BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, PONDICHERRY

C.C.No.86/2009

Dated this the 23^rd day of December 2016

(Date of Institution: 23.09.2009)

Rabiel Miratory @ Rafael,

son of Arumugam @ Veerasamy @ Gnanapragasam

No.16, Kapprayal Street, Vinoba Nagar            

Pondicherry – 605 008.    

                                                ….     Complainant

Vs.

George @ E. Bastian,

Proprietor: Christika Builders

No.11, Gabriel Street (Kapparayal Street)

Vinoba Nagar, Oulgaret Municipality,

Pondicherry – 605 008.

                                                                   ….     Opposite Party

BEFORE:

          THIRU.A.ASOKAN, B.A., B.L.,

          PRESIDENT 

Thiru V.V. STEEPHEN, B.A., LL.B.,

           MEMBER

FOR THE COMPLAINANT            :  Thiru,J. Cyril Mathias Vincent, Advocate

FOR THE OPPOSITE PARTY        : Thiru. S.S. Pajaniradja, Advocate     

O R  D  E  R

(By Thiru.A.ASOKAN, President)

This is a complaint filed by the complainant under section 14 of the Consumer Protection Act, 1986 praying to:

1. Refund a sum of Rs.8,40,000/- which is the excess amount illegally retained by the opposite party from 02.01.208 with interest at 18% per annum from 02.01.2008 till the date of repayment in full quits.
2. Pay a sum of Rs.10,00,000/- as compensation for deficiency in service, breach of contract, mental agony and paid and the higher cost of construction incurred by the complainant;
3. Pay a sum of Rs.75,000/- towards expenses incurred by the complainant;
4. Pay a sum of Rs.75,000- toward cost of the complaint.

2.  The case of the complainant is as follows:

          The Opposite party approached complainant and offered to construct a double storeyed building in the property belonging to the complainant within 180 days at the rate of Rs.900/- per sq. ft and entered into an agreement on 18/09/2007 and received a sum of Rs. 30,000/- as consideration on the date of the agreement.  The opposite party received several sums of money from time to time on various occasions and as on 25.09.2008 the opposite party had received a total sum of Rs. 10,40,000/- and the same was acknowledged in the agreement.  The opposite party had failed to complete the construction as per the agreement and he had committed deficiency in service.  The opposite party is liable to pay compensation for the loss and damage sustained by the complainant.  The construction available on site is not even worth Rs. 2,00,000/-.  The construction available on site is only to the extent of pillars and roofing as on 02.01.2008 and thereafter the opposite party had not constructed any further but he had been receiving various sums of money from the complainant who is residing at France, through his representative at Pondicherry.  The opposite party had been evading his commitment and responsibility under the agreement in spite of several request form the complainant from time to time.  The opposite party had represented himself as a qualified building contractor with a good experience of constructing more than fifteen buildings but on enquiry the complainant had come to know that the opposite party had misrepresented to the complainant that he is a qualified building constructor. On account of the misrepresentation of the opposite party, the complainant parted with several lakhs of rupees to the opposite party.  In fact the opposite party by misrepresentation has cheated the complainant and played fraud on him.  On enquiry he had come to know that the opposite party did not even submit plans for approval and obtain building approval from the Pondicherry planning Authority.  The opposite party also failed to render true, proper and correct account to the complainant.  The complainant is now forced to complete the construction with the help of a qualified engineer at a higher cost of construction.  The estimate for completing the construction is now about eighteen lakhs at present market rates of construction material over and above the sum of Rs. 10,40,000/- paid to the opposite party.  The opposite party represented to the complainant who is residing in France for more than twenty years that the opposite party is a very influential person in Pondicherry and he can take care of the land belonging to the complainant and construct a house therein for the complainant.  The opposite party is residing opposite to the house of the complainant.  The complainant had been regularly contacting the opposite party to know the extent of construction and the progress of the work but the opposite party gave evasive replies and failed to inform the complainant about the progress of the construction.  The complainant has specifically come to Pondicherry from France to physically verify the extent of the construction since the opposite party failed to inform the complainant the details of construction.  The complainant has come to Pondicherry form 01.07.2009 and he has to return to his work on 26.07.2009.  The opposite party has left to France on coming to know of the complainant’s arrival.  Hence this complainant.

