1. Heard Mr. Mayank Pandey, Advocate, for the appellant. In spite of service of notice, no body appears for the respondent. 2. The complainant has filed above appeal from the order State Consumer Disputes Redressal Commission, Goa at Panaji dated 18.10.2016 passed in CC/04/2016, partly allowing the complaint and directing the respondent to pay Rs.60000/- as compensation for breach of contract, Rs.32874/- as expenses incurred in renewal of construction licence and Rs.100000/- as compensation for mental agony and harassment, to the complainant. 3. Francisco Xavier Paulino Dias Sousa (the appellant) filed CC/04/2016 for directing the respondent to (i) refund Rs.1280000/- with interest @15% per annum, from the date of last payment till the date of refund; (ii) pay Rs.80000/-, as the expenses incurred in removing the sub-standard beams constructed by the opposite party; (iii) pay Rs.1000000/- as compensation for mental agony and harassment; (iv) pay Rs.32874/-, as the expenses incurred in renewal of the construction licence; and (iv) any other relief which is deemed fit and proper in the facts and circumstances of the case. 4. The complainant stated that he was owner in possession of Chalta Nos.127, 128, 129 and 130 of P.T. Sheet No.44, situated at “Corte De Oiteiro”, within the limits of the city of Panaji Goa (for short the property). Cement and Metal Crafts (the OP) was a partnership firm and Mr. Vilas Bhonsle was its proprietor, who through various advertisements in media and Expos organized by OHeraldo, claimed to be a professional with vast experience in property development and construction activities in State of Goa. The complainant decided to construct a residential house on the property in the year 2012. The complainant obtained NOC from various departments for raising construction, approval of layout plan for the building on 04.01.2013 and construction licence on 05.09.2013 from Corporation of City of Panaji. Allured with the advertisement of the OP, the complainant visited the office of the OP in October, 2014. The OP again represented to be an expert in the field of construction of the building and assured that he would be complete the construction as per layout plan within 270 days. Believing upon the assurances of the OP, the complainant entered into an agreement dated 27.10.2014 for construction of the building as per sanctioned layout plan on his property. As per agreement, the construction has to be completed within 270 days, which can be extended for 3 months in force majeure circumstances. However, the OP is liable to pay compensation @Rs.15000/- per month in case of delay. Schedule-II of the agreement provides total cost of the construction as Rs.36/- lacs, which was payable in seven instalments. Schedule III provides details of the work and specifications of the raw materials to be used. The complainant had all approvals necessary for construction of the building on the date of agreement. The complainant paid Rs.300000/- on 27.10.2014, Rs.980000/- on 20.12.2014 (total Rs.1280000/-). The complainant visited the site on several occasion and found that the work was not being carried out on regular basis and most of the time the site was left abandoned. As and when the complainant inquired from the OP, he used to reply that the building would be completed within time as given in the agreement. The period of 270 days expired on 24.07.2015 but the construction was hardly even commenced and only beams were laid although the OP had been paid more than 1/3rd of the total amount payable. The OP has pocketed the money of the complainant, as such, he was entitled for interest @15% per annum on it. The OP did not use standard building materials as per specification in the agreement and also did not carry curing of the beams as a result of which the beams developed cracks, which made it unstable. The complainant obtained a valuation report of the construction raised by the OP dated 30.10.2015 from Mr. Hitendra S. Bhat, a registered Civil Engineer, who assessed the cost of the construction as Rs.219248/-. Cost of removal of cracking beams was assessed to Rs.80000/-. Due to delay in completion of the construction, the period as given in Construction Licence has expired and by paying fresh renewal fee of Rs.32874/-, it was renewed on 15.01.2015. The family of the complainant was residing in a rented accommodation on the monthly rent of Rs.17000/- as such the complainant was curiously waiting for completion of his building. The complainant, vide a registered letter dated 23.11.2015, cancelled the agreement, pointing out the breach of the agreement committed by the OP and calling upon the OP to refund his money but the OP did not respond. On these allegations, this complaint was filed on 03.03.2016. 5. The respondent filed its written reply and contested the complaint. The respondent stated that the complainant had approached the opposite party for construction of his residential house. The opposite party agreed for it and entered into an agreement dated 27.10.2014 with the complainant for construction of the building as per sanctioned layout plan. As per agreement, the construction has to be completed within 270 working days (excluding Sunday and Diwali, Eid and Christmas holiday). This period could be extended for 3 months. The old house of the complainant was in possession of the tenants, who took time in vacating it. The neighbours created hindrance in demolition, which took time in sorting out their issues. The opposite party had to demolish old construction and clear the debris from the site, which took more than 90 days as more than 25 truckload debris had been removed from the site. After clearing the site, the opposite party started laying the plinth and after engaging the fitters, completed the work of erection of footing and columns in supervision of Structural Engineer. The construction licence expired on 05.09.2014 i.e. before the agreement and renewed on 15.01.2015. The opposite party was entitled to receive payment of the completed work as per agreement. However, the complainant wrote a letter dated 06.04.2015 that he was willing to cancel the agreement and would sent a detail letter of cancellation through his advocate. The complainant through letter dated 08.07.2015 terminated the contract. In view of the letter dated 06.04.2015, it was not possible for the opposite party to continue with the construction. The complainant has illegally terminated the contract and thereby damaged the goodwill of the opposite party and caused loss. In order to justify the termination of the contract, the complainant obtained valuation report dated 30.10.2015 from Mr. Hitendra S. Bhat, which is false and concocted. It has been denied that the workmanship was poor. The complainant has not produced any report from laboratory to prove that the construction was of poor quality. The complaint is liable to be dismissed. 6. The complainant filed Evidence by way of Affidavit of Francisco Xavier Paulino Dias Sousa and documentary evidence. The opposite party filed Evidence by way of Affidavit of Vilas Bhonsle and documentary evidence. State Commission, after hearing the parties, by the impugned order held that the complainant had concealed the material fact that the construction had to be raised after demolition of the old building and not on vacant land. Existence of old building is proved from the Construction Licence and the report of Mr. Hitendra S. Bhat dated 30.10.2015 in which “work done for renovation of existing structure” has been mentioned. The complainant paid Rs.100000/- on 04.06.2014 i.e. 4 months before the agreement dated 27.10.2014. The purpose of this payment was not disclosed anywhere. According to the opposite party, he had incurred Rs.300000/- in demolition of the old construction and removal of the debris from the site which took 90 days time. As per Schedule II of the agreement, the complainant had to pay Rs.720000/- on the date of agreement as mobilization advance. As against it, the complainant paid Rs.200000/- on 27.10.2014. The complainant paid Rs.500000/- on 20.12.2014 although on ‘completion of plinth’, he had to pay Rs.540000/-. Thereafter the complainant paid Rs.480000/- through cheque dated 09.03.2015. The photographs show that column, beams and ground floor wall were constructed. It is not proved that Mr. Hitendra S. Bhat inspected the construction after giving due notice to the opposite party. The complainant has not filed Affidavit of Mr. Hitendra S. Bhat to prove his report dated 30.10.2015 as such it could not be read in evidence. There is not expert evidence to prove that the construction was of poor quality. The complainant is not entitled for refund Rs.1280000/- and compensation of Rs.80000/- for removal of the construction. The period of 270 days as given in the agreement dated 27.10.2014 expired on 27.07.2015 and the agreement was terminated by notice dated 23.11.2015, as such, the opposite party is liable to pay compensation for the period of four months as per clause 11 of the agreement and Rs.32874/- incurred in obtaining renewal of construction licence. On these finding the complaint was partly allowed and order as stated above was passed. Hence the complainant has filed this appeal. 7. We have considered the arguments of the counsel for the appellant and examined the record. The finding of the State Commission that the complainant had concealed the material fact that new construction had to be raised after demolition of the old building and not on vacant land, before execution of the construction agreement dated 27.10.2014, does not suffer from any illegality. The opposite party stated that the old house of the complainant was in possession of the tenants, who took time in vacating it. Thereafter, the neighbours created hindrance in demolition of old construction, which took time in sorting out their issues. The opposite party had to demolish old construction and clear 25 truckloads debris from the site, which took more than 90 days in clearing the site. 8. Clause-1 of the agreement states as “the owner shall handover possession of the plot in custody of the contractor for construction of the house under normal condition for construction of bungalow as per plan”. This clause creates an obligation upon the complainant to handover vacant possession of plot to the contractor for construction. But the complainant gave possession of old tenanted construction. This was an active concealment of material fact in obtaining construction agreement as such the opposite party was entitled for extension of 90 days period in getting possession from tenants, demolition of the old structure and removal of the debris and also reimbursement of the expenses incurred in demolition of old construction and removal of the debris from the site. 9. The construction licence was expired on 04.09.2014 i.e before execution of the agreement. It was renewed on 15.01.2015. As per clause 5 of the agreement, 270 days period had to be counted from the date of renewal of the construction licence. The complainant, vide letter dated 06.04.2015 stopped construction work. In this letter, the complainant has mentioned payments of Rs.100000/- through cheque No.131708 dated 04.06.2014, Rs.200000/- through cheque No.901567 dated 27.10.2014, Rs.500000/- through cheque No.901572 dated 20.12.2014 and Rs.480000/- through cheque No.949328 dated 09.03.2015. The complainant has filed receipts of these payments, which show that Rs.100000/-, Rs.500000/- and Rs.480000/- were paid towards mobilization advance. It is, therefore, proved that Rs.300000/- incurred in demolition of the construction and removal of the debris was included in it as in Schedule II, Rs.720000/- is mobilization advance. Rs.540000/- was payable on completion of plinth as against it the appellant paid Rs.200000/-. Mobilization advance was payable on 27.10.2014, while its payment was completed through cheque No.949328 dated 09.03.2015. The appellant did not follow the payment schedule as per agreement as such he was not entitled to refund this money as he had himself stopped the construction vide letter dated 06.04.2015. 10. Section 37 of the Contract Act, 1872 casts duty upon the parties to perform their reciprocal obligations. Under Section 54 of the Contract Act, 1872, the defaulting party had to pay compensation to the other party of the contract for non-performance of its reciprocal obligation. In the present case, the opposite party has not committed breach of the contract as such the opposite party was not liable to pay any compensation. Delay compensation was payable only if the opposite party fails to complete construction within 270 days. In the present case, the opposite party was stopped from proceeding with the construction before expiry of 270 days. Payment was made only up plinth level. The appellant has committed breach of the contract. The appellant is not entitled to any relief in the complaint, even then the State Commission has directed to pay delay compensation for four months and reimburse the expenses for renewal of the licence. The appeal has no merit and is liable to be dismissed. ORDER In view of aforesaid discussions, the appeal is dismissed. |
