Tamil Nadu
South Chennai
CC/394/2013
Syed Sumair Ahmed - Complainant(s)
Versus
Mohammed Salim - Opp.Party(s)
N Varadharajan
17 May 2019
ORDER
Date of Filing : 02.12.2013
Date of Order : 17.05.2019
DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, CHENNAI (SOUTH)
@ 2ND Floor, T.N.P.S.C. Road, V.O.C. Nagar, Park Town, Chennai – 3.
PRESENT: THIRU. M. MONY, B.Sc., L.L.B, M.L. : PRESIDENT
TR. R. BASKARKUMARAVEL, B.Sc., L.L.M., BPT., PGDCLP. : MEMBER
C.C. No.394/2013
DATED THIS FRIDAY THE 17TH DAY OF MAY 2019
Mr. Syed Sumair Ahmed,
S/o. Mr. Syed Ahmed,
B15, Cosmo Towers,
No.11/11A, Dr. Thomas Road,
T. Nagar,
Chennai – 600 017. .. Complainant.
..Versus..
1. Mr.Mohammed Salim,
Salam Apartments,
New No.222, Old No.151,
Choolaimedu High Road,
Chennai – 600 094.
2. M/s. Aseera Foundation Pvt. Ltd.,,
Rep. by Mr. Mohammed Salim,
Salam Apartments,
New No.222, Old No.151,
Choolaimedu High Road,
Chennai – 600 094. .. Opposite parties.
Counsel for the complainant : M/s. N. Varadha Rajan and another
Counsel for the opposite party : M/s. C. Ajith Kumar and another
ORDER
THIRU. M. MONY, PRESIDENT
This complaint has been filed by the complainant against the opposite party under section 12 of the Consumer Protection Act, 1986 prays to refund a sum of Rs.12,32,420/- being the excess amount received by the opposite parties and above the actual construction work done by him together with the sum of Rs.86,270/- towards interest for the period from 01.05.2013 to 30.11.2013 as aforesaid in aggregating to the sum of Rs.13,18,690/- and to pay a sum of Rs.5,00,000/- towards compensation for deficiency of service with cost of Rs.50,000/- to the complainant.
1. The averments of the complaint in brief are as follows:-
The complainant submits that he is the owner of the vacant land bearing plot No.V, 23rd Street, Padmavathy Nagar Extension, Bhai Gardens, Madambakkam Village, Tambaram Taluk, Kancheepuram District. He entered into a Construction Agreement with the opposite parties for constructing a house of super built up area 2,386 sq. ft. in ground floor and first floors with a compound wall, water sump and overhead tank with all basic amenities within one year dated:05.02.2012. The complainant submits that the cost of construction is at the rate of Rs.1,350/- per sq. ft. The total cost of construction will be of Rs.32,21,100/-. The specification of works and the payment schedule is very clearly mentioned in the Construction Agreement. Accordingly, the opposite parties commenced the foundation work on 30.04.2012 and the entire construction works shall be completed and delivery possession of the building will be made on or before 30.04.2013. The complainant submits that he has paid a sum of Rs.29,37,000/- as on April 2013. The following are the date of payment details which reads as follows:
Date Receipt No. Amount Mode of Payment
22.03.2012 327 Rs.1,00,000/- By cash
22.06.2012 335 Rs.1,00,000/- By cash
22.06.2012 336 Rs.6,00,000/- By cheque (SBI)
08.08.2012 339 Rs.10,00,000/- By cheque (SBI)
08.08.2012 340 Rs.2,20,000/- By cash
343 Rs.15,000/- By cash
17.08.2012 344 Rs.2,00,000/- By cash
07.12.2012 347 Rs.2,00,000/- By cheque (SBI)
20.01.2013 348 Rs.52,000/- By cash
30.01.2013 351 Rs.3,50,000/- By cheque (SBI)
April 2013 Rs.1,00,000/-
2. The complainant submits that the opposite parties during the month of April 2013 abandoned the work in the site and removed all the building materials and equipments and failed to carry out the construction work which caused great mental agony. Hence, the complainant engaged a reputed Engineer M/s. View points at No.102 (IA) GST Road, Pallavaram, Chennai – 600 043 to inspect the construction site and carried out by the opposite party left out the construction work in the middle and to give an estimate for the cost of pending construction work to be constructed i.e. the cost for balance work. Accordingly on 20.09.2013, the said Engineer M/s. View Points inspected the site and submitted their report dated:25.09.2013 stated very clearly that the opposite parties constructed only 65% of the total work and abandon to construct the balance 35%. But the complainant has paid Rs.29,37,000/- against Rs.32,21,100/- which is very high. The complainant submits that it is agreed for constructing super built up area of 2,386 sq. ft. but as per Construction Agreement, the super built up area is 2,200 sq. ft. But the opposite parties has not delivered possession of the house as per the agreement. The act of the opposite parties 1 & 2 amounts to deficiency in service and unfair trade practice which caused great mental agony. Hence, the complaint is filed.
