Date of Filing:      03.04.2018 

                                                                                                                Date of Disposal:  21.02.2020

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM

THIRUVALLUR-1

PRESENT: THIRU.   J. JUSTIN DAVID., M.A., M.L.,                           .…. PRESIDENT

                   THIRU.  D.BABU VARADHARAJAN, B.Sc., B.L.,              …..MEMBER-II

CC No.03/2018

THIS FRIDAY THE 21^st  DAY OF FEBRUARY 2020

Mr.Adolf Keetanees, S/o.Keitel Christian,

No.27, Thiruvalluvar Nagar, Thaneerkulam Panchayat,

Kakkallur Post,

Thiruvallur Taluk & District.                                                              ….. Complainant. 

                                                                       //Vs//

Mr.K.Muthuswamy, S/o.Kuppusamy,

No.47. Maveeran Duraisamy Salai,

Poonga Nagar,

Thiruvallur Taluk & District.                                                           …Opposite party.

This Complaint is coming upon for final hearing before us on 12.02.2020 in the presence of Mr.A.R.Poovannan, Counsel for the complainant and M/s.E.Ramesh, Counsel for the opposite party and after perusal of the both side documents and hearing the arguments on both sides, this Forum passed the following:-

ORDER

PRONOUNCED BY THIRU.J.JUSTIN DAVID, PRESIDENT

This complaint has been preferred by the complainant Under Section 12 of the consumer protection Act, 1986 against the opposite party seeking direction to pay a sum of Rs.3,33,077/- being the excess amount received by the opposite party from the complainant and to pay a sum of Rs.1,00,000/- towards compensation for causing mental agony and hardships due to the deficiency in service and to pay cost of this proceedings.

2.The brief averment in the complaint is as follows:-

The complainant approached the opposite party for construction of his house.  The opposite party is a builder.  Thus the complainant entered into an agreement of construction with the opposite party on 22.06.2017.  It is agreed between the complainant and the opposite party to put up a house to an extent of 828 square feet of building with a portico and car parking and the total cost of construction was fixed as Rs.13,44,000/-.  The complainant in pursuance of the agreement made a payment of Rs.11,20,000/- in installments.  The opposite party separately charged a sum of Rs.80,000/- for the construction of septic tank and the same was paid by the complainant separately.  The complainant made periodical payment the opposite party had not raised the construction up to the level as agreed.  The opposite party from the first week of November 2017stopped the construction and started demanding a payment of Rs.3,24,000/-.  Therefore the complainant valued the cost of construction made by the opposite party with a licensed civil engineer to terminate the contract and the opposite party’s construction was only to the tune of Rs.7,86,923/-.  The opposite party was acted only in receiving excess amount and not completing the construction and also abandoned the construction amounts to gross deficiency in his service.  Therefore the complainant sent a notice to the opposite party on 22.11.2017 to complete the construction or to refund the excess amount received by the opposite party and also the complainant caused a legal notice calling upon the opposite party to complete the construction and to get back the remaining balance as per the agreement on 17.12.2018 and the same was received by the opposite party on 20.02.2018 and had not come down to start with the construction.  Therefore the complainant on 12.03.2018 with another mason started the construction work. The opposite party is claiming excess amount and claims that he had made construction more than the amount paid by the complainant.  Since both the parties could not come to a conclusion about the work done or the payments to be made they have decided to sort out their differences through court of law and the opposite party permitted the complainant to continue with his construction on his own and received a sum of Rs.8000/- towards the materials of the opposite party at the site.  The opposite party received the excess amount and left the construction in mid way, now the complainant was forced to engage another builder to complete his constriction.  Therefore the complainant is obliged to file this complaint for the deficiency in service, for the mental agony caused by the opposite party and for the damage and compensation against the opposite party.

