Andhra Pradesh

Nellore

CC/43/2016

1. Mathupalli Madusudhan Rao, S/o Chandran - Complainant(s)

Versus

1. M.A.Tarique, B.Tech., S/o M.A.Rafeeque - Opp.Party(s)

M.Subrahamanyam, M.V.S.Ajay Kumar

09 Nov 2017

ORDER

Date of Filing     :02-04-2016

                                                                             Date of Disposal:09-11-2017

 

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM:NELLORE

Thursday, this the  9^th day of   NOVEMBER, 2017

 

          Present: Sri Sk.Mohd.Ismail, M.A., LL.B., President

                         Sri K. Umamaheswara Rao, M.A., B.L., Member

 

C.C.No.43/2016

 

1.	Mattupalli  Madhusudhan  Rao, S/o.Chandran, Aged 45 years, R/o.Plot No.25, Anjana Apartments, (Cheeranjeevi Apartments), Tekkemitta, Nellore-4.
2.	Mattupalli Hymavathi, W/o.M.Madhusudhan  Rao, Apartments (Cheerantjeevi apartments), Hindus, Tekkemitta, Nellore-4.                                              ..… Complainant s

Vs.

 

1.	M.A. Tarique, B.Tech, S/o.M.A.Rafeeque, Muslim, Aged 24 years, Nellore-4, R.S.B.Constructions.
2.	M.A. Faique, B.Tech, S/o.M.A.Rafeeq, 27 years, Nellore-4, R.S.B.Constructions.
3.	M.A.Rafeeq, 75 years, R/o.B.V.Nagar, L.I.C. Colony, Nellore-4, R.S.B.Constructions.                                         ..…Opposite parties

                                                             .

          This complaint is coming before us for hearing in the presence of                Sri M. Subrahmanyam and Sri M.V.S. Ajay Kumar,  advocates for the complainant and Sri P.V. Ramana Reddy and  Sri P. Sreenivasula  Reddy,                                                      advocates for the opposite parties  and having stood over for consideration till this day and this Forum passed the following:

 

ORDER

                       (ORDER BY  Sri.Sk.MOHD.ISMAIL, PRESIDENT)

 

              The complainants filed this complaint against the opposite parties 1 to 3  to direct the opposite parties 1 to 3 to pay jointly and severally to the complainants Rs.3,00,000/- which is difference amount  between the actual cost of  construction and the amount received from the complainant with subsequent interest at 24% p.a. from 02-04-2016 when the work stopped till the date of payment and also Rs.2,00,000/-  towards damages and compensation to the  complainants for suffering mental agony due to the negligent attitude of the opposite parties for their deficiency in rendering services to the complainants, costs and submits to allow the complaint with costs.

            2.        The brief averments of the  complaint are as follows that:-

             The  opposite parties No.1 and 2 are  the sons of No.3 opposite party.  The opposite parties  are doing building construction works together.  The complainants  approached the opposite parties for construction of new building after demolition of their  old house situated at plot No.8, 6^th cross road, Door No.25/2/289, Lake view Colony, Podalakur Road, Nellore-4.

