It has taken a legal battle of 37 long years for a family to get a flat which they had booked in 1981 in Ashokvan in Borivali (east). By this time the man has already died and now the flat would go to his three daughters.
The city civil court recently decided a suit filed in March 1987 by a flat purchaser against the builder and ordered the developer to handover the possession to the plaintiff on payment of balance consideration. The issue between the flat purchaser and developer arose when the builder demanded excess funds in January 1985 from flat purchasers.
Ishwarsingh Hazarasingh had filed a suit on March 18, 1987 against M/s. Survin Development Corporation since it failed to give possession of the flat even after several requests and negotiations. Ishwarsingh died even as the litigation was pending. His three daughters continued with the fight for the flat.
It was claimed that, Ishwarsingh had entered into an agreement with Survin Development for a flat in Ashokvan building on November 8, 1981 for a total consideration of Rs 68,410. The possession of the flat was to be given by May 15, 1985. Besides, the flat, Ishwarsingh had agreed to pay Rs 19,050 for additional amenities to the developer.
According to the plaintiff, the amount payable was Rs.87,404 of which he had paid Rs.82,610.75 for which a receipt was issued by the builder. According to plaintiff an amount of Rs.4,849.55 was to be paid to the developer against possession. However, the developer demanded Rs 17,946.75 on January 1985 as pending dues, failing which the developer threatened to cancel the agreement. Since, even after several representations the developer did not give possession, the plaintiff moved the suit for specific performance of the agreement.
In response to the suit, the developer had claimed that the firm held excess land in the area. The firm was allowed to construct the house on the plot only on the condition that a building would be constructed for the weaker sections of society. As per this condition, whoever purchases the flat has to give an affidavit saying he does not hold any other house in the city. The developer claimed that Ishwarsingh did file an affidavit but the contents were false.
The developer claimed that Ishwarsingh was allotted a house flat no 255, in MIG colony of MHADA in 1962 under Hire Purchase Scheme (HPS) for a period of 15 years. Thus, Ishwarsingh, continued to hold the flat even when he booked a flat in Ashokvan. Thus, the developer in response to Ishwarsingh’s suit had alleged that the plaintiff was not eligible for the said flat.
The court while rejecting the developer’s defence held that, “The defendant did not lead oral evidence to substantiate their defence statement. The defendant has not brought on record any evidence to suggest that original plaintiff was owner of said dwelling unit i.e. flat no. 255. The allotment of flat on Hire purchase scheme (HPS) do not transfer title in favour of a person in whose favour allotment is made. In absence of reliable and convincing evidence in support of defence statement, the plaintiff cannot be nonsuited. The plaintiff has established execution of concluded contract for sale of suit flat.”
