Date of Filing      08.05.2023

                                                                                                             Date of Disposal: 28.02.2024

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION

THIRUVALLUR

BEFORE TMT. Dr.S.M. LATHA MAHESWARI, MA. ML, Ph.D (Law),                                          …….PRESIDENT

               THIRU.P.VINODH KUMAR, B.Sc., BL.,                                                                                ……MEMBER-I

               THIRU.P.MURUGAN, M.Com., ICWA (Inter)., BL.,                                                        …….MEMBER-II

CC.No.37/2023

THIS WEDNESDAY, THE 28^th DAY OF FEBRUARY 2024

Mr.S.Prakash, S/o.Subramanian,

No.4/19, E-Type,

40^th Street, SIDCO Nagar,

Villivakkam, Chennai 600 049.                                                               ......Complainant.

                                                                              //Vs//

1.EKI Engineering & Construction Pvt., Ltd.,

   Rep. by its Director A.Kirubhanadhan,

   No.285, Royal Home III,

   Kattuvarayankuruchi B-Mutlur,

   Chidambaram, Cuddalore 608 501.

2.The Royal Group of Company,

    Rep. by its Director A.Kirubhanandan,

    No.750, C.K.Nagar, Hosa Road,

    Electronics city, Bengaluru 560 100.

3.Mr.Elumalai,

   Director of EKI Engineering & Construction Pvt., Ltd.,

   No.285, Royal Home III,

   Kattuvarayankuruchi B-Mutlur,

   Chidambaram, Cuddalore 608 501.

4.Mr.Kirubhanandhan,

    Director of EKI Engineering & Construction Pvt., Ltd.,

   No.285, Royal Home III,

   Kattuvarayankuruchi B-Mutlur,

   Chidambaram, Cuddalore 608 501.

   Also residing at No.A206,

   Adithya Garden Apartment,

   Lavakusha Nagar, 4^th Cross,

   Hosa Road, Beratana Agrahara,

   Electronics City, Bengaluru 560 100.

5.Er.S.Dhileep –Project Engineer,

    No.1/210, Kannikovil Street,

    Arasur, Erukur 609 108.                                                                   ….opposite parties.

Counsel for the complainant                       : M/s.G.Amulraj, Advocate.

Counsel for the ops 1, 2 &4                         :  M/s.R.Rajesh Vivekananthan Advocate.

Counsel for the ops 3 & 5                            : Exparte.

This complaint coming before us on various dates and finally on 12.02.2024 in the presence of M/s.G.Amulraj, counsel for the complainant and M/s.R.Rajesh Vivekananthan, counsel for the opposite parties 1, 2 & 4 and 3^rd and 5^th opposite parties were set exparte and upon perusing the documents and evidences of both sides this Commission delivered the following:

ORDER

PRONOUNCED BY TMT.Dr.S.M. LATHA MAHESWARI, PRESIDENT

1. This complaint has been filed by the complainant u/s 35 of the Consumer Protection Act, 2019 alleging deficiency in service against the opposite parties with regard to the construction made by the opposite parties along with a prayer to direct the opposite parties to return a sum of Rs.26,50,000/- with 18% interest and to pay a sum of Rs.25,00,000/- towards compensation for the mental agony and hardship caused to the complainant and to pay a sum of Rs.20,000/- towards cost of the complaint.

Summary of facts culminating into complaint:-

2. It was the case of the complainant that he entered into an construction agreement with the 1^st opposite party on 15.02.2022 for constructing his house for a sum of Rs.75,00,000/-.  As per an oral agreement the 1^st opposite party promised to complete the work within 4 months.  The complainant obtained loan from Housing Finance and paid a sum of Rs.59,50,000/- to the 1^st opposite party through his wife’s Bank Account. It was submitted that the 1^st opposite party has paid more than the work completed.  The 1^st opposite party had stopped their work abruptly from 01.10.2022 and when the complainant enquired about the non-progress in the work they told that there was a problem with Engineer/5^th opposite party. A few days before Diwali the 1^st opposite party demanded more money from the complainant to continue the work though a sum of Rs.59,50,000/- out of Rs.75,00,000/- has been paid to him. Complainant valued the construction work for the value of Rs.28,00,000/-.  The complainant was paying approximately monthly interest of Rs.80,000/- to the Housing Finance.  1^st opposite party not proceeding with the work and demanding more money was deficiency and negligence in service. Complainant demanded back the excess amount of Rs.31,50,000/- or to complete the work.  But the opposite parties neither paid the amount nor completed the work.  Therefore the complainant terminated the contract with the opposite party with immediate effect. Complainant engaged a Chartered Engineer to find out the present condition, finished, unfinished works left out in the building and also to assess the cost of work done by the opposite party. The Engineer examined the building premises on 09.03.2023 and estimated the value of the construction was at only Rs.33,00,000/-.  Thus aggrieved by the act of the opposite parties the present complaint was filed to refund a sum of Rs.26,50,000/- with 18% interest per annum being the amount paid in excess of the stage of construction and to pay a sum of Rs.25,00,000/- towards compensation for the mental agony and hardship caused to the complainant and to pay a sum of Rs.20,000/- towards litigation expenses to the complainant.

