Date of Filling     :  25.04.2016.

                                                                                            Date of Disposal :  30.12.2016.

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, THIRUVALLUR - 1.

PRESENT:  THIRU. S.  PANDIAN, B.Sc., L.L.M.,              …    PRESIDENT

                    TMT. S.  SUJATHA, B.Sc.,                           …    MEMBER - I

Consumer Complaint no.20/2016

(Dated this Friday the 30^th day of December 2016)

Mr. R. Stephen,

S/o. Mr. N. Russel Dhas,

No.26, Kamarajar Street,

Balaji Nagar,

New Thirupachur,

Thiruvallur - 631 203.                                                             … Complainant.             

/ Versus /

M/s. JB Homes,

Rep. by its Proprietor

Mr. R. Sathish Kumar,

S/o. Mr. Raju Balaji,

No.2/49, 6^th Street,

Chennai - 600 099.                                                             … Opposite party.

This complaint is coming upon before us finally on 30.12.2016 in the presence of M/s. A.R. Poovannan, Counsel for the Complainant and the  opposite party is set Exparte for non appearance and upon hearing the oral arguments, having perused the documents, evidences and written arguments of the complainant, this Forum delivered the following,

ORDER

PRONOUNCED BY THIRU. S.  PANDIAN, PRESIDENT

This complaint is filed by the complainant U/S 12 of Consumer Protection Act, 1986 against the opposite party for seeking refund of Rs.2,30,000/- being received excess, Rs.2,00,000/- towards damages for not constructing the building to the agreed extent and Rs.5,00,000/- towards compensation for hardship, strain and mental agony caused to the complainant with cost Rs.10,000/-.

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

The complainant and the opposite party entered into sale cum construction agreement on 17.04.2014 for the purchase of a plot no.26, Survey No.382/4 and 382/5, Sri Balaji Nagar, Thirupachur Village, Thiruvallur Taluk & District  measuring an extent of 1807 sq. ft. for construction of an individual house and site was fixed at a sum of Rs.21,39,650/-.  The complainant paid registration cost of Rs.69,000/-.  The sale deed registered as Doc. No.8514/2014 in Sub Registrar Office, Thiruvallur. 

3.       As per the agreement, the opposite party should complete the construction work within 6 months from the date of commencement by October 2014.  The complainant has paid Rs.7,50,000/- to the opposite party.  But the opposite party was not able to complete the construction as per the first agreement and therefore, they have entered into another agreement on 13.11.2015 for extension of period that is till February 2015.  Even then, after the expiry of the second agreement, the opposite party had not completed the full construction work and left the building incomplete with the balance work such as doors and windows, flooring, plastering, sanitary water supply and electrical installation, stair case etc.  Then, the complainant had approached the opposite party’s supervisor and enquired about the works to be completed.  But the supervisor has not replied him properly.  Therefore, the complainant had approached the opposite party at his office and he also not given due reply to the complainant. 

4.       Again, when the complainant questioned the act of the opposite party, he adamantly replied and declared that he is not in a position to complete the work and executed ‘No Objection Letter’ dated 01.04.2015 to complete the work with another builder.  Then, the complainant with great difficulty searched another builder and completed his house.  The opposite party not even constructed the building to the extent agreed and built – up area is only 556 sq. ft with that of the agreed 650 sq. ft. and the opposite party had completed only 52% of the construction work of the building and  thereby, the opposite party has received an additional cost of Rs.2,30,000/-. 

5.       When the complainant had approached the opposite party for asking for refund of the excess amount and for the damages, the opposite party was not responded with the demands of the complainant.  The act of the opposite party clearly amounts for deficiency of service and caused hardship, strain and mental agony to the complainant.  Hence this complaint.

6.       In spite of sufficient time and opportunities given, the opposite party did not turn up before this Forum and therefore, the opposite party was set Exparte. 

7.       In order to prove the case of the complainant, the complainant has filed the proof affidavit as his evidence Ex.A1 to Ex.A7 are marked.

        8.      At this juncture, the point for consideration before this Forum is:-

1. Whether there is any deficiency of service on the part of the opposite party as alleged in the complaint?

     2.  To what other reliefs, the complainant is entitled to?

9.       Written arguments filed and also oral arguments adduced on the side of the complainant.  Though the opposite party remained Ex-parte, this Forum wants to dispose the case fully on merits.

