Tamil Nadu

North Chennai

CC/361/2018

Mr.S.Sundaresh - Complainant(s)

Versus

Eshwar Prasad - Opp.Party(s)

M/s.J.Jayabala

27 Jun 2022

ORDER

 

Complaint presented on  :16.03.2012    Date of disposal               :27.06.2022

                                                                                  

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION,

CHENNAI (NORTH)

@ 2^ND Floor, T.N.P.S.C. Road, V.O.C. Nagar, Park Town, Chennai – 600 003.

 

                   PRESENT : THIRU. G. VINOBHA, M.A., B.L.,                          :PRESIDENT

                                         TMT. KAVITHA KANNAN, M.E.,                         : MEMBER-I

                                         THIRU.V.RAMAMURTHY,B.A.,B.L.,PGDLA.,   :MEMBER-II

 C.C. No.361/2018

 

DATED THIS MONDAY THE 27^th    DAY OF JUNE 2022

 

S.Sundaresan,

S/o.K.Srinivasan,

Represented by his Power of Attorney Agent,

K.Srinivasan,

Residing at No.24/3, Sri Meenakshi Appadurai Street,

Seethammal Colony,

Teynampet, Chennai-600 018.

                                                                                               .. Complainant.                                                                             ..Vs..

 

ESHWAR PRASAD,

S/o.Ramachandra Reddy,

Proprietor,

M/s.ESHWAR FLAT PROMOTERS AND BUILDERS,

199, North Usman Road,

Ground Floor-3, JVL Arcade,

T.nagar, Chennai-600 017.

                                                                       ..  Opposite party.

 

 Counsel for the complainant                      : M/s. J.Jayabala & J.Vasu

Counsel for   opposite party                      : M/s.Ramanathaa Reddy &

                                                                   M.Kosalaraman.

 

 

 

ORDER

THIRU. G. VINOBHA, M.A., B.L., PRESIDENT

          This complaint has been filed by the complainant against the opposite party under section 12 of the Consumer Protection Act, 1986 prays to directing the Opposite party to refund a sum of Rs. 5,59,230/- towards loss in completing the construction and for payment of compensation to the tune of Rs.3,00,000/- towards damages and mental agony suffered by the complainant on account of the deficiencies in service rendered by the opposite party and for cost of Rs.10,000/. This complaint was originally filed before the District Commission, Chennai(South) and taken on file in C.C. No.75/2012.  Thereafter, the said complaint has been transferred to this Commission as per the proceedings of the Hon’ble S.C.D.R.C. and taken on file as C.C. No.361/2018.

1.THE COMPLAINT IN BRIEF:

  The complainant submitted that he is one of the co-owner of the premises situated at Door No.24/3, Appadurai street, Seethammal colony, Chennai-600 018.  The complainant along with other Two co-owners namely 1.Meenakshi Nandakumar and 2.S.Balasubramanian, decided to erect three(3) individual houses, in the said premises and all three had entered into a construction agreement individually with the opposite party in the year October 2009.  The complainant stated that she has authorized her father to enter into the construction agreement with the opposite party 10.10.2009.  The opposite party agreed to complete the work within 16 months. The complainant stated that the opposite party had originally agreed to construct her house at the cost of Rs.45,25,000/-.  However later on it was decided by the complainant to entrust civil work alone to the opposite party including electrification, plumbing, painting and carpentry at the cost of Rs.35,00,000/- and the opposite party agreed for the same. The complainant 

stated that the she had paid Rs.28,50,000/-  to the opposite party on various dates through cheque and housing loan. The complainant was living abroad believing the opposite party he has entrusted the work to the opposite party. The complainant further stated that though the opposite party supposed to have completed the work by January 2011, the opposite party have not even completed 75% of the work and when the complainant bankers inspected the premises along with an approved valuer, they found that the work was sub-standard and that it has not been executed according to the construction norms. While so, the opposite party have raised a bill dated:27.03.2011 to the complainant as if the opposite party have completed the work after knowing that the complainant has issued a legal notice. The complainant stated that he wanted to discuss these issues with the opposite party and settle amicably, he all the way come down to Chennai from USA and tried to talk to the opposite party with regarding to the issue. However instead of sorting out the issue, the opposite party started shouting at the complainant and attacked his watchman and went to the extent of damaging the electric wiring already done. The opposite party prevented the complainant from taking measurements through his independent assessor who came along with his workers and threatened them. The complainant further stated all the creditors of the opposite party visiting the sites in search of him and this clearly shows that he has not made payment to any of them though he received the payment of Rs.28,50,000/- from the complainant.  The complainant stated that the opposite party have not completed the work in time and used sub-standard materials taking advantage of his absence in india. Further stated that he has not produced any bills or voucher to testify the expenses to the complainant’s bankers.  The Complainant has got the quotation from an Independent Engineer M/s. Welcome Engineers on 13.03.2011 estimating an amount of Rs.12,09,230/- for the completion of the work left incomplete by the opposite party. The complainant stated that the opposite party had received a payment of Rs.28,50,000/- and whereas the work done by him comes to only Rs.22,90,770 and thereby the complainant has been forced to pay a sum of Rs.5,59,230/- to complete the construction.  The complainant stated that taking advantage that he his living abroad and his power of attorney is an aged person the opposite party deliberately and intentionally refusing to submit the exact statement of accounts and stopped the construction works. The complainant issued a legal notice to the opposite party on 18.03.2011 terminating the service of the opposite party as a contractor and called upon him to render true and valid account for Rs.28,50,000/- received by him from the complainant. The complainant stated that the above act of the opposite party amount to gross negligence and deficiency in service.