         The crux of the defence put forth by the opposite parties 1,2& 4:-

3. The opposite parties 1, 2 & 4 filed version disputing the complaint allegations contending inter alia that the 1^st opposite party was well experienced in the construction field for several years and admitted that the complainant entered into a construction agreement with them on 18.05.2022 for constructing his house but denied the total construction cost for Rs.75,00,000/- as well as oral agreement between them and also that he promised to complete the work within 4 months. It was submitted that the complainant violated the terms and condition of the agreement and intentionally ignored the actual total construction cost in the complaint. The complainant did not pay the amount for the completed work itself and the complainant intentionally sent legal notice with false allegation and averments.  It was submitted that the dispute arose between the complainant and the opposite party in earlier stage itself.  Moreover the 1^st opposite party denied the complaint allegation through legal notice. In this circumstances the complainant without intimation to the opposite parties even without the presence of the opposite party, how could examine the property. After execution of construction agreement the opposite party started the construction work within time and completed stage by stage without any delay.  Further as per construction agreement complainant liable to pay a sum of Rs.20,00,000/- to the 1^st opposite party. As per agreement the construction work 75% was completed as on date, even brick & plastering construction was going on. As per completion of work complainant has to pay Rs.63,47,250/- but he had paid only Rs.59,50,000/- alone.  Moreover the complainant was demanding the 1^st opposite party to complete the entire construction work within the above cost.  Further the 1^st opposite party explained their situation but the complainant refused to understand and was creating necessary problems with the 1^st opposite party. The 1^st opposite party was trying to compromise the issue amicably to avoid unnecessary dispute between them. The 1^st opposite party demanded Rs.3,97,250/-only as per the stage of completion of the construction work and the complainant has to pay the same. It was submitted that the inspection should be done in the presence of both the parties. Thus they sought for the dismissal of the complaint.

4. On the side of complainant proof affidavit was filed and documents marked as Ex.A1 to Ex A6 were submitted. Though sufficient opportunities given to the opposite parties 1, 2 &4 they did not file any proof affidavit and hence, on their side evidence stage was closed on 07.09.2023.  Though notice was served to the 3^rd & 5^th opposite parties they did not appear before this commission to file any written version and hence they were called absent and set exparte on 07.07.2023 for non filing of written version within the mandatory period as per the statute. The Advocate Commissioner filed his report and the same was marked as Ex.C1 as court document.

Points for consideration:-

1)    Whether the allegations made by the complainant against the opposite parties that they left the construction in between against the terms and conditions amounts to deficiency in service and if so whether the same has been successfully proved by the complainant by admissible evidence?

2)    To what reliefs the complainant is entitled for?

Point No.1:-

The following documents were filed on the side of complainant in support of their contentions;

1)    Construction agreement dated 15.02.2022 was marked as Ex.A1;

2)    Statement of Account of complainant’s wife for proof of payment from 01.04.2022 to 31.10.2022 was marked as Ex.A2;

3)    Legal notice issued by the complainant to the opposite parties dated 30.01.2023 was marked as Ex.A3;

4)    Reply notice issued by the opposite parties 1, 2 & 4 to the complainant dated 18.02.2023 was marked as Ex.A4

5)    Reply notice issued by the 5^th opposite party to the complainant dated 20.02.2023 was marked as Ex.A5;

6)    Valuation report given by an approved Chartered Engineer dated 09.03.2023 was marked as Ex.A6

5. Heard both learned counsels appearing for the complainant and the opposite parties and perused the written arguments filed by them.

6. The learned counsel appearing for the complainant argued that as per the construction agreement the complainant had paid to pay around Rs.59,50,000/- to the opposite parties out of the total agreed amount of Rs.75,00,000/-.  However inspite of payment of 75% of the amount, the opposite parties abruptly stopped their work from 01.10.2022.  When the complainant enquired the opposite parties it was informed that there was some problem with the Engineer and hence the work would be commenced after the problem is solved.  However, there was no progress and the complainant by engaging an Chartered Engineer valued the construction done by the opposite parties who filed their report that the construction work done by the opposite parties was of value only Rs.33,00,000/-.  Thus the opposite parties cheated the complainant by obtaining Rs.59,50,000/- but stopped construction after making construction only for the value of Rs.33,00,000/-.  Thus aggrieved the present complaint was filed for the refund of the balance amount along with compensation.

7. On the other hand the learned counsel appearing for opposite parties 1,2 & 4 disputed the complaint allegations stating that they had completed 75% of the construction work.  Further the Engineer’s Report relied upon by the complainant was stoutly disputed by the opposite parties stating that it was a bogus one.  It is further submitted by him that the opposite parties had constructed more than the amount given by the complainant and that a sum of Rs.3,97,250/- was to be paid by the complainant for the extra work done by them. Thus they sought for the dismissal of the complaint.

