Date of Filing:        20.10.2016

                                                                                                                       Date of Disposal:  23.05.2019

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM

THIRUVALLUR-1.

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

                        TMT.K.PRAMEELA, M.COM.,                                     :   MEMBER I

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

CC.No.48/2016

THUSDAY, THE 23^rd DAY OF MAY 2019

Mr.T.Kaliselvan,

Plot NO.97, Annai Nagar,

Korattur North,

Chennai -600 076.                                                           ….. Complainant.                            

                                           //Vs//

Mr.Selvamurugan,

Plot No.97A,  Annai Nagar,

Korattur North,

Chennai -600 076.                                                         ……..Opposite party.

This complaint is coming up for final hearing before us on 10.05.2019 in the presence of complainant who has appeared in person and Mr.S.Guru Moorthy, Counsel for the opposite party and having perused the documents and evidences on both sides, this forum delivered 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 for seeking direction to pay a sum of Rs.2,00,000/-towards compensation for causing mental agony and loss to the complainant and to pay a sum of Rs.1,10,000/- towards rent for the delay in handed over the possession and to pay a sum of Rs.2,31,000/- towards interest for the construction cost of Rs.18,00,000/- at the rate of 14% per annum and cost of proceedings to the complainant.

2. The averments of the complaint is brief as follows:-

The complainant has entered into an construction agreement with the opposite party on 03.02.2014 and the complainant has given Rs.21,00,000/-.  The builder has agreed to construct the building as per agreement and as per approval with super structure at a cost of Rs.18,00,000/- and the builder shall return the balance amount of Rs.3,00,000/-.  The complainant has paid Rs.50,000/- at the time of agreement by way of cheque.  The builder has agreed to construct the building within a period of nine months from the date of agreement, i.e.03.02.2014. But the opposite party has handed over the property on 25.10.2015 after a delay of nearly 11 months.  The opposite party has committed deficiency in service by not delivering the building on time to the complainant.  Therefore the complainant filed this complaint to direct the opposite party for seeking direction to pay a sum of Rs.2,00,000/-towards compensation for causing mental agony and loss to the complainant and to pay a sum of Rs.1,10,000/- towards rent for the delay of handed over the possession and to pay a sum of Rs.2,31,000/- towards interest for the construction cost of Rs.18,00,000/- at the rate of 14% per annum and cost of proceedings to the complainant.

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

The opposite party denied the allegations stated in the complaint except those that are specifically admitted in the written version. The complainant mutually agreed to build the superstructure owned by the complainant in consideration of the contiguous land purchased from the complainant in favor of the opposite party.  Hence there is no any single fiscal loss or investment arises on the part of the complainant. The impugned agreement of construction is bilateral and purely mistake of fact, even it is persisted in the legal notice dated 28.06.2016 issued by the complainant.  For which an appropriate reply has made by the opposite party.  It is admitted by the complainant that the ultimate pecuniary resources to the assailed construction had entirely endowed by the opposite party alone, no part of such burden shouldered by the complainant.  It is vivid to perceive that in case of any willful delay on the part of the opposite party will eventually affect anyone rather than the opposite party himself.  Moreover, the babbling of the complainant about the sustenance of loss on account of delay in completion of construction is seems to be absurd. Due to the continuous rainfall during the construction work, due to the continuous water stagnation over the house site which disturbed the construction work.  The complainant is entitled to receive the remaining amount of Rs.2,50,000/- at the time of completion of the construction work as per clause 4 of the agreement, but knowing very well of the same , the complainant urged the opposite party for the remaining amount by stating the reason that the medical expenses of the complainant’s wife and marriage expenses of the complainant’s daughter.  Therefore the opposite party paid Rs.1,00,000/- as cash to the complainant in July 2014 and paid Rs.80,000/- as cash to the complainant in March 2015. Hence it is prayed that forum may be pleased to dismiss the complaint filed by the complainant.

4. In order to prove the case, on the side of the complainant, the proof affidavit submitted as his evidence and Ex.A1 to Ex.A6 were marked.  While so on the side of the opposite party proof affidavit filed as his evidence and Ex.B1to Ex.B6 were marked.  Further written argument has filed and oral argument adduced by the opposite party, subsequently complainant’s side written argument has not filed and also oral argument not adduced.

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 complainant is entitled for compensation from the opposite party?

(3) Whether the complainant is entitled for Rs.1,10,000/- towards rental income from the opposite party?

(4) Whether the complainant is entitled the interest for construction cost from the opposite party?

(5) Whether the complainant is entitled for cost of proceedings?

(6) To what other reliefs, the complainant is entitled?

6. Point No.1, 2 and 5:-

The case of the complainant is that, the complainant had entered in to a construction agreement for purchase of building with the opposite party and paid full amount for construction of building, but the opposite party has not constructed the building in time as agreed in the construction agreement and not handed over possession within the stipulated time.  The opposite party has committed breach of contract and thereby the complainant had suffered irreparable loss, hardship and mental agony.  Therefore the complainant issued legal notice to the opposite party in spite of repeated demands, the opposite party has not come forward to fulfill the demand of the complainant and thereby the complainant has compelled to file this complaint.

