F.A.No.230/2013 against C.C.No.180/2010 District Forum, Ranga Reddy District.

Between

Gopi Solomon S/o.Paul

Aged about 50 years, Occ:Business,

R/o.H.No.1-30-613, Shivanagar,

Thirumalghery, Secunderabad.                                                                                   Appellant/

                                                                                                                                      Opp.party

And

M.Praveen S/o.David,

Aged about 32 years,

Occ:Central Government Employee,

R/o.H.No.2-19-50, Kalyanpuri Colony

Uppal, Hyderabad.                                                                                                       Respondent/

                                                                                                                                      complainant.  

Counsel for the Appellant     :  M/s S.Bhooma Goud

Counsel for the Respondent:   G.Venkat Reddy.

QUORUM:  SRI R.LAKSHMI NARASIMHA RAO, HON’BLE I/c. President

AND

SRI S.BHUJANGA RAO, HON’BLE MEMBER.

THURSDAY, THE TWENTY FIRST DAY OF NOVEMBER,

TWO THOUSAND THIRTEEN

Oral Order (Per Sri R.Lakshmi Narasimha Rao, Hon’ble Incharge President)

***

The opposite party is the appellant. 

The respondent filed the complaint seeking for  direction to the appellant to pay an amount of Rs.4,00,000/- towards damages for mental agony besides financial loss and to award compensation of Rs.10,000/- and costs of Rs.10,000/-.

           The case of the respondent is that he entered into a construction Agreement with the appellant on 11-1-2010 and the appellant agreed to construct a house @ Rs.700/- per sft. slab area in Ground + first floor in the land of the respondent at H.No.2-19-50, Kalyanpuri Colony, Uppal, Hyderabad. The respondent submitted that he paid Rs.12,80,000/- out of the total amount of Rs.16,34,000/- as advance  as per the agreement and the appellant has to complete the construction of the house within 5 months from the date of agreement.  The respondent submitted that the appellant committed breach of contract and he completed  50% of the work even after taking Rs.1,00,000/- for purchasing the material and as there was no progress in the work for 1 ½ months, it amounts to deficiency in service on the part of the appellant.  The respondent submitted that the appellant completed 50% of the work which costs Rs.9,75,000/- approximately and the balance amount of Rs.2,92,500/- out of the amount paid by him i.e. Rs.12,80,000/- is lying with the appellant.  The respondent submitted that he got issued a  notice to the appellant and the appellant did not choose to reply. 

          The appellant resisted the complaint and submitted that though originally the agreement between him and the respondent was for the ground and first floor, during the course of construction, the respondent requested him to construct second floor at the same rate i.e. Rs.700/- per sft.  The appellant submitted that the respondent paid the amount for material and construction of ground and first floor and at the request of respondent, he purchased the material from his personal account and constructed the slab and other brick work of the first and second floor and the respondent  has no right to claim anything from the appellant and he is liable to pay Rs.5,00,000/- for the material and labour charges of the second floor and submitted that there is no deficiency in service on his part and prayed for dismissal of the complaint with costs.

        The respondent filed his affidavit and relied on documents i.e. Exs.A1 to A5 in support of his case and the appellant filed his affidavit and he has not chosen to file any documents.

          The District Forum allowed the complaint directing the appellant to pay an amount of Rs.2,92,500/- to the respondent together with compensation of Rs.10,000/-.

          Aggrieved by the order of the District Forum, the appellant has filed the appeal contending that the District Forum has come to a wrong conclusion that the estimation made by the registered valuer shows the cost of the semi finished building (ground floor and first floor is Rs.9,68,000/- and on that premise directed the appellant to pay the alleged balance amount of Rs.2,92,500/- claimed by the respondent.  He further contended that the said estimation by the independent registered valuer is not marked in evidence and as such the relief to repay the balance amount is illegal. 

          The learned counsel for the appellant has filed written arguments.

The point for consideration is whether the order of the District Forum suffers from mis-appreciation of facts or law?

