By Sri. A.S. Subhagan, Member:

            This is a complaint preferred under section 35 of the Consumer Protection Act 2019.

2. Facts of the complaint in brief:- The Complainant is a consumer of Opposite Party, who offered the construction of house as per the agreement executed between the Complainant and Opposite Party.  The Opposite Party approached the Complainant and represented that he is a well experienced and licensed contractor and has successfully completed several houses in Calicut and Wayanad Districts. The Opposite Party has also shown videos and photos of his construction and made believe that the Opposite Party is well experienced and trustworthy. Thereafter, the Complainant and Opposite Party had entered into an agreement regarding the construction of house on 05-10-2020. The terms in the agreement are that the Opposite Party has to construct the house as per plan with a wall rob, ceiling, kitchen cupboard , work area grills, water tank, wood polish and concrete in 70 cm width around the house. Total cost of construction is Rs.21,30,000/- and the construction should complete within 8 months from the date of the agreement. In the initial stage, the Opposite Party was very vigilant in the work, and later the Complainant realized that Opposite Party's workers were not having sufficient skills and experience in the construction field and the Complainant had informed the Opposite Party regarding the defects in the construction during each stage, but he offered the rectification with his own expenses and collected huge amount from the Complainant. Altogether the Opposite Party collected Rs.13,00,000/- till 16/02/2021, on the assurance of the speedy completion of work, especially for storing of vitrified tiles. The Opposite Party not stored tiles and protracted the work.  After two months, the Opposite Party approached and demanded more amounts to start the work. The Complainant demanded to rectify the defects and complete the foundation work and plastering. The Opposite Party was not ready to rectify the defects and complete the foundation work and not ready to refund the excess amount obtained from the Complainant and abandoned the house construction. The deliberate default of the Opposite Party, created serious defects in the construction of the house, such as: - 1. Foundation work of the house was not completed; 2.the construction was different from the plan, and 3. Construction of the sunshade of the windows was different from the design, 4. Water was leaking from the roof, 5. Wall on the side of the staircase collapsed, 6. The panels and pipes for wiring and plumping were not inserted properly, 7. Door frame in the backside of the house, drainage pipes etc were not fixed and 8. Construction of the chimney was unscientific. The Complainant had done all the payments in advance and also paid excess amount and the Opposite Party deliberately defaulted contractual obligations under the agreement and behaved in a manner which showed an intention not to perform his obligations under the construction agreement.  The Complainant had caused to send a legal notice to Opposite Party on 29-04-2021 to compensate the loss occurred to the Complainant due to deliberate default on the side of the Opposite Party by not performing the construction agreement. The Opposite Party received the intimation, but refused the notice. On 14-05-2021 the Opposite Party caused a reply notice with admission of mistakes in construction and was ready to complete the construction with the assistance of an engineer. Then a reply was issued by the Opposite Party through his counsel and it was contradictory to the earlier admission in the notice and the counsel tried to his level best to suppress the defects in construction. The above said act on the part of the Opposite Party has caused great loss and damage besides mental tension, trauma, inconvenience and loss of value of money.  The Act of Opposite Party is unfair and due to the illegal action of the Opposite Party the Complainant had loss and damage. The loss of Complainant could not be counted in terms money, Hence this complaint with the following prayers:-

1. To direct the Opposite Party to return the excess amount of Rs.1,00,000/­ obtained from Complainant with 12% interest from 16-02-2021 till realization.
2.  To direct the Opposite Party to cure the defects or pay the cost of the rectification
3. To direct the Opposite Party to pay the amount is for rectification
4. To direct the Opposite Party to pay an amount of Rs.25,000/- as compensation.
5.  To direct the Opposite Party to pay an amount of Rs.10,000/- being the cost of Proceedings
6.  To grant other relief as the Commission may be pleased to grant in the circumstances of the case.

