KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

VAZHUTHACAUD, THIRUVANANTHAPURAM

C.C. No. 37/2014

JUDGMENT DATED: 25.09.2023

PRESENT:

HON’BLE JUSTICE SRI. K. SURENDRA MOHAN     : PRESIDENT

SRI. AJITH KUMARD.                                                     : JUDICIAL MEMBER

SMT. BEENA KUMARY. A                                              : MEMBER

COMPLAINANT:

Joseph Varghese, Kannamplavil House, Nellimala P.O.,Thattakadu Muri, Koipram Village, Thiruvalla Taluk, Pathanamthitta.

                   (By Adv. Bijo Thomas George)

Vs.

OPPOSITE PARTIES:

1. Annamma Abraham, Thayyil House, R.S.P.O., Thiruvalla-689 111, Thiruvalla Taluk, Pathanamthitta.

2. Renjith T. Mathew,    Thayyil House, R.S.P.O., Thiruvalla-689 111, Thiruvalla Taluk, Pathanamthitta.

                (By Adv. Anil Kumar A.S.)

JUDGMENT

SMT. BEENAKUMARY A. : MEMBER

The case of the complainant is as follows: On 19.01.2013 the complainant and the 1^st opposite party have entered into an agreement for the proposed construction and renovation of the residential building of the complainant situates at Nellimala, Kumbanaduin Pathanamthitta District as per the drawing and specifications attached with the agreement.  Even though the complainant has paid Rs. 21,10,000/- to the opposite parties, the works were not completed as agreed by the opposite parties as per the said agreement.  That after series of mediations and discussions the period of agreement was extended as demanded by opposite parties and the agreement dated 19.01.2013 was renewed by another agreement dated 24.10.2013.  In the said agreement some additional works were included and the payment of Rs. 21,10,000/- was admitted.  The total consideration was increased and it was fixed as Rs. 30,00,000/-.  After the renewal of the agreement the work was restarted and on 25.10.2013 the opposite parties demanded more money and the complainant has paid Rs. 2,00,000/- on the very same date.  The work was stopped after 2-3 days.  Further the opposite parties were not ready to continue the work and have demanded more money in advance without doing any additional work.  Therefore the complainant was reluctant to give the exorbitant amount as demanded by the opposite parties subsequently.  The above mentioned act of the opposite parties would amount to cheating with a malafide intention to make wrongful gain to the opposite parties and to make wrongful loss to the complainant.  Therefore the complainant filed a criminal complaint before the Circle Inspector of Police, Kozhencherry and the Police registered a case as FIR No. 1151/13 of Koipuram Police Station.  Immediately the opposite parties approached the Hon’ble High Court of Kerala and filed WP(C) No. 30660/13 for seeking protection against police harassment.  The said case was disposed.  Before instituting the said case before the Hon’ble High Court a notice was received from the opposite parties stating that they have appointed Adv. C. Dilip as the sole arbitrator to adjudicate the entire matters in dispute between the complainant and opposite parties.  The arbitration demanded by the opposite parties is another ploy to delay the work to be executed and to cause irreparable injury to the complainant.  There is no arbitration clause in the agreement executed on 24.10.2013.  The complainant’s son’s marriage was arranged to be solemnized on 22.07.2013.  Therefore the work was to be completed before 22.07.2013.  This fact was known to the opposite parties.  The work was not completed within the said period which caused much mental agony and pain to the complainant.  Therefore the complainant is entitled to get Rs. 2,00,000/- as compensation for the mental agony and pain suffered by him.  Moreover the work done by the opposite parties was not having the prescribed standard or quality due to lack of expertise and proper supervision.   The work was not done according to the plan given by him.  Therefore, certain portion already constructed has to be dismantled and to be reconstructed.  The act on the part of the opposite party is clearly a deficiency in service and it will come well within the purview of the Consumer Protection Act.  The complainant was ready for a joint measurement of the construction work so far done by the opposite party which was intimated to him through a legal notice dated 21.02.2014.  But the opposite party has not responded to the said request.  Since the opposite parties have received the money, they are duty bound to complete the construction as per the agreement approved plan and specifications.  But the opposite parties have not done so.  Moreover, the opposite party has wilfully defaulted the construction of the said residential house.  Therefore, it will amount to deficiency in service and will come within the purview of the Consumer Protection Act.  Even though there was repeated demand from the complainant to the opposite party to complete the construction within the stipulated time, the opposite party neither completed the work nor returned the exorbitant amount received from the complainant.  The complainant issued a legal notice on 20.11.2010 through his advocate Bijo Thomas George demanding the opposite parties to be ready for a joint measurement of the part of the work done by the opposite party and to settle the accounts within 15 days from the date of receipt of the notice.  The opposite party never turned up to the said demand.  The opposite party who is bound by the terms of the agreement failed to perform his part and violated the agreement.  Therefore, there is deficiency of service on the part of the opposite party.  Hence the complainant has filed this complaint to recover an amount of Rs. 23,10,000/- which was received by the opposite parties for the construction together with 18% interest per annum till realization, Rs. 2,00,000/- as compensation for the mental agony and pain suffered by the complainant due to non-completion of the work within stipulated time as per the agreement and also costs of the proceedings. 