        The admitted facts are that the respondent entered into agreement for construction on 11.01.2010 with the appellant and  the appellant agreed to construct a house @ Rs.700/- per sft. for slab area in ground + first floor in the land of the respondent with House bearing door number 2-19-50, Kalyanpuri colony, Uppal at Hyderabad and he has paid a sum of Rs.12,80,000/- out of the total consideration of Rs.16,34,000/- and as per the terms of the Agreement the appellant has to complete the construction of the house within five months from the dated of the agreement.

        The respondent submitted that the appellant committed breach of contract by completing only 50% of the construction work of the house even after collecting extra amount of Rs.1,00,000/- for purchasing material for the purpose of the construction of the house. The respondent claimed balance amount of Rs.2,92,000/- on the premise the amount is left with the appellant proportionate to the stage of construction of the house.

        The learned counsel for the appellant has contended that the District Forum has taken an erroneous view that the estimation made by registered surveyor  shows the cost of the semi-finished building and the District Forum has considered a document which is not marked in evidence and the document is not part of record as also that the affidavit of the person  who issued estimation is not filed  despite  the District Forum coming  to the conclusion that photographs of the building  to show present stage of construction of the house are not filed by the appellant and the respondent.

        Admittedly, the agreement for construction was entered into between the parties for construction of ground +first floor in the plot of the respondent.  The appellant has not adduced evidence in support of his plea that subsequently on request of the respondent he proceeded to construct second floor at the rate of Rs.700/- per sft. and he incurred expenditure for purchasing material for the purpose of raising second floor. The appellant admitted receiving the amount from the respondent for purchasing material for the purpose of construction of the house which however, according to the version of the appellant, he had received it for the purpose of construction of Ground Floor and First Floor.

        Payment of amount for purchasing the material for construction of the house is made according to the appellant for the purpose of purchasing material for construction of ground floor and first floor whereas it is the version of the appellant that he incurred an extra amount for purchasing the material for construction of second floor. The construction of the second floor is not subject matter of the agreement of construction and we are concerned with the terms of het agreement relating to the construction of ground floor and first floor of the house.

        The estimation made by the surveyor without it being marked in evidence and not being supported by affidavit of the person who issued it is challenged in the backdrop of the finding of the District Forum that both parties have not filed photographs to show the present status of the construction of the house. It is true the estimation issued by the surveyor is not marked in evidence. However,  the certificate cannot be denied any evidentiary value as the appellant had not chosen to deny execution of the document or the mode of estimation made therein and the document was filed along with the complaint as the basis for the claim of Rs.2,92,000/-.

        Thus, the award of Rs.2,92,000/- for the value of the left out construction work of the house in the strict sense cannot be held unjustified in the light of the fact that the appellant has not adduced evidence to show the present status of the construction of the house particularly in the circumstances where the evidence to the effect is in possession of the appellant as it is the appellant who has not merely purchased the material for the purpose of construction and he is the person to carry out the construction work of the house.

The District Forum was not certain as to the stage of construction of the house and yet it proceeded to award compensation of Rs.10,000/-on the premise of the delay caused in construction of the house.  The respondent had submitted that he paid extra amount of Rs.1,00,000/- for purchase of material for construction  of the house. The respondent had not claimed for the extra amount.  The appellant had taken a stand that there was proposal for construction of second floor at the same rate as agreed upon in regard to the ground floor and first floor of the house and the construction of second floor was in progress.

All the facts as regards to the proposal for construction of the second floor in the backdrop of non-denial of the same by the respondent ought to have been taken into consideration while coming to conclusion that there was delay on the part of the appellant in completing the construction of the ground floor and first floor of the house which the District Forum failed to take into consideration and as such award of compensation of Rs.10,000/- is unjustified and not sustainable and to  that extent the order of the District Forum is liable to be set aside.

In the result, the appeal is allowed setting aside the relief for compensation of Rs.10,000/- while confirming the rest of the order. There shall be no separate order as to costs. Time for compliance four weeks.

                                                                                                                                Sd/-INCHARGE PRESIDENT.

                                                                                                                                Sd/-MEMBER.

JM                                                                                                                             Dt.21-11-2013.