            3.  Upon receiving summons from the Commission, the Opposite Party appeared and filed version.

            4.  Contents of Version:-  It is true that the Complainant and the Opposite Party entered into an agreement for the construction of the residential house of the Complainant on 05/10/2020. Due to Covid-19 situation and the Complainant's wife herself got infected with Covid, the construction was delayed. No delay was caused in the construction due to fault of the Opposite Party. The Opposite Party is a contractor and has constructed a number of buildings in Wayanad, Kozhikode and Malappuram. There were no complaints about the work of the Opposite Party for all these periods and the Complainant had entrusted his work with the Opposite Party after personally verifying the work of the Opposite Party. The Complainant had entrusted the entire work of his residential building to the Opposite Party as mentioned in the contract entered between them. The Complainant is not a consumer in this matter in terms of the Consumer Protection Act. There is a specific contract between the Complainant and the Opposite Party and hence it is governed by the provisions of the Indian Contract Act and Specific Relief Act. Therefore, if the Complainant has any grievances regarding the enforcement of the terms of this contract, the remedy lies elsewhere. It is also noteworthy that the Complainant has not yet terminated the contract between him and Opposite Party and hence cannot be permitted to deviate from the terms of the contract by allowing him to conduct the construction by dishonouring the contract that he already entered. This Hon’ble Commission has no jurisdiction to entertain this dispute to the reasons mentioned above and hence is liable to be dismissed.  It is true that the Opposite Party has undertaken to rectify the defects if any in his own expense that are pointed out by a qualified Engineer.  But the Complainant failed to do so, but was eager to violate the terms of contract by raising unreasonable disputes. Now also this Opposite Party is ready and willing to continue the work. This can also be done under the supervision of the qualified supervisor of the Complainant if he so desires. This Opposite Party is willing to do so since he does not want to tarnish his goodwill due to the misunderstandings of the Complainant.  It is pointed out that the Complainant has failed to point out even a single reasonable reason for getting the relieves he prayed. There are no specific allegations regarding the flaws in the construction in the complaint. The labourers of the Opposite Party had sufficient skills in their work and they are working under the Opposite Party for years. The Opposite Party was obstructed from entering the work site and from continuing the work by the Complainant himself on 19/04/2021 and hence the work was stopped. The allegation that the Opposite Party abandoned the work is false and is concocted for the purpose of this complaint. The Opposite Party has completed 90% of the plastering work and has also carried out certain additional works as orally entrusted by the Complainant. The Complainant has not paid the amount corresponding to the work done by the Opposite Party and the allegation to the contra is false and baseless. The Opposite Party is now also ready and willing to complete the work as per the contract even though the cost of the same is increased that was happened due to fault of the Complainant. The Complainant has continuously defaulted the payments as per the contract that have caused great inconveniences to the Opposite Party. After the execution of the contract on 05/10/2020, the Complainant surprisingly informed the Opposite Party that he has no advance amount shown in the contract with him and requested time for the payment. The advance amount was then paid only on 08/10/2020. Likewise, the payment of Rs.3,00,000/- to be made before the completion of lintel and sunshade was also not made in spite of repeated requests. It was made after numerous requests after the completion of lintel in two instalments of Rs.1,00,000/- on 31/10/2020 and Rs.2,00,000/- on 04/11/2020. The amount to be paid on completion of main slab was also delayed and was finally made after repeated requests on 23/12/2020. Though the Complainant ought to have paid Rs.3,00,000/- towards the work of wiring and plumbing, he has only paid Rs.2,21,000/- The remaining part of Rs.79,000/- is now also due. In the meanwhile, it is admitted that the Complainant has paid Rs.1,29,000/- being the cost for the additional works carried out in the construction site as per the instructions of the Complainant and that too was made after cumbersome requests of the Opposite Party.  It is true that there were some differences of opinion between the Complainant and Opposite Party and that was due to the misbehaviour of the Complainant towards the workers of the Opposite Party. He used to scold them with obscene languages and the labourers repeatedly complained about the rude and unwelcomed behaviour of the Complainant. Hence the Opposite Party requested the Complainant to moderate his behaviour to the workers but that was neglected by him. Though the Opposite Party requested the Complainant to contact the Opposite Party, for any communications or instructions, he neglected it and repeatedly disturbed the workers for the reasons best known to him only. The Opposite Party is not aware of the notice dated 29/04/2021 and hence has not issued any reply for the same. It is true that the Opposite Party has received a lawyer notice dated 24/05/2021 and have replied the same by the notice dated 14/06/2021. The Opposite Party has narrated the actual facts and circumstances in the same and it may be considered and read as a part of the version. Before that the Opposite Party had sent two letters to the Complainant informing the situation and there was no positive response by the Complainant for these letters.