3. The contention of written version of the  opposite party is as follows:-

The complainant has not come to this Hon’ble Forum with clean hands and he is not exposed the true fact. It is true that the opposite party and the complainant has entered into an agreement and a total cost of construction was fixed at sum of Rs.13,44,000/- and the amount is originally fixed to build up an house to an extent of 828 square feet with a portico and a car parking.  It is all denied that amount paid by the complainant to a total sum of Rs.11,20,000/-.  It is also denied by the opposite party that the opposite party separately charged a sum of Rs.80,000/- for construction of the septic tank and the same was paid by the complainant separately.  The licensed surveyor has not surveyed properly and he is not put forth the correct construction made out by the opposite party and it is only table work done by the civil engineer. The opposite party is always ready to continue the work and to finish the work as per agreement.  On the other hand, the complainant has engaged with another mason for the work.  This is purely an illegal and unlawful attempt made by the complainant only. The complainant orally demanded additional 4 windows to be fixed and also demanded to raise the basement to 5 feet instead of 3 feet as mentioned in the agreement.  Again the complainant insisted to construct the basement of 23x30 instead of 23x26 as per the agreement.  All these were demanded by the complainant orally at the time of construction. The opposite party constructed the building work as per oral demand made by the complainant.  The opposite party has spent totally a sum of Rs.3,00,000/- for the additional works.  For this payment when opposite party enquired to the complainant, he stated it will be decided at the later stage and hence there is no deficiency in service on the part of the opposite party.  The opposite party also constructed septic tank and parapet well and he has finished 75% of the work as per the agreement. In the middle of 2017, there was a sudden raise in sand and raw material for the construction.  One load of sand becomes Rs.50,000/- at it was Rs.5,000/- at the time of agreement.  Hence the opposite party requested the complainant to release the balance amount as per the agreement to finish the balance 25% of work and the opposite party have not demanded any higher amount or extra amount against the agreement as stated in the complaint by the complainant. Further the complainant has given a written complaint in Sevvapet Police Station, in that the C.S.R. also filed by the police authority and the opposite party attended the enquiry made out by the inspector of police. In that matter the complainant and the opposite party agreed the construction work has to be finished within 3 months.  Both the parties agreed to that.  But the complainant suppressed this facts and rushes to this forum. This complaint filed by the complainant only to degrade the reputation of the opposite party and therefore this forum may be pleased to dismiss the complaint.

4. In order to prove the case, on the side of the complainant, proof affidavit filed as his evidence and Ex.A1 to Ex.A20 were marked.  While so, on the side of the 2^nd opposite party proof affidavit filed as his evidence and Ex.B1 to Ex.B4 were marked and also adduced oral argument on both sides.

5. At this juncture, the point for consideration before this forum is:-

(1) Whether there is any deficiency in service on the part of the opposite party?

(2) Whether the opposite party is liable to return a sum of Rs.333,077/- being the excess amount received from the complainant?

(3) Whether the complainant is entitled for compensation and cost from the opposite party?

(4) To what other relief the complainant is entitled to?

6. Point Nos.1 & 2:-

The case of the complainant is that the complainant entered into an agreement for construction with the opposite party on 22.06.2017 to construct a house to an extent of 828 square feet for the cost of Rs.13,44,000/-.  The complainant paid total sum of Rs.11,20,000/- and also paid an additional amount of Rs.80,000/- for construction of separate septic tank.  But the opposite party in the first week of 2017 stopped the construction and demanded the amount of Rs.3,24,000/- and for which the opposite party has not finished the work and also not raised the construction up to level and therefore the complainant terminated the contract and engaged another mason to complete the remaining construction.  The opposite party construction only to the tune of Rs.7,86,923/- and committed deficiency in service.

7. The opposite party admitted that the complainant and the opposite party entered into an agreement to construct a house at a total cost of Rs.13,44,000/- but at the same time he disputed the receipt of total amount Rs.11,20,000/-.  The opposite party expressed that the opposite party is always ready to complete the construction but the complainant failed to pay the balance agreed amount.  The opposite party raised the basement 5 feet instead of 3 feet and also put up additional windows.  The opposite party has spent total sum of Rs.3,00,000/- for the additional work and the opposite party has not demanded extra amount and there is no deficiency in service on the part of the opposite party.

8. The complainant is the owner of the land to an extent of 1800 square feet situated at Thanneer Kulam Village, Patta No.15 and S.No.466/1.  Ex.A1 is the copy of sale deed dated 31.05.2017. The complainant obtained permission to construct a house in the said land from Thiruvallur Panchyat Union.  Ex.A2 is the copy of proceeding issued by the special officer, Thanneer Kulam Panchyat Union and Ex.A3 is the copy of approved plan.  Hence the complainant entered into a first construction agreement to construct a house to an extent of 828 square feet at the cost of Rs.13,56,800/- with the opposite party on 22.06.2017. Ex.A5 is the copy of construction agreement dated 22.06.2017.   Thereafter the complainant and the opposite party entered into another construction agreement to construct a house at the total cost of Rs.13,44,000/-Ex.A6 is the copy of second construction agreement. Hence both the parties agreed to construct a house at the total cost of Rs.13,44,000/-.

9. The complainant alleged that in pursuance of agreement the complainant has paid a total sum of Rs.11,20,000/- to the opposite party but the opposite party disputed the same.  The complainant filed Ex.A9 is the copy of receipt dated 09.08.2017 issued by the opposite party for the receipt of Rs.1,00,000/-, Ex.A10 is the copy of receipt issued by the opposite party for the receipt of Rs.1,50,000/-, Ex.A11 is the copy of receipt dated 18.08.2017 issued by the opposite party for the receipt of Rs.1,00,000/-, Ex.A12 is the copy of receipt dated 01.09.2017 issued by the opposite party for the receipt of Rs20,000/- and Ex.A13 is the copy of receipt dated 04.09.2017 issued by the opposite party for the receipt of Rs.2,00,000/-.  The complainant filed the above receipt to show that the opposite party received total sum of Rs.5,70,000/- but he is not filed any other receipt to prove that the opposite party received total sum of Rs.11,20,000/- as on November 2017.

