Filed On:28.05.2008
Disposed On:20.08.2015
THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, THIRUVALLUR
PRESENT: THIRU. S. PANDIAN, B.Sc., L.L.M : PRESIDENT
TMT. S. SUJATHA, B.Sc., : MEMBER-I
Thursday, the Day of 20th August-2015
C.C.No.41/2008
S. Balakrishnan,
S/o. Mr. Senthamarai,
Plot No.24,A.K.N. Nagar,
Near Rail Nagar, Perumalpattu,
Vepampattu, Thiruvallur District. …Complainant
-Vs-
1. K. Ravichandran,
No. 19, Ambedkar Street,
Teacher’s Colony,
Ambattur,Chennai- 600 053.
2. Mrs. Maragathamani Ravichandran,
Proprietrix,
M/s. M.R. Foundation,
No. 19, Ambethkar Street, Teacher’s Colony,
Ambattur,Chennai -600 053. …Opposite Parties
Counsel For Complainant : Mr. L. Thanigaivel, Advocate
Counsel For Opposite Parties : M/s. V. Murali, Advocate
This Complaint is coming upon before us finally on 18.08.2015 in the presence Mr. L. Thanigaivel, Advocate on the side of the complainant and M/s. V. Murali, Advocate appeared on the side of the opposite partiies-1 & 2, and upon hearing arguments on the side of the both and perused the documents and evidence, this Forum delivered the following,
ORDER
PRONOUNCED BY THIRU. S. PANDIAN, PRESIDEN
This complaint has been filed by the complainant u/s 12 of the Consumer Protection Act 1986, against the opposite parties to direct them to return the excess amount of Rs.2,62,000/- collected by the opposite parties and to complete the incompletion work and repair in the alleged building construction, failing which to pay a sum of Rs.1,78,000/- and a sum of the 50,000/- towards compensation for causing mental agony and with the cost of Rs. 10,000/- .
The Brief Facts of the Complaint are as follows:
1. The complainant has approached the 1st opposite party for construction of house at Perumalpattu Village. The 1st opposite party opened a savings bank account in the name of complainant. On 9.1.2004 the 1st opposite party got a sale deed executed in favour of t the complainant in respect of a land measuring 1800 sq. ft at Perumalpattu Village. The value of the land is only Rs. 45,000/- but the sale deed is registered for Rs.72,000/-. The 1st opposite party had arranged the loan from the Indian Overseas Bank, for purchase of the house. The 2nd opposite party is the wife of the 1st opposite party. The 2nd opposite party began to put up construction, but found that the construction was not as per the plan. The 1st and 2nd opposite parties have not completed the construction in a full manner. The 1st opposite party has not dug well, not constructed compound wall, provided no electricity, not done pluming and wood work and thereby the opposite parties have misappropriated a sum of Rs.2,62,000/- in the construction of the building. The 1st opposite party took the money from the Indian Overseas Bank, but not completed the construction. The opposite parties failed to attend to the repairs and rectify the defects. The complainant issued a notice to the opposite parties to attend to the repairs and defects found in the construction of the building and also settle the dues to the bank. But the opposite parties neither rectify the defects nor paid the money to the bank. Hence the complainant had filed the complaint.
Written Version filed by the opposite parties are as follows:
2. It is true that the 2nd opposite party offered to built up the independent House to complainant and various persons. The 2nd opposite party is the proprietary M/s. M.R. Foundation. The opposite parties did not open the account in the name of complainant. It is true that the sale deed is registered in the name of complainant for a sum of Rs. 72,000/-. But the allegations that the land value is Rs. 45000/- is not true and correct. After registration the 2nd opposite party handed over the original sale deed to complainant.
3. The 2nd opposite party arranged the loan through Indian Overseas Bank. But it is not true that we obtained two blank Cheque and signatures in the stamp papers are not true and correct. The allegation that the opposite party gave a sum of Rs.22,500/- and Rs.15000/- by Cheque and cash is not true and correct. The complainant received the said amount for the purpose of doing some work in the kitchen at his wish. The 2nd opposite party agreed to construct the house for complainant. The House was built as agreed in quality manner and in time. But is not correct that the Bank has sanctioned a sum of Rs.5,50,000/- and he came to know later is not true and correct. The complainant well aware of the sanction of the loan. The complainant also wrote letter to Bank on 15.05.2004 saying thanks to the Bank for sanctioning the loan amount.
4. The allegations of the complainant that the opposite party misappropriated a sum of Rs. 2,62,000/- is not true and correct. The allegations that the Building got many defects and to be attended are not true and correct. It is the duty of the complainant having received the loan amount to repay the same as agreed. Hence the allegations that the opposite parties have cheated the complainant are not true and correct.
5. The opposite parties did not commit any deficiency in service in constructing House. The opposite parties have no liability to pay any compensation to complainant or any amount. The complaint is false and frivolous. The complaint got intention to grab the amount from the opposite party and not approaching this forum with clean hands. Hence, this complaint is liable to be dismissed.
6. On the side of the complainant, a proof affidavit submitted by the complainant as his evidence and Ex.A1 to A9 marked. Whileso, the opposite parties also filed the proof affidavit but no document marked.
7. At this juncture, the main point for determination before this Forum is,
- Whether there is any deficiency of service on the part of the Opposite Parties-1 & 2 as alleged in the complaint?
- To what other relief the complainant is entitled?
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9. Point No. 1:- According to the case of the complainant that the oppositeparty-1 had arranged the loan from the IOB for the purpose of the house and the opposite party-2 who is the wife of the opposite party-1 began to put up the construction agreement but the construction was not according to the plan and also not provided many features like weathering course in the open terrace, dummy column erected without pillar, Teak Wood door, safety grill etc., and also they have misappropriated a sum of Rs. 2,62,000/- . It is further contended that though it is true that the opposite party -2 had agreed to construct the house for the complainant but it is not correct to say that the opposite party-2 has left the building with incompletion of construction work and in fact, opposite party-2 has completed the house as agreed in quality manner and there is no defects in the building and therefore the question of rectifying the repairs does not arise and hence there is no deficiency of service on the part of the opposite parties .
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opposite party-2 during construction and the same was completed subsequently to the complainant herein.On the other hand, though the allegation made by the complainant are denied by the opposite parties-1&2 in their evidence, but no documents are produced to that effect.
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12. The next point to be decided is, whether the deficiency of service on the part of opposite parties-1&2 regarding the construction of house have been proved or
not through proper evidence. It is learnt from the evidence of the complainant that it is crystal clear that the construction agreement was made in between the complainant and opposite party-2 and the same are marked as Ex.A3 & A1 respectively. The said fact is categorically admitted of the opposite parties-1&2 in their Written Version as well as in the proof affidavit. At the outset, on careful seeing the Ex.A3, it is clearly stated by the opposite party-2 as,”
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So, from the above recital, it is crystal clear that the opposite party-2 has already received the sum of Rs. 5,50,000/- for the construction of house for the complainant.But at the same time, on seeing the Ex.A4 through naked eye, the said Ex.A4 is an incompleted one but signed document .At this juncture, it is pertinent to note that there is no document to show the total cost of building and the plan pertaining to the structure of the building.But the above said document is not it all disputed by the opposite party-2. In such being the situation the complainant stated in the proof affidavit that the construction was not at all satisfactory and the
opposite party-2 failed to provide so many things viz.not dugging well and compound wall, not provided the electricity, pluming, wood work and therefore the legal notice Ex.A2, Ex.A7 to Ex.A8 issued to the opposite paries-1 & 2 respectively but they have not replied which itself shows the gross deficiency of service in the contractor of building.Whileso, the opposite parties-1&2 stated in the affidavit that the opposite party-2 has fully completed the construction work as agreed by the construction agreement and there is no defects in the construction and it is further contended that the same has not been proved properly by means of appointment of Advocate Commission with the qualified Engineer.