          3.       The following are the averments narrated in the reply version filed by the opposite party:

          The Opposite party denied all the allegations of the complainant.  However he admitted the agreement entered between him and the complainant for construction of a house.  The opposite party submitted that when he has started constructing the building the neighbour by name Jospeh S/o Aroquianadhin having residence at No. 16 Gabriel Street, Vinoba Nagar, Oulgaret Municipality,  Pondicherry obstructed raising construction and another neighbour who resides back side of the building by name  Devi W/o Late Elias also obstructed the construction and the opposite party had brought the dispute to the knowledge of the complainant and to his representative they had admitted before the local panchayat and before the Rev Father of Catholic Church of Vinoba Nagar, certain liabilities to solve the disputes amicably.  The opposite party further submitted that having agreed mutually between the parties after short while the opposite party has started constructing the building during the year 2008 and constructed the normal roof in the ground floor, the top roof in the 1^st floor, the pillars were erected and the staircase also constructed in the building and as per the construction made therein will assess the real value and the worth of the building dully constructed.  On 05.11.2008 he has received a legal notice from Advocate P. Segar of Pondicherry issued for and on behalf of the neighbour Joseph S/o Aroquianadhin of Vinoba Nagar Pondicherry by instructing to stop forthwith all further construction and to remove the materials kept in the neighbour’s property and the opposite party was shocked and surprised to receive the said notice and he was not able understand the reason behind it.  It is settled fact that  “When any matter is under litigation or in dispute normal delay will be caused to the parties until otherwise the issues are being settled amicably”.   Under these circumstances, the complainant can very well know the reason for pending construction.  On 09.02.2009 the complainant has issued legal notice to this opposite party with vexatious allegations and opposite party properly replied through his counsel dated 23.03.2009.  The complainant unnecessarily issued the another reply/rejoinder notice dated 29.04.2009 to him with the same cause of action.  The Opposite party further submits that the complainant willfully/wantonly and intentionally issued the notices by stating defamatory averments in the reply/rejoinder notice dated 29.04.2009 and this opposite party properly reply for the said notice through his counsel on 06.05.2009.  The opposite on aggrieved by the said defamatory notice has filed a civil suit as against the complainant in O.S. No. 442/2009 on the file of the Honorable I Additional District Munsif, Pondicherry and pending for disposal.  The opposite party further submits that neither the owner of the property nor his representative never come forward to settle the issue amicably, the opposite party always ready for conciliation, arbitration and for mediation at any stage.  The opposite party  submitted that if the civil dispute between the owner and the rival claimant being settled he is ready to start the construction and further more the present prevailing market value has to be assessed by the competent Engineer or an Advocate Commissioner can be appointed to measure the property with the help an Engineer to find out the present position of construction. 

          4.       On the side of the complainant, the Power of Attorney John was examined as CW1 and Exs.C1 to C4 were marked through him.  On the side of opposite party, the Proprietor of Christika Buildings George @ Bastian, the opposite party himself was examined as RW1 and Exs.R1 to R6 were marked.  Thiru. Lawrence Gunaseelan, Assistant Engineer, PWD, Puducherry has been examined as CW.2 and marked Exs.X1 to X3.

5.       Points for determination are:

1. Whether the complainant is the Consumer?
2. Whether there is any deficiency in service on the part of the opposite party in constructing the building as agreed?
3. Whether the complainant is entitled to get back the amount of Rs.8,40,000/- being the excess amount allegedly retained by the opposite party with interest at 18% per annum from 02.01.2008?
4. To what relief the complainant is entitled for?

6. Point No.1:

The complainant has entered into an agreement with the Opposite Party on 18.09.2007 for Construction of a house situated at Cabriel Street, Vinoba Nagar, Puducherrty to an extent of about 1300 sq. ft. at the rate of Rs.900/- per sq. ft. vide Ex.C2. Hence the complainant is consumer for the opposite party.

7. Point Nos.2 and 3:

We have carefully perused the Complaint, reply version, documents of both sides, depositions of both parties and the Report  given by the Expert.  The complainant entered into an agreement with the opposite party on 18.09.2007 to construct a house vide Ex.C2, and the construction work should be completed within 180 days from the date of agreement. As per the agreement, the complainant agreed to pay Rs.900/- per sq. ft.  and accordingly, the complainant paid a sum of Rs.30,000/- on 19.09.2007 as advance payment and subsequently paid a total sum of Rs.10,40,000/- as on 25.09.2008 as per the endorsement made on the reverse of Ex.C2.  The opposite party has not completed the work as agreed as per the agreement.  The opposite party contended that he could not completed the work because of the interruption by third parties in his work which caused him to discontinue the work.  Whereas, the complainant contended that the opposite party left the work as unfinished after having received a sum of Rs.10,40,000/- the agreed amount.  Since the opposite party did not continue the work and not completed in time, the complainant was forced to engage a qualified Engineer and assessed the incompleted work to a tune of Rs.18.00 lakh.   Further, an Expert / Assistant Engineer CW2 from Public Works Department was appointed  by this Forum who had submitted his reports Exs.X1 to  Ex.X3.  The CW2/Expert submitted his report Ex.X2 and assessed the value of the building as Rs.5,69,600/-.  The CW2/Expert worked out the building valuation as per Puducherry Schedule of Rate (PSR) 2007-08 based on the agreement made between two parties and money transaction during this period.   Further the CW2/Expert worked out the cost of the building constructed and valued at Rs,5,69,600/- as per Puducherry Schedule of Rate (PSR) 2007-08 and submitted his report Ex.X2 .  He also worked out the cost of the building constructed and valued at Rs.12,87,000/- as per PSR 2014-15 and submitted his report Ex.X3.  The opposite party did not raise any objection for the reports filed by the CW2/Expert.

