STATE CONSUMER DISPUTES REDRESSAL COMMISSION OF TELANGANA :

                                           At  HYDERABAD

                                                  FA 187 of 2014

Against

CC No. 23 of 2013

District Consumer Forum, Ranga Reddy

Between :    

B. Mallesham, S/o B. Laxmaiah,

Aged about 57 years,  Occ :Government Employees,

R/o Plot No. 14, Balaji Enclave,

North Kalyanpuri, Uppal, Hyderabad          ..Appellant/complainant

And

1. G. Satish Kumar, S/o Rangaiah,

Age : 50 years, occ : Builder,

R/o H.No. 10-3-74/22/401, Techer’s colony,

East Marredpally, Secunderabad.

2. S’n’S Associates Architects & Engineers Vidyanagar

Hyderabad, rep. by its Proprietor G. Karuna Sagar,

S/o not known, Occ : Builder        ..Respondents/opp. parties

Counsel for the Appellant                            :  M/s. K. Visveswara Rao

Counsel for the Respondents                       :  M/s. P. Naga Pradeep.

Coram                :

                           Hon’ble Sri Justice M.S.K.Jaiswal ….. President

                                                            and

                          Hon’ble Sri K. Ramesh                  …      Member

                          Tuesday, the Eighth Day of August

                                   Two Thousand Eighteen

ORAL ORDER

                                                            ***

01.     The complainant came up in appeal against the dismissal of the complaint as per the order dated 24.02.2014 in CC No. 23/2013 on the file of the District Forum, Ranga Reddy.

02.     The brief facts of the case of the complainant are that he purchased 200 sq. yards of plot bearing No. 14 and proposed to construct G+1 independent house and  hence approached second opposite party and requested to prepare  plan and estimates.  The second opposite party introduced first opposite party  as his partner and builder.  The second opposite party prepared plan and estimates and thereafter the complainant and the first opposite party held mutual deliberations and entered into an agreement of construction on 16.08.2010 and the first opposite party agreed to complete the work within six months and when the plastering work was going on,  the opposite parties told him that unless electric wiring and plumbing work is done, plastering work cannot be done  and they asked the complainant to entrust the said work to them and the complainant accepted their proposal and entrusted lappam finishing, polishing, painting and ceiling work etc., and the complainant altogether paid Rs.28,52,000/-,but, the opposite parties failed to complete the work even after lapse of more than one year and therefore he took possession of the house in third week of October, 2011 and that he completed the unfinished work of sump and ramp by spending Rs.15,600/-. The complainant estimated the work done by the opposite Parties by R. B. Enterprises, Asif Nagar and according to the said estimate, the value of  the construction done by the opposite parties was estimated at Rs.20,77,011.76 ps, as such, the opposite parties deceived him to the tune of Rs.7,74,989/-. Therefore, he demanded for payment of the said amount and also Rs.15,600/-,but, there was no response from the opposite parties. Hence the complaint to direct the opposite parties to pay the above said two amounts, besides, Rs.25,000/- for the delay in completing the works as per the  agreement and Rs.25,000/- towards compensation for mental agony and costs.

03.     The opposite parties 1 and 2  filed their written version separately and out-rightly denied the claim of the complainant and further pleaded that there is no contract  in between the complainant and the second opposite party as the firm of the second opposite party is proprietary concern.  The first  opposite party pleaded that he completed the work entrusted to him as per the agreement and when the stage of the plastering reached, the complainant increased the scope of the construction work and included extra works after satisfying with the progress of the work and that the first opposite party agreed to complete the extra works  for a sum of Rs.27,53,905/- and that the complainant, in all, paid Rs.28,45,000/-, but, not Rs.28,52,000/- and that the complainant is, still, due  a sum of Rs.17,84,055/- and that the complainant obtained receipt from the first opposite party in the third week of September, 2012 for the purpose of tax, as such, the first opposite party  signed receipt in good faith and prayed to dismiss the complant.

04.     The complainant in support  of his claim filed his affidavit evidence and marked Ex. A-1 to A-17 and on the other hand, the first opposite party filed his affidavit evidence and no documents are marked.

05.     The District Forum heard both sides and  on the basis of the material available on record, came to the conclusion that the complainant has not made out any case for seeking the reliefs as prayed for and accordingly dismissed the complaint.

06.     The complainant challenged the findings of the District Forum on the ground that the District Forum has not appreciated the material available on record in proper perspective and came to the wrong conclusion and that the respondent/second opposite party cleverly avoided signing  as party  to the agreement of construction and in fact he was also one of the party to the said agreement.  The District Forum failed to see that  Ex.A-2 cash receipt  executed by the respondent/1^st opposite party  reveals the name of the respondent/2^nd opposite party, which itself, goes to show that both of them agreed to execute the work.  The District Forum also failed to see that Ex.A-2 cash receipt shows that the total amount of Rs.28,52,000/- was received by the respondent/1^st opposite party in collaboration with the respondent/2^nd opposite party and that the report of the M/s.  R.B. Enterprises, who, assessed the value of construction work has also not been considered properly and that the District Forum came to the incorrect conclusion and hence  prayed to set aside the impugned order and allow the appeal.