2.  The opposite parties entered appearance and filed their version.  In the version opposite parties contended that due to the long term acquaintance with the opposite party, the complainant approached the opposite parties for the renovation and modification of his house.  Accordingly an agreement was executed on 19.01.2013 between the complainant and the opposite parties.  The term of the agreement for completion was approximately nine months.  The agreement was for the construction of an extension having plinth area of 1200 sq. ft.  The rate was fixed at Rs. 1,875/- per sq. ft. initially, resulting in the total amount for the work as Rs. 22,50,000/-.  The rate of extra plinth area above 1200 sq. ft of the building was fixed to be at Rs. 1,850/- per sq. ft. as per the agreement.  Since the renovation work of an already existing building involves demolition, reconstruction and modifications of the parts of the already existing areas, the balance amount for the extra works and the extra areas were to be finalized after the competition of the work.  It was agreed that demolition, dismantling, tile laying work and renovation work of the old area of the building shall be extra work and its consideration was to be paid as advance at each stage of the work.  The construction plan was further changed at the instance of the complainant increasing the plinth area.  The plinth area according to the modified plan was 1526 sq. ft.  Thus the plinth area increased by 326 sq. ft resulting in an additional amount of Rs. 6,03,100/-.  From the very beginning, the complainant was delaying the stage wise payment and he was not co-operative and was making undue demands.  The stage wise payments were split up and paid to the opposite party deviating from the terms of the agreement.  The work was moving rapidly and the complainant was unable to make timely payments and the actual payments made were inadequate.  The total amount received by the opposite party as on 05.07.2013 was Rs. 21,10,000/- excluding the payments for the extra works assigned and completed.  Subsequently even after repeated demands, the complainant failed to make payment for the extra work already completed, which he was supposed to pay as advance at each stage.  The opposite party had continued the work to the site without abandoning the same.  The investment made by the opposite party to do the works was raised by borrowing amounts from her acquaintances.  She has to repay the same at the earliest.  The lenders have been demanding return of their money.  All the income from other projects has been utilized in this project, to repay part of the debts incurred. The costs and the amounts for the extra works done, taxes as per clause 5 of the agreement, the labor cost to remove the debris at the time of demolition, the charges for demolition and renovation of the old building and the rent amount for the machinery used for the demolition and renovation were not assessed even after repeated demands from the opposite party.  The work was almost complete and the complainant was reluctant to assess the work and make payment of the amount due to the opposite party.  The term of the agreement was to get over in October 2013 and hence under the instructions of the proprietrix, the consultant architect had issued a letter.  In the letter, it was explained to the complainant that 95% work has been concluded to make immediate payment of at least Rs. 5,00,000/- from out of Rs. 8,50,000/- due to the opposite party so as to enable the firm to continue the work, failing which the firm shall not be in a position to continue the work.  On receipt of the same, the complainant further approached the opposite party demanding to execute more extra works and had arranged for a meeting where it was decided that a supplementary agreement shall be executed as Annexure to the original agreement, showing new items of work including modified terms for payment, additional renovation work and completion of the balance work pending.  Accordingly a supplementary agreement was executed by the parties on 24.10.2013 incorporating fresh modified terms for payment, for the completion of balance work and for some new additional work.  The payment term changed from that of ‘the plinth area’ in the earlier agreement dated 19.01.2013 to that of ‘lump sum payment for the works entrusted’. After long discussion, on terms of compromise with regard to summing up of works and the total lump sum consideration, the total consideration was re-fixed as Rs. 30,00,000/- and the term was extended to 21.12.2013.  It was also decided that the amount to be paid to the opposite party is Rs. 8,90,000/-.  The dates and the amount of payments to be made were clearly incorporated in the agreement to avoid any further deviation from the same by the complainant.  As per the terms in the supplementary agreement dated 24.10.2013, an amount of Rs. 2,00,000/- was paid by the complainant on 25.10.2013, totaling the amount received by the opposite party as Rs. 23,10,000/-.  The opposite party had commenced the renovation works believing that, the complainant would co-operate with the works.  The opposite party continued the work and had almost completed the work, believing that the complainant would make payments as agreed.  Unfortunately, the complainant defaulted in making payment of the balance amount as agreed in the supplementary agreement.  He had defaulted to make payments due on 30.10.2013, 06.11.2013 and 13.11.2013.  The opposite party demanded the complainant to make payments of the amount due, which ignited intolerance in the complainant.  The details of the works remaining are more clearly stated in the Schedule II attached herewith.  The materials for the said remaining work have already been stocked at the site.  The balance work will cost only the labour charges to opposite party.  The balance timber for all the remaining wood works were to be provided by the complainant, as per the terms of the agreement, which he failed to provide.  Hence the said wood works are to be completed.  This has resulted in wastage of time and labour of the opposite party.  The complainant along with his men had destroyed the work of the opposite party on 16.11.2013.  He had intimidated the consultant architect and had yelled that he would not make the payments as agreed.  The complainant had also tried to physically manhandle the consultant architect along with local gundas, demanding him to complete the work.  On the other hand, the complainant would not even allow the workers to enter the site. Thereafter the complainant and opposite parties quarreled with each other and a crime was registered against the opposite parties.  As per the order of the Hon’ble High Court the criminal case filed against the opposite party was dismissed.