          8. The opposite party contended that when he started constructing the building, the neighbours  namely Joseph and Devi obstructed from raising construction and the same was referred for panchayat with Rev. Father of Catholic Church of Vinoba Nagar and the same caused him not to construct building in time and to establish the same, the opposite party has marked Ex.R2 the legal notice dated 05.11.2008 issued by the said Joseph to the complainant and the opposite party.  While the things being so, the complainant issued a legal notice dated 09.02.2009 vide Ex. R3 and the same was replied by the opposite party vide Ex.R4 dated 23.03.2009.  After receiving the said reply notice Ex.R4, the complainant issued a rejoinder dated 29.04.2009 vide Ex.R5 and the same was also duly replied by the opposite party through his Counsel on 06.05.2009 vide Ex.R6.  The above facts was not disputed by the complainant.  Hence, this Forum could find that there was some dispute with the complainant and his neighbours.   But the same should be adjudicated through separate proceedings according to law.

          9. The only point to decide before this Forum is that  whether the opposite party after having received a total sum of Rs.10,40,000/- has completed the work to that extent.  Admittedly, there is no dispute in the payment.  According to the Expert / CW2's report Ex.X2, he had worked out the building valuation to the extent of Rs.5,69,000/- as per the Puducherry Schedule of Rate 2007-08 (PSR).  The complainant paid Rs.10,40,000/- as per Ex.C2 agreement, out of which only the opposite party has completed the work to the extent of Rs.5,69,000/-.  It is the plea of the opposite party that the third party disturbed him from constructing the building entrusted to him.    If it is so, he has to settle his account amicably and brought to an end to the agreement.    The Expert has valued the work done by the opposite party to the tune of  Rs.5,69,000/- as per PSR 2007-08 Ex.X2.  Since the opposite party has not continued the construction work, he is liable to return the balance amount to the complainant.  Hence, the complainant is entitled for refund of Rs.4,71,000/- only towards unfinished / incomplete work as per the construction agreement.  Further, the CW2/Expert has filed another report Ex.X3 which is nothing but the valuation of building for the PSR 2014-15.  Since the dispute emerged in the year February 2009 itself as per Ex.C3 the legal notice dated 09.02.2009, this Forum relied only the PSR 2007-08 being the work carried out in the year 2007-2008.   From the above facts and circumstances, it is clear that there is deficiency of service and negligence on the part of the opposite party in constructing the building by leaving the same without completion of construction  work as per the agreement.  Hence, these points are answered accordingly. 

10. Point No.4:

          In view of the decision taken in Point Nos.2 and 3, this complaint is hereby allowed with the following directions:

1. The Opposite party is hereby directed to refund Rs.4,71,000/- for unfinished/  incomplete work as per the construction agreement.
2. The Opposite Party is entitled to take back the construction materials bought by him,  if any, available in the site.
3. The opposite party is directed to pay a sum of Rs.50,000/- as compensation for the deficiency in service and for negligent act.
4. To pay a sum of Rs.5,000/- as cost of the proceedings to the complainant.

Dated this the 23^rd day of December 2016.

1. ASOKAN)

PRESIDENT

(V.V. STEEPHEN)

MEMBER

COMPLAINANTS' WITNESS:  

CW.1          28.05.2010           John

CW.2          16.02.2015           Lawrence Gunaseelan, Assistant Engineer

OPPOSITE PARTY'S WITNESS: 

RW.1          27.11.2013           George @ Bastian

COMPLAINANTS' EXHIBITS:

OPPOSITE PARTY'S EXHIBITS:

LIST OF COURT EXHIBITS MARKED THROUGH CW2:

1. ASOKAN)

       PRESIDENT

       (V.V. STEEPHEN)

      MEMBER