       The complainants submitted that they  have  agreed to demolish the said old house and construct the new building.  Building and construction L.S.Agreement was executed between the complainants and opposite parties 1 and 2 being builders on non judicial 100 rupees stamp paper dated  12-08-2014.  The construction  of total area is ground floor 15 ankanams and 1^st floor 15 ankanams and in total being 30 ankanms  including the plinth area, landing, water tank, septic tank, compound wall, porticos and parking tiles, specifications of earth work, masonry works, basement, plastering, woodwork, electrical work, sanitary work, grill work, tiles, paintings and other works etc.  The total cost of construction was agreed  for Rs.23,00,000/-.  The opposite parties  have stated that the building work will be completed within 6 months.  Mode of payments and work stages is also agreed in between the complainants clients and the opposite parties.   It is described at 5 stages.  In   the first stage the old house demolition and construction upto basement level is Rs.4,60,000/-.  No.2 laying  of ground floor slab is Rs.4,60,000/-  .  No.3 laying of  1^st floor slab is Rs.4,60,000/-.  4^th completion of ground floor construction as per agreement is Rs.4,00,000/-.   5^th stage completion of 1^st floor construction as per agreement is Rs.4,60,000/-.  That the complainants paid advance payment Rs.1,25,000/-.   On  16-02-2015 paid amount is Rs.5,00,000/- , 09-03-2015 paid amount is Rs.4,00,000/-, 17-04-2015 paid amount is Rs.3,50,000/-  and miscellaneous amount is paid Rs.50,000/-.  In total they have paid Rs.14,25,000/-.  The opposite parties have  discontinued construction work from the 4^th stage since 17-04-2015  and the opposite parties have completely stopped  the construction work.

           The complainants submitted that the complainants are repeatingly requesting the opposite parties  to complete the 4^th and 5^th stage of the building construction work but  the opposite parties have failed to do so.    The  complainants  are prompt  in payments as agreed in the schedule of mode  of payments and work stage.  The complainants approached Mr.B.N.Raju, Charted Engineer licensed civil and structure engineer Municipal Corporation, Nellore to certify the estimation of work done.  He inspected the said construction verified the work done, and issued his abstract cum detail estimate in respect of the total construction on 09-02-2016  and opined that so far Rs.11,25,000/- is spent by the opposite parties towards the construction.

            The complainants submitted that  even six months back the opposite parties have complete the   construction work agreed.  Because the opposite parties stopped construction work the complainants are loosing rent on the said building and losing interest on the amount spent which became dead capital.  It is clearly shows that the opposite parties are taking undue advantage as builders of the building an  causing irreparable mental agony due to  their abnormal delay in finishing the remaining work.  Hen there is a deficiency of service on their part.  The complainants got  issued demand notice dated 06-03-2016 requesting the opposite parties to  continue the construction work as agreed in the agreement.  The opposite parties received notice but did not give any reply and also not stated the construction work   and submits to allow the complaint with costs.

         3.      The opposite parties 1 and 2  filed written version  /  counter and the same was adopted  by the opposite party No.3 with the following averments that:-

          The opposite parties 1 and 2 submitted that the sons of opposite party No.3.  The opposite parties  are doing building construction works together.  The complainant approached the opposite parties of construction of new building after the demolition of the old house situated   at Plot No.8, 6^th cross road,                        Door No.25-2-289,  Lake view colony, Podalakur Road, Nellore.

         The opposite parties 1 and 2 submitted that agreed  demolish said  old house and construct the new building and construction L.S.agreement  was executed between the complainants and opposite parties No.1 and 2 being builders on non judicial Rs.100/- stamp paper dated 12-08-2014.  The opposite parties 1 and 2   submits that the construction of total area is ground floor 15  ankanams  and 1^st floor  15 ankanams and in total being 13 ankanams including the plinth area, landing, water tank, septic tank, compound wall, porticos and parking tails, specification of earth work, masonry works, basement, plastering, wood work, electrical work, sanitary work, grill work tails, paintings and other works etc., the total cost of  constructions was  agreed for Rs.23,00,000/-  and the opposite parties as stated  that the building work will be completed within six months.  Mode of payments and works stages is also agreed in between the complainants and the opposite parties and it is described at 5 stages.  The opposite parties submitted that in the first stage the  old house demolished and construction up to basement level is Rs.4,60,000/-,  No.2 laying of ground floor slab is Rs.4,60,000/-, No.3 laying first floor Rs.4,60,000/-, No.4^th completion of ground   floor as per agreement is Rs.4,00,000/-  and 5^th stage  completion of 1^st floor   construction as per agreement is Rs.4,60,000/-.  The opposite parties submitted that the complainants paid advance payment of Rs.1,25,000/-.   On 16-02-2015 paid amount is Rs.5,00,000/-, on 09-03-2015 paid amount is Rs.4,00,00/-, 17-04-2015 paid amount is Rs.3,50,000/- and miscellaneous amount  Rs.50,000/- in total they have paid Rs.14,25,000/-.  The opposite parties submitted that it is false that the opposite parties have discontinued construction work from the 4^th stage  since 17-04-2015 on the opposite parties have completely stopped the construction work.