3.  The opposite parties alleged that the complainant has to pay Rs. 6,90,000/- to the opposite parties for the work that has been done by them.  The opposite parties further stated that they had completed almost 95% of the works in the site.  The complainant had not paid the amount as per the agreement.  If the complainant had paid the amount the construction would have been completed.  There is no deficiency in service or unfair trade practice occurred from the opposite party.  The complainant has not sustained any damage or loss.  Hence the opposite parties prayed for the dismissal of the complaint. 

4.  In this complaint as per the commission application filed by the complainant, this Commission appointed Mr. Binu Baby, Executive Engineer, Hydrology Sub Division, Chengannur as the expert commissioner.  He has filed the report which is marked as Ext. C1.

5.  The complainant was examined as PW1 and from his side 5 documents were marked as Exts. A1 to A5.  The expert commissioner was examined as PW2 and his report was marked as Ext. C1.  Opposite parties filed proof affidavits.  No documents were marked and there has been no oral evidence.  They have filed petition for re-opening the evidence, this Commission allowed the petition on costs.  But the opposite parties not turned up to pay costs. 

6.  Points to be ascertained:

1. Whether the complaint is maintainable?
2. Whether there has been deficiency in service or unfair trade practice occurred from the side of opposite parties?
3. If so, reliefs and costs?

7.  Point (i): As per Sec. 2(d) of the Consumer Protection Act, 1986 the complainant is a consumer.  He has paid consideration for availing service from the opposite parties.  According to Sec. 3 of the Consumer Protection Act “The provisions of this Act shall be in addition to and not in derogation of the provisions of any other law for the time being in force”.  Hence the arbitration clause is not a bar against the filing of this complaint before this Commission.  Therefore the complaint is maintainable before this Commission. 

8.  Point (ii): There is no dispute regarding the execution of two agreements in this case.  Agreement dated 19.01.2013 is marked as Ext. A1 and copy of agreement dated 24.10.2013 is marked as Ext. A2.  Payments made by the complainant to the opposite parties are not disputed.  The opposite parties agreed that they have received Rs. 23,10,000/- from the complainant.  It is an admitted fact that the agreement dated 19.01.2013 was renewed by another agreement dated 24.10.2013.  As per the second agreement total consideration was fixed at Rs. 30,00,000/- and the construction wok restarted on 25.10.2013.  The work had to be completed on or before 21.12.2013.  Accordingly the complainant had paid Rs. 2,00,000/- on 24.10.2013.  The complainant alleged that thereafter the opposite parties have not turned up to continue the work promptly.  The opposite parties were not ready to continue the work and were demanding more money in advance without doing any additional work.  The complainant was not ready to give more amounts as subsequently demanded by the opposite parties.

