Date of Filing 29.04.2019

                                                                                                       Date of Disposal: 22.09.2023

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION

THIRUVALLUR

BEFORE TMT.Dr.S.M. LATHA MAHESWARI, MA. ML, Ph.D (Law),                                       …….PRESIDENT

THIRU.P.VINODH KUMAR, B.Sc., BL,                                                                                           ……MEMBER-I

CC.No.27/2022

THIS FRIDAY, THE 22^ndDAY OF SEPTEMBER 2023

Mr.S.Balachander, S/o.P.Shanmugam,

Rep. by his power agent Mrs.Narmadha Devi,

W/o.S.Balachander,

 Both are residing at

MIG-8, TNHB Phase-1,

CTH Road, Sevapet,

ThiruvallurTaluk& District 602 205......Complainant.

                                                                              //Vs//

Mr.M.Guruvel,

S/o.Chengalvarayan,

Proprietor,

M/s. SMBuilders,

Office at No.9-A, Karikalan Street,

M.G.R.Nagar, Chennai 600 078.…..Opposite Party.

Counsel for the complainant: M/s.R.Marudhachalamurthy, Advocate

Counsel for the opposite party: M/s.D.Sasikumar, Advocate.

This complaint coming before us on various dates and finally on 12.09.2023in the presence of M/s.R.Marudhachalamurthy, counsel for the Complainant and M/s.D.Sasikumar, counsel for the opposite party and upon perusing the documents and evidences of both the parties this Commission delivered the following:

ORDER

PRONOUNCED BY TMT.Dr.S.M. LATHA MAHESWARI, PRESIDENT

1. This complaint has been filed by the complainant u/s 35 of the Consumer Protection Act, 2019 alleging deficiency in service against the opposite party with respect to the defective construction made by the opposite party along with a prayer to pay a sum of Rs.78,45,800/- towards compensation along with cost of Rs.30,000/- towards litigation expenses to the complainant.

Summary of facts culminating into complaint:-

2. It was the case of the complainant that the complainant and opposite party had entered into anconstruction agreement on 28.01.2018. The opposite party had assured that the construction would be on the basis of agreement, but they failed to fulfill the contract as agreed. The opposite party didnot conclude the building construction within the time agreed and unnecessarily prolonged in handing over the building and finally handed over the building in an unfinished manner.  When the same was questioned by the complainant, opposite party assured that they would rectify the defect shortly which were pointed out by the complainant. But has not come forwarded to rectify the defects and in view of the same the complainant himself spent huge sum of money to rectify the defective construction made by the opposite party. Hence, the complainant had issued legal notice to the opposite party on 21.03.2019 in which he specifically pointed out the Water leaking on the ceiling and side wall due to poor quality of materials used for construction, etc.

As per the agreement the main door would be prepared in the work site in a perfect condition as per design and choice of complainant but the opposite party purchased readymade doors and fixed the same which was not of good quality. When the complainant was in abroad at the time of construction, the opposite party had requested the complainant to hand over signed cheques of the complainant and his wife as a security to continue his construction process without any hindrance. When questioned by the complainant, the opposite party explained that for purchasing construction material and other things without expecting the complainant, the cheques were for a security/collateral for him and on believing the words they had handed over their cheques. The complainant after several repeated demand to rectify the defects to the opposite party, he was not come forward to do the same and therefore the complainant issued a legal notice on 21.03.2019 and demanded to rectify the defects, for which a reply notice was issued on 01.04.2019 denying the execution of agreement between them on 28.01.2018. On the other hand the opposite party himself admits the agreement in the proceedings pending on the file of Judicial Magistrate cum Fast Track Court at Thiruvallur in S.T.C.No.3/2019 and in that proceedings the opposite party had also admitted that the complainant had pointed out the defects in the construction made by him and therefore the above admitted fact by the opposite party need not be proved. As per the agreement dated 28.01.2018 the cost of construction was fixed at Rs.61,63,500/-. On the other hand the opposite party had demanded more money in the name of providingpucca construction work and thereby a sum of Rs.70,09,300/- was paid by the complainant. The act of the opposite party not only fall within the ambit of deficiency in service but also amounts to unfair trade practice, because he received the negotiable instrument from the complainant in the name of security/collateral and later to escape from demand of the complainant to rectify the defects initiated false litigation which amounted to unfair trade practice. Thus aggrieved by the act of the Praying to directopposite party the present complaint was filed praying to direct the opposite party to pay a compensation of Rs.78,45,800/-along with Rs.30,000/- towards cost of the proceedings to the complainant.