           The opposite parties submitted that  the  complainants are the  owners of the property comprised in plot No.8, 6^th cross road, D.No.25-2-289, Lakeview colony, Podalakur road, Nellore. In the said site there was an old house in an extent of12 ankanams in ground floor and 4 ankanams in first floor.  Complainants intended to demolish the  old house and construct new building in the said site.  Opposite parties are B.Tech. graduates and they are doing construction of the buildings as per requirement of the owners of the house sites.  Complainants  approached the opposite parties for construction of the new house after demolishing the old building in the above mentioned site.  After negotiations, the complainants  and the opposite parties entered into building construction L.S.agreement on 12-08-2014.  As per terms of the agreement opposite parties has to demolish the old building existing in the above mentioned site and has to construct ground  floor and first floor consisting of 15 ankanams each.   The agreement consists of all the specifications for construction of new building, materials or brands to be used for construction of the building and also consists of mode of payment and work stages.  The total amount for construction of the building is Rs.23,00,000/-.  Opposite parties completed four  stages of work as mentioned in mode of payments and work stages in the agreement.  But the complainants have not properly paid the  amounts  as per  terms of the agreement.  The payments made by the  complainants  are clearly shown in the schedule A of the notice.  Complainants have not allowed, the  opposite  parties   to continue the work from 1^st August, 2015.  The balance of work and cost of the same which has to be done by the opposite parties is shown in schedule B. the cost of the said work is Rs.4,06,500/- as shown in schedule B.  The complainants  are liable to pay balance amount of Rs.9,25,000/- to the opposite parties if they completes the entire work as per agreement.  As  the complainants have not allowed the opposite parties  to continue the work from 1^st August, 2015, the opposite parties  are entitled for a sum of Rs.5,18,500/- after deducting the amount of Rs.4,06,500/- which is the cost  of balance work which has to be done by the opposite parties.  As per terms  of the agreement, any TMT steel has to be used.   But the complainants requested the opposite parties to use  Vizag steel  and they agreed to pay the difference amount for the  same.  As per the request of the complainants, the opposite parties used  Vizag steel for construction  of the  building. The complainants are liable to pay the difference  amount of Rs.42,000/- to the opposite parties.

            After execution of the agreement, the complainants agreed to handover the site to the opposite parties immediately for initiating the work as per agreement. But  the  complainants handed over the site after lapse of six months.  During  that period the price of the cement increased to a tune of Rs.100/- per bag.  The opposite parties used 850 bags for construction of the building.  Thus the opposite parties sustained  a loss of Rs.85,000/- due to increase of price of the cement. The  complainants are also liable to pay the said amount to the opposite parties.   As the complainants failed to pay the amount as per agreement they are liable to pay interest as per custom   and usage in the business at the rate of 24% p.a.

            The opposite parties 1 and 2 submitted that  the amount as per terms of the  agreement and not allowed the opposite parties to complete the work as per terms of the agreement with intention  to evade the payment and to cause wrongful loss  to the opposite parties.  The complainants are  also threatened the opposite parties that they will lodge criminal complaint against  them with false and unsustainable averments.  The  complainants also gave false  statements infront of the press and public with the  intention of defaming the  opposite parties, finally the  opposite parties got issued registered notices to the  complainants on 14-01-2016 and                   20-01-2016 informing them that the opposite parties  are not willing to continue the work and requested to pay a total  sum of  Rs.7,10,050/-  as shown in schedule C to the opposite parties within one week from the receipt of the notice failing which opposite parties will take necessary legal action against them for recovery of the said amount. The complainants  evaded to receive the said notices by managed the postal officials.  Now the complainants  are liable to pay a total sum of Rs.7,10,050/- to the opposite parties as shown in schedule C.  Hence the opposite parties are filed the suit in O.S.No.93/2016  on the file of the Principal Senior Civil Judge, Nellore against the complainants for recovery of the  above said amount.

