Tamil Nadu

South Chennai

CC/193/2016

P.S.Jagadeesh - Complainant(s)

Versus

M/s.Team Work Developers Pvt Ltd - Opp.Party(s)

Shankar

22 Feb 2017

ORDER

                                      Date of Filing :   08.06.2016
                                 Date of Order :   22.02.2017
DISTRICT CONSUMER DISPUTE REDRESSAL FORUM, CHENNAI (SOUTH)
     2nd Floor, Frazer Bridge Road, V.O.C. Nagar, Park Town, Chennai-3

PRESENT: THIRU. S. PANDIAN, B.Sc., L.L.M.                       : PRESIDENT 
            DR. T.PAUL RAJASEKARAN, M.A ,D.Min.PGDHRDI, AIII,BCS : MEMBER II

C.C.NO.193/2016
WEDNESDAY THIS  22nd  DAY OF FEBRURAY 2017

P.S. Jagadeesh, 
Block M 202, S& P Living spaces Apartments, 
Ayanambakkam, 
Chennai 600 095.                                             ..Complainant

                                              ..Vs..

1.  M/s. Team Work Developers Private Limited, 
Rep. by its Managing Director, K.Yengals, 
NO.174, NSK, Road, 
E-Block, Doshi Garden, 
Vadapalani, 
Chennai 600 026.  

2. K. Yengals, Managing Director, 
M/s. Team Work Developers Private Limited, 
No.174, NSK Road, 
E-Block,Doshi Garden, 
Vadapalani, Chennai 600 026.                                ..Opposite parties. 

For the Complainants               :    M/s. Shankar & Lavanya Shankar     
For the opposite parties               :    Exparte. 

ORDER
THIRU.   T.PAUL RAJASEKARAN ::    MEMBER-II       

This complaint is filed by the complainant against the opposite parties to refund a sum of Rs.11,21,000/- with interest and also to pay a sum of Rs.5,00,000/- for mental agony and deficiency in service and unfair trade practice and also to pay Rs.2,16,000/- towards loss of rental income and Rs.1,00,000/- as cost of the complaint. 
1. The averment of the complaint are brief as follows: 
         The complainant submit that he decided to enter into an agreement  and for that reason a construction agreement was entered between the complainant and the 2nd opposite party on behalf of the 1st opposite party on 18.2.2013, to execute and complete the works undertaken as per the drawings and specifications as instructed by the complainant  in a time bound manner and also assured to use only materials which bear ISI mark.   The complainant handed over possession of the premise by 2nd week of January 2013 itself.    He has collected a sum of Rs.54,13,600/- spread over for a period from 10.2.2013 to 16.4.2014 which is over and above the sum of Rs.51,04,500/- 
2.    The complainant further submit that all his effort to reason out that raise in the basement level was opposite parties fault, yet the 2nd opposite party refused to set right the same unless and until a sum of Rs.4.50 lakhs is paid and left with no other option, the complainant remitted the sum as sought for.   Though the opposite parties were expected to complete the construction and hand over possession in a habitable condition within the time frame as agreed upon, yet the opposite parties were lagging much behind the schedule and whenever the complainant questioned or made an attempt to ascertain the cause for delay the 2nd opposite party came forward with reply which were far from reality.   In fact the complainant has paid a sum of Rs.54,13,600/- as on March 2014 the opposite parties completed work to the tune of Rs.39 lakhs only.   
3.    The complainant also submit that when the 2nd opposite party instructed him to come over  to Vaigai sanitation, Chennai on 28.12.2013 for placing orders for tiles,  etc. the 2nd opposite party requested the complainant to transfer a sum of Rs.4,42,500/- to the 1st opposite party’s  account, when the complainant raised his objection by saying that he does not mind issuing his own cheque and the same should be set off towards payment if any to be made to the opposite parties, accordingly complainant paid Rs.442500 to the 1st  opposite party’s account.    After this 2nd opposite party addressed an email expressing inability to proceed with the work and informed that the complainant is at liberty to outsource the work to 3rd party if he desires so and the 1st opposite party would be reimbursing such amount incurred by the complainant in the said context.    The  2nd opposite party addressed a email on 7.7.2014 notifying the complainant that he is abandoning the work.    Therefore decided to change a new path to complete his in-completed portion of building he identified a Chartered Civil Engineer for evaluating the project more so, to find out the amount required to made the premise habitable one and the chartered civil engineer after inspecting the premises circulated an estimate for a sum of R.13,21,000/-.   Complainant then deployed his own workmen and material to make his premises a habitable one and in the said process he incurred additional expenses to the tune of Rs.11,01,000/- leaving out the rectification of the basement as it was felt that the same is cumbersome all of which could be solely attributed due to deficiency of service of the opposite parties which caused mental agony and hardship to the complainant. 

4.    Inspite of receipt of notice the opposite parties neither appear before this forum nor submitted his version and affidavit, it was set exparte. 
5.    The opposite parties remained exparte before this  Forum it was decided to  dispose this compliant fully on merits with available materials.   
6.    In such circumstances,  in order to prove the allegation made in the complaint the proof affidavit is filed by the complainant as his evidence, and also Ex.A1 to Ex.A11  are marked.  
7.    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  parties as alleged in the complaint?. 

2.    To what other reliefs, the complainant is entitled for? 
8.    POINT No. :1     
    The complainant had entered into a construction agreement with the opposite parties 1 & 2 on 18.2.2013 and all the works were executed by opposite party-2 on behalf of opposite party-1 and as per the agreement the opposite party agrees to complete the construction of the building within 10 months from the date of handing over the site.    If the delay is caused beyond the control of the opposite parties and the complainant may decide and grant such extra time as may be necessary for the completion of above building.   The complainant had paid a sum of Rs.54,30,600/- spread over from 10.2.2013 to 16.4.2014 (Ex.A2 ).  The complainant reported that opposite party-2 has violated the terms of the agreement by raising basement level from 4 feet to 6 ft. 10 inches resulting into an additional expense of Rs.4,50,000/- which was demanded by the opposite party to the complainant and the same was remitted by him.    Moreover, on par with the basement level opposite party-2 had increased the height of the road level which is under the domain of local authority.    
9.     It is contended that  opposite party-2 had requested the complainant on 28.12.2013 to come to Vagai sanitation store to order / purchase the sanitary material which amounts to Rs.4,42,500/- and directed the complainant to transfer his amount to opposite party-1’s  account (Ex.A4).  after much hesitation the complainant transferred the amount of Rs.4,42,500/- to opposite party-1 account.   But to the surprise Vaigai sanitation did not deliver the sanitary materials and complainant wanted to ascertain the status whether ordered materials  were delivered or not.   It is learnt that the opposite parties bankers had returned the cheque given to the Vaigai sanitation  by the opposite party “ unpaid payment stopped by the drawer.   Because of this the complainant was forced to contact  with the opposite party-2 and opposite party-2 given an assurance that he will do the needful.   However the opposite parties abandon the work by March 2015.   The opposite party-2 had expressed to email dated 7.7.2014 to the complainant his  inability to proceed the work and the complainant is at liberty to outsource the work (Ex.A5) to 3rd party if the complainant desires to do so.    This email proves that the opposite parties admit the abandoning of the work and assigned the construction remains unfinished.   
10.    By going by adage of the opposite parties the complainant sought the assistance of the Charted Civil Engineer to inspect the unfinished the construction work and received an estimate of Rs.13,21,000 to get the house habitable one (Ex.A8).    The complainant deployed is own workmen and materials and completed the construction by incurring an additional expense of Rs.11,21,000/- which is attributed deficiency of service of the opposite parties. (Ex.A9 & Ex.A10).      The complainant contended that the opposite parties had violated under section 2 (1) (r ) of C.P. act by indulging unfair trade practice throughout.   
 11.    Pursuant upon the compliant, proof affidavit, written argument and the documents filed by the complainant the cause of action,  territorial & pecuniary jurisdiction falls within this forum and the complaint had filed his complaint on 8.6.2016 and the notice was served to both opposite parties on 5.8.2016 and the complainant neither submitted their written version proof affidavit, nor appeared before this forum and on 17.11.2016  opposite parties were  declared as exparte. 
12.    Inspite of many opportunities were given the opposite parties to appear before this forum.  They have not appeared the complainant had submitted his p.a. and documents, written arguments and oral arguments  of the complainant was heard in full on 19.1.2017.   pursuant on the available records this forum found that the opposite parties had executed the construction agreement on 18.2.2013 and should have completed the construction work within 10 months from the date of handing over and if there is any delay caused beyond the control of the opposite parties  the complainant is entitled to claim any compensation and the progress of the work within the time frame vide clause-4 and the complainant is entitled claim any compensation from the opposite parties.  The agreement has given the specification for the foundation basement superstructure plastering RCC work, wood work, flooring pluming chicken platform sanitary ware and sing and painting weathering course, compound wall, gate electrification and material shall be used but it is found that the opposite parties had violated the agreement by not adhering to the specification stipulated in the agreement and forced to demand extra money from the complainant and wrongly directed to the complainant to deposit in opposite party-1 account for the sanitary products where the materials were not delivered in time leading to misunderstanding between the opposite party-2 and the complainant the provocation the opposite party -2 had sent the email to the complainant that they abandon the work and directed the complainant to use the 3rd party to complete unfinished work. The complainant had sought estimation from a charted engineer amounting to Rs.13,21,000/- by deploying is own workmen and materials the complainant had completed the unfinished work by spending Rs.11,21,000/-  this has clearly indicted the violation of the agreement were the opposite parties have not executed as promised in the contract. Because of this violation    the complainant having paid Rs.54,13,600/- and completed the work to the tune of Rs.39,00,000/- which the opposite party not only directed the complainant to pay an additional amount of Rs.4,50,000/- for raising the height of basement level from 4 ft to 6.10 inches the height of road level and directing the complainant to pay a sum of Rs.4,42,500/- and by directing the complainant to pay Rs.4,42,000/- to the opposite party-1 accounts.  But by the payment made he has not received the materials because of the stop payment advise given by the opposite parties.    It is clearly proved the unfair trade practice and deficiency in service committed  by the opposite parties which caused mental agony and hardship to the complainant.  
13.    Considering the facts and circumstances,  this forum is of the view that the opposite parties are  jointly and severally liable to pay a sum of Rs.11,21,000/- towards expense of the remaining construction with interest @ 12 % p.a. from the date of the complaint i.e. 8.6.2016 to till the date of this order i.e. 22.2.2017 and also to pay reasonable compensation with cost.  Thus the points 1 & 2 are answered accordingly. 
In the result, the complaint is allowed in part.   Accordingly the opposite parties 1 & 2 are jointly and severally directed to pay a sum of Rs.11,21,000/- (Rupees Eleven Lakhs and twenty one thousand only) towards expense of the remaining construction with interest at the rate of 12% p.a. from the date of complaint i.e. 8.6.2016 to till the date of this order i.e. 22.2.2017  and also to pay a sum of Rs.2,00,000/- in TOTO (Rupees Two lakhs only) towards compensation for causing mental agony and hardship due to deficiency of service on the part of them  and to pay a sum of Rs.5000/- (Rupees Five Thousand only) towards cost to the complainant.  
The above amounts shall be payable within six weeks from the date of receipt of the copy of the order, failing which, the said amounts shall carry interest at the rate of 9% p.a till the date of payment.        
    Dictated by the Member-II to the Assistant, taken down, transcribed and computerized by her, corrected by the Member-II and pronounced by us in the open Forum on this the  22nd   day  of  January  2017.

MEMBER-II                                                                       PRESIDENT.
Complainant’s side documents: -
Ex.A1-  18.2.2013      - Copy of construction agreement. 
Ex.A2- 10.2.2013 to – Copy of receipt issued by the opposite party 
           14.6.2014
Ex.A3-27.12.2013       - Copy of statement of account reflecting transfer of 
                                Sum of Rs.4,42,500/-. 
Ex.A4-     -    -    Copy of invoice issued by Vaigai Sanitation. 
Ex.A5-  1.7.2014       - Copy of email addressed to the 2nd opposite party . 
Ex.A6- 10.7.2014       - Copy of email addressed to the 2nd opposite party. 
Ex.A7- 10.7.2014       - Copy of reply issued by the complainant. 
Ex.A8- 14.7.2014       - Copy of quotation issued by a Chartered Civil Engineer. 
Ex.A9-     -       - Copy of receipts / invoice. 
Ex.A10-     -       - Copy of receipt towards labour charges. 
Ex.A11-     -       - Copy of plan and elevation shared by the opposite parties
Opposite parties’ side documents:   .. Nil. 

MEMBER-II                                                                       PRESIDENT.