9.  The complainant alleged that the work done by the opposite party was not having the prescribed standard or quality due to lack of proper supervision.  The work was not done according to the plan.  At this juncture this Commission appointed an expert commissioner to assess the work and total valuation of the construction made by the opposite parties.  The complainant claims repayment of the total amount paid by him to the opposite parties. 

10.  The expert commissioner visited the site, inspected the construction measured and assessed the value of the work done as per the present market rate.  He filed a detailed report.  As per his estimate the value comes to Rs. 15,90,000/-.  The percentage of works done out to be 53%.

11.  In the evidence, during cross examination of PW1 he deposed that ഈ agreement-ൽ opposite party യുമായി തർക്കമുണ്ടായാൽ അതിൻപ്രകാരം രണ്ടാമത്തെ agreement (24.10.2013) വരെ എന്തെങ്കിലും രീതിയിലുള്ള ഒരു complaint രേഖാമൂലം OPയെ അറിയിച്ചിട്ടുണ്ടോ? Ans: ഇല്ല.  From this deposition it is revealed that the complainant had no complaint regarding the work of the opposite party till the second agreement dated 24.10.2013.  The opposite parties also admitted that they were residing in the same building at the time of renovation work.  If they had any dispute regarding the work definitely he could inform the complaint immediately to the opposite parties. 

12.  PW1 further answered that “ഈ 2 ലക്ഷം രൂപ വാങ്ങിയതിന് 2ദിവസം മാത്രമേ work ചെയ്തുള്ളൂ.അതാണ് ഈ case ന് ആസ്പദമായ സംഭവം”.  But as per the agreement the work has to be completed on or before 21.12.2013.  The complainant had paid Rs. 2 lakhs on 25.10.2013.  The opposite parties restarted the work on 25.10.2013 and worked only for two days.  As per the second agreement the next payment due date was on 30.10.2013.  The opposite parties demanded the money as per the agreement and the complainant was not willing to pay further amount.  It is the real fact of the dispute.  For that reason the opposite parties stopped the construction work. 

13.  As per the commission report the total cost of work done as per current market rates is Rs. 15,90,000/-.  The complainant had paid Rs. 23,10,000/-.  In this case the opposite party has filed a petition to set aside the expert commission report.  But this Commission has not passed order on that petition, I.A. No. 1224/2016 as the opposite party did not initiate any steps to pursue the matter.  The assessment done by the expert commissioner with respect to the work carried out reveals the true state of affairs. On going through the entire evidence and perused the report we find that the report filed by the commissioner is genuine.  There is no ground for setting aside the report. 

14.  For the above reasons we find that the opposite parties obtained Rs. 23,10,000/- from the complainant.  But they had done the work only for Rs. 15,90,000/-.  From the assessment of the expert commissioner we find that there occurred deficiency in service and unfair trade practice on the part of the opposite parties.  It is the duty of the opposite parties to act according to the terms of the agreement.  The opposite party should do the work in proportion to the payment received by them.  But there is no delay for the work. Complainant has failed to prove that there was delay for the work from the side of opposite parties. 

In the result, the complaint is allowed.  The opposite parties are directed to refund Rs. 7,20,000/- (23,10,000-15,90,000) with 6% annual interest from 21.12.2013 till the date of realization.  The opposite parties are directed to pay Rs. 25,000/- as compensation and Rs. 10,000/- as costs to the complainant.  Time for compliance is within two months from the date of receipt of copy of the order.  Otherwise, the above said amounts shall carry interest @ 8% per annum till the date of realization.  

JUSTICE K. SURENDRA MOHAN  : PRESIDENT

                                   AJITH KUMAR D. : JUDICIAL MEMBER

                                                                                                    BEENA KUMARY. A         : MEMBER

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APPENDIX

I         COMPLAINANT’S WITNESS :

II       COMPLAINANT’S DOCUMENTS :

III      OPPOSITE PARTY’S WITNESS :

IV      OPPOSITE PARTY’S DOCUMENTS :

V       COURT EXHIBIT :

JUSTICE K. SURENDRA MOHAN  : PRESIDENT

                                AJITH KUMAR D. : JUDICIAL MEMBER

jb                                                                                               BEENA KUMARY. A         : MEMBER