3. The brief averments in the written version filed by opposite parties 1 & 2 is as follows:
The opposite parties 1 & 2 specifically deny each and every allegations made in the complaint and put the complainant to strict proof of the same. The opposite parties state that the 1st opposite party is not a necessary party having no connection with the complainant and the Construction Agreement. The opposite parties state that the complainant after entering into an Construction Agreement dated:05.02.2012 has not complied the mode of payments stipulated therein. The complainant shall pay a sum of Rs.6,00,000/- as advance but paid only Rs.1,00,000/-. As per the Construction Agreement, the construction shall be completed within one year from the date of commencement of work. But due to non-payment of amount as per the schedule in the Construction Agreement and irregular payments of amount by the complainant, the opposite parties were not able to continue the construction work. The opposite parties state that they have never received any excess amount against the quantum of construction.
4. The opposite parties state that at the request of the complainant, the compound wall on the western side of larger extent was constructed with a gate which is not covered under the Construction Agreement dated:05.02.2012 spending a sum of Rs.1,50,000/- which was refused to pay by the complainant. Equally, the opposite parties have provided doors and windows at the request of the complainant in excess size against the specifications in the agreement. The opposite parties state that as per the Construction Agreement, the depth of the foundation for the building shall be 2½ feet. But the depth of foundation work went to the extent of 4 to 5½ feet. Thereby, the opposite parties have expended a huge sum of Rs.2,50,000/-. The opposite parties state that one Mr. Ramkumar of M/s. View Point Engineer has prepared Engineer’s Report is unilateral showing 35% of remaining work which is absolutely false. The opposite parties state that the allegation that the opposite parties have taken away all the constructing equipments/ materials lying in the complainant’s site is absolutely false. Due to the non-operation of the complainant and non-payment of the amount in appropriate time, the opposite parties was put to great loss. The complainant also has not returned the constructing equipments. The complainant had modified the construction done by the opposite parties and claimed huge amount. The compensation claimed is exorbitant and imaginary. Therefore, there is no deficiency in service on the part of the opposite parties and hence, the complaint is liable to be dismissed.
5. To prove the averments in the complaint, the complainant has filed proof affidavit as his evidence and documents Ex.A1 to Ex.A14 are marked. Proof affidavit of the opposite parties 1 & 2 is filed and documents Ex.B1 to Ex.B7 are marked on the side of the opposite parties 1 & 2.
6. The points for consideration is:-
- Whether the complainant is entitled to get refund of a sum of Rs.12,32,420/- paid in excess towards the construction work with interest of Rs.86,270/- as prayed for?
- Whether the complainant is entitled to a sum of Rs.5,00,000/- towards compensation for deficiency in service with cost of Rs.50,000/- as prayed for?
7. On point:-
Both parties filed their respective written arguments. Perused the records namely; the complaint, written version, proof affidavits and documents. The complainant pleaded and contended that he is the owner of the vacant land bearing plot No.V, 23rd Street, Padmavathy Nagar Extension, Bhai Gardens, Madambakkam Village, Tambaram Taluk, Kancheepuram District. He entered into a Construction Agreement with the opposite parties for constructing a house of super built up area 2,386 sq. ft. in ground floor and first floors with a compound wall, water sump and overhead tank with all basic amenities within one year as per Ex.A1 dated:05.02.2012. Further the contention of the complainant is that the cost of construction is at the rate of Rs.1,350/- per sq. ft. The total cost of construction will be of Rs.32,21,100/-. The specification of works and the payment schedule is very clearly mentioned in Ex.A1, the Construction Agreement. Accordingly, the opposite parties commenced the foundation work on 30.04.2012 and the entire construction works shall be completed and delivery possession of the building will be made on or before 30.04.2013. But there is no proof any document to show that the foundation work stared on 30.04.2012.
8. Further the contention of the complainant is that he has paid a sum of Rs.29,37,000/- as on April 2013. The following are the date of payment details which reads as follows:
Date Receipt No. Amount Mode of Payment
22.03.2012 327 Rs.1,00,000/- By cash
22.06.2012 335 Rs.1,00,000/- By cash
22.06.2012 336 Rs.6,00,000/- By cheque (SBI)
08.08.2012 339 Rs.10,00,000/- By cheque (SBI)
08.08.2012 340 Rs.2,20,000/- By cash
343 Rs.15,000/- By cash
17.08.2012 344 Rs.2,00,000/- By cash
07.12.2012 347 Rs.2,00,000/- By cheque (SBI)
20.01.2013 348 Rs.52,000/- By cash
30.01.2013 351 Rs.3,50,000/- By cheque (SBI)
April 2013 Rs.1,00,000/-
But on a careful perusal of Ex.A1, Building Construction Agreement, the said payment where not tallied with the stages of construction. On the other hand, there is no substantial delay in payment on par with the stages.
