Tamil Nadu

StateCommission

A/47/2019

M/s. Shantha Baagiyam Builders, - Complainant(s)

Versus

R. Gajapathy, - Opp.Party(s)

M/s. V.G. Anbarasu,

29 Mar 2023

ORDER

 IN THE STATE CONSUMER DISPUTES REDRESSAL COMMISSION, CHENNAI

 

           BEFORE :      Hon’ble Mr. Justice R. SUBBIAH                              PRESIDENT

                                  Thiru R  VENKATESAPERUMAL                                MEMBER

                        

F.A.NO.47/2019

(Against order in CC.NO.27/2011 on the file of the DCDRC, Chengalpattu)

 

DATED THIS THE  29^th DAY OF MARCH 2023

 

M/s. Shantha Baagiyam Builders

Rep. by its Proprietor A.M.Stalin

S/o. A.Athony Muthu

Sai Shristi Apartments                                               M/s. V. Balaji

Door No.124/43, V.G.P.Salai                                       Counsel for

West Saidapet, Chennai – 600 015                       Appellant /Opposite party

 

                                                         Vs.

R. Gajapathy

S/o. B.S.Raja

No.1, Dhanyasi Street                                             M/s. N. Premkumar

Anupuram Township- 603 127                                      Counsel for

Kancheepuram District                                         Respondent / Complainant

 

          The Respondent as complainant filed a complaint before the District Commission against the opposite party praying for certain direction. The District Commission had allowed the complaint. Against the said order, this appeal is preferred by the opposite party praying to set aside the order of the District Commission dt.27.12.2016 in CC.No.27/2011.

 

          This appeal coming before us for hearing finally on 27.12.2022, upon hearing the arguments of the counsel appearing on bothsides and on perusing the documents, lower court records, and the order passed by the District Commission, this commission made the following order:

 

ORDER

 

JUSTICE R. SUBBIAH,  PRESIDENT   

1.        This appeal has been filed by the Opposite party as against the order dt.27.12.2016 passed by the District Commission, Chengalpattu, in CC.No.27/2011, by allowing the complaint. 

 

2.       For the sake of convenience parties are referred as per the  ranking before the District Commission.

 

3.       The brief facts of the complaint before the District Commission are as follows:

            The opposite party agreed to construct a single duplex house in the complainant’s own land, CMDA approved plot No.15, measuring 2048 sq.ft., situated at Pavithra Enclave, Perungalathur Village, Kancheepuram District.  The rate of construction orally agreed was @Rs.990/- per sq.ft., for the plinth area and at Rs.445/- per sq.ft., for car parking, balconies and head room which was also the prevailing rate in the year 2009 and 2010.  Total plinth area was 2250 sq.ft.  The opposite party agreed to construct the house building with the specification presented by him for a cost of Rs.22,37,400/-.  The opposite party also agreed to construct the water sump, septic tank, compound with gate at a cost of R.1,57,000/-.  Hence the total cost of construction agreed upon by the complainant and the opposite party is approximately Rs.24,00,000/-.  The opposite party orally agreed to construct the building in all respect and make it ready for occupation within 12 months from the date of advance.  In the year 2011, the oral agreements were confirmed by the opposite party by signing agreement.  While so on 3.11.2009, the opposite party requested the complainant to pay a sum of Rs.2 lakhs as advance for the construction of the house.  The complainant had paid the said amount, for which a receipt also was issued.  Again on 11.11.2009, the complainant had paid another sum of Rs. 1lakh as additional advance to the opposite party.  In December 2009, the opposite party prepared duplex house plan and drawing model of the building with internal staircase having Ground floor and First floor with a built up area of 2250 sq.ft. The complainant had again paid a sum of Rs.38000/- as demanded by the opposite party, towards obtaining plan and construction approval from perungalathur panchayat office.  For the said amount of Rs.38000/- no receipt was issued by the opposite party.  But till June 2010 the opposite party had not obtained any plan approval.  Therefore in June 2010, the complainant visited the panchayat office to verify, where it was informed that no such application for getting approval of the plan had been filed by the opposite party.  Therefore, the complainant engaged M/s. Vijay Planners for obtaining plan approval, for which they demanded a sum of R.63000/-.  Therefore, the complainant paid a sum of Rs.25000/- to the opposite party during June 2010, and asked the opposite party to pay Rs.63000/- to M/s. Vijay Planners, for obtaining plan approval.  Since the opposite party paid the said amount only in the month of September 2010, the plan approval was obtained in the month of October 2010.  Thereby the opposite party delayed the process of getting plan approval by 7 months.  Thereafter with a delay of 6 months from the date of advance i.e, on 23.4.2010 opposite party started construction.  Thereafter, on various stages the complainant paid money to the opposite party.  Normally all the builders speed up their construction activities to complete the house as early as possible to avoid cost escalation.  But, the opposite party had built the house upto the stage of brick work in 20 months eventhough he was paid Rs.17 lakhs.  Out of the total cost of Rs.2400000/- the complainant had so far paid Rs.17,00,000/- to the opposite party and Rs.1 lakh was paid for increasing the foundation height.   The opposite party should have completed the work in all respects by November 2010.  The complainant had given two months extra time for completing the construction.  But the opposite party failed to handover the house even after a lapse of 20 months.  The opposite party failed to provide detailed rates of construction for each item but fixed the total cost at Rs.2400000/-.  The estimation of the work carried out is Rs.10 lakhs only.  The estimation for the remaining work to be carried out to complete the entire building is Rs.15 lakhs.  The complainant is yet to pay Rs.7 lakhs balance to the opposite party.  So the opposite party has to complete the works worth Rs.8 lakhs.  Therefore, there is deficiency in service on the part of the opposite party.  Thus alleging negligence on the part of the opposite party, the complainant filed a complaint before the District Commission praying for a direction to the opposite party to refund Rs.8 lakhs being the value of the unexecuted work, alongwith compensation of Rs.10,00,000/- and Rs.2 lakhs towards loss of income. 

 

4.       The case of the complainant was resisted by the opposite party by filing their version as follows:

          The consumer forum has no territorial jurisdiction to entertain the complaint. The claim made before this forum is highly imaginary, exorbitant and inflated, and the same is liable to be dismissed on the ground of inflated claim, without any factual or legal foundation.  The opposite party had never agreed for any oral agreement with the complainant as stated in the complaint.  On 3.11.2009 the complainant approached the opposite party and offered Rs.2 lakhs and Rs.1,00,000/- on 11.11.2009 as token advance to undertake the construction work, and as per the request of the complainant the receipt was also issued to him.  Eventhough the complainant was friend, it was informed to him to enter into a written agreement for construction.  He accepted for the same and told that he wanted to prepare a neat plan with specification and then to execute a written agreement, which was accepted by the opposite party.  After advance booking, the complainant had not approached the opposite party for more than 5 months.  Thereafter he came in the month of May 2010 and informed that he was taking steps to mobilise funds and the agreement can be executed within a few months.  The opposite party also denied the allegation of the payment of Rs.38000/- by the complainant to the opposite party for getting plan approval.  The opposite party never delayed any work.  It is also denied that the construction work was commenced in the year 2009.  Without plan approval the construction work could not be commenced.  After getting plan approval only, the construction was commenced and the same was agreed to be completed within 12 months.  Immediately, the opposite party requested for execution of written agreement, but the complainant somehow delayed, and this made a difference of opinion.  The opposite party was not aware of the PF and the housing loan availed by the complainant.  The complainant for the best reason known to him prepared a written agreement and made the opposite party to sign.  Without knowing the foul play, the opposite party signed the agreement as if 12 months, but the complainant failed to release the funds for further construction and delayed the construction work.  So the construction work could not be completed.  The present complaint is filed with false and frivolous allegations, and the complaint being devoid of merits, deserves to be dismissed.  There is absolutely no deficiency of service, and thus sought for the dismissal of the complaint. 

 

5.       In order to prove the claim, proof affidavits were filed by the parties, alongwith the documents, which were marked as E.A1 to A4 on the side of the complainant.  There were no documents filed on the side of the opposite party.  The complainant and opposite party were cross examined.  On filing a petition by the complainant, an advocate commissioner was appointed to inspect the property.  The report of the Advocate Commissioner alongwith the surveyor’s report were marked as Ex.C1 and C2. 

 

6.       The District Commission, after analysing the entire materials, alongwith the Advocate Commissioner’s report has come to the conclusion that Ex.C1 the Advocate Commissioner Report alongwith photos and CD had elaborately stated about the works already done and the works to be done.  Though an objection was filed by the opposite party, there is no reason to reject the reports under Ex.C1 and C2.  As per Ex.C2, the Engineer had assessed the cost of the existing building with all relevant particulars at Rs.10,87,650/-, whereas the complainant had paid Rs.17,75,000/-.  Hence the opposite party had excessively received a sum of Rs.6,87,500/- which they are liable to refund.   Thus holding, the District Commission had allowed the complaint, and directed the opposite party to pay Rs.687350/- alongwith 6% interest and compensation of Rs.75000/- and cost of Rs.20000/-.  Aggrieved over the order impugned, the present appeal is filed by the opposite party as appellant. 