The crux of the defence put forth by the opposite party:-

3. The opposite party filed version disputing the complaint allegations contending interalia that the alleged agreement dated 28.01.2018 was false. It was submitted that the opposite party had handed over the building in afinished manner. In fact the key was handed over to the complainant on 23.08.2018 and then they conducted house warming function.  They invited the opposite and he along with his family attended that function. The building was handed over to the complainant in a fully finished manner. Complainant availed a hand loan for an amount of Rs.17,00,000/- for one Mr.Viswanathan and for repayment the complainant had given cheques and subsequently the same gotdishonoured.  Therefore Mr.Viswanathan had filed complaint against the complainant before the Fast Track Court at Thiruvallur in S.T.C.No.69/2019 and the same was pending. To counter blast the complaint, they send legal notice on 21.03.2019 after a lapse of seven months since the key was handed over tothem. The opposite party never ever admitted that there was defect in the construction. In their legal notice dated 21.03.2019 they nowhere made any averment regarding the payment of sum of Rs.70,09,300/-. This complaint got numbered and notice had been received by the opposite party only on 08.06.2022 that after a period of 3 years and 4 months. Thus the opposite parties had not committed any violation or deficiency in service and the claim of Rs.78,45,800/- was extravagant, imaginary and exaggerated without any legal or moral basis and thus they sought for the complaint to be dismissed.

4. On the side of the complainant proof affidavit was filed and documents marked as Ex.A1 to A6 were submitted. On the side of opposite party proof affidavit was filed and documents marked as Ex.B1 to Ex.B7 were submitted. The Advocate Commissioner's Report was filed and the said document was marked as Ex.C1 as court document.

 Points for consideration:-

1) Whether the complaint allegations made by the complainant with respect to non-rectification of the defects in the Construction made by the opposite party has been successfully proved by thecomplainant by admissible evidence?

2) If so to what reliefs the complainant is entitled?

5. Point No.1:-

The following documents were filed on the side of complainant in supportof his contentions;

1. Settlement Deed dated 04.09.2014 was marked as Ex.A1;
2. Construction Agreement dated 28.01.2018 was marked as Ex.A2;
3. Legal notice issued by the complainant to the opposite party dated 21.03.2019 was marked as Ex.A3;
4. Reply notice issued by the opposite party dated 01.04.2019 was marked as Ex.A4;
5. Power of Attorney Deed dated 15.04.2019 was marked as Ex.A5;
6. Deposition and cross examination of opposite party in S.T.C.No.03/2019 on the file of Judicial Magistrate cum Fast Track (Magisterial Level) at Thiruvallur was marked as Ex.A6;

On the side of opposite party the following documents were filed in proof of their defence;

7. Photographs was marked as Ex.B1;
8. Bank Statement of opposite party from 01.01.2018 to 31.12.2018 was marked as Ex.B2;
9. Police complaint of the opposite party dated 08.12.2018 was marked as Ex.B3;
10. Complaint copy in S.T.C.No.03/2019 was marked as Ex.B4;
11. Complaint copy in S.T.C.No.69/2019 was marked as ExB5;
12. Copy of complaint obtained through R.T.I. from D.L.S.A. Thiruvallur was marked as Ex.B6;
13. Deposition in S.T.C.No.03/2019 was marked as Ex.B7;
14. Advocate Commissioner’s Report was marked as Ex.C1 as Court Document.

6. We perused the pleadings and evidences produced by the complainantand the opposite party and also heard the oral arguments advanced by them.

7. The learned counsel appearing for the complainant argued that even at the time of handing over the possession of the house the opposite party had accepted certain defects in the building and that the opposite party agreed to rectify the same. Inspite of agreed amount of Rs.61,63,500/- a sum of Rs.70,09,300/- has been paid to the opposite party in excess. With regard to the Advocate Commissioner's Report the complainant raised objectionsthat certain defects were not noted by the Advocate Commissioner. It was argued that a sum of Rs.11,29,235.60/- was the real amount required for repairing the defects found in the construction. Further it was also argued that the opposite party had admitted the defect in the construction and a cheque bounce case was filed before Criminal Court and also in the reply notice. Thus he sought for the complaint to be allowed as prayed for.

8. On the other hand the crux of the oral arguments adduced by the opposite party is that the complaint was filed belatedly after a period of 5 years and that the complainant had waited for 5 years to number the complaint and it was not known as to how they lived in a defective building.  He disputed the very execution of the agreement dated 28.01.2018 and also objected the report filed by the Advocate Commissioner.  The main defence of the opposite party was that the defects as noted by the Advocate Commissioner was only due to poor maintenance of the building by the complainant.  Thus contending that they were not responsible for the defects he sought for the complaint to be dismissed.