8. On appreciation of entire pleadings and materials by this commission it is found that the factum of opposite parties engaged by the complainant for the construction work and the payment of Rs.59,50,000/- was not in dispute though there was some dispute over the terms in the construction agreement. The opposite party leaving the construction in between is also not disputed. The only dispute to be decided in the present case is the value of the construction done by the opposite parties before stopped the construction work.  The valuation report filed by the complainant prepared by the Chartered Engineer of the complainant’s choice was strongly objected by the opposite parties that they were not present at the time of inspection and hence it was a bogus one.  Therefore an application was filed before this Commission for appointment of an Advocate Commissioner along with Chartered Engineer to inspect the premises and to assess the construction made by the opposite parties and the same was allowed and a report was filed which was marked as Court Document Ex.C1.

9. For the determination of value of construction made we have no other evidence except the court document Ex.C1. In the report filed by the Advocate Commissioner with Engineer’s Report before this Commission it was given as follows;

Foundation, basement with concrete flooring, RCC columns, beams, roof slab, staircase slab with steps, walls up to sill level (i.e. bottom of window level), ceiling plastering etc., are only completed.  The other major works are not completed by the contractor.

Considering completion of works as per record given, based on my practical experience 50% of works are completed and 50% of works are incomplete at the time of dispute arise.  For addition work, the underground sump was constructed by the contractor.

I was informed by the Advocate Commissioner, the cost of construction as agreed by both parties is Rs.1,850/- square feet

Valuation of works completed at the time of dispute arise.

For building works -3670 sq.ft @ Rs.1850/sq.ft @ 50%          :  Rs.33,94,750/-

Additional works – Underground sump –Lump sum                :  Rs.3,50,000/-

Other miscellaneous works and etc.  Lump sum                       : Rs.1,00,000/-

Precaution measures, Supervision and other charges – L.S.   :  Rs.1,00,000/-

                                                                                                             ......................

                                                                                                             Rs.39,44,750/-

                                                                                                             .......................

Thus, the value of works completed at the time of dispute by the opposite parties was provided as Rs.39,50,000/- by the Engineer who inspected the property.  Therefore when the allegation that the opposite parties stopped the work in between was not disputed by the opposite parties and when the assessment of the construction work existed as on the day of the stoppage of work was assessed in the presence of the complainant, his counsel and opposite party’s counsel as Rs.39,50,000/-.  This Commission was no other option but to accept the same.  The defence raised by the opposite parties that they did some extra work over and above the agreed terms and conditions was not proved by them by producing any documentary evidence.  Also the allegation as to Rs.3,97,250/- to be paid by the complainant towards the extra work was also not proved by the opposite parties.  As no steps were taken by the opposite parties to realize the said amount from the complainant, their contention could not be believed by this commission.  Though objection was filed by the opposite parties that the Engineer did not mention about the extra work done by them no steps were taken by them for appointment of a fresh Engineer by scrapping the present report.  Therefore we have no other option but to accept the assessment of the work done by the opposite parties as per the Engineer’s Report i.e., Rs.39,50,000/- to be proved by the complainant.

10. Admittedly complainant had paid around Rs.59,50,000/- to the opposite parties towards construction.  Therefore considering the report filed by the Engineer, this Commission comes to a conclusion that on the day of stoppage of construction work the opposite parties had constructed only for the value of Rs.39,50,000/-.  Deducting the said amount from the admitted total amount received by the opposite party, we hold that they are liable to pay a sum of Rs.20,00,000/- to the complainant. Thus the opposite parties leaving the construction work in middle of the construction and had made construction only to the value of Rs.39,50,000/- inspite of receiving an amount of Rs.59,00,000/- from the complainant clearly amounts to deficiency in service.  Thus we answer the point accordingly in favour of the complainant and as against the opposite parties.

Point No.2:-

11.  As we have held above that the opposite parties had committed clearly deficiency in service we direct the opposite parties to refund a sum of Rs.20,00,000/- being the excess amount received from the complainant within six weeks from the date of receipt of copy of this order.  We further direct to pay a sum of Rs.25,000/- towards compensation along with a sum of Rs.5000/- towards litigation expenses to the complainant.

In the result, the complaint is partly allowed against the opposite parties1 to 4 directing them jointly and severally

a) To refund a sum of Rs.20,00,000/- (Rupees twenty lakhs only) being the excess amount received from the complainant within six weeks from the date of receipt of copy of this order to the complainant;

b) To pay a sum of Rs.25,000/-(Rupees twenty five thousand only) towards compensation for the mental agony and hardship caused to the complainant;

c) To pay a sum of Rs.5,000/- (Rupees five thousand only) towards litigation expenses to the complainant;

d) Amount in clause (a) if not paid within six weeks from the date of receipt of copy of this order, interest at the rate of 6% will be levied on the said amount from the date of complaint till realization.

 Dictated by the President to the steno-typist, transcribed and computerized by him, corrected by the President and pronounced by us in the open Commission on this 28^th day of February 2024.

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 MEMBER-II                                  MEMBER-I                                                   PRESIDENT

List of document filed by the complainant:-

Court document:-

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MEMBER-II                                         MEMBER-I                                              PRESIDENT