5. It is also submitted that there are valuable stocks of construction material and equipment belonging to the Opposite Party in the work site owned by the Complainant. The same is now also kept unprotected in the work site since the Complainant had forbidden the Opposite Party and his workers from entering the work site. The Opposite Party fears that most of the materials kept there would have lost or perished. The Complainant is bound to compensate these losses sustained to the Opposite Party as it was due to the fault of the Complainant only. The construction materials and tools belonging to the Opposite Party that were remaining in the work site of the Complainant are as follows;

            Construction Materials:

1. M sand for plastering                    :  170 Cubic Feet (approximate)
2. Cement (Sankar)                            : 6 ½ bags.
3. Hollow bricks                                  :  92 in numbers
4. Laterite Stone                                  :  38 in numbers
5. Boulder                                             :  90 feet (approximate).
6. 6mm Jelly                                         : 40 feet (approximate)
7. PVC Pipe for wiring                       :  22 lengths
8.  Metal Box for wiring                    : 6 in number

Construction Tools and Accessories:

1. Wooden Runner                             :  22 in numbers
2. Wooden poles                                 : 32 in numbers
3. Wooden planks                              : 2 pickup loads (100 cft)
4. Centring sheets.                              :  12 in numbers
5. Concrete mixing sheet                  :  1 in number
6. Plastic barrel 200 ltr                      :  1 in number
7. Tarpaulin sheets                             :  2 in numbers.

6. Subsequently upon motion by the Opposite Party, the Hon’ble Commission was pleased to issue an advocate commission who took possession of most of these things and which were handed over to the Opposite Party. The Opposite Party was not able to recover these things only due to the resistance of the Complainant. In fact, the Complainant is bound to compensate the Opposite Party for causing loss to him by keeping the above things in his unauthorized custody for all these times that also for having caused substantial damage to it.  The Opposite Party is ready to perform his part of the contract always. The Complainant ought to facilitate the Opposite Party to carry out the work. The Opposite Party is even ready to complete the work under the supervision of the Hon’ble Commission as per contract entered between them. If the Opposite Party is not permitted to complete the work enabling him to get the remuneration as per the contract, he will be put to irrecoverable loss and hardships. It is pointed out that the Opposite Party had almost completed the work and have not received corresponding payments. It is submitted that the payments stipulated as per the contract was not corresponding to the works carried out as it was a full-material contract. The work remaining is approximately worth Rs.6,00,000/-. But the amount to be paid as per the contract is much higher than that. This is because the payments were not stipulated in the contract in correspondence to volume of work done. If he is ousted from the work at this stage, the Opposite Party would not get the corresponding consideration including his remuneration. The Complainant is well aware of this situation and if he is managed to oust the Opposite Party from the work at this stage, he can bag the amount due to the Opposite Party as above as per the contract. This will amount to unjust enrichment to the Complainant and that exactly is the intention of the Complainant. The Complainant is raising baseless, concocted, frivolous and unspecific allegations with this ulterior motive.  Hence it is prayed to dismiss the complaint and to direct the Complainant to honor the contract entered into between the Complainant and the Opposite Party.

7.  Ext.A1 to A5, C1, C2 series and C3 series were marked from the side of the Complainant.  No affidavits were filed from the parties; No oral evidences from the parties and no hearing were there from both the parties.

8.  The only available records for deciding the complaint are the complaint, version and Ext.A1 to A5, C1, C2 series and C3 series.  Ext.A1 is the agreement executed between the Complainant and the Opposite Party; Ext.A2 is the receipt of payment received by the Opposite Party from the Complainant; Ext.A3 is the returned Advocate’s notice issued to the Opposite Party by the Complainant; Ext.A4 is the Letter issued by the Opposite Party to the Complainant on 14.05.2021; Ext.A5 is the reply notice issued by the Advocate for the Opposite Party dated 18.06.2021 to the Complainant;  Ext.C1 is the Expert Commission Report submitted on 19.11.2021 by the Assistant Executive Engineer, PWD, Buildings sub-division, Wayanad; Ext.C2 series is the Advocate’s Commission Report and Ext.C3 is the Advocate and Expert Commission Report.

9.  On the basis of the scrutiny of the complaint, version and the documents marked as Ext.A1 to A5, Ext.C1, Ext.C2 series and Ext.C3 series, we raised the following points for consideration.

1. Whether there has been any deficiency in service/unfair trade practice from the part of the Opposite Party?
2. If so, relief and cost..?