10.     Point no.1:-

Regarding this point, on perusal of the averments of the complainant and the evidences, it goes to show that it is an admitted fact that sale cum construction agreement entered between the complainant and opposite party for the complaint mentioned individual house and the cost price is Rs.21,39,650/-.  Further, it is not disputed that the opposite party has received Rs.7,50,000/- towards construction.  Further, it is an admitted fact that the sale deed was registered on 16.07.2014 in Sub Registrar Office at Thiruvallur.  The Construction Agreement is marked as Ex.A1 and the Sale Deed is marked as Ex.A2.  At the outset, as per Ex.A1, construction should be completed by October 2014, but the opposite party has failed to do so and therefore, another agreement was made between them by extension of time to complete the construction by February 2015.  The said Construction Agreement is marked as Ex.A3.  Even thereafter, the opposite party has not completed the construction work in full pledged manner.  In the mean time, the opposite party wrote a letter dated:20.12.2014 in respect of the shifting of E.B. post in the complainant’s house is marked as Ex.A4.  It s further seen from the evidence that since the opposite party has not completed the construction work of the complainant’s house within the stipulated time as per Ex.A1 to Ex.A3, the complainant had approached the opposite party for questioning regarding the incompletion of the construction work.  At that time, the opposite party adamantly replied and declared that he is not in a position to complete the work and stated that he has no objection to complete the work with another builder and to that effect, the opposite party had given ‘No Objection Letter’ dated: 01.04.2015 which is marked as Ex.A5.

11.     At this juncture, on careful perusal of Ex.A5, ‘No Objection Letter’ the contents are read as follows:-

“I declare that I will not be able to continue the construction of house situated in Sri Balaji Nagar, Plot No.26, New Thirupachur Village, Thiruvallur District. Hence I agree to give No objection in any case to continue the house construction of the above said plot with any other builder.  In respect of the above said construction, there is no dues with third party if anything arises, I will settle myself.  And also mention you that there is no due of payment on either side.  The construction agreement made between us becomes void with effect from this NOC date”.

From the above representation, it is pertinent to note that the opposite party has given assurance if anything arises, he will settle by himself and also mentioned that there is no dues of payment on either side.

12.     Subsequently, the complainant has appointed another builder to continue the construction work which was left by the opposite party and also found that the build up area is only 556 sq ft. with that of agreed  650 sq. ft.   Further, it is seen that the opposite party had completed only 52% of the construction work of the complainant’s house to the tune of Rs.5,20,000/-.  In this regard, the complainant has filed the Ex.A6, Engineers Valuation Report, which clearly reveals the fact that the cost of completion work done by the opposite party is only Rs.5,20,000/- and other facts in detail.  In such circumstances, it is an admitted fact that the complainant had received Rs.7,50,000/- with the opposite party towards construction during the period of execution of Ex.A1 for payment of the amount Ex.A7, Bank Statement has been produced which is a relevant one.

13.     At this juncture, it is pertinent to note that, in spite of notice sent along with the copy of the complaint from this Forum to the opposite party and on receipt of the same, the opposite party has not come forward either to appear not to defend the allegations of the complaint before this Forum and thereby, there is no contra evidence found to the evidence adduced by the complainant.

14.     From the foregoing among other facts and circumstances, it is crystal clear that the deficiency of service on the part of the opposite party has been proved by means of cogent, consistent and acceptable evidence by the complainant and there is no contra evidence on the side of the opposite party.  Hence, this Forum can easily to draw an adverse inference against the opposite party.  Thus the point no.1 is answered accordingly.

15.     Point no.2:-

Regarding this point, on careful perusal of the averments of the complaint and as per the conclusion arrived in point no.1, the complainant is entitled for refund of Rs.2,30,000/- from the opposite party and with reasonable compensation with cost.  Thus, point no.2 is answered accordingly.

In the result, this complaint is allowed in part.  Accordingly, the opposite party is directed to pay a sum of Rs.2,30,000/- (Rupees two lakhs thirty thousand only) towards the excess cost received from the complainant and to pay a sum of Rs.1,00,000/- (Rupees one lakh only) towards compensation for unfair trade practice and causing mental agony and hardship due to deficiency of service on the part of the opposite party and with cost of Rs.5,000/- (Rupees five thousand only) towards litigation expenses totally of Rs.3,35,000/- (Rupees three lakhs thirty five thousand only) to the complainant.   Regarding other reliefs, this complaint is rejected.

 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 9.5% p.a.  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 30^th  December 2016.

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MEMBER - I                                                                             PRESIDENT

List of documents filed by the complainant:-             

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MEMBER - I                                                                             PRESIDENT