9. Further the contention of the complainant is that the opposite parties during the month of April 2013 abandon the work in the site and removed all the building materials and equipments and failed to carry out the construction work which caused great mental agony. Hence, the complainant was constrained to engage a reputed Engineer M/s. View points at No.102 (IA) GST Road, Pallavaram, Chennai – 600 043 to inspect the construction carried out by the opposite party and give an estimate for the cost of construction and to be constructed i.e. the cost for balance work. Accordingly on 20.09.2013, the said Engineer M/s. View Points inspected the site and submitted their report dated:25.09.2013 as per Ex.A4 stating very clearly that the opposite parties constructed only 65% of the total work and abandon to construct the balance 35%. But the complainant has paid Rs.29,37,000/- against Rs.32,21,100/- which is very high. On a careful perusal of the complaint, Agreement dated:05.02.2012 Ex.A1, the complainant's letter dated:29.07.2013 as per Ex.A2, the opposite parties’ reply dated:03.08.2013 as per Ex.A3 reveals that there are gross difference in the area. According to the complainant as per the complaint and Ex.A2 letter dated:29.07.2013, it is agreed for constructing super built up area of 2,386 sq. ft. but as per Ex.A1, Construction Agreement, the super built up area is 2,200 sq. ft. As per Ex.A3 reply dated:03.08.2013, the complainant has agreed for constructing 2,486 sq. ft. and thereafter reduced to 2,386 sq. ft. Ex.A1 Construction Agreement is silent regarding the construction of 2,386 sq. ft. But it is not denied by the opposite parties that they have constructed 2,348 sq. ft. as per the Engineer’s Report vide Ex.A4. The payment made by the complainant shall be calculated for the accepted super build up area of 2,386 sq. ft. On calculation, it is apparently clear that the complainant has paid an excess amount of Rs.8,43,285/-, to the opposite parties. But the opposite parties has not delivered possession of the house as per the agreement amounts to deficiency in service. The complainant is claiming a sum of Rs.12,32,420/- towards excess payment. But on a careful perusal of the entire records, it is admitted that the opposite parties have constructed 2,386 sq. ft. at the rate of Rs.1,350/- per sq. ft. According to the complainant, the opposite parties has not constructed properly and abandon the work. Hence, the complainant himself appointed M/s. View Points Engineers to inspect the property and filed their report which is even though unilateral. It is very clear that all the structural construction were completed except the 35% of the total build work like paining, flooring plumbing, electrical etc. But miserably failed to give estimate in break up figures for such completion of work. The complainant after filing the case also has not taken any steps to appoint an Advocate Commissioner to inspect the property with a qualified Civil Engineer and make assessment of the balance work. As per Ex.A9, Additional Engineer Report, 35% of the work requires Rs.15,16,000/-. As per the Construction Agreement, 100% of the work requires Rs.32,21,100/- which never tally with each other proves the estimate is on the highest side. The claim of Rs.12,32,420/- towards the excess payment is also absolutely false and baseless. On calculation, the complainant is entitled only a sum of Rs.8,43,285/- alone.
10. The contention of the opposite parties is that the 1st opposite party is not a necessary party having no connection with the complainant and the Construction Agreement. There is no iota of evidence to prove that the 1st opposite party is a necessary party. But on a careful perusal of the records, it is very clear that the 2nd opposite party is represented by the 1st opposite party in relation with the construction works etc. Hence, the 1st opposite party is also a necessary party in this case. Further the contention of the opposite parties is that the complainant after entering into an Construction Agreement dated:05.02.2012 as per Ex.A1/ Ex.B1 has not complied the mode of payments stipulated therein. The complainant shall pay a sum of Rs.6,00,000/- as advance but paid only Rs.1,00,000/-. As per Annexure – V of Ex.A1, Construction Agreement, the construction shall be completed within one year from the date of commencement of work. But due to non-payment and irregular payments of amount by the complainant, the opposite parties were not able to continue the construction work. But there is no iota of evidence in this case to prove the same. On the other hand, the complainant has paid a total sum of Rs.29,37,000/- as on April 2013 eventhough it is not in stage wise.
