METTU DAMAYANTHI Vs A.MALLA REDDY

1. THE appellants were the opposite parties in O.P. No. 1064/1995 on the file of the Hyderabad District Forum and the respondent in this appeal was the complainant in that O.P.

2. THE following are the un-disputed facts.

The complainant entered into an agreement of sale on 1.8.1994 with the appellants for purchase of Flat No. 1-C in the "Ground Floor" of Kalyan Mansion situated at Somajiguda in Hyderabad and he paid the entire consideration of Rs. 2,50,000/- to the appellants under that agreement. The appellants agreed to complete construction and hand over possession of the Flat to him within five months from the date of agreement i.e. by 1.1.1995. Clause 2 of the agreement made it clear that the consideration amount of Rs. 2,50,000/- did not include the amount for lift facilities, electric transformer and vehicle parking place. Even though the five months period was over, the appellants did not complete the construction and hand over possession of the Flat to the complainant and on his insistence for execution of the sale deed in his favour, the appellants issued letter dated 6.9.1995 and then the appellants for the first time demanded that he should also pay his contribution for lift, transformer and parking place. Thereafter he got issued a legal notice dated 14.9.1995 to which the appellants replied on 22.9.1995 stating that if the complainant failed to pay the additional amounts as demanded by them, the agreement would stand cancelled. The complainant then approached the District Forum by way of the present complaint on 30.9.1995.

The appellants filed their version/ counter. Therein they contended that they required the complainant to pay a further sum of Rs. 68,000/- towards lift, electric transformer etc., and also informed him under the notice dated 22.9.1995 that if the said sum was not paid with interest, the agreement would be cancelled. As the complainant failed to comply with that demand they cancelled the agreement and sold the Flat in question to a third party and enclosed a cheque for Rs. 2,50,000/- dated 30.3.1996 drawn on Syndicate Bank, Somajiguda, Hyderabad. The said cheque was deposited alongwith the counter in the District Forum. It was contended before the District Forum on behalf of the appellants that the said sum of Rs. 68,000/- was made up of Rs. 45,000/- towards lift and electric transformer and Rs,. 23,000/- for shelves, drops and teak wood doors, etc.

3. ON behalf of the complainant it was contended before the District Forum that under the agreement there was no pre-condition that cost of electric transformer and lift had to be paid before delivery of possession of the flat and execution of registered sale deed and that therefore the appellants had no right to cancel the agreement for non-payment of that sum. Pending consideration of the complaint, the District Forum appointed an Advocate Commissioner to ascertain as to whether the construction of the residential complex was completed and also to ascertain the works which still remained incomplete and whether the transformer or electric supply and lift had been installed. The District Forum observed in its order that the Commissioner filed an interim report and also final report and that as per the reports there was neither the lift facility nor transformer facility in the complex, and that the Advocate Commissioner was not allowed to inspect the Flat No. 1-C because of the non-co- operation of the appellants despite giving full opportunity to them to allow him to inspect the said Flat. The District Forum also observed in the order as follows :

"Further, when there are no facilities for lift and transformer, the opposite parties are not justified in demanding the complainant for payment of amounts and cancellation of agreement on the ground of its non-payment by the complainant. It is contended by the learned Counsel for the complainant that even on the spot as is obtainable today the entire complex has 15 flats but the parking place if it is to be sold is only for 12 flat owners. Therefore, it is not known where from the opposite parties are going to provide parking place to all the flat owners. As a matter of fact the opposite parties never offered any parking place to the complainant for sale. According to the complainant the opposite parties should sanction plan only for three floors over the stilt and the brochure did not specify any provision for lift. If the opposite parties, contrary to the sanctioned plan, intended to have illegal benefit by adding additional floors, they cannot demand the complainant to subscribe to such an illegal activity. We have already stated above that the non-payment of amount, if any, towards lift, transformer and parking place will not result in cancellation of the agreement of sale. Therefore the opposite parties have no right whatsoever to cancel the agreement of sale unilaterally on the ground that the complainant failed to make payment towards the said three items."

The learned Counsel for the appellants had to accept that the appellants failed to complete the flat and hand over possession of the same to the complainant within five months from the date of the agreement dated 1.8.1994, even though the said agreement categorically stipulated for that. The Advocate Commissioner''s reports given in 1996 also establish that the complex was not completed even by the date when the Commissioner inspected the premises in question and that even by that date the lift, electric transformer and parking place were not set up. The learned Counsel for the appellants also accepts that the agreement dated 1.8.1994 did not specifically stipulate for the payment of the lift facility and transformer facility and for parking place facility and also did not provide that non-payment of all the demands for the said facilities would entail cancellation of the agreement. In view of these two irrefutable foundational premises it follows that the appellants acted high-handedly in cancelling the agreement, which amounts to breach of contract. The cancellation is, therefore, viewed from any angle is invalid and ineffective and the District Forum rightly held that the cancellation was bad and had to be ignored. The resultant is that the agreement entered into by the appellants with S.A. Ramaiah is invalid. We, therefore, find that the District Forum is very right in directing the appellants to complete the flat in all respects and hand over possession of the same to the complainant i.e. respondent herein, and also execute a registered sale deed in his favour. In view of the high-handed action of the appellants and the inordinate delay in the completion of the flat by the appellants after receiving the full consideration, the District Forum is also justified in requiring the appellants to pay interest on the said sum of Rs. 2,50,000/-. We therefore do not find any basis for interfering with the order of the District Forum.

4. IN the result, the appeal is dismissed. No costs. Appeal dismissed.