10. The complainant issued a notice dated 22.11.2017 to the opposite party stating that the complainant paid a total sum of Rs.10,20,000/- by way of seven installments as on 22.11.2017. At the same time this complaint has been filed by the complainant on 03.04.2018 alleging that the complainant paid a total sum of Rs.11,20,000/- to the opposite party.  On the other hand, the complainant has not filed any documents to prove that he paid any additional amount from the date of issuance of notice on 22.11.2017 till date of filing this complaint.  Ex.A14 is the copy of notice issued by the complainant to the opposite party and the opposite party also filed the above notice and the same has been marked as Ex.B3. Hence Ex.A14 and Ex.B3 are the copies of same documents.  The opposite party after receipt of Ex.B3 has not sent any reply denying the receipt of Rs.10,20,000/-.  Hence this forum came to conclusion that the opposite party received a total sum of Rs.10,20,000/- as on 22.11.2017 from the complainant for construction for his house.

11. The complainant alleged that the complainant and the opposite party had entered into a compromise agreement on 22.03.2018 stating that the opposite party received a total sum of Rs.12,00,000/- from the complainant as on 22.03.2018 but the opposite party constructed the building to the tune of Rs.7,86,923/-.  The complainant also filed estimate form of the engineer which has been marked as Ex.A19 and the complainant filed photos showing the stage of construction done by the opposite party.  But the opposite party disputed the same.  On the other hand there is no evidence to show that the opposite party received a total sum of Rs.12,00,000/- from the complainant.

12. The complainant further stated in Ex.A20 compromise agreement that the opposite party agreed to construct the pending work by engaging another engineer and he further stated in the above said document that the complainant has taken the remaining unused construction material from the opposite party and for which the complainant paid a sum of Rs.8,000/- to the opposite party towards cost of the unused construction materials.  Finally in this regard both the parties agreed that they can solve their problems through proper court.

13. On perusal of the photos and other documents this forum finds that the opposite party has not completed the tiles work, electrical work, plumping work, cement plastering work and painting work. As per Ex.A14 the cost of tiles is Rs.1,00,000/-, the cost of electrical work is Rs.74,000/-, the cost of the plumping work is Rs.50,000/-, the cost of the painting work is Rs.1,00,000/- and the cost of plastering work is not mentioned in Ex.A14 and the cost of plastering work is Rs.60,000/-.  Hence the total cost of remaining work may be comes Rs.3,84,000/-.  The total cost of construction agreed between both the parties is Rs.13,44,000/- and for which the complainant paid a total sum of Rs.10,20,000/- and the balance amount payable by the complainant is Rs.3,24,000/- (Rs.3,84,000 – Rs.3,24,000 =Rs.60,000/-).  Therefore the opposite party received the excess amount of Rs.60,000/- from the complainant.  Therefore the opposite party is liable to pay a sum of Rs.60,000/- to the complainant being the excess amount received from the complainant. Thus the point No.1 & 2 are answered accordingly.

14. Point No.3:-

The complainant and the opposite party entered into an agreement on 22.06.2017 and the opposite party agreed to complete the construction within four months from the date of agreement but the opposite party has not completed the construction within time and also the opposite party has not completed the construction for the amount received from the complainant.  Hence the opposite party has violated the condition mentioned in the agreement. Since the opposite party has not completed the construction as per the agreement, the complainant engaged another engineer to construct the building which caused mental agony and financial loss to the complainant.  Under these circumstances the complainant is entitled for compensation and costs from the opposite party. Thus the point No.3 is answered accordingly.

15. Point.No.4:-

In the result, this complaint is allowed in part.  Accordingly, the opposite Party is hereby directed to pay sum of Rs.60,000/- (Rupees sixty thousand only) to the complainant being the excess amount received from the complainant.  The opposite party is further directed to pay a sum of Rs.50,000/- (Rupees fifty thousand only) towards compensation for causing mental agony and damage to the complainant due to the deficiency in service on the part of the opposite party and also to pay a sum Rs.10,000/-(Rupees ten thousand only) towards cost of this proceeding to the complainant.

The above amount shall be payable by the opposite party within two months from the date of receipt of the copy of this order failing which, the said amount shall carry interest at the rate of 9% per annum till the date of payment.

Dictated by the president to the steno-typist, transcribed and computerized by him, corrected by the president and pronounced by us in the open forum of this 21^st day of the February 2020.

      Sd-                                                                                                                         Sd-

MEMBER-II                                                                                                    PRESIDENT

List of document filed by the complainant:-

List of document filed by the opposite party:-

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  MEMBER-II                                                                                                   PRESIDENT