Date of filing : 22.03.2016 Date of order : 10.02.2023
BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, VELLORE
PRESENT: THIRU. A. MEENAKSHI SUNDARAM, B.A., B.L. PRESIDENT
THIRU. R. ASGHAR KHAN, B.Sc., B.L. MEMBER – I
SELVI. I. MARIAN RAJAM ANUGRAHA, M.B.A., MEMBER-II
FRIDAY THE 10th DAY OF FEBRUARY 2023
CONSUMER COMPLAINT NO. 8/2016
Ansar Basha,
S/o. Abdul Khyoom,
No. 9, Upstairs,
Bharathi Nagar Extension First Main Road,
Gandhi Nagar, Katpadi,
Vellore – 632 006. ...Complainant
-Vs-
R. Kumaravel,
S/o. T.P. Rajaram Mudaliar,
No. 36, Nallanna Pillai Street,
2nd Street, Kosapet,
Vellore – 632 001. ...Opposite party
Counsel for complainant : Thiru. V.V. Chandrasekaran
Counsel for opposite party : Thiru. M. Kulothangan
ORDER
THIRU. A. MEENAKSHI SUNDARAM, B.A., B.L. PRESIDENT
This complaint has been filed under section 12 of Consumer Protection Act 1986. The complainant has prayed this Hon’ble Commission to direct the opposite party to pay a damages of Rs.18,69,495/- and to ascertain the quality of the building and to file a report as to the condition of the building and also to pay suitable damages for the loss and mental agony and also cost.
1.The Case of the complaint is briefly as follows:
The complainant is a BSNL employee and had availed a loan of Rs.11,91,495/-including insurance from the State Bank of India, Vellore RASMECCC and SARC after obtaining the sanction from the Vellore Municipal Corporation . The complainant had entrusted the work initially with one Mohammed Sadiq on 04.02.2014 who had completed the foundation work on 10.03.2014. But he could not complete the work since the passage to the site was very small and due to non –cooperation of the neighbouring house owners around the plot. The complainant had paid Rs.3.5 lakh to the said Mohammed Sadiq to complete the work upto the foundation level. Since, he could not carry out the work beyond that level as he was not able to convince the neighbouring plot and house owners, he had withdrawn on 17.12.2014 from the work. But he had completed the work for the money he had received. At that juncture one of the complainant’s colleague had introduced the opposite party who told that the opposite party was an influential person who could convince the neighbours. The opposite party had assured that he would be able to do something after inspecting the site. However, after inspecting the site the opposite party had told that he himself was a civil engineer and had considerable experience in construction work and therefore, would construct the building on his own. The complainant was already under severe stress and strain due to the unexpected and unfavourable turn of events and the delay and loss in the execution of the work till that time, that it February 2015. Therefore, the complainant to get out the situation as early as possible, had given a cheque of Rs.1 lakh along with the contract deed on 27.02.2015 requesting him to execute the deed first. But the opposite party without executing the contract deed presented the cheque only for encashment on 04.03.2015. The complainant sensing something foul had immediately instructed the bank “To stop payment”. For instructing stop payment but the complainant had politely faced the opposite party and asked him to execute the contract before proceedings further the opposite party red faced and furiously shouting left the office. The opposite party had already collected construction tools worth Rs.20,000/- in the adjoining site which belonged to a third party for starting the work, which amounts to trespass without any permission from the adjoining site owner and also without any instructions to the complainant. The opposite party to withdraw from the site by dismantling the hut and removing the tools. But the opposite party had at that time refused to leave the site and asked to permit him to continue with the work promising to execute the contract deed and complete the work in time if only Rs.1.20 Lakh is paid to him. The complainant had no other go but to accept his demand. Therefore he had paid Rs.1.20 lakh on 07.03.2015. But without executing the contract deed the opposite party had collected below standard building materials, that is, the ill baked bricks, sub standard cement and big jellies of about 3 inches and started the work and without even plastering and using the materials he had collected completed the work upto the roof level. Since it was not safe due to very bad quality of workmanship and materials and was not fit to construct any further. When the complainant was thinking what to do, the opposite party had issued a legal notice dated 18.04.2015 claiming that he had incurred an expenditure of Rs.6 lakhs in constructing and that the complainant must pay the amount to him. But the complainant did not issue any reply since, he was not a building expert. His notice is the only evidence available to connect him the work. However, the complainant took the risk and inspection of other civil engineers and also forego availing of further loan. He is paying the EMI of Rs.16,000/- per month as he has already executed the standard form agreement with the bank. Therefore, the real loss could be ascertained after inspection by the authorised structural Engineers, the loss can be quantified and the general and special damages based on the loss and damage is to be fixed by this Hon’ble Authority – Apart from the above the mental agony and the great loss and hardship is incalculable and the same has to be quantified by this Hon’ble Authority. As per the available records the loss sustained is Rs.18,69,495/- and up till this time. Hence filed this complaint.
2. The written version of opposite party is as follows:
The opposite party submits that the complainant has been introduced to the opposite party by his friend Mr. Chidambaram, working in BSNL office at Tiruvannamalai for the construction of the complainant’s house on 24-01-2015 and the complainant had entered into an oral agreement for construction of the complainant’s house at Vellore, Mullipalayam, S.No.266/1, plot No.7 from the basement till the completion of superstructure and electrification in the month of February 2015 and the complainant issued the cheque for the sum of Rs. 1,00,000/- drawn on ICICI bank, Vellore branch dated 27-02-2015 as advance payment to start the construction work and agreed to pay the balance amount after receiving the loan amount from the state bank of India for the second stage. The complainant entrusted the construction work to the opposite party and also showed some format for execution of construction agreement and advised to start the work immediately, since the plan and the loan was already sanctioned and based on the previous agreement with the previous contractor, the complainant insisted the opposite party to complete the construction work for the sanction of the second stage loan. Hence, on the oral assurance of the complainant for the construction and believing the complainant’s words, the opposite party invested his own funds and immediately started the construction work from the basement level, by investing more than Rs. 5,00,000/- for the purchase of the building materials. When the opposite party presented the said cheque for collection on 04-03-2015, the same was returned with the endorsement “20 – payment stopped by drawer”. When the opposite party approached the complainant for the payment of the cheque amount and the balance amount, the complainant had promised the opposite party that as soon as the 2nd stage loan amount is disbursed by the bank the complainant will pay the amount due to the opposite party to compete the construction upto roof level in the presence of the complainant and his colleagues Mr.Perumal, Mr. Manivannan, and Mr. Balaraman and they also recommended on behalf of the complainant to complete the construction. Believing the complainant’s words, the opposite party had invested his money up to Rs. 6,00,000/- and constructed up to roof level and laid the concrete ceiling on 20-03-2015. Thereafter the opposite party had called on the complainant several times over the complainant’s cell phone but the complainant had failed to attend to the calls made by the opposite party. once again when the opposite party approached the complainant on 08-04-2015 at the complainant’s office and requested for the payment, the complainant had teased the opposite party in front of the complainant’s colleagues and also stated that the complainant will not pay any amount to the opposite party and uttered filthy languages and told the opposite party to do whatever the opposite party wants and due to the complainant’s disrespectful behaviour in front of his office colleagues, the opposite party was put to great mental shock and agony and got ashamed. The complainant is liable to compensate the opposite party for the damages sustained by him and for mental shock and agony caused by the complainant to the opposite party and the opposite party estimates the damages at Rs.5,00,000/- apart from paying the amount of Rs.6,00,000/- spent by the opposite party for the construction of the complainant’s building at his request. Further the complainant had cheated the opposite party by making him to believe the complainant by giving the cheque for Rs.1,00,000/- and later stopped the payment after investing the opposite party’s money. The opposite party had borrowed the money for interest at Rs.2/- per hundred per month and invested for the construction believing that the complainant will pay the amount immediately. The opposite party has to pay the interest for the amount because of the complainant’s non- payment of the amount due to the opposite party in time even after completion of major portion of the building. Hence the complainant is liable to pay the interest on Rs. 6,00,000/- at the rate of Rs.2/- per hundred from 27-02-2015 to till date of payment of the said sum of Rs.6,00,000/- apart from damages. The opposite party had also lodged a complainant before the sub Inspector of Police, Vellore Taluk Police Station on 11-04-2015 for cheating the opposite party. He has no other option except to proceed legally for the recovery of the amount due to the opposite party from the complainant and issued the lawyer’s notice dated 18-04-2015. The complainant received the said notice and failed to pay the amount due to the opposite party and after long period of time issued the reply notice dated 10-02-2016 with false allegations and also filed the above complaint before this District Consumer Disputes Redressal Forum, Vellore in C.C.No.8 of 2016. Since the complainant failed to pay the amount of Rs.6,00,000/- due to the opposite party as stated above with interest at the rate of Rs.2/- per hundred per month from 27-02-2015 to till date of payment and the sum of Rs.5,00,000/- towards the compensation, in spite of repeated demands and requests and the lawyer’s notice dated 18-04-2015, the opposite party is obliged to file the suit separately for the recovery of the said amounts due to the opposite party. The opposite party is also filing a suit for permanent injunction against the complainant restraining him from engaging any other contractor for completion of the construction work in the schedule mentioned property till the said suit claim is paid to the opposite party. The opposite party is not liable to pay any amount towards the amount now claimed by the complainant. Only the complainant is liable to pay a sum of Rs.14,25,600.00 to the opposite party claimed by him in the suit to be filed by him. The opposite party is in no way liable to pay any amount to the complainant and there is no dereliction of duty with unfair trade business and deficiency in service on the part of the opposite party. The complaint has no locus stand to file the above complaint for damages and compensation and for recovery of the amount alleged to be due from the opposite party. He has to file only a civil suit for recovery of money and the above complaint is not maintainable. The complainant is not entitled to get any relief as prayed for in the complaint. It is therefore prayed that this honourable court may be pleased to dismiss the above petition with cost of this opposite party.