7. While so, the contention of the opposite party is that the agreement of construction is invalid before the Court of Law. There is delay in completion of construction on the reason due to the continuous rainfall during the construction work, due to the continuous water stagnation over the house site.  Further the complainant filed this consumer complaint with mala fide intention and there is no deficiency in service on the part of the opposite party.

8. The opposite party has entered into an agreement with the complainant to construct Ground floor and 1^st Floor at Plot No.97, S.No.171/3, Annai Nagar, Korattur village on 03.02.2014 and the complainant has paid full construction amount and also both the parties signed in the agreement and therefore the construction agreement is valid.  Ex.A1 is the copy of construction agreement. As per clause 4 of the agreement the opposite party has to complete the construction of building Ground floor and 1^st floor within a period of nine months. Therefore as per agreement the construction shall be completed before 02.11.2014, but the opposite party handed over the building only on 25.10.2015.  Ex.A6 is the copy of letter to hand over the building to the complainant.  In which the opposite party written as follows:- “The construction of the building is completed and is ready for occupation.  If there is any minor pending work, I shall complete the same at the earliest.  As a token of gesture of receiving the key and handing over of the possession you may sign this letter.”  Therefore the above building was handed over to the complainant only on 25.10.2015.  Hence there is delay in handing over the building to the complainant.

9. The main contention of the opposite party is that, there is some delay in completion of the construction because due to the continuous rainfall during the construction work and due to the continuous water stagnation over the house site.  There is no proof on the side of the opposite party to show there was heavy rain or flood between 03.02.2014 to Oct 2015.  Further the opposite party has not obtained extension of time for completion of the building from the complainant before handed over the possession.  Hence the reason stated in the version by the opposite party has not completed the construction work due to the above reasons are unsustainable.  Further clause 10 of the construction agreement written as follows:- The contractee shall not incur any liability in the completion of the building is delayed due to circumstances beyond their control like non availability of steel, cement, natural calamities, and delay in getting service connection from Government agencies like TNEB, Water, and Sewerage etc.,  But here in this complaint, there is no delayed due to non availability of steel, cement, natural calamities and delay in getting service connection from Government Agencies, if really there is any delay due to the natural calamities or getting service connection from Government Agencies then the opposite party ought to have informed the same to the complainant and got extension of time for completion of building from the complainant.  But there is no such documents produced in this forum by the opposite party. Therefore this forum is unable to consider the above contention of the opposite party.

10. After analyzing the fact and circumstances case of the complainant along with relevant documentary evidence produced by him, the complainant has approached this forum with clean hands and proved his case beyond reasonable doubt.  There is deficiency in service on the part of the opposite party.  Therefore the complainant is entitled for compensation and cost.  Thus the point Nos.1, 2 and 5 are answered accordingly.

11. Point No.3 and 4:-

The complainant prays for an order to pay a sum of Rs.1,10,000/- towards 11 months rental amount and a sum of Rs.2,31,000/-towards interest for construction cost of Rs.18,00,000/-.  With respect to payment of rental amount for 11 months, there is no default clause in Ex.A1 agreement.  The opposite party has admitted that there is 11 months delay in handing over the possession of the building to the complainant.  But there is no agreement for payment of rental amount in default of handing over the building within the time and therefore the complainant is not entitled for rental amount from the opposite party.  Further, with respect to payment of interest for construction cost, there is a clause in Ex.A1 agreement.  Clause 12 of the agreement written as follows:- “if for any reason, the contractor willfully delays the construction of the said building or unable to reasonably account of any delay, the contractee is entitled to charge interest 24% from the contractor.”  Here in this complaint also there is 11 months delay in handing over the possession and as per clause 12, the complainant is entitled for 24% interest from the opposite party. Further as per clause 3 of the agreement the contractor has paid 50,000/- as token advance and shall pay Rs.2,50,000/- after completion of the building construction.  But the opposite party has paid 1,80,000/- before completion of the construction work in addition to the payment of Rs.50,000/- as token advance.  According to the opposite party, he has paid 1,00,000/- during July 2014 and has paid Rs.80,000/- during March 2015 to the complainant.  The complainant has not disputed the same.  Therefore the opposite party has paid 2,30,000/- before completion of the construction work. Further the opposite party alleged that they have done additional work amounting to Rs.4,10,100/-.  Ex.B6 is the copy of the report to prove the additional work and the same is not disputed by the complainant. The opposite party has done some additional work and also paid advance amount to the complainant before completion of the construction for the purpose of medical treatment to the complainant.  Under these circumstances the complainant is not entitled for Rs.1,10,000/- towards rental income and not entitled interest for cost of construction of Rs.18,00,000/-.  Thus the point Nos.3 and 4 are answered accordingly.

12. Point No.6:-

In the result, this complaint is allowed in part.  Accordingly, the Opposite Party is directed to pay a sum of Rs.50,000/- (Rupees Fifty thousand only) towards compensation for causing mental agony 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 litigation to the complainant. With respect to other reliefs, this complaint is dismissed.

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 on this 23^rd May 2019.

                - Sd-                                   -Sd-                                                            -Sd-

      MEMBER-II                          MEMBER-I                                      PRESIDENT

List of document filed by the complainant:-

List of document filed by the opposite party:-

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MEMBER-II                                      MEMBER-I                                          PRESIDENT