              The opposite parties 1 and 2 submitted that the said suit is pending that  the complainants  filed this complaint suppressing the filing of the suit by the opposite parties 1 and 2 in O.S.no.93/2016  on the file of the Principal Senior Civil Judge, Nellore.  The complainant suppressed several material facts.  The 3^rd opposite party is no way related to Construction Agreement.  3^rd opposite party is added as opposite party No.3 to harass him.

             The main intention in filing this complaint by the  complainants is to harass the opposite parties and to cause wrong full loss to the opposite party and to get wrong full gain to the complainant.  There is no cause of action for this complainant.   This complaint is not maintainable as the subject matter is pending in Civil Court in O.S.No.93/2016 on the file of the Principal Senior Civil Judge, Nellore and submits for the dismissal of the complaint with costs.

             4.     On behalf of the  complainants, the affidavit of P.W.1 filed and Exs.A1 to A10 marked.

             5.        On behalf of the  opposite parties 1 to 3, the affidavit of R.W.1   filed and Exs.B1 to B3 marked.

             6.         On behalf of the  complainant written arguments filed.

              7.         On behalf of the opposite parties 1 to 3 written arguments filed.

              8.         Perused the written arguments filed on behalf of the both parties.

              9.        Arguments on behalf of the learned counsels for both parties heard.

             10.     Now the points for consideration are:

             (1)      Whether the complaint filed by the complainants under Section-12

                      of Consumer Protection Act, 1986 alleging deficiency of service

                      against the opposite parties 1 to 3 is maintainable?

             (2)      To what relief, the complainants are entitled?

             11.       POINT No.1:The learned counsel  for the complainant submits by relying upon the evidence of P.W.1 and Exs.A1 to A10 that the opposite parties  agreed to construct the house   by demolishing  of the  old house of the complainant for Rs.23,00,000/- within 6 months and the opposite parties 1 to 3  discontinued  the construction of work from 4^th stage   since 17-04-2015 and opposite parties 1 to 3 stopped the construction and the complainants inspite of their requests the opposite parties 1 to 3 to complete the 4^th   and 5^th stages but the opposite parties  1 to 3 failed to complete the  4^th and 5^th stages  and vexed with the attitude of the opposite parties, the complainants approached  a private engineer and he assessed the value of the construction portion  at Rs.11,25,000/- and as the opposite parties 1 to 3 failed to proceed with the  construction of 4^th  and 5^th stages, the complainants filed this complaint against the opposite parties 1 to 3  to direct the opposite parties 1 to 3 for payment ofRs.3,00,000/- with interest  @ 24% p.a. and to  order damages of Rs.2,00,000/- and with costs and submits  to allow the complaint with costs.

              On the other hand the learned counsel for  the   opposite parties 1 to 3 submits the opposite parties 1 to 3 proceeded  with the construction as per the agreement and  the construction was stopped  due to non co-operation of the complainants and the opposite parties filed O.S.No.93/2016 on the file of Principal Senior Civil Judge Court, Nellore for the recovery  of  Rs.7,10,050/-  and the said suit   was posted  for recovery and after receiving of summons from the  Principal Senior Civil Judge Court, Nellore in O.S.No.93/2016, the complainants filed this complaint with false  averments  and  in view of the above said facts, he submits  that the  complaint filed by the complainants against  the opposite parties 1 and 2 is not maintainable and submits for the dismissal of the complaint with costs.

