Tamil Nadu

Nagapattinam

CC/16/2012

Ramya Rajendran and One other. - Complainant(s)

Versus

Pathmanathan, Shri Santhi properties - Opp.Party(s)

S.Veerapandian

19 Dec 2014

ORDER

     Date of Filing     : 26.03.2012

                                                                                           Date of Disposal: 19.12.2014

           

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM,

NAGAPATTINAM

 

PRESENT: THIRU.P.G.RAJAGOPAL, B.A.B.L.,         …..PRESIDENT

    THIRU.A.BASHEER AHAMED,B.Com., ….  MEMBER I

                   Tmt. R.GEETHA, B.A.,                             …. MEMBER II

 

CC. No.16/2012

 

DECIDED ON THIS 19^th DAY OF DECEMBER  2014.

 

1. Ramya Rajendran

     W/o Rajendran

2. Rajendran

    S/o Pichchai

     22, Middle street,

     Kurumbhagaram Post,

     Nedungkadu, Karaikal                                       … Complainants

                                                                                      

                                                                /versus/

 

Padmanaban,

Proprietor,

Srisanthi Properties,

1/166, Tirumurugam Nagar,

Tiruvarur Road, Mayiladuthurai..                          … Opposite party

 

      

 

            This complaint having come up for final hearing before us on 03.12.2014 on perusal of the material records and on hearing the arguments of Thiru.S.Veerapandian, Counsel for the complainants, Thiru.P.Kannanmarimuthu, Counsel for the opposite party and having stood for consideration, till this day the Forum passed the following

ORDER.

     By the President, Thiru.P.G.Rajagopal, B.A.B.L., 

This complaint is filed by the complainants u/s 12 of the Consumer Protection Act 1986. 

2. The gist of the complaint filed by the complainant is that the opposite party is a building contractor, doing the building construction work in the name of M/s Srisanthi properties, an agreement for construction of RCC house was entered into between the 1^st complainant and the opposite party on 25.01.2009 and sum of Rs.11,50,000/- was agreed to be cost of construction of ground floor and the 1^st floor at the 1^st time, subsequently the 1^st opposite party agreed to construct the 2^nd floor also.  For the ground floor and the 1^st floor the cost of the construction was fixed at the rate of Rs.750/- per sq.foot, thereby the total cost being Rs.11,50,000/- and for the extended area of 93 sq.feet an additional cost of Rs.70,000/- and for the 2^nd floor the cost was fixed at the rate of Rs.850/- per sq.foot, totalling 10,71,000/- , and Rs.1,00,000/- towards elevation work all totalling Rs.23,91,000/-.  The opposite party was to complete all the work at the 1^st floor, 2^nd floor including the elevation work, that the complainant duly obtained the approved plan and licence for the construction of the house from the karikal Planning Authority. The opposite party convinced the complainant undertook to complete the work for the sum of Rs.23,91,000/-. The opposite party has received Rs.21,70,000/-.  But he has not completed  all the house hold work and  he is negligent and deficient in his service.  The complainants have given Rs.21,70,000/- to the opposite party under the bonafide impression, that he would construct the house in a good manner.  But the cost of construction work carried out so far is only Rs.12,60,000/-When the complainant approached the opposite party and requested for the completion of the construction of the building, the latter was very evasive without completing the construction. In spite of repeated request made by the complainants, through their well wishers, the opposite party is evasive without completing the construction and the opposite party is yet to be paid only Rs.2,21,000/- for carrying out the completion of the construction work.  Apart from construction work carried out so far the complainants still require Rs.19,00,000/- for the completion of their building. Out of the total amount  of Rs.21,70,000/- received by the opposite party the value of the  construction made so far is only Rs.12,60,000/- and the balance Rs.9,10,000/- and the additional amount of Rs.9,90,000/- totalling Rs.19,00,000/- is required for the completion of the construction of the building of the complainants and the opposite party is liable to pay the said amount with interest.  The complainant prays for an order to direct the opposite party to pay the sum of Rs.19,00,000/- with interest at the rate of 18% towards cost of the completion of the construction of complainant’s building, to pay Rs.75,000/- towards compensation for the mental agony and expenses caused to the complainants with cost of the litigation and grant such and other reliefs as this Forum would deem fit.