 

7.       The main crux of the complaint is that the complainant approached the opposite party to construct a duplex house at his land, and it has been orally agreed that the builder has to complete the construction and handover the possession within 12 months.  The cost of the construction was fixed at Rs.22,37,400/- for the total plinth area of 2250 sq.ft.  Out of the total consideration of Rs.2400000/- the complainant so far paid Rs.17,00,000/-.  Even as per the agreement the opposite party had to handover the house by 1.7.2011.  Though the complainant was ready to pay the further payment of Rs.7 lakhs, the opposite party had not completed the house.  Hence the complaint.

 

8.       The opposite party had defended the allegation by stating that after the booking advance paid, the complainant had not approached the opposite party for more than five months.  The complainant had himself engaged someother person to obtain plan approval.  The complainant himself had admitted that he has not paid the entire consideration.  Therefore, there is no deficiency in service on their part, thus prayed for dismissal of the complaint.

 

9.       We have heard the learned counsel appearing on either side, perused the materials placed on record, and the order impugned.

 

10.     It is the submission of the learned counsel for the appellant/ opposite party before this commission that the District Commission, without considering the objections raised by the opposite party, had passed a verbatim order, based on the commissioner report.  As per the commissioner report Ex.C2, he has stated that the value of the works to be done by the opposite party @ Rs.14,14,500/-.  But how he had arrived at such a calculation has not been explained.  Therefore, a detailed objection had been filed by the opposite party.  But the District Commission, had simply rejected the same on bald reasoning.  Moreover, the advocate commissioner had inspected the premises in the absence of the opposite party. 

           In support of the contentions, the learned counsel for the opposite party had drawn our attention to the judgement of the Hon’ble National Commission, held in Mrs. Malvinder Kaur Vs. Pallav Mukherjee, reported in 2003 (1) CPR 317 (NC).  In the said judgement it was held that “There was no sanction of plan of the premises by which construction was undertaken by the respondent.  Complainant was herself party to the unauthorised construction.  Any agreement to construct an unauthorised building would be unlawful and a tribunal certainly be not a party to enforce such an agreement.  As a matter of fact, when the State Commission found that the construction being undertaken by the respondent at the instance of the complainant was unauthorised it should have thrown out the complaint as it could not be said that any consumer dispute arose between the parties or State Commission to assume jurisdiction.  There cannot be any consumer dispute.”

 

11.     But the learned counsel for the complainant submitted that the Advocate commissioner alongwith engineer had virtually inspected the property and filed a detailed report as to how he has arrived the total cost of construction at Rs.10,87,650/-, and the work remaining to be done @ Rs.14,14,500/-.  After perusal of the objections raised by the opposite party, the District Commission had allowed the complaint.  Hence the appeal deserves to be dismissed.

 

12.     Keeping the submissions in mind, we have carefully gone through the materials placed on record.

 

13.     As per the order impugned, the District Commission has directed the opposite party to refund Rs.6,87,350/- alongwith 6% interest.  We could see that this estimation is mainly based on the version of the complainant and on the basis of the Advocate Commissioner’s report. 

          In this connection, a perusal of the Advocate Commissioner’s report would show that the rates quoted by the engineer are all not supported with any valid supportive documents.  Accordingly, there is no proof to believe the cost quoted by the engineer is correct.  Therefore, we feel that there are disputed question of facts involved in this case and can be solved only by conducting detailed examination.  In the absence of such detailed evidence, deciding the matter simply based on the commissioner’s report is not justifiable.  Since the consumer commissions are based on the summary trial, the proper forum to adjudicate the issue involved is the civil court.  Accordingly, the order impugned is liable to be set aside, with a liberty to the complainant to approach the civil court if he so desires.

 

14.     In the result, the appeal is disposed of, by setting aside the order of the District Commission in CC.No.27/2011 dt.27.12.2016, and the complaint is dismissed.  There is no order as to cost throughout.

          Registry is directed to discharge the mandatory deposit, alongwith accrued interest, in favour of the appellant/ opposite party.

 

 

 

  R  VENKATESAPERUMAL                                         R. SUBBIAH

                      MEMBER                                                     PRESIDENT