          2.WRITTEN VERSION OF OPPOSITE PARTY IN BRIEF:

The opposite party denies each and every allegation contained in para.2 of the complaint and stated that the construction agreement was entered on 10.10.2009 and the agreed amount for construction of the individual duplex house with the specifications mentioned therein, the total cost was fixed for a sum of Rs.45,25,000/-.  The opposite party further submitted that later it was decided by the complainant to entrust civil work alone to the opposite party at the cost of Rs.35,00,000/- and the same was agreed by the opposite party.  The total amount received by the opposite party from the complainant is Rs.28,50,000/- only whereas the opposite party has carried the construction work to the tune of Rs.35,00,000/-. Infact from day one of the construction the opposite party is doing diligently and taken more care in construction work in the said premises and at one stage the complainant stopped paying the amount as stated in the construction agreement on the other hand asked the opposite party to complete the work. When the complainant stopped paying the amount as agreed in the construction agreement, the opposite party is no able to complete the work in time.  Since the agreed amount for construction is Rs.45,25,000/- but this complainant only paid a sum of Rs.28,50,000/- during that time this opposite party has done 75% of work by investing his own amount out of his pocket, apart from spending the said Rs.6,50,000/- which is also due and payable by the complainant to the opposite party.  In fact the approved valuer of Vijaya Bank namely B.Bhaskar Rao who inspected the property on 14.02.2011 and his report it was clearly mentioned that 75% of work is completed. The total amount due and payable by the complainant to the opposite party is Rs.20,50,000/-for the work done by him by investing his own amount but on the other hand just to harass and to avoid the payments to the opposite party, the complainant filed this kind of frivolous and vexatious complainant. Infact the opposite party is legally entitled to recover his dues payable  by the complainant. The complainant admitted in her complaint that the complainant so far paid Rs.28,50,000/- only and thereby withholding the balance amount payable to the opposite party is about Rs.20,50,000/- for the work done by the opposite party therefore the complainant is legally entitled to pay the said amount to the opposite party. The opposite party further submitted that the entire complaint is vexatious and frivolous one hence the averment and allegations of gross negligence, deficiency of service and mental agony does not arise. Further the complainant is not entitled for any compensation.

3. POINTS FOR CONSIDERATION:

1. Whether the opposite party committed any deficiency in service as alleged  in the complaint?

2. Whether the complainant is entitled to the reliefs prayed in the complaint.

If, so to what extent?

Complainant had filed proof affidavit and  Ex.A1 to A7 were marked on the complainant side.  The Opposite party filed proof affidavit and Ex.B1 documents were marked on the opposite party side.

4. Point No.1:-

                   The complainant  who is one of the co-owner of the premises in door no.24/3 appadurai street seethammal colony Chennai entered into three separate construction agreement with opposite party in 10.10.2009 for construction of a duplex house for each one of the three co-owners at a construction at a cost of Rs.45,25,000/-, but later it was decided to entrust only civil work to the opposite party at a cost of Rs.35,00,000/- and according to the complainant it is stated that he has paid Rs.28,50,000/- to the opposite party on various dates and since the complainant is living abroad the work was entrusted to the opposite party to be completed by Jan-2011 but the opposite party have not even completed the 75% of the work but raised a bill on 27.03.2011 to the complainant as if he has completed the work when the complainant came to Chennai and try to sort out the issue with the opposite party the opposite party shouted and attacked the watch man and prevented the complainant from taking measurements through his independent assessor and the further it is alleged that opposite party not completed the work in time and used substandard materials and not produced any bills to the complainant hence the complainant got a quotation from independent engineer M/.s.Welcome engineer on 13.03.2011 estimating Rs. 12,09,230/- for completing the work which was left by the opposite party and therefore the complainant claimed Rs.5,55,930/- for completing the construction and for other reliefs. ,

          5. But on the other hand according to the opposite party the cost of construction as per agreement is Rs.45,25,000/- and denied that later it was agreed for Rs.35,00,000/- for executing civil work alone and further contended that the complainant has paid Rs.28,50,000/- only  but the opposite party has carried out work to the tune of Rs.35,00,000/- and therefore contended that the complainant has to pay Rs.6,50,000/- to the opposite party and further denied the fact that substandard material was used it is further contended that the approved valuer of the vijaya Bank namely Baskar Rao inspected on 14.02.2011 and mentioned that 75% of the work is completed and the cost of construction comes to  Rs.34,00,000/- and therefore contended that the complainant has to pay totally Rs.20,50,000/- for the work done by the opposite party but in order to evade  the payment the complainant has filed this application with ulterior motive and contended that there was no deficiency in service and stated that the complainant voluntarily entered in the premises and not allowing the opposite party to take his building materials from the premises therefore contended that the non-completion of the work is only due to the non-payment of balance amount by the complainant. 