11. Further the contention of the opposite parties is that they have never received any excess amount against the quantum of construction. But the opposite parties has not taken any steps to prove the same by way of proper evidence. Further the contention of the opposite parties is that at the request of the complainant, the compound wall on the western side of larger extent was constructed with a gate which is not covered under the Construction Agreement dated:05.02.2012 spending a sum of Rs.1,50,000/- which was refused to pay by the complainant. Equally, the opposite parties have provided doors and windows at the request of the complainant in excess size against the specifications in the agreement. But the opposite parties have not proved the same also. On the other hand, as per the Construction Agreement, the opposite parties shall construct the compound wall also. Further the contention of the opposite parties is that as per the Construction Agreement, the depth of the foundation for the building shall be 2½ feet. But the depth of foundation work went to the extent of 4 to 5½ feet. Thereby, the opposite parties have expended a huge sum of Rs.2,50,000/-. For that also, the opposite parties has not adduced any evidence.
12. Further the contention of the opposite parties is that one Mr. Ramkumar of M/s. View Point Engineer has prepared Engineer’s Report as per Ex.A4 is unilateral showing 35% of remaining work which is absolutely false. Because the assessment given for such incomplete work is Rs.15,16,000/-. On the other hand, the total construction cost is Rs.32,21,100/- proves that the opposite parties have completed 90% of the work. Further the contention of the opposite parties is that the allegation that the opposite parties have taken away all the constructing equipments/ materials lying in the complainant’s site is absolutely false. Due to the non-operation of the complainant and non-payment of the amount in appropriate time, the opposite parties was put to great loss. The complainant also has not returned the constructing equipments. The complainant had modified the construction done by the opposite parties and claimed huge amount. The compensation claimed is exorbitant and imaginary. Considering the facts and circumstances of the case, this Forum is of the considered view that the opposite parties 1 & 2 shall jointly and severally liable to pay a sum of Rs.8,43,285/- towards incomplete construction works with a compensation of Rs.50,000/- for mental agony with cost of Rs.5,000/- to the complainant.
In the result, this complaint is allowed in part. The opposite parties 1 & 2 are jointly and severally liable to pay a sum of Rs.8,43,285/- (Rupees Eight lakhs forty three thousand two hundred and eighty five only) towards incomplete construction works and to pay a sum of Rs.50,000/- (Rupees Fifty thousand only) towards compensation for mental agony with cost of Rs.5,000/- (Rupees Five thousand only) to the complainant.
The aboveamounts shall be payablewithin six weeks from the date of receipt of the copy of this order, failing which, the said amounts shall carry interest at the rate of 9% p.a. to till the date of payment.
Dictated by the President to the Steno-typist, taken down, transcribed and computerized by her, corrected by the President and pronounced by us in the open Forum on this the 17th day of May 2019.
MEMBER PRESIDENT
COMPLAINANT SIDE DOCUMENTS:-
Ex.A1 | 05.02.2012 | Copy of the Construction Agreement |
Ex.A2 | 29.07.2013 | Copy of the complainant’s letter |
Ex.A3 | 03.08.2013 | Copy of the reply of the opposite party |
Ex.A4 | 25.09.2013 | Copy of the Engineer’s Report |
Ex.A5 | 01.10.2013 | Copy of the complainant’s Advocate notice |
Ex.A6 | 19.10.2013 | Copy of the reply notice of the opposite party |
Ex.A7 | 03.11.2013 | Copy of the rejoinder notice issued by the complainant |
Ex.A8 |
| Copy of postal acknowledgement due of the opposite party |
Ex.A9 | 19.11.2013 | Copy of the Additional Engineer Report |
Ex.A10 | 20.11.2013 | Copy of the additional rejoinder notice of the complainant |
Ex.A11 | 23.11.2013 | Copy of the postal acknowledgement due of the opposite party |
Ex.A12 |
| Copy of photographs with CD |
Ex.A13 | 01.08.2014 | Copy of the Building Contractor Expenses receipt |
Ex.A14 |
| Copy of the complainant’s purchase bills |
OPPOSITE PARTIES SIDE DOCUMENTS:-
Ex.B1 | 05.02.2013 | Copy of Construction Agreement |
Ex.B2 | 29.07.2013 | Copy of notice by the complainant |
Ex.B3 | 03.08.2013 | Copy of reply by the opposite party |
Ex.B4 | 01.10.2013 | Copy of legal notice of the complainant’s Counsel |
Ex.B5 | 18.10.2013 | Copy of reply notice by the opposite parties |
Ex.B6 | 03.11.2013 | Copy of rejoinder notice issued by the complainant to the opposite parties |
Ex.B7 | 29.03.2013 | Copy of calculation statement |
MEMBER PRESIDENT
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