3. Proof affidavit of complainant filed. Ex.A1 to Ex.A4 were marked. Proof affidavit of opposite party filed. Ex.B1 to Ex.B4 were marked. Written arguments of both sides filed. Oral arguments of both sides heard.
4. The Points that arises for consideration are:
1. Whether there is any deficiency in service on the part of the opposite
Party ?
2. Whether the complainant is entitled for relief as claimed in the complaint?
3. To what relief, the complainant is entitled to?
5. POINT NOS. 1 & 2:
The complainant is the owner of the Plot No.7 S.F.No.266/1, Shenbakkam, Vellore – 28. The complainant proposed to construct a house thereon. He, also availed a housing loan from the State Bank of India. Initially he has entrusted the construction of the house with one Mr. Mohammed Sadiq on 4.2.2014. He has completed foundation work. Since, the neighbouring plot owner did not co-operate for continuing the construction the wrist while Mohammed could not continue the construction. Therefore, the complainant cancelled the agreement with the said Mohammed Sadiq. Therefore, the agreement between the Mohammed Sadiq and the complainant came to end. Thereafter the complainant approached the opposite party herein for continuing the construction of the house. The allegation of the complainant is that he is the law of abiding citizen and employee of the BSNL. He wanted to execute the construction agreement before staring the construction to avoid litigation in future. However, the opposite party does not heed to words of the complainant and started construction without consent of the complainant. Since, he has not come forward to execute an agreement for the construction of his house the complainant gave instruction to his bank stop payment of Rs.1,00,000/-. The main allegation of the complainant is that the opposite party used substandard material and he also did not adhere the I.S code. Further, he has not proper watering, after the roof was constructed. Therefore, there was a crack in the ceiling. According to the complainant the entire construction made by the opposite party is not up the mark and could not be used for habitation. On the other hand, the opposite party in their written version denying the allegation of the complainant and stating that the complainant orally agreed to construct of house for him and for which the complainant issued a cheque for Rs.1,00,000/- is part consideration. However, the said cheque was returned as the complainant gave stop payment. Therefore, there is no concluded contract between the complainant and this opposite party. However, the complainant again requested this opposite party to continue the construction and gave a sum of Rs.1,20,000/- towards the part payment of the aforesaid construction of the house, believing the same, the opposite party made strenuous effort and great difficulty he has reached the construction till the roof level and the roof also lied in the presence of complainant. Having completed the house when the opposite party requested for the balance payment. The opposite party stating that once the stage payments were released by the bank, I will pay the same to the opposite party. Since the complainant did not pay the balance amount the opposite party have no other option to stop the further construction. Since the opposite party also incurred sum of Rs.6,00,000/- (Rupees six lakhs only) towards the construction of the complainant is house. The complainant also filed the civil suit before the District Munsif Court, Vellore bearing OS.No.46/ 2017 which is pending for the adjudication. That being so the complainant filed an application before the Civil Court for the appointment of an Advocate Commissioner to inspect the subject matter of the construction of the house to get a opinion from the Anna University. Anna university professor Dr. K.P. Jaya has filed the report stating that it is not advisable to retain the building for further construction or for further use. Therefore, the complainant argued that since the construction made by the opposite party is a substandard one he could not continue the construction substandard or live in the aforesaid construction. However the counsel for the opposite party contented that in this case there are complicated question fact which cannot be decided by this court in summary trial further already the civil court took cognisance of the matter therefore all the issues can be decided in the Civil Court alone considering the aforesaid contention we are of the opinion that since there are complicated question fact between the complainant and all the same can be decided before the Civil Court in the full pledged trial. Accordingly this complaint is dismissed. Hence, this Point No.3 is also answered accordingly.
6. Point No.3: As we have decided in Point Nos.1and 2 that the complainant has not proved any deficiency in service on the part of the opposite parties. Hence, the complainant is not entitled for any relief. Hence, this Point No.3 is also answered accordingly.
In the result, this complaint is dismissed. No costs.
Dictated to the steno-typist transcribed and typed by her corrected and pronounced by us in the open Commission on this the 10th February,2023.
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MEMBER – I MEMBER – II PRESIDENT
LIST OF COMPLAIANNT SIDE DOCUMENTS:
Ex.A1-18.04.2015 – Copy of Notice issued by the opposite party
Ex.A2-10.02.2016 – Copy of notice issued by the complainant
Ex.A3 - Copy of loan details from the State Bank of India
Ex.A4 - Copy of receipt of the notice issued by the complainant
LIST OF OPPOSITE PARTY SIDE DOCUMENTS:
Ex.B1-27.02.2015 – Copy of the Cheque for the sum of Rs.1,00,000/- drawn on
ICICI Bank, Vellore Branch
Ex.B2-04.03.2015 – Copy of the Memorandum for the return of cheque
Ex.B3 - Office copy of the Plaint in O.S.No. 46 of 2017
Ex.B4 - Copy of written statement in O.S. No. 46 of 2017
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MEMBER – I MEMBER – II PRESIDENT