                        3. The gist of the written version filed by the opposite party is that the complainants committed delay in the payment of the amount towards construction of the building, and if the payment was made in time as per the terms  of the agreement, this complaint need not have been filed.  As per the agreement when roof was completed, out of the estimated cost of Rs.12,70,000/-  95% that is Rs.12,06,500/- ought to have been paid by the complainant.  But the complainant paid only Rs.8,75,000/- alone and left the balance of Rs.3,31,500/- to be unpaid.  At the time of commencement  of the construction of the 2^nd floor, the opposite party demanded the balance amount of the said Rs.3,31,500/- and owing to the delay in that payment, the cost of the raw material and the labour wages are increased.  The complainants requested the opposite party to continue the construction work stating that they would make good the loss that could be caused to him owing to their delay in the payment.  The complainant ought to have paid the cost of construction as per the details given in the schedule annexed with the written version and the actual payments made as  shown in the schedule would go to show, how much delay is made by the complainants in making the payments during the period from 25.01.2009 to 13.08.2011 for 32 months.  The special annexure with the written version would show the particulars of the increase in the raw material and wages of labour for construction during the period 2009-2012.  The complainants’ allegation that the opposite party had made construction to the value of Rs.12,60,000/- is false and arbitrary without any basis.  Apart from the amount mentioned in the agreement, the complainants are liable to pay the sum of Rs.6,75,000/- towards the extra work towards the construction of the head room, sun shade, and water tank constructed by the opposite party.  The opposite party was ready to complete the construction work had the complainant paid the said 6,75,000/- and the said facts are suppressed by the complainants, who have filed the false complaint against him. The complaint is therefore liable to be dismissed.

                        4. The 2^nd complainant has filed his proof affidavit reiterating all the averments made in the complaint along with the 5 documents which are marked as Exhibits A1 to A5.  The complainant has examined one Thiru.S.Govindarajan, an Engineer as PW 2, who has filed his proof affidavit and 4 documents which are marked as X1 to X4. The opposite party has filed his proof affidavit in support of his defence and 2 documents which are marked as B1 and B2. Written arguments are filed by both the sides.

5. Points for consideration:-

1. Whether there is deficiency of service on the part of the opposite party?
2. Whether the complainants are entitled to any relief? If so to what?

Point 1: 6. The main allegation of the complainants is that the opposite party entered into an agreement with the complainant on 25.01.2009 for construction of residential building for them and for construction of the ground floor and 1^st floor, the cost of construction was fixed at Rs.11,50,000/- and for the construction of the extended area of 93 sq.ft at Rs.70,000/-, for the construction of the 2^nd floor at Rs.10,71,000/- at the rate 850 sq.ft and another sum of Rs.1,00,000/- for elevation, thus totalling Rs.23,91,000/- was fixed for the construction of the entire building and handing over it in living condition to the complainant.  The opposite party having received the total sum of Rs.21,70,000/-, has committed deficiency of service by not completing the construction of the building and has left it uncompleted and the actual cost of the constructed building is only Rs.12,60,000/-. The construction could not be completed at present in view of the escalation of the price of the building materials and wages of labourer and as the complainants have to complete the remaining construction of the building by engaging a different building contractor.  Further as the sum of Rs.19,00,000/-, is  to be spent by them, the opposite party is liable to pay the balance amount of Rs.9,10,000/- and the deficit amount of Rs.9,90,000/- needed for completing the remaining construction totalling Rs.19,00,000/- (Rupees nineteen lakhs only) with interest and the complainants pray for an order to direct the opposite party to pay Rs.19,00,000/- towards cost for completing remaining construction of the building, to pay Rs.75,000/- towards compensation for the mental agony and unnecessary expenditure caused to them with cost of this litigation and pass such and other reliefs as this Forum would deem fit.

                        7. The claim of the complainants is vehemently resisted by the opposite party on the ground that the construction of the building could not be completed only because of the default and delay committed by the complainants in making payment of the cost of the construction in due time and the complainant had taken 32 months from 25.01.2009 till 13.08.2011 for making the payment of the said sum of Rs.12,70,000/-   and the complainants have failed to make payment of the instalments of the construction as per the terms fixed under the agreement entered between them.  Had they paid the instalments in due time as per the terms of the agreement, the construction would have been completed long back and in view of the delay of more than even 2   years in making payments in instalments the price of the building materials as well as the wages of the construction workers escalated to an exorbitant level thereby raising the cost of construction more than the amount agreed and fixed.  Therefore there is no deficiency of service on the part of the opposite party and it is the complainants who have to pay the sum of Rs.6,75,000/- to him for completing the construction.

                        8. To prove their claim the 2^nd complainant has filed Exhibits A1 to A5. Exhibit A1, is the settlement deed under which the 1^st complainant owned the property on which the construction is made, Exhibit A2 is the  agreement for the construction of the ground floor and 1^st floor of the building. Exhibit A3 is the approval of the Karikal Planning Authority, Karikal for the plan showing the under construction of the 3 storied building, Exhibit A4 is the revised rates of construction fixed and agreed by the complainants and the opposite party. Exhibit A5 is the another revised estimate of construction in view of the escalation of the cost of the building materials and wages of the construction workers.

9. On the side of the opposite party two receipt books containing the counterfoils for the various payments made by the complainants to the opposite party on various dates are filed and marked as Exhibits B1 and B2 series.  On the side of the complainants one Thiru.S.Govindarajan, Ex-Licensed Surveyor, Nagapattinam Municipality and Ex-consulting Engineer, Karaikal Co-operative Building Society, Karaikal is examined as witness and through him, the estimate for the incomplete 3 storied residential  building of the complainants has been filed as Exhibit X1, the bunch of 18 photographs showing the various parts of the incomplete 3 storied building of the complainants is filed along with the related Compact Disc as Exhibits X2 series, the Digital Video Disc showing meticulously the present condition of the incomplete building is filed as Exhibit X3 and the receipt given by one Victor Digital Studio and Video centre, Karaikal who photographed and videographed the incomplete building is filed as Exhibit X4.

                        10. The Exhibit A2, the agreement containing the specifications and conditions for the construction of the ground floor and the 1^st floor of the building and the Exhibit A4, the estimate for the construction of the 2^nd floor are admitted by both the sides. The total cost of construction of the ground floor and 1^st floor fixed at Rs.11,50,000/- at the rate of Rs.750/- per sq.ft and the cost of the construction of the extended area of 93sq.ft. at Rs.70,000/- is admitted. Likewise the cost of construction of the 2^nd floor fixed at the rate of Rs.850/- per sq.ft the cost of construction of elevation fixed at Rs.1,00,000/- totalling Rs.11,71,000/- is also admitted. The total amount paid by the complainant and received by the opposite party on various occasions at various installments is Rs.21,70,000/- which is also an admitted fact.  The allegation of the complainants is that had the opposite party carried out the construction regularly  and continuously, he could have completed the construction at the said total cost of Rs.23,91,000/- (Rs.12,20,000+11,71,000). 

11. The contention of the opposite party is that the complainants had not paid the cost of the construction promptly as per the terms of the agreement every now and then at every stage of the  construction of the building as agreed, but had chosen to pay the said amount of Rs.21,70,000/-  at various instalments for a period of 32 months. The perusal of the Exhibit A2, the agreement between the complainants and the opposite party, makes it clear that the agreement was to be valid for 6 months and the rates will be revised after the agreement period.  Therefore the date of agreement being 25.01.2009 its validity has expired on 25.07.2009.  But both the complainants and the opposite party by their conduct have waived the time mentioned in the agreement as essence of the contract and they have continued the construction work even thereafter agreeing to construct the 2^nd floor for the sum of Rs.10,71,000/- and elevation work at Rs.1,00,000/- as would be evidenced by Exhibit A4 dt.10.02.2010. As per the terms of Exhibit A2, 95% of the cost of construction ought to have been paid by the complainants after the completion of the roof.  Along with the written version 3 schedules are filed by the opposite party, the 1^st schedule showing the particulars of amount received by the opposite party on various dates and at various stages of the construction made, the 2^nd schedule showing the mode of payment at every stage of the construction and the 3^rd schedule annexure showing the price of the raw materials and labour charges with variations during the period 2009 to 2012.  Eventhough the complainants have made the allegation of a general nature that those schedules are improvised by the opposite party, for the purpose of this complaint, the dates of the payment and the stages of work completed at every stage are not specifically denied by them.  As per the schedule no.1, the floor roof concrete had been completed on 13.12.2009 and the complainant ought to have paid 95% of the amount as per the said agreement.  The cost of the construction for the ground and 1^st floor is Rs.11,50,000/-. The 95% of it is Rs.11,50,000X95/100=Rs.10,92,500/-

