BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, VELLORE DISTRICT AT VELLORE. PRESENT: THIRU. A. SAMPATH, B.A., B.L., PRESIDENT TMT. G. MALARVIZHI, B.E. MEMBER – I THIRU. K. DHAYALAMURTHI,B.SC. MEMBER – II CC.2 / 2008 TUESDAY THE 15th DAY OF MARCH 2011. V.K. Murthy, S/o. V.R. Kesavan, No.21/9 Thirumalai Reddy Street, Ramakrishnapuram, Kosapet, Vellore – 1. … Complainant. - Vs – P. Mathiarasan, S/o. G.S. Purushothaman, Building Contractor, Proprietor of Mathi Builders, No.15, 3rd Main Road, Anna Nagar West, Vellore – 1. … Opposite party. . . . . This petition coming on for final hearing before us on 15.2.2011, in the presence of Thiru. B. Annamalai, Advocate for the complainant and Thiru. K. Armstrong, Advocate for the opposite party, and having stood over for consideration till this day, the Forum made the following: O R D E R Pronounced by Thiru. A. Sampath, President of the District Consumer Disputes Redressal Forum, Vellore District. 1. The brief facts of the case of the complainant is as follows: The complainant and the opposite party entered into a written construction agreement on 11.5.2006. As per the estimate given by the opposite party the cost of construction would come to Rs.6,00,000/- as per the opposite party and the complainant also agreed for the same and as per the agreement the opposite party has to finish the construction of the house within seven months from the date of the agreement and hand over the constructed house as per the plan which gives the details of construction appended with the agreement on or before 11.12.06. As agreed the complainant has paid a total sum of Rs.5,80,000/- on various dates as and when demanded by the opposite party from 125.06 to 26.4.07 by way of cash and cheque as detailed hereunder a copy of which was also given to the opposite party. Details of payment. 12.5.06 Cash 50,000/- 12.5.06 Cash 50,000/- 29.7.06 Cheque No.005899 Co-op Bank. 50,000/- 8.9.06 Centurian bank cheque 1,50,000/- 2.11.06 Cheque No.006307 Co-op bank. 50,000/- 27.12.06 Cash 50,000/- 23.1.07 Cash 50,000/- 17.2.07 Cash 50,000/- 9.3.07 Cash 50,000/- 26.3.07 Cash 50,000/- 26.4.07 Cheque NO.139847 Centurian Bank 30,000/- ----------------- Total 5,80,000/- ----------------- But the opposite party has not completed the house construction as per schedule and handed over the constructed house on or before 11.12.2006 as agreed. There is only a balance of Rs.20,000/- to be paid to the opposite party by the complainant. Further the opposite party also agreed to pay 2/3rd salary of the watch man to guard the building. Accordingly a watch man by name Gopi son of Kannan was appointed on a monthly salary of Rs.1000/- and the opposite party has also not paid the 2/3rd of his salary as agreed for the past 10 months viz. a a sum of Rs.6666/- which also he has to pay to the complainant as the complainant has paid the same. 2. Whileso without completing the house construction in full and handing over it to the complainant in time the opposite party has suddenly without informing the complainant taken away all his construction materials from the said plot. He has also demanded the balance of Rs.20,000/- for completing the house construction. For completing the remaining unfinished portion the complainant brought a licensed surveyor by name Tamil Selvi and prepared an estimate and she did so and as per the estimate prepared by the licensed surveyor a sum of Rs.67,000/- is required for completing the work. Cost of estimate for completing unfinished work. 1. Painting: Only wall patty for Hall and bed room and all rooms to be quoted With white cement. 25% 20000/- 2. Main entrance step work 0% 3000/- 3. Plumbing wall mixer and comuds first floor and ground floor 70% 10000/- 4. First Floor grill work and window work. 0% 8000/- 5. Septic tank 60% 6000/- 6. Weathering course 0% 10000/- 7. Kitchen work 60% 4000/- 8. Elevation work for demolition charges 6000/- ---------------------------- Total 67000/- ---------------------------- 3. Apart from this he ought to have constructed the over head water tank for 2000 liters in the open up-stair after laying the pillars on that in the upstairs as per the agreement but contrary to that the opposite party has constructed the tank without laying any pillars on the upstairs and merely constructed the over head tank on the floor of the open upstairs for 500 liters only and if this is done it will damage the entire upstairs portion by seeping of water on the terrace. Therefore he is liable to pay a sum of Rs.3000/- to the complainant for reconstructing the over head tank as stated above and found in the agreement. Therefore the opposite party is liable to pay an additional sum of Rs.3000/- in all a sum of Rs.70,000/-. Since the opposite party has left the work half handedly the complainant wrote a letter to Sri. Venkatesan, President, Building Contractors’ association, No.115/1 Long Bazaar (Up stairs) Vellore-4 detailing all the above facts in his letter dt. 3.7.07 requesting him to come and see the incomplete work left by the opposite party and do the needful. The said Venkatesan has summoned both the complainant and the opposite party herein and negotiated for settlement to the effect that the opposite party has to pay a sum of Rs.67,000/- to the complainant for finishing the incomplete work. As a result of which the complainant was not able to occupy the house for his living and so he has been paying a sum of Rs.2500/- p.m. for a rented house from 11.12.06 in all a sum of Rs.17,500/- till July 2007. Therefore the complainant issued a legal notice on 16.7.07. The said notice was received by the opposite party on 25.7.07 and he sent a reply notice on 28.7.07 containing false allegation. Therefore directing the opposite party to pay a sum of Rs.70,000/- to the complainant being the cost of unfinished work and to pay a sum of Rs.2,00,000/- being the damages for having caused to the complainant mental agony and physical torture and to pay a sum of Rs.17,500/- upto July2007 being the amount paid by the complainant for the rented house he is made to occupy due to non-handing over of the completed house in time as per the agreement and to pay a sum of Rs.6666/- being 2/3rd salary paid by the complainant to the watchman which the opposite party ought to have paid as per the agreement to the watchman and to pay a sum of Rs.2500/- being the pre-suit expenses incurred by the complainant for contacting the opposite party several times to bring him to complete the work and Rs.1500/- being the notice charges paid to the advocate by the complainant and Rs.5000/- being the advocate’s fee for conducting this petition. 4. The averments in the counter filed by the opposite party is as follows: There is no cause of action to sue against the opposite party in respect of amount paid, unfinished work, estimation of unfinished work, finished uncompleted work, postponed as alleged in para-20 of the complaint. The complaint documents No.4, 5 and 6 are self-serving, concocted and not true. These documents No.8 would be evident to prove the complainant’s claim is baseless. The averments mentioned in para-1 and 2 of the complaint are correct. The averments mentioned in para 3 to 15 are all false, self-serving, dishonest, untruths, malafide, baseless, and the same cannot be countenanced under law. The complainant is put to strict and positive proof of them all. The reply notice dt. 28.7.07 may be read as part along with this counter. It is not true to state that he had not completed the house construction as per schedule and handed over the house on or before 1.12.06 as alleged in the complaint. No watchman was appointed on salary of Rs.1000/-p.m. by the complainant. In fact the opposite party has appointed a watchman through out the work and paid a salary to him in his own fund and responsibility. Thus, the opposite party is not liable to pay the amount of Rs.6660/-as alleged. The alleged estimate prepared by a licensed surveyor a sum of Rs.67000/- is required for completing the work is self-serving document and the particulars mentioned in the said estimate is not correct and the same cannot be relied upon it. It is true that there is only a balance of Rs.20,000/- due and payable by the complainant to the opposite party. There was no deficiency in service on his part. Hence the complainant is not entitled to claim damages in the sum of Rs.2,00,000/- for causing mental agony and physical torture as alleged. It is utter false to state that the complainant was not able to occupy the house for his living and so he is paying unnecessarily the rent at the rate of Rs.2500/- from 11.12.06 in all a sum of Rs.17,800/- as alleged. As per schedule A Clause (3) of said agreement, the complainant should pay the total cost of construction Rs.6,00,000/-. But he did not paid the amount as per schedule. 5. It is pertinent to note that the complainant did not paid a sum of Rs.4,50,000/- as per schedule A Clause 3 (a) to (c ) whereas he paid a sum of Rs.3,00,000/- only. While in construction, the complainant has requested the opposite party to make deviation and additional works / items in the building. As per request, the opposite party has done his additional works at the cost of Rs.74,900/-. The particulars of the amount, deviation and additional items / works as follows: 1. Difference in cost between rectified tiles (16” x16”) as per agreement and vitrified tiles of size 2”x2” (Clause12) Rs.21000 2. Difference in providing wall mixer for bathrooms instated of Bibcocks (Schedule B, work details cause 10) Rs. 6000 3. Providing wiring, meter board, switches etc., for TNEB service (Schedule B, excluding works S.No.4) Rs. 5400 4. Additional works providing UPS wiring for ground floor Rs. 7200 5. Providing Brick works in portico portion in ground floor and first floor (including plastering and painting) working plan. Rs.15000 6. Difference in cost between flush shutter and carned teak wood shutters (Schedule B, Clause-II) Rs. 4500 7. Fixing Charges for from elevation tiles including cement and sand after hacking the surface excluding tiles Rs. 4000 8. Labour charges for erecting the compressor motor in Bore well (twice) Rs. 2400 9. Labour charges for fixing the safety grills, collapsed gate fixed grills in portico portion. Rs. 3300 10. Labour charges for fixing stair case tiles Rs. 1200 11. Labour charges for fixing electrical fittings Rs. 1000 12. Charges for constructing the Arch Partition and demolish Arch partition and demolish it. Rs. 3900 ----------------------- Total Rs74900 ----------------------- The opposite party had demanded the complainant to make payment of said additional cost with Rs.20,000/- as agreed but the complainant did not paid the said amount. Due to delay in payment, the opposite party has been put to loss by way of escalation charges clause (14). The complainant is liable to pay the escalation charges as agreed. Thus the delay in work was only due to delayed payments made by the complainant. The complainant is liable to pay a sum of Rs.20,000/- plus Rs.74900/- to him towards the balance amount and additional cost. It is pertinent to note that the work left by the opposite party is only to the value of Rs.20,000/- (Schedule clause 3 (1)) and the opposite party is ready to complete the work immediately if the said amount due and payable by the complainant. The complainant did not paid the amount as per agreement dt. 11.5.06 in a stipulated time. The complainant is not entitled to claim any reliefs against him on false grounds. It is therefore prayed that the Forum may be pleased to dismiss the complaint with cost of the opposite party. 6. Now the points for consideration are: a) Whether there is any deficiency in service on the part of the opposite party? b) Whether the complainant is entitled to the reliefs asked for?. 7. Ex.A1 to ExA9 were marked on the side of the complainant and Ex.B1 to Ex.B8 were marked on the side of the opposite party. Proof affidavit of the complainant and opposite party have been filed. No oral evidence let in by either side. 8. POINT NO. a) It is admitted case of the parties that the complainant had entered into an agreement Ex.A2 with the opposite party on 11.5.06 for the construction of the house of the complainant. As per the said agreement the total estimation cost for the construction of the building was Rs.6,00,000/-. The total build up residential area will be 1587 sq ft. consist of ground floor, design and plan as per schedule-B. The opposite party had received a sum of Rs.5,80,000/- on various dates for the above construction of the building. 9. The complainant contented that the complainant has paid total sum of Rs.5,80,000/- on various dates as and when demanded by the opposite party from 12.5.06 to 26.4.07, there is only a balance of Rs.20,000/- to be paid to the opposite party by the complainant. Whileso, without completing the house construction infull and handing over it to the complainant in time, the opposite party has suddenly without informing the complainant taken away all his construction materials from the said plat. For completing the remaining unfinished portion the complainant brought a licensed surveyor by name Tamil Selvi and prepared an estimate and she did so and as per the estimate prepared by the licensed surveyor a sum of Rs.67,000/- is required for completing the work. Therefore, the opposite party was committed deficiency in service. 10. The opposite party contented that as per schedule A Clause 3 of construction agreement Ex.A2 dt.11.5.06, the complainant has not paid the total cost of construction of Rs.6,00,000/-. The delay in work was only due to delayed payment made by the complainant. Due to delay in payment the opposite party has been put to loss by way of escalation charges under clause 14 of A-Schedules of agreement. The complainant is liable to pay a sum of Rs.20000/- plus Rs.74900/- to the opposite party towards the balance amount and additional cost. It is further contended that the alleged estimate prepared by a licensed Surveyor a sum of Rs.67000/- is required for completing the work is self-serving document the particulars mentioned in the estimate Ex.A3 is not correct and the same cannot be relied upon it. Therefore, there was no deficiency in service on the part of the opposite party. 11. In the construction agreement Ex.A2 dt. 11.5.06 the following conditions were mentioned:- 1. The total estimation cost for the construction of building is Rs.6,00,000/- (Six lakhs) details of estimation as follows: (a) Ground Floor area 753 sq ft. @ Rs.440 = Rs.3,31,320.00 (b) Portico are 210 sq ft @ 250 = Rs. 52,500.00 (c ) First Floor area 443 @ 360 = Rs.1,59,480.00 (d) 1st floor portico area 181 sq ft @240 = Rs. 43,440.00 (d) Septic Tank (4’ x 7’6” x 6’) = Rs. 10,000.00 (e) Over head water tank 2000 liters =Rs. 4,000.00 ------------------------- =Rs. 6,00,740.00 ------------------------- (Rupees Six lakhs only) 2. The total built up residential area will be 1587 sq ft. consist of ground floor design & plan as per schedule-‘B” herein. 3. The owner agreed to pay the said total cost of construction of Rs.6,00,000/- as mentioned below: (a) Advance for foundation up to basement =Rs.1,00,000.00 (b) Advance for Super structure up to Roof level ` =Rs.2,00,000.00 (c ) Advance for Roof Concrete and Plastering works =Rs.1,50,000.00 (d) Advance for plumbing, Electrical & Flooring works =Rs.1,00,000.00 (e) Advance for painting and finishing works =Rs. 30,000.00 (f) On or before opening ceremony occupation is =Rs. 20,000.00 ------------------------- =Rs.6,00,000.00 ------------------------ 4. The entire building construction shall be complete within seven months from the date of this agreement. Time and money is the essence of this contract. The builder shall keep ready the house for occupation within the stipulated time but subject to mobilization of payment to builder by the owner. 12. From the perusal of payment details Ex.A3, it is seen that the complainant had paid the following amounts in various dates to the opposite party:- 1. 12.5.05 Cash Rs. 50,000/- 2. 12.5.06 Cash Rs. 50,000/- 3. 29.7.06 Cheque S No.005899 Co.op Bank. Rs. 50,000/- 4. 8.9.06 Centurian Bank Cheque Rs.1,00,000/- 5. 8.9.06 Cheque No.006307 Co op bank Rs. 50,000/- 6. 27.12.06 Cash Rs. 50,000/- 7. 23.1.07 Cash Rs. 50,000/- 8. 17.2.07 Cash Rs. 50,000/- 9. 9.3.07 Cash Rs. 50,000/- 10. 26.3.07 Cash Rs. 50,000/- 11.26.4.07 cheque No.139847 Centurain bank Rs. 30,000/- -------------------------------- Total sum paid Rs.5,80,000/- -------------------------------- In the construction agreement Ex.A2, dt. 11.5.06 the 4th condition is that “ the entire building construction shall be complete within seven months from the date of this agreement. i.e. on or before 11.12.06. Time and money is the essence of this contract. The builder shall kept ready the house for occupation within the stipulated time but subject to mobilization of payment to builder by the owner.” From the perusal of payment details Ex.A3, it is seen that from 11.5.06 to 11.12.06 the complainant has paid only a sum of Rs.3,00,000/- on various dates to the opposite party. After the stipulated time, the complainant had paid a sum of Rs.2,80,000/- on various dates from 27.12.06 to 26.4.07. Therefore it is clear that the complainant did not paid the cost of construction amount within stipulated time. As per agreement time and money is the essence of this contract, but the complainant has made delayed payment to the opposite party. Therefore, the contention of the complainant that the opposite party has not completed the construction work as per agreement Ex.A2 is not acceptable. 13. According to the complainant that for completing the remaining unfinished portion, the complainant brought a licensed surveyor by name Tamilselvi, and prepared an estimate Ex.A5, dt. 2.7.07. The contention of the opposite party that the estimate Ex.A5 prepared by a licensed surveyor is self serving document, the particulars mentioned in the Ex.A5 is not correct. Further, the complainant is liable to pay a sum of Rs.20000/- plus Rs.74900/- towards the balance amount and additional cost. From the perusal of incomplete work estimate Ex.A5. dt.2.7.07, it is seen that the said estimate was issued by a licensed surveyor by name Tamilselvi to the complainant. In the estimate the total in completing and demolish charges amount is Rs.67,000/-. The said license surveyor was not examined on the side of the complainant to prove the incomplete work estimate Ex.A5. Further, the said licensed surveyor is not independent surveyor. Therefore the contention of the opposite party that the incomplete work statement Ex.A5 is self serving document is acceptable. 14 According to the complainant that as per construction agreement the opposite party agreed to pay 2/3rd salary of the watchman to guard the building. Accordingly a watchman by name Gopi, S/o. Kannan was appointed on a monthly salary of Rs.1000/-, but the opposite party has not paid the 2/3rd of his salary as agreed for the past 10 months viz. a sum of Rs.6666/-. The contention of opposite party that the opposite party has appointed a watchman through out the construction work and paid salary to him, the cash voucher Ex.B1 to Ex.B4, & Ex.B6 would reveal the same that the complainant did not share the salary of the watchman. In the construction agreement Ex.A2 it is stated that the builder shall appoint a watchman, his salary shall be share by builder and owner in the ratio of 2 :1. From the perusal of Cash vouchers Ex.B1,dt.2.6.06, Ex.B2, dt.3.7.06, Ex.B3, dt. 2.8.06, Ex.B4, dt. 4.9.06 and Ex.B6, dt. 5.11.06 it is seen that a total sum of Rs.9000/- paid towards the watchman by the opposite party. But there is no documents to prove the contention of the complainant that a watchman by name Gopi Son of Kannan was appointed on a monthly salary of Rs.1000/- and the opposite party has not paid the 2/3rd of his salary for the past 10 months viz a sum of Rs.6666/- but the complainant has paid the same. Therefore the contention of the complainant that a watchman was appointed on a monthly salary of Rs.1000/- and the opposite party has not paid the 2/3 of his salary as agreed for past 10 months viz. a sum of Rs.6666/- which also the opposite party as to pay to the complainant is not acceptable. 15. Hence, taking all the above facts into consideration from the contention in the complaint and the counter, as well as proof affidavit of the both the parties, and from the documents Ex.A1 to Ex.A9 & Ex.B1 to Ex.B8, we have come to the conclusion that the complainant herein has not clearly proved the deficiency in service on the part of the opposite party herein. Hence we answer this point (a) as against the complainant herein. 16. POINT NO : (b) In view of our findings on point (a), since, we have come to the conclusion that the complainant herein has not clearly proved the deficiency in service on the part of the opposite party herein. We have also come to the conclusion that the complainant is not at all entitled to any relief asked for by him, in this complaint. Hence we answer this point (b) also as against the complainant herein. 17. In the result this complaint is dismissed. No costs. Dictated to the Steno-typist and transcribed by her, corrected and pronounced by the President, in Open Forum, this the 15th day of March 2011. MEMBER-I MEMBER-II PRESIDENT. List of Documents: Complainant’s Exhibits: Ex.A1- 14.7.05 - X-copy of sale deed. Ex.A2- 11.5.06 - X-copy of construction agreement. Ex.A3- 3.7.07 - X-copy of payment details. Ex.A4- 29.4.07 - Grahapravesam Invitation. Ex.A5- 2.7.07 - X-copy of estimate value for the uncompleted work From the licensed surveyor. Ex.A6- 3.7.07 - X-copy of letter of the President, Building contractors association, Vellore. Ex.A7- 16.7.07 - X-copy of legal notice. Ex.A8- 28.7.00 - X-copy of reply notice. Ex.A9- -- - Photos showing the unfinished work left by the opp party. Opposite party’s Exhibits: .. Nil.. Ex.B1- 2.6.06 - Cash Voucher of Rs.750/- paid to the watchman for the Month of May 2006 for 15-days. Ex.B2- 3.7.06 - Cash voucher of Rs.500/- paid to the watchman. Ex.B3- 2.8.06 - Cash voucher of Rs.1500/- paid to the watchman. Ex.B4- 4.9.06 - Cash voucher of Rs.1500/- paid to the watchman. Ex.B5- 4.11.06 - Cash voucher of Rs.12,200/- Ex.B6- 15.11.06 - Cash voucher of Rs.3,750/- Ex.B7- 5.11.06 - Cash voucher of Rs.4750/- Ex.B8- 23.4.07 - Statement of additional /deviation works for Rs.74,900/- MEMBER-I MEMBER-II PRESIDENT.
| | [ Hon'ble Tmt G.Malarvizhi, B.E] MEMBER[ Hon'ble Thiru A.Sampath, B.A., B.L] PRESIDENT[ Hon'ble Tr K.Dhayalamurthy, Bsc] MEMBER | | 