10.  The allegation of the Complainant is that he had entered into an agreement with the Opposite Party for the construction of a house but the Opposite Party conducted (1) partial construction of the building (2) collected excess amount from the Complainant (3) the construction works had many defects (4) he abandoned the work without completion etc.  But the contentions of the Opposite Party are that (1) There was a contract for the construction of a house for the Complainant (2) The delay in completion of construction was due to the Covid Pandemic situation (3)  the Complainant has not terminated the contract and hence the Complainant shall not be allowed to conduct the work by dishonoring the contract (4) He is willing to rectify, if there is any, defect with his own expenses (5) the Complainant is trying to violate the terms of the contract by raising unreasonable disputes (6) the Complainant had obstructed the Opposite Party from entering the work site (7) He has not abandoned the work (8) the Complainant has not paid =proportionate to the work done and raised many other related contentions.  The Ext.C3 series of final Commission report contains Advocate’s Commission report and Expert Commission Report.  In the first part of the Ext.C3 report, the Advocate Commissioner has stated that “it is noticed that the construction of house building is completed including normal painting and the Complainant along with his family is residing in the said house”.  The Advocate Commissioner has also stated in the report that “the findings and the report prepared by the Engineer may be considered as the part and parcel of the report”.  On going through the second part of the Ext.C3 Commission Report it is seen that the Expert Commissioner has pointed out the measurements of work done in serial number 1 to 17 of the report. In serial number 18, it is reported that “\nÀ½mW¯n\v D]tbmKn¨ saäocnbepIÄ ]cntim[\bv¡v hnt[bam¡Wsa¦n PWD IzmfnänhnwKpambn _Ôs¸tS­XmWv”.   And in Serial No.19, it is reported that “PWD Buildings Supervision sN¿m¯ \nÀ½mWw BbXn\m ]dbphm³ IgnbpIbnÃ.  {]kvXpX {]hr¯nbpsS ta t\m«w PWD AÃm¯ ]£w IrXyamb AfhpIfpw hnhc§fpw Adnbm³ km[n¡pIbnÃ.  {]hr¯nbn FSp¡m³ km[n¡p¶ AfhpIfpsS hnhc§Ä apIfn {]Xn]mZn¨n«p­v”. Considering the Ext.C3 series of report, it is seen that the Complainant or the Opposite Party has not taken any steps for assessing the quantum of work completed in terms of money.  The Complainant and Opposite Party have neither filed affidavits nor adduced oral evidences.  Nobody has examined as witness for adducing evidence to corroborate the allegations and contentions of the Complainant and the Opposite Party respectively.  Moreover, in Ext.C3 series report the Advocate Commissioner has reported that the construction of the house up to the stage of painting is completed and the Complainant with his family is residing in the house.  Considering the report of the Advocates Commission and the Expert Commission and due to the lack of other reliable evidences and as the Complainant and the Opposite Party have not taken any steps to continue the issue we are of the view that the subject matter has now become infructuous in the existing situation and hence the complaint is liable to be dismissed.

In the result, the complaint is dismissed without cost.

Dictated to the Confidential Assistant, transcribed by him and corrected by me and pronounced in the Open Commission on this the 30^th day of June 2023.

Date of Filing:-30.06.2021.

PRESIDENT   :Sd/-

MEMBER       :Sd/-

MEMBER       :Sd/-

APPENDIX.

Witness for the Complainant:-

PW1.              Aneesh. O K.                                                            Agriculture.

Witness for the Opposite Party:-

                        Nil.

Exhibits for the Complainant:

A1.                  Agreement.                                                              Dt:05.10.2020.

A2.                  Copy of details of Receipts of money by Opposite Party.

(Agreement’s second page).

A3.                  Returned Registered Notice.

A4.                  Reply Notice.                                                           Dt:14.05.2021.

A5.                  Reply Notice.                                                           Dt:18.06.2021.

C1.                  Commissioner Report.                                          Dt:19.11.2021.

C2(Series).    Commissioner Report (19 pages).                     Dt:07.03.2022.

C3 (Series).   Commissioner Report (8 pages).                       Dt:19.12.2022

Exhibits for the Opposite Party:-

Nil.                 

PRESIDENT   :Sd/-

MEMBER       :Sd/-

MEMBER       :Sd/-

/True Copy/

                                                                                                    Sd/-

                                                                                             ASSISTANT REGISTRAR

                                                                                                  CDRC, WAYANAD.

Kv/-