9.        Having considered the entire pleadings and materials produced by both the parties and the Commissioner’s Report it is established that though the signature in the agreement is disputed by the opposite party the construction was made by them in pursuance of the agreement as requested by the complainant form the available evidence.The only defence raised by the opposite party is that the complainant dis not maintain the construction in a proper manner

10. In the Advocate Commissioner’s Report the following defects were found in the ground and first floor;

INSPECTION REPORT:

1. Dampness in floor level;
2. In ground floor bathroom tile fixed with the voids in between the tiles;
3. Dampness in living room;
4. Hallow space in kitchen tile;
5. Electrical conduit void from terrace to ground floor;
6. In ground floor kitchen north wall power socket electrical power is not connected;
7. Dampness in living room south wall;
8. Main door shutter are not closing properly;
9. In first floor living room floor tiles are not packed properly;
10. In first floor kitchen slab granite beeding are removed, problem in fixing;
11.  Dampness in kitchen;
12.  Dampness in second bad room;
13. Wall crack in balcony;
14. Dampness in toilet wall;
15. Dampness in balcony wall;
16. Dampness in head room wall;
17. Water stagnation in terrace;
18. In ground floor shop floor tiles are not fixed properly;
19. As per agreement ground floor area is 271 but as per site measurement261.25 square feet.

Photographs in evidence of the above mentioned defects were also filed bythe Advocate Commissioner. Further on request by this Commission anAdditional Report was also filed with respect to the estimation of cost/expenses to renovate the defective construction and the same was quoted a sum of Rs.5,65,165/-. The opposite party submitted that the very filing of the complaint itself is only a counter blast for the cheque bounce case filed by them against the complainant.However, we are not concerned about the case pending for realization of moneybefore some other forum.

11. Thus on appreciation of entire pleadings and materials the construction by the opposite party and the existence of the defects in the construction stood established before this Commission. The only defence raised by the opposite party for the alleged defect is that the complainant failed to maintain the building and hence the defects had creptin as at the time of handing over no defects existed.  A Photograph (Ex.B1) showing the construction at the time of handing over was proved but no other evidence was produced by the opposite party to prove that due to poor maintenance the defects occurred. The other documents filed by the opposite party Ex.B2 to Ex.87 relates to Criminal complaint which is no way related to the present case. In such fact and circumstances we could not accept in entirety the defence raised by the opposite party. Thus we hold that the opposite party had committed deficiency in service in giving a poor construction with certain defects or resulting in defects due to poor construction to the complainant contrary to the agreed terms and conditions. Thus we answer the point des accordingly in favour of the complainant and as against the opposite party.

Point No.2:-

12. Though we have held above that the opposite party’s defence of non-maintenance, of the building by the complainant could not be accepted in entirety for the defects found in the building the same also could not be neglected as it is an admitted fact that the age of the building was 5 years. The amount claimed by the complainant a sum of Rs.78,45,800/- seems to be exorbitant as he had claimed the entire value of construction. Further the amount calculated by the Advocate Commissioner for the renovation amounted to only Rs.5,65,165/-. Though the complainant had filed hadobjections to the Advocate Commissioner's Report stating that the Advocate had Commissioner and the Engineer had failed to note down certain defects but no application for reissue of the Advocate Commissioner was sought for. Considering the pleadingsand evidence in entirely and also the age of the building we award 50% of the cost fixed by the Advocate Commissioner towards rectification of defective works. For the deficiency in service committed by the opposite party we award a sum of Rs.50,000/- to be paid as compensation to the complainant for the mental agony and hardship caused to the complainant. Rs.10,000/- is awarded towards cost of the proceedings.

In the result, the complaint is partly allowed against the opposite party directing him

a) To pay a sum of Rs.2,82,583/- (Rupees two lakhs eighty two thousand five hundred and eighty three only) towards expenses to be incurred in carrying out the rectification works by the complainant within six weeks from the date of receipt of copy of this order;

b) To pay a sum of Rs.50,000/- (Rupees fifty thousand only) towards compensation for the mental agony and hardship caused to the complainant;

            c) To pay a sum of Rs.10,000/- (Rupees ten thousand only) towards litigation expenses to the complainant.

d) Amount in clause (a) if not paid by the opposite party within six weeks from the date of receipt of copy of this order the amount shall carry interest at the rate of 9% from the date of complaint till realization.

Dictated by the President to the steno-typist, transcribed and computerized by him, corrected by the President and pronounced by us in the open Commission on this 22^nd day of September 2023

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MEMBER-I                                                                                                   PRESIDENT

List of document filed by the complainant:-

List of documents filed by the opposite party:-

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MEMBER-I                                                                                       PRESIDENT