7. Heard both sides.
8. The points for consideration are ,
   1.  whether the appellant/complainant  is entitled to claim the amount  as prayed for in the complaint
   2. Whether the order under appeal is sustainable or deserves to be set aside ? and if so to what relief ?
9. So far as the admitted facts of the case are concerned, the appellant/ complainant entered into construction agreement under Ex.A-1.  It is also an admitted fact that the appellant/complainant admitted to pay Rs.450/- per sft and that the construction work to be undertaken by the respondent/1^st opposite party shall be completed within a period of six months or otherwise agreed to pay Rs.25,000/- towards damages.
10. The agreement of construction which was entered into by the appellant/ complainant with the respondents/opposite parties 1 and 2  reveals that it was executed on 16.08.2010, whereas, the respondent/2^nd opposite party signed as witness to the said document. Thus, the claim of the appellant/complainant, that the respondents/opposite parties 1 and 2 entered  into  construction agreement, but, by cleverly  the second respondent/second opposite party has not signed it as one of the executants of the said document, does not hold water, because, the appellant/complainant is not an illiterate person to ignore  the consequences for not signing the agreement of construction by the respondent/second opposite party.   Admittedly, according to the description of the second respondent/second opposite party in the complaint filed by the appellant/complainant itself  goes to show that the firm of the second respondent/second opposite party  is the proprietary concern, therefore, there cannot be any partner in the proprietary concern. Therefore, the claim of the complainant that the respondents/ opposite parties 1 and 2  are the partners and agreed to execute the work seems to be totally unsustainable.
11. Under Ex. A-1, Construction agreement, work entrusted to the first respondent/first  opposite party consists of footing for columns, Columns, beams, slab, walls, overhead tank, sump, compound wall, basement filling with murum and elevation and the appellant/ complainant clearly pleaded   in his complaint about the payment schedule for the works to be undertaken by the first respondent/first opposite party and on stage to stage basis.

12. The main contention of the appellant/complainant is that according to his complaint as well as affidavit evidence that the respondents/ opposite parties left the work without completing the sump and ramp and that he completed the said work by investing Rs.15,600/-.  The basic question that arises that unless the sump and ramp is constructed initially, the question of construction of the basement and other works does not arise because the builder requires water for construction of these structures and for curing.   Therefore, the claim as put forth by the appellant/complainant that the first respondent/first  opposite party has not constructed the sump and ramp seems to be unbelievable.

13. The appellant/complainant produced Ex.A-3, assessment summary report of the work completed as per the agreement and assigned extra work  and this is the only document, on which, the appellant/ complainant relies  upon to claim refund of Rs.7,74,989/-.  It is the case of the appellant’/complainant that he got estimated construction made by the first respondent/first opposite party through M/s. R and B Enterprises, Asifnagar.  A bare perusal of Ex. A-3 reveals that it does not contain the seal, signature or at least the date of preparation of the said estimation by the said R and B Enterprises.  The appellant/complainant has not chosen to intimate the first respondent/first opposite party at the time of preparation of the said estimation by the said Engineer. Even otherwise,  the appellant/ complainant has not chosen to examine the person as to who prepared the said estimation in order to prove the contents of the said estimation. So in the absence of any such positive evidence from the side of the appellant/complainant, it is very difficult to place reliance on Ex. A-3, which is the crucial document to claim huge amount of Rs.7,74,989/-. 

14.          There is no gain saying the  fact that when a work has been entrusted and being attended by one person,  if its actual cost and estimate is to be prepared by another person, the same cannot be done behind back of the person who is entrusted with the work and who has been doing the same.  The conduct of the complainant in getting the work estimated through M/s. R and B Enterprises in the absence of OP,1, who is a contractor, is without any sanctity and it cannot be taken as basis for holding that the work which has been entrusted to and is being done by the OP.1 could have been done for lesser price as estimated by a person engaged by the appellant/complainant.  As already stated, even if that is done though not permissible, it is incumbent on the part of the complainant to produce legally acceptable evidence to show that the work which has been done and is being done by the first opposite party could have been done for much lesser price.  In the absence of any such evidence, it cannot be held that the estimate prepared by M/s. R and B Enterprises reflects the actual cost which is much lesser than the contracted price with the first opposite party. 

15. The appellant/complainant further set up a plea that he completed the remaining work  and produced Ex.A-4 to A-13 bills for the purchase of material etc. Admittedly, the averments made in the complaint and the evidence of the appellant/complainant goes to show that he took possession of the constructed house in the third week of October, 2011. As per the agreement dated 16.08.2010, six months period was stipulated for completion of the work which comes to February, 2011. It is also an admitted fact that while plastering work is going on, the appellant/complainant entrusted additional  work, such as, lappam finishing, polishing, painting and ceiling work etc.  Thus, the period as fixed under Ex.A-1 cannot be taken into account in view of the entrustment   of additional work. In addition to that, the documents under Ex.A-4 to A-13 pertains to the period for the months of February, April, May, June, July, September, 2011  etc.  All these documents were in between and during the period of the work undertaken by the first respondent/first opposite party.  The appellant/complainant has not produced any evidence to prove that he constructed the work said to have been left over by the first respondent/first opposite party. So in the absence of any evidence from the side of the appellant/ complainant, it can be safely inferred  that the material supplied by him through the alleged bills and receipts for the work to be completed by the first opposite party. Thus, it can be held that the appellant/ complainant miserably failed to prove that he had paid excess amount than the work done by the first respondent/first opposite party on the basis of  Ex. A-3 and it can be further held that the appellant/ complainant  totally failed to prove that he constructed the sump and ramp and he incurred Rs.15,600/-.

16. On careful perusal of the material available on record and the findings recorded by the District Forum, it can be held that said findings are based upon the material evidence available on record and there are no reasons to set aside the said findings and hence they  deserves to be confirmed. 
17. In the result, the appeal fails and is accordingly dismissed confirming the impugned order dated 24.02.2014 passed by the District Forum, Ranga Reddy District  in CC 23 of 2013. No order as to costs.

PRESIDENT                     MEMBER

DATED : 08.08.2018.