of amenities. That being so, the contention of the Appellant that he had completed the construction but the Respondents did not occupy the flat is not tenable. In view of this we do not find any justification to interfere with the orders of the State Commission and hence dismiss this appeal. There is no order as regards costs.

- (Sd.) JUSTICE V.BALAKRISHNA ERADI, PRESIDENT
- (Sd.) JUSTICE S.S.CHADHA, MEMBER
- (Sd.) SHRI S.P.BAGLA, MEMBER