                        12.  The Exhibit B1, series would go to show that up to 13.12.2009, the complainants have paid only the sum of Rs.8,40,000/-. As per the Exhibit A4, itself it is revealed that as on 10.02.2010, out of the total sum of Rs.12,20,000/- the total cost of construction of the ground and 1^st floor and the extended 93 sq.ft  the total amount paid as on 01.02.2010, is only Rs,9,25,000/- and there was still a balance of Rs.2,95,000/-, Exhibit A4 being an admitted document in itself, it is natural that the opposite party having already incurred expenditure on his own out of his pocket had been prone to be evasive to make further construction as the cost of the building material and wages of the labourers had increased subsequently. Exhibit A5, the revised estimate came into existence on 29.08.2011.  As per the Exhibit A4, the total cost of construction estimated as already stated is Rs.23,91,000/- and as evidenced by Exhibits B1 and B2 series, the total amount paid by the complainants at various instalments is Rs.21,70,000/- and there was still the balance of Rs.2,21,000/- to be paid by the complainants and the trouble started only from 29.08.2011, the date of Exhibit A5, the revised estimate of construction in view of the escalation of building materials and wages of the workers.  It could not be denied by any one that the cost of the building materials  and the wages of the building workers, have been escalated enormously during the  lapse of 2   years, since the commencement of the construction work of the building.

 In the decision reported in

2013 (3) CPR, page 713 (NC)

Mr.P.J.Joseph                                                         … petitioner

                        /Vs/

M/S Aratukulam, A Registered Partnership  

Firm and others                                                      … Respondents

 

the Hon’ble  National Commission has held that, when the petitioner himself has committed default in making payment as per the time schedule respondent was not under obligation to hand over possession within the stipulated period.  Therefore the complainants having themselves committed default in making payments promptly and regularly  at every stage of the construction of the building as agreed, they are not entitled to allege any deficiency of service on the part of the opposite party.

                        13. The another contention of the complainants is that they have paid the total amount of Rs.21,70,000/- at various instalments, but the cost of incomplete building construction made by the opposite party is only Rs.12,60,000/- and therefore the opposite party is liable to refund the sum of Rs.9,10,000/- (Rs.21,70,000-12,60,000) and the additional amount of Rs.9,90,000/- totalling Rs.19,00,000/-  as the complainants have to pursue the construction by engaging another contractor. Admittedly from 13.08.2011, when the last payment was made by the complainants to the opposite party, the construction work was not continued by the opposite party in view of the dispute that had arisen out of the Exhibit A5, the revised estimate of construction in view of the increased price index of materials and labour.  Therefore the actual cost of the construction of the incomplete building as on 13.08.2011 is to be found out. According to the complainants the cost of the construction of that incomplete building as on that date is Rs.12,60,000/-.  To give a finding on this complaint the actual cost of the construction of the building as on  13.08.2011 from when onwards the construction was stopped is the material one; but unfortunately there is no reliable evidence to ascertain the cost of construction of the incomplete building as on that date. 

14. No doubt the complainants have examined Thiru.S.Govindarajan, a private Engineer as PW 2, and through him Exhibit X1 to X4 are marked.  He has filed X1, the estimate for the incomplete 3 storied building of the complainants. He has assessed the cost of the construction of the building as such at Rs.11,61,000/-surprisingly even below the assessment of Rs.12,60,000/- made by the complainants themselves in the complaint.  Exhibit X2, the photographs along with its related Compact  Disc and the X3, the Digital  Video Disc showing the incomplete building is carefully viewed by this Forum and it is found out that the  lion’s share of the construction of the building namely, basement, lindal, roof, walls, fixing of door frames, window frames have been completed and the flooring, cement plastering, wiring, plumbing works, fixing of doors to the windows and door frames, painting, etc. are to be done. During the course of the cross examination of PW2, the said Engineer, by the opposite party many features have been elicited so as to expose the defective nature of the estimate prepared by the said witness. For instance at the  20^th page of the Exhibit X1 to deduct foundation trenches  the length is mistakenly mentioned as 0.90 meters instead of 9.00 meters and subsequently the total extent of the area  is mentioned wrongly as 7.45 instead of 0.745 and at the 18^th page the total amount is wrongly mentioned to be Rs.3,187 instead of Rs.31,885/- and at the 22^nd page at serial .no.5, the total area is mentioned to be 1.92M   instead of 3.74M    The said discrepancies have been admitted by the said witness PW2 and it is also further suggested that at page no.29 of the Exhibit X1, the total cost should be Rs.108284/- and it is wrongly mentioned to be Rs.78,412.  Further there is discrepancy in the calculation of plinth  area of the construction of the building between the said witness PW 2 and the opposite party. According to the opposite party the plinth area  refers to only the actual area on which the main structure of the building is raised, whereas the witness has included the area up to the edge of the sun shades projecting on either side of the building.

15. Further there is also discrepancy in the calculation of the wages for one pair of mason.  The wages of one pair in the year 2009 is fixed at Rs.625/- per day as shown in the column at page No.6 of Exhibit 1.  According to the opposite party mason one pair refers to one mason and a labour (Chithal) and the wages mentioned mason Rs.450/- lobour Rs.175/-=Rs.625/- But according to the PW 2, one pair refers to two masons which interpretation could not be accepted by any one in view of the prevailing     escalated wages applicable to a mason.  The PW 2 appears to be an interested witness to assess the value of the cost of construction of the incomplete building as on 13.08.2011.  While the complainants have filed this complaint for the specific relief of the recovery of the amount from the opposite party having decided to carry out the remaining construction work through another contractor they ought to  have taken steps to prove the value of construction of the incomplete building in an acceptable manner. The complainants ought to have resorted to securing the report from a public official like an Engineer of the Public works Department, so that the report could be relied upon as the concrete evidence to assess the valuation of the incomplete building. As the complainants have started the further construction at present it could not be done at this stage.

                        16. The complainants have sought for the recovery of the sum of Rs.19,00,000/- (Rupees nineteen lakhs only) with interest from the opposite party as a main relief apart from the claim of compensation of Rs.75,000/- The opposite party right from the beginning had been continuously carrying  out the construction despite the default in payments of the amount by the complainants regularly and promptly.  Even from his cross examination it is evident that the windows are readily made and are ready to be fixed and out of the 7 door frames 5 frames are fixed and 2 frames are in the incomplete construction itself to be readily fixed.  But the conduct of the complainants after Exhibit A5, the revised estimate of construction in view of the increase in price Index of building materials and labourers is not bonafide.

                        17. One Thiru.Indiran, who is none other than the close relative the 2^nd complainant has been examined as RW 2 on the side of the opposite party.  His testimony is trustworthy and reliable.  He has deposed that in August 2011,  that is after Exhibit A5, himself along with the complainants and some other persons approached the opposite party at his office and requested him for reducing the total amount to be paid by the complainant for which the latter told them that he could not do anything as the complainants committed inordinate delay in making the payment and he could deduct  only Rs.15,000/- from the total amount and the complainants agreed for that and returned back.  The 2^nd complainant is the uncle’s son of the said witness and no acceptable reasons is given by the complainants to shatter the veracity of the said witness. Further the conduct of the complainants after Exhibit A5 is also not in good faith. The complainants, if they have accepted the Exhibit A5, ought to have paid the amount and caused the continuation of the construction work by the opposite party or if they were aggrieved over the Exhibit A5 they should have refused to accept the said terms and ought to have immediately expressed their objections or refusal to the opposite party.