           In view of the arguments  submitted by learned counsels for both parties and as seen from the facts of the case, there is no dispute  about the   agreement between the complainant and opposite parties and as per the agreement   some portion of the house was constructed and as per the contention of the   complainants, the opposite parties have to proceed  with  stage 4 and 5 of the house and as the opposite parties failed to proceed with the construction of 4^th and 5^th  stages and hence  the  complainant filed this complaint against  the opposite parties directing   the opposite parties for payment ofRs.3,00,000/- with interest @                 24% p.a. and Rs.2,00,000/- towards the  damages  for causing mental agony from 02-04-2016.

           On the other hand the contention  of the opposite parties is that due to the non-cooperation of the complainants themselves, the opposite parties could not proceed with and the opposite parties are liable to pay a sum of Rs.7,10,050/- and to recover the said amount, the opposite parties filed O.S.No.93/2016 on the file of Principal Senior Civil Judge court, Nellore.  It is an admitted  fact that the contents of Ex.B3 shows that the opposite parties 1  and 2 filed  O.S.No.93/2016   on the file of Principal Senior Civil Judge Court, Nellore against the  complainants for  the recovery of Rs.7,10,050/- which is shown in ‘C’ schedule of the plaint copy.  In O.S.No.93/2016  on the file of Principal Senior Civil Judge Court, Nellore.  In view of the above    said facts  as   a detailed enquiry has to be  conducted about the  amounts claimed by the both parties  and as there is no sufficient evidence  on record, whether the contention of the complainant has to be accepted unless a detailed  enquiry was conducted.

In      Synco Industries Vs. State Bank of Bikaner, Jaipur and others reported in  2002 (2) SCC 1 = 2002 CTJ 169 (SC) (CP)

 

Wherein the  Hon’ble Apex  Court  Held as follows that:    “Given   the nature  of the claim in the complaint and the prayer for damages in the sum of Rupees fifteen crores and for an additional sum of  Rupees sixty lakhs for covering the cost of travelling and other expenses incurred by the appellant, it is obvious that very detailed  evidence would have to be  led, both to prove the claim and thereafter to prove the damages and expenses.  It is therefore, in any event, not an appropriate case to be heard and disposed of in a  summary fashion.  The National Commission was right in giving to the appellant liberty to move the civil court.  This is  an appropriate claim for a civil court to decide and obviously was not  filed  before a civil court to start with because, before the consumer forum, any figure in damages can be claimed without having to pay the court fees.  This is an abuse of the process of the consumer forum”.

In Jai Singh Vs. LIC of  India reported in 2008 CTJ 338 (CP)

Wherein he Hon’ble National Commission  held as follows:   The National Commission relegated the matters to civil court on the ground that the matter involved complex  and complicated questions of law   or fact in number of cases following  synco industries.

In    Nepal Limited Vs.  Madhya Pradesh  Electricity Board reported in  2003 CPJ  138 (NC) and  2003 CTJ 209 (NC)

Wherein the Hon’ble  National commission held as follows:  National commission observed that on the face of the complaint if it showed that   on great deal of evidence both oral and documentary  would  be required for the complainant to prove its case and the claim  would even otherwise   show that  on complicated questions of facts of  law  had would arise, which is not  possible for the  National Commission to decide  in its summary jurisdiction, the parties have to be relegated to Civil Court.

In     Safe Home Developers and Contractors Vs.  Samatha Sahakari  Bank Limited  reported in 2012  (4) CPJ 729 (NC) and

In    M.L. Joseph Vs. State Bank of India  reported in II (1992) CPJ 446.

Wherein the National Commission held that “the petitioner was,  however, at liberty  to seek his relief from the  Civil Court either in the proceedings   that was already  pending  before the  Sub Court or  in other independent   proceedings  as mentioned   and open to him in law.”

              By relying upon the above decisions  as questions were involved to assess the damages to the complainants  in this case and in view of the filing of O.S.No.93/2016  by the opposite  parties 1 and 2  against the  complainants which is pending before the  Principal Senior Civil Judge Court, Ongole.  We are of the opinion that the complainants   can file their  counter claim in O.S.No.93/2016  on the file of Senior Civil Judge Court, Nellore.  The complainants without filing any counter claim in O.S.No.93/2016 filed this complaint claiming a sum of  Rs.3,00,000/- with interest   and   Rs.2,00,000/-   as damages before this Forum.  As a detailed enquiry is  necessary to answer the  claim of the complainants and opposite parties 1 and 2, we are of the opinion that the complaint filed by the complainants before this Forum is liable to return for approaching  civil court.

              By relying upon the above decisions  and facts  of the case, we  answer this point accordingly.

              12.        POINT No.2:In view of our answering   on point No.1 against the complainant, we are of the opinion that the complaint filed by the complainants against the opposite parties 1 to 3 before the Forum is not maintainable and the complaint is returned to the complainants to represent the same before the proper court.

                In the result, the complaint is  returned to the complainants to represent the same before the proper Civil Court / Tribunal / or any  Authority  for necessary reliefs.  With this observation, the complaint is returned to the complainants but in the circumstances no costs.

          Dictated to Stenographer, transcribed by her corrected  and pronounced by us in the open  Forum, this the   9^th   day of  NOVEMBER, 2017.

           Sd/-                                                                                       Sd/-

      MEMBER                                                                            PRESIDENT

 

                                       APPENDIX OF EVIDENCE

 

Witnesses Examined for the complainants

 

P.W.1  -

02-09-2016

Sri M. Madhusudhan Rao, S/o.Chandran, Nellore-4 (Chief affidavit filed).

 

Witnesses Examined for the opposite parties

 

R.W.1  -

23-11-2016

Sri M.A. Tarique,  S/o.M.A.Rafeeque, RSB Constructions, Nellore-4 (Chief affidavit filed).

 

                           EXHIBITS MARKED FOR THE COMPLAINANTS

 

Ex.A1  -	-	Building Construction L.S.Agreement between complainants and opposite parties 1 and 2 alongwith  details of specifications for the construction  of building.
Ex.A2  -	09-02-2016	Abstract-cum-Details Estimate given by B.N.Raju, Charted Engineer, Licensed civil & Structural Engineer, Municipal Corporation, Nellore.
Ex.A3  -	-	Three photographs.
Ex.A4  -	-	One C.D.
Ex.A5  -	-	Building photo.
Ex.A6  -	-	Mode of Payments & Work Stages.
Ex.A7  -	-	Cash receipt.
Ex.A8  -	-	Photostat copy of  Bank details.
Ex.A9  -	-	Photostat copy of Estimation given by opposite party No.2.
Ex.A10  -	07-03-2016	Legal notice from complainant’s advocate to the opposite parties alongwith postal acknowledgements and receipts.

 

                         EXHIBITS MARKED FOR THE OPPOSITE PARTIES

 

Ex.B1  -	14-01-2016	Reply from opposite parties advocate to Dr.Veerumalli Ram  Babu, S/o.Rosaiah, Nellore District.
Ex.B2  -	20-01-2016	Reply from opposite parties advocate to Dr.Veerumalli Ram  Babu, S/o.Rosaiah, Nellore District.
Ex.B3  -	-	Photostat cop of  Plaint  filed under Section-26, Order-7, Rule-1 of the Civil  Procedure Code before Senior Civil Judge, Nellore in O.S.No.93/2016

 

                                                                                                          Id/-

                                                                                                      PRESIDENT

Copies to:

 

1.	Sri  M. Subrahmanyam and Sri M.V.S. Ajay Kumar, Advocates, Dargamitta, Nellore-3.
2.	Sri  P.V. Ramana Reddy and Sri  P. Sreenivasula Reddy, Advocates, Kasthuridevi Nagar, Nellore-1.

 

Date when free copy was issued: