BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM<br /> VAZHUTHACAUD, THIRUVANANTHAPURAM.<br /> PRESENT<br /> SRI. G. SIVAPRASAD : PRESIDENT<br /> SMT. BEENAKUMARI. A : MEMBER<br /> SMT. S.K.SREELA : MEMBER<br /> O.P.No. 300/2005 Filed on 22.08.2005<br /> Dated : 30.10.2008<br /> Complainant:<br /> <br /> R. Raveendran Pillai, Veda Nilayam, Kollodu P.O, Anthiyoorkonam, Malayinkeezhu.<br /> <br /> Opposite party:<br /> <br /> Ambikesh for Manasa Homes, Centre for Building Construction and Consultation, Madhavan Nair Shopping Complex, Main Road, Balaramapuram – 1. <br /> <br /> (By adv. S.R. Ajayan)<br /> This O.P having been heard on 19.09.2008, the Forum on 30.10.2008 delivered the following:<br /> ORDER <br /> SRI. G. SIVAPRASAD: PRESIDENT<br /> <br /> The facts leading to the filing of the complaint are that complainant had entered into a contract with opposite party and his friend Pradeep on 20.04.2005 for construction of an extension (drawing cum dining room) to the existing building at the rate of Rs. 500 per sq. ft. Opposite party started the extension work on 01.05.2005. Opposite party agreed to complete the said work before the rainy season. 70% of work was not completed by the opposite party till date. Meanwhile opposite party issued a bill to the complainant claiming construction cost of Rs. 215000/- for 430 sq. ft. Casting doubt over the said bill complainant engaged another engineer to measure and assess the cost of extension. The said engineer reported that the extended portion would cost Rs. 117000/-. But opposite party received Rs. 150000/- in 4 instalments, while Rs. 122000/- was included in the bill. Thereafter opposite party threatened the complainant and demanded Rs. 50000/- from him, otherwise the opposite party would stop the construction work. Hence this complaint claiming repayment of excess amount collected from the complainant by the opposite party and compensation. <br /> <br /> Opposite party entered appearance and filed version contending that complaint is not maintainable either in law or on facts. The complaint is barred by the principles of estoppel, acquiescence and waiver. Complainant is not a consumer. Complainant claims relief in connection with a contract for the construction of extension to the existing building. Complainant claims breach of the said contract by the opposite party. The only remedy available to the complainant is to resort to Civil Court. Opposite party gave an estimate of proposed construction to the complainant on 20.04.2005. It was for the construction of a total area of 622 sq. ft. at the rate of Rs. 500/- per sq. ft. But the original schedule of the construction was revised by the complainant and accordingly the final estimate and schedule which was submitted on 25.04.2005 was accepted by the complainant. As per the contract the work was agreed to be completed within 3 months and the work was commenced on 01.05.2005. While the work was progressing, the complainant added some more works like sit out, staircase etc. which has disturbed the progress of the work. By 21.07.2005 opposite party has completed the work more than 85% and issued a part bill. The balance work to be completed is only for an amount of Rs. 20123/-. Complainant was not at all prompt in paying the amount for the works already completed. Since complainant was trying to avoid the payment, opposite party was forced to stop the work. Complainant was all along trying to find out some false allegations only to avoid the payment. All works were done according to the strict specifications of the complainant. The engineer alleged to have verified the work is a close associate of the complainant and opposite party is not made aware of any such verification and measurements. The work assessment produced by the complainant is without any basis and data of the work actually done. It is admitted that a total amount of Rs. 150000/- has been so far paid by the complainant. It was the complainant who changed his attitude towards the opposite party. Opposite party never threatened the complainant on 28.07.2005 or any other date. The allegations in the complaint are utter false. Complainant has no cause of action to file such a complaint. Opposite party is entitled for realizing the amount from the complainant that is due towards the cost of work that has already been done as per the rate in the accepted contract. Hence opposite party prayed for dismissal of the complaint with costs. <br /> <br /> The points that would arise for consideration are:-<br /> (i)Whether there has been deficiency in construction works on the part of opposite party?<br /> (ii)Reliefs and costs. <br /> <br /> To support the contention in the complaint, complainant has filed an affidavit of himself as PW1 in lieu of examination in chief and marked Exts. P1 to P4. To support the contention in the version opposite party has filed an affidavit of himself in lieu of examination in chief and marked Exts.D1 to D3 and commissioner has been examined as CW1 and marked Ext. C1. <br /> <br /> Points (i) & (ii):- It has been the case of the complainant that complainant had entered into a contract with opposite party and his friend Pradeep on 20.04.2005 for the construction of an extension (drawing cum dining room) to the existing building at the rate of Rs. 500 per sq. ft. and that the extension work was started on 01.05.2005 and that opposite party had agreed to complete the said work before the rainy season, but 70% of the work was not completed till date by the opposite party. It has been contended by the complainant that opposite party had issued a bill dated 21.07.2005 for Rs. 215000/- towards the construction cost of 430 sq. ft. and complainant cast doubt over the said bill and measured the constructed area by another Engineer who found the area of construction as 390 sq. ft and cost as Rs. 195000/- but 40% o the said work remains to be completed. It has also been contended by the complainant that though the Engineer who measured the construction had advised to give Rs. 117000/- towards the cost of constructed portion, opposite party had received Rs. 150000/- but only Rs. 122000/- has been included in the bill and that on 28.07.2005 opposite party demanded an amount of Rs. 50000/- from the complainant and threatened him if not paid the said amount, opposite party would stop the works. Ext. P1 is the copy of the approved plan. Ext. P2 is the copy of the estimate. Ext. P3 is the copy of the bill dated 21.07.2005, showing the area calculation and payment status. Ext. P4 is the work assessment prepared by one Sahadeva Panicker on 12.08.2005 which has been marked subject to objection by opposite party. In his cross examination complainant has admitted that Ext. P2 estimate was for 622 sq. ft and that work was done not in accordance with Ext. P2, but in accordance with the estimate of 430 sq. ft. Ext. P2 and D1 are one and the same document in which both complainant and opposite party have never signed. Ext. P3 and Ext. D3 are one and the same, in which opposite party has signed. As per Ext. P3 the total area of calculation is 430 sq. ft which includes Hall-262 sq. ft, sit out 40 sq. ft, staircase 40 sq. ft and tower 88 sq. ft and payment status includes total construction cost of Rs. 215000/-, amount paid of Rs. 122000 and balance of Rs. 93000/-. It is pertinent to point out that complainant has not produced the contract and its terms and conditions and not alleged any defect in the construction in the complaint. Even in the complaint, complainant has not mentioned the total area of construction(extension). In the cross examination, complainant has admitted the area of construction (extension) as 430 sq. ft. Regarding the rate per sq. ft, there is no dispute. The crux of the argument advanced by the complainant is that the opposite party had received excess amount while 40% of the work yet to be completed. The initial burden to establish the case is upon person who makes the allegation. Here complainant did not file commission application to assess the construction work, while opposite party filed commission application which was allowed and commission report has been marked as Ext. C1, against which complainant filed objection and expert commission has been cross examined by the complainant. As per Ext. C1 report, the construction area is 463 sq. ft. Commissioner reported that the opposite party had claimed for an area of 430 sq. ft as per the terms and conditions of the agreement dated 25.04.2005(Ext. D2). It is pertinent to note that in Ext.D2 opposite party alone has signed. To form a contract meeting of minds is a must. In Ext. D2, complainant has not signed, thereby Ext. D2 cannot be called as an agreement. Commission prepared report on the basis of Ext. D2 which never bears the signature of both parties. Moreover complainant has challenged the C1 report also. Commissioner in his cross examination has admitted that the opposite party was his school mate, and inspection was done without servicing notice to the parties, but complainant was present at the time of inspection. In his cross examination also opposite party has admitted that commissioner was his school mate and further deposed that 20% of the work remains to be completed. While in Ext. C1 it is reported that more than 90% of the work are completed. Then there is discrepancy in the statements of opposite party and commissioner. In this case both parties agreed on one point regarding the cost per sq. ft, but regarding the area of construction, nature of construction, quality of construction etc. no document is seen executed by both parties. In the absence of specific contract and its terms and conditions and specific plea in the complaint, we are of the considered opinion that complaint itself is vague and complainant has failed to plead and prove his case which deserves to be dismissed. <br /> <br /> <br /> In the result, complaint is dismissed. <br /> <br /> A copy of this order as per the statutory requirements be forwarded to the parties free of charge and thereafter the file be consigned to the record room.<br /> <br /> Dictated to the Confidential Assistant, transcribed by her, corrected by me and pronounced in the Open Forum, this the day of 30th October 2008.<br /> <br /> G. SIVAPRASAD,<br /> President.<br /> <br /> BEENAKUMARI. A : MEMBER<br /> <br /> <br /> S.K. SREELA : MEMBER <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> O.P. No. 300/2005<br /> APPENDIX<br /> I COMPLAINANT'S WITNESS : <br /> PW1 - Raveendran Pillai<br /> II COMPLAINANT'S DOCUMENTS :<br /> P1 - Photocopy of plan and application for extension. <br /> P2 - Copy of estimate.<br /> P3 - Photocopy of letter dated 21.07.2005 issued to the <br /> complainant by the opposite party. <br /> <br /> P4 - Photocopy of report on assessment of work issued by Retd. <br /> Chief Engineer. <br /> III OPPOSITE PARTY'S WITNESS :<br /> DW1 - G. Ambikesh <br /> IV OPPOSITE PARTY'S DOCUMENTS :<br /> D1 - Copy of estimate.<br /> D2 - Copy of revised estimate.<br /> D3 - Copy of letter dated 21.07.2005 issued to the complainant by the opposite party. <br /> V COURT EXHIBIT:<br /> CW1 - Arunkumar <br /> C1 - Commission Report. <br /> <br /> <br /> PRESIDENT<br /> <br />