           

            18. It is pertinent to note that Exhibit A5 is dated 29.08.2011 and the complainants have filed the complaint before this Forum on 22.03.2012, after the lapse of more than 7 months from the said date that too even without issuing any prior notice to the opposite party in connection with the Exhibit A5.  The complainants have sought the relief of recovery of Rs.19,00,000/- from the opposite party and no basis is given for arriving at the sum of Rs.9,90,000/-.

19. This Forum is to adopt the summary procedure to decide the points on a complaint. But such matters as  the cost of the construction of the  incomplete building as on 13.08.2011, the discrepancy in the cost of the building materials and wages of the labourers, during the period from 2009 to 2012, the value of the further construction for the completion of the building and the Impact of the Exhibit A2, the agreement over the rights and liabilities of the complainants and the opposite party, etc., could be decide only by a Civil Court, after the full  fledged   trial, following the provisions of the code of Civil Procedure and receiving the evidence in accordance with the provisions under the Indian Evidence Act.  As already stated no deficiency of service could be attributed to the opposite party, as the complainants themselves have committed default in not making payments promptly in accordance with the terms of the agreement. But the relief whether the complainants are entitled to recover any amount much less the sum of Rs.19,00,000/- towards the cost of the construction for the completion of the incomplete construction could be decided and granted only by the a Civil Court in Civil Suit, after full fledged trial.

 

                       20. Point 2: In the result, the complaint is dismissed.  There is no order as to costs. But the complainants are at liberty to seek their relief for the recovery of the amount, if any, from the opposite party, by way of launching a suit in a Civil Court.

This order is dictated by me to the Steno-Typist, transcribed, typed by him, corrected and pronounced by me on this 19^th day of  December 2014.

 

 

    MEMBER I                                    MEMBER II                                 PRESIDENT

 

List  of document filed by the complainants

 

Ex.A1/Dt.30.04.2010: Xerox copy of the settlement deed executed by one Rajaraman in

   favour of his sister, the 1^st complainant.

Ex.A2/Dt.25.01.2009: The Xerox copy of the agreement for the construction of the

    ground floor and 1^st floor of the complainants building.

Ex.A3/Dt.21.12.2010: The Xerox copy of the approval of the complainants’ under

    construction building given by the Karikal Planning Authority,

     Karikal.

Ex.A4/Dt.10.02.2010: The Xerox copy of the revised estimate of construction of

    the complainants building agreed by the complainants and the

    opposite party.

 

Ex.A5/Dt.29.08.2011: The Xerox copy of the another revised estimate of construction

    of the complainants  building.

 

 

List  of document filed by the opposite party:-

 

Ex.B1/Dt Book No.5 : The  receipt book containing the counterfoils for the various

              payments made by the complainants to the opposite party

              on various dates

Ex.B2/Dt Book No.6 : The  receipt books containing the counterfoils for the various

              payments made by the complainants to the opposite party

              on various dates

 

Exhibits of the Forum

 

Ex.X1/Dt.Nil              :  The Xerox copy of the estimate for the incomplete building of the

                complainants made by  one Thiru.Govindarajan, Engineer,

     Karaikal.

Ex.X2/Dt.03.10.2013: The bunch of 18 photographs showing the various parts of the

    incomplete building of the complainants, along with the related

     Compact Disc.

Ex.X3/Dt.Nil              : The Digital  Video Disc showing the incomplete building of the

   complainants.

Ex.X4/Dt.03.10.2013: The receipt given by the one Victor Digital Studio and Video

    centre, Karaikal for the video and photographs taken for the

     incomplete building of the complainants.

 

 

Complainants’ Witness

 

PW 1:  Thiru.P.Rajendran, the 2^nd complainant.

PW2:   Thiru.S.Govindarajan, an Engineer.

 

                                                Opposite party’s Witness

 

RW 1: Thiru.Padmanaban, the opposite party.

RW 2: Thiru. R.Indran.

 

 

 

 

    MEMBER I                                    MEMBER II                                 PRESIDENT

 

 

DISTRICT CONSUMER DISPUTES

REDRESSAL FORUM,

NAGAPATTINAM.

 

CC.No.16/ 2012.

Order Dt.:19.12.2014.