(By Hon’ble Thiru Justice R.Pongiappan, President)

Aggrieved over the order dated 23.12.2016 made in CC No.86/2009 on the file of District Consumer Disputes Redressal Forum, Puducherry, both these appeals are filed by the complainant as well as by the opposite party.

2. The appellant in FA No.15/2017 is the complainant in CC No.86/2009 on the file of District Consumer Disputes Redressal Forum, Puducherry. Similarly, the appellant in FA No.21/2017 is the Opposite party in the above referred Consumer complaint.

3. The said Consumer Complaint in CC No.86/2009 has been filed by the complainant in FA No.15/2017 praying for the relief:
(a) For return and refund of a sum of Rs.8,40,000/- (Rupees Eight Lakh Forty Thousand only) which is the excess amount illegally retained by the opposite party from 02.01.2008 with interest @ 18% p.a. fro 02.01.2008 till the date of repayment in full quits.
(b) to pay a sum of Rs.10,00,000/- (Rupees Ten lakhs only) as compensation for deficiency in service, breach of contract, mental agony and pain and the higher cost of construction incurred by the complainant.
(c) to pay Rs.75,000/- towards expenses incurred by the complainant,
(d) to pay a sum of Rs.50,000/- towards costs of the complaint.

4. After conclusion of trial, the District Consumer Disputes Redressal Forum, Puducherry by order dated 23.12.2016 allowed the Consumer Complaint in CC No.86/2009 and passed the order as follows:
The complaint is hereby allowed with the following directions:
1. The Opposite Party is hereby directed to refund Rs.4,71,000/- for unfinished/incomplete work as per the construction agreement.
2. The Opposite Party is entitled to take back the construction materials bought by him, if any, available in the site
3. The Opposite Party is directed to pay a sum of Rs.50,000/- as compensation for the deficiency in service and for negligent act.
4. To pay a sum of Rs.5,000/- as cost of the proceedings to the complainant.

5. Aggrieved over the same both the complainant and the opposite party are before this Commission with these two appeals. Since both these two appeals are preferred as against the same order, this Commission has decided to pronounce the Common order for both these appeals.

6. Herein after for the sake of convenience, the appellant in FA No.15/2017 is called as complainant and appellant in FA No.21/2017 is called as Opposite Party.

7. The case of the complainant is as follows:
During the relevant point of time, the opposite party approached the complainant and offered to construct double storeyed building in the property belonging to the complainant with 180 days at the rate of Rs.900/- per square feet and entered into an agreement on 18.09.2007 and received a sum of Rs.30,000/- as consideration on the date of agreement. The opposite party received several sums of money from time to time on various occasions and as on 25.09.2008, the opposite party had received a total sum of Rs.10,40,000/- and the same was acknowledged in the agreement. After receipt of the said amount, the opposite party had failed to complete the construction as pr the agreement and he had committed deficiency in service. Accordingly, the opposite party is liable to pay the compensation for the loss and damages sustained by the complainant. The construction available on site is not even worth of Rs.2,00,000/-. The construction available on site is only to the extent of pillars and roofing on 02.01.2008 and thereafter the opposite party had not construction any further but he had been receiving various sums of money from the complainant who is residing at France, through his representative at Pondicherry.

8. The Opposite Party had been evading his commitment and responsibility under the agreement inspite of several requests from the complainant from time to time. The opposite party had represented himself as a qualified building contractor with good experience and constructed number of buildings. The complainant came to know that the opposite party had mis-represented the complainant that he is a qualified building contractor. On account of misrepresentation of the opposite party, the complainant parted with several lakhs of rupees to the opposite party. Infact, the opposite party played fraud on the complainant. On enquiry, the complainant came to know that the opposite party did not even submit the building plan approval before the Pondicherry Planning Authority for approval. The Opposite Party also failed to render true, proper and correct accounts to the complainant. The complainant is now forced to complete the construction with the help of a qualified engineer at a higher cost of construction. The estimate for completing construction is now about Rs.18,00,000/-. The opposite party is residing opposite to the house of the complainant. During the relevant point of time, the complainant has specifically came to Pondicherry from France for the purpose of verifying the extent of construction since the opposