O R D E R
By Smt. Sreeja S. Member:
The complainant entered into agreement dtd. 11/02/13 with the opposite parties to construct a house building having 2065.5 sq.ft. (within 12 months @ 1750 per sq.ft.) at his plot at Poomangalam An advance of Rs.10,00,000/- (Rupees Ten lakh only) paid out of the total consideration of Rs.35,80,000/- (Rupees Thirty five lakhs eighty thousand only). The work has been done as per the recitals in the agreement. All the payment were made to the opposite party as per the schedule in the agreement. On 17/12/14 another agreement also entered into between the parties to do the interior works of the house building. The work has not been completed as per the agreement by the opposite parties and an excess amount of Rs.1,00,000/- (Rupees One lakh only) were paid to them. The consideration of subsequent agreement was for Rs.17,80,000/- (Rupees Seventeen lakhs eighty thousand only) and same was already paid in different dates. The opposite parties completed works worth Rs.25,00,000/- alone as per the prior agreement and without doing work for Rs.10,00,000/- they stopped the work eventhough they received the money. Hence complainant is entitled to get back Rs.10,00,000/- from the opposite parties. As per the agreement dtd.17/12/14 they carried out work for Rs.3,50,000/- alone and the complainant is entitled to get back the same. Stoppage of construction amounts to deficiency in service and the act of opposite parties caused huge mental agony and loss to the complainant. All the requests to complete the work were defeated by the opposite parties. Hence this complaint.
2) On receiving complaint notice was properly issued to the opposite parties. The counsel for the opposite parties appeared before the Commission and filed version. The version of the opposite parties is as follows : A construction agreement was entered into on 11/02/2015 between the complainant and the opposite parties. The opposite parties offered to do the construction work in respect of the residential house of the complainant for an amount of Rs.1,750/- per sq.ft. The total square feet was 2062. An amount of Rs.10 lakhs was received in advance. The above agreement relates to the specification of the civil work and the payment schedule. The opposite parties had finished the civil work of the respective building. On the anvil of the civil work being completed, on 17/12/2014 a separate agreement was executed for interiors of the building. The complainant did not honour his obligations under the above agreements and he consciously defaulted in payment due to the opposite parties. In spite of persistent reminders of the opposite parties, the complainant was not willing to settle their dues. Therefore, an e-mail was sent to the complainant incorporating the total amount received and the amount relating to the additional works done against civil and interior works. Along with the above e-mail the complainant was issued with a split up payment schedule regarding the interior works and the additional works done for the interior works. He was also issued with the additional payment request about the civil works done at his instance by the opposite parties. The complaint is liable to be dismissed with exemplary costs on this ground alone. The opposite parties have not accepted an amount of Rs.10 lakhs. The opposite parties were clear and perfect in the matter of discharging their duties under the agreement dtd.11/02/2013. As a matter of fact, further amounts were due to these opposite parties. The complainant was fully satisfied with the works done by these opposite parties. The complainant has not pleaded as to what are the works which have not been executed by the opposite parties. The opposite parties have done the civil works entrusted to them as also additional civil works and an amount of Rs.4,09,662/- is due from the complainant to these opposite parties. As against the additional work regarding interiors, an amount of Rs.1,50,800/- is due to these opposite parties. the pleading that the opposite parties have done only civil works to the tune of Rs.25 lakhs and interiors to the tune of Rs.3.5 lakhs is absolutely untrue and hence denied. The breach of contract actually occurred as a result of the acts of the complainant himself and not on account of any acts of the opposite parties. The complainant wanted the opposite parties to relinquish their claim for dues, for which the opposite parties were not amenable. Anticipating that the opposite parties may institute a civil litigation for recovery of the amounts due to him, the complainant approached the Hon’ble Court. The complainant has not even caused to issue a lawyers notice. The prayer sought for in the complaint are not allowable and so prayed for a dismissal.
3) Points for consideration are ?
a) Whether there is any deficiency in service on the part of opposite
parties or not ?
b) Reliefs and costs ?
4) The counsel for complainant appeared before this Commission and filed proof affidavit in which he has affirmed and explained all the averments stated in the complaint in detail. The produced document was marked as Ext. P1 to P5. Ext. P1 is the copy of Construction Agreement dtd.17/12/14 between the complainant and opposite parties; Ext. P2 is the Original of Interior Agreement dtd.06/12/14 between the complainant and opposite parties; Ext. P3 is the Photograph of the house; Ext. P4 series are the Receipts (12 Nos.) issued by the opposite parties and Ext. P5 is the Credit invoices (15 Nos.) for the materials purchased for house construction. One witness was examined as PW1. An Expert Commissioner was appointed and his report was marked as C1. From the side of opposite parties also filed counter proof affidavit in tune with version. The document produced was marked as Exts. R1 to R3. Ext. R1 is the print out of e-mail communication dtd.10/03/15 by the opposite parties; Ext. R2 is the list of interior works dtd.28/02/15 in respect of the building of the complainant and Ext. R3 is the list of additional civil works in respect of the building of the complainant. One witness was examined as RW1.
5) Points :
1) The case of the complainant is that he entered into an agreement with opposite party to construct a house building. Ext. P1 proves the same. Thereafter subsequent agreement was entered into carry out the interior work. Existence of the agreement is admitted by the opposite parties. Ext. P1 shows a total amount of the work as Rs.35,98,000/- as shown under payment schedule. Ext. P2 shows a total work of Rs.17,80,000/-. Therefore total amount of the agreement was Rs.53,78,000/-.
2) It is the case of the complainant that total work has not been completed and opposite party received Rs.47,50,000/- (Rupees Forty seven lakh fifty thousand only). Commissioner has been appointed to report about the work. Opposite parties’ defend the case relying on Ext. R1 which shows a balance amount of Rs. 6,89,000/- but he has not accounted an amount of Rs.50,000/- as proved by Ext. P2 series. It is worth to note that the special nature of this case warrants discharge of burden on the opposite party as regards the work completed by him for the amount received, that is, Rs.47,50,000/-. No evidence brought on record to substantiate his case. An amount of Rs.35,98,000/- is already received that cast a duty and responsibility on opposite party to complete the Ext. P1 agreement as because the interior work can be done only after the completion of house building as such. Now Ext. C1 report categorically proves that the work was half way abandoned and an amount of Rs.8,50,000/- is needed to complete the work as on 10/08/15. Now the remaining amount of Rs.11,52,000/- has been received by the opposite party and am amount of work Rs.6.25 lakhs is remaining to be done. Considering the same the calculation shows an amount of Rs.6.28,000/- is the balance amount. Since the work has been completed somehow near the amount to satisfy the interior work done, we are of the view that the opposite parties bound to repay an amount of Rs.8,50,000/- with interest which has been received by them. Considering the above discussion we are of view that the complainant established cogent case before this Commission.
3) Eventhough total amount as per Ext. P1 received by opposite parties, they did not complete the work causing loss and mental agony to the complainant and same need to be compensated by the opposite party. Evidence tendered by the complainant proves the loss and mental agony and we value it for an amount of Rs.3,50,000/-.
In the result complaint allowed and opposite parties are jointly and severally directed to pay Rs.8,50,000/- (Rupees Eight lakh fifty thousand only) to the complainant with 9% interest from 16/01/15 till realization. Opposite parties are further directed to pay Rs.3,50,000/- (Rupees Three lakh fifty thousand only) as compensation and Rs.10,000/- (Rupees Ten thousand only) as cost to the complainant.
Dictated to the Confidential Assistant, transcribed by her, corrected by me and pronounced in the open Commission this the 30th day of May 2022.
Sd/- Sd/- Sd/-
Sreeja S Ram Mohan R C.T. Sabu
Member Member President
Appendix
Complainant’s Exhibits :
Ext. P1 copy of Construction Agreement dtd.17/12/14
Ext. P2 Original of Interior Agreement dtd.06/12/14
Ext. P3 Photograph of the house
Ext. P4 series Receipts (12 Nos.)
Ext. P5 Credit invoices (15 Nos.)
Complainant’s Witnesses :
PW1 Seby Jacob
Ext. C1 Expert Commissioner’s Report
Opposite Parties’ Exhibits :
Ext. R1 print out of e-mail communication dtd.10/03/15
Ext. R2 list of interior works dtd.28/02/15
Ext. R3 list of additional civil works in respect of the building
Opposite Parties’ Witnesses :
RW1 Padmakumar
Id/-
Member