          6. It is found from Ex.A1 the cost of construction was Rs.45,25,000/- and it was agreed to complete the construction within 16 months from the date of agreement. Though it is stated in the complaint that later it was agreed to entrust civil work alone at the cost of Rs.35,00,000/- there is no documentary proof for the same. The fact remains that as per the Ex.A1 agreement the total amount to be paid by the complainant is Rs.45,25,000/- which is not paid by the complainant admittedly.  Further as per the Ex.A1 agreement that the work has to be completed within 16 months from the date of agreement which comes to April 2011 but it seems that even before the due date during February 2011 there seems to be dispute arose between parties and hence a legal notice Ex.A4 was issued by the complainant on 18.03.2011 itself. Though the complainant stated that he has got quotation from M/s Welcome engineers for Rs. 12,09,230/- for completing the work the said document which is marked as Ex.A3 it is contrary to the amount alleged to be spent by him which is Rs.5,59,230/- for completing the construction.  It is pertinent to note that there is no bills or voucher filed by the complainant to prove the amount spent by him for completing the construction. In fact Ex.A3 is only a quotation which cannot be relied upon to decide the cost of work done by the complainant further the complainant has not filed any report by taking and independent assessor or the valuer  to assess of work which was omitted to be done by the opposite party but, on the other hand Ex.B1 which is a report filed  by the panel valuer of Vijaya bank prove that on 14.02.2011 75% of the work was completed by spending Rs.34,00,000/- which shows that the opposite party has spent his own amount of Rs.5,50,000/- to effect such construction though the complainant has paid only Rs.28,50,000/- as per Ex.A1 agreement the work has to be completed in April 2011 but, even prior to that the complainant has raised a dispute alleging that the opposite party used substandard materials and thereby prevented further doing of work by the opposite party and also not paid the balance amount as per Ex.A1 agreement.  Therefore the complainant who himself has defaulted to act as per Ex.A1 agreement has no right to allege deficiency in service on the part of the opposite party without any valid reason.  Though it is alleged by the complainant that he has terminated the service of the opposite party under Ex.A4 legal notice on perusal of Ex.A4 it is found that the complainant is yet to terminate the service of the opposite party.  The facts shows that the complainant has prematurely occupied the premises even before due date for completion of work without paying the agreed balance to the opposite party and thereby prevented of the opposite party from completing the work and falsely alleging deficiency in service on the part of the opposite party without any substantial proof for the same. Though the complainant claimed Rs.5,59,230/- in the prayer there is no documentary proof to show how the said amount was arrived by the 

complainant and no bills or vouchers or valuers report filed by the complainant to prove the same.  Even in Ex.A4 notice there is no mention about the alleged amount spent by the complainant which is claimed in the prayer portion of the complaint. Hence for the reasons stated that it is found that the complainant failed to prove the alleged deficiency in service on the part of the opposite party. Point. No.1 is answered accordingly.

7. Point No.2.

                Based on the findings given in the Point No.1 it is found that the complainant is not entitled for any of the reliefs claimed in the complaint. Point No.2 is answered accordingly.

                In the result, the complaint is dismissed.  No costs.

          Dictated  by the President to the Steno Typist taken down, transcribed and computerized by him, corrected by the President and pronounced by us in the open Commission on this the 27^th  day of  June 2022.

 

MEMBER I                 MEMBER II                        PRESIDENT

LIST OF DOCUMENTS FILED BY THE COMPLAINANT:

Ex.A1	10.10.2009	Construction agreement between the opposite party with the complainant
Ex.A2	25.03.2010	Power of attorney
Ex.A3	11.03.2011	Quotation of welcome engineers to the complainant.
Ex.A4	18.03.2011	Legal Notice from complainant to the opposite party
Ex.A5		Returned cover
Ex.A6	27.03.2011	Bills from opposite party to complainant
Ex.A7	18.01.2012	Statement of Accounts for the period 15.04.2010 to 18.01.2012.

LIST OF DOCUMENTS FILED BY THE  OPPOSITE PARTY:

Ex.B1

14.02.2011

Report of Panel valuer for banks & other institutions.

 

MEMBER I                 MEMBER  II                        PRESIDENT