13. At the outset, next thing to be decided is whether the deficiency in service against the opposite party – 1 to 3 regarding the construction of house have been proved or not through proper evidence. It is learnt from the evidence of the complainant, that it is crystal clear that the construction agreement was made in between the complainant and Opposite Party-2 only, which clearly reveals from Ex.A2 and not with the opposite party-1. The said fact is also admitted by the opposite party-1&2 in their written version as well as in the proof affidavit. Furthermore, it is categorically stated in the written version of the opposite party-1&2, that the opposite party-2 has only undertaken to construct the building of the complainant. So there is no dispute at all regarding the said fact. At this juncture, it is further learnt from the evidence of the complainant that as per Ex.A3 the opposite party-2 has not completed the construction work as per plan and estimation and also not provided many features on the complaint and in this regard the Ex.A8 legal notice has been issued to the opposite party-2 but the same was returned as an endorsement as, ‘unclaimed’ and the returned cover is Ex.A6. Moreso, it is learnt further that subsequently to this complaint, the incompletion work left by the opposite party-2 have been done through other construction company named Sun Shine Construction. In such a way, the complainant has proved the deficiency in service on the part of opposite party-2 by means of oral as well as documentary evidence which are consistent and cogent.
14. In the light of the above facts and circumstances, this forum without any hesitation to hold that the allegations of misappropriation made against opposite party-1&2 have not been proved but at the same time, the deficiency in service on the part of opposite party-2 is proved beyond all doubts. Thus the point no. 1 is answered accordingly.
15. Point No. 2:- In view of the decision arrived in the point no. 1, the complainant has spent subsequently the sum of Rs.1,78,000/- to complete the construction of the house which are not completed by the opposite party-2 as per the Ex.A2, the Agreement of construction and therefore the complainant is entitled to get the said amount from the opposite party-2 and also with reasonable compensation for the deficiency in service and caused mental agony. Thus this point no. 2 is answered accordingly.
In the Result, this complaint is allowed in part. Accordingly, the Opposite party 1 and Opposite Party 2 are jointly and severally directed to pay a sum of Rs.1,78,000/- (Rupees One Lakhs Seventy Eight Thousand Only) to the Complainant with interest of 6% P.A. from 25.03.2008 till the date of this order towards the expenses incurred for carrying out the incomplete construction work and repairs and to pay a sum of Rs. 10,000/- (Rupees Ten Thousand only) towards Compensation for mental agony and Rs.5000/- (Rupees Five Thousand only) towards cost. In respect of other reliefs, this complaint is Dismissed.
The above amount shall be payable within one month from the date of receipt of the copy of the order, failing which the said amount shall carry interest at the rate of 9% P.A, till the date of payment.
Dictated by the president to the steno-typist, transcribed and computerized by her, correctly by the President and pronounced by us in the open Forum on this 20th August- 2015.
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MEMBER-I PRESIDENT
List of Complainant Documents:
Ex A1. 09.01.2004 Xerox Copy of Complainant and Ravichandran Babu
Sale Deed
Ex.A2. 18.09.2003 Xerox Copy of Building Construction Agreement
Ex.A3. 10. 09.2005 Xerox Copy of Complainant to Opposite Parties legal
notice
Ex.A4. - Xerox Copy of Agreement.
Ex.A5. - Xerox Copy of returned cover.
Ex.A6. - Xerox Copy of returned cover.
Ex.A7- 16.05.2005 Xerox Copy of Legal Notice from the complaint’s
lawyer to 1st opposite party
Ex.A8. 16.05.2005Xerox Copy of Legal Notice from the complainant’s
lawyer to the 2nd opposite party
Ex.A9. 29.11.2006 XeroxCopy of Letter from the complainant to the
Commissioner of Police, Chennai.
List of Opposite parties Documents: -Nil-
Sd/- Sd/-
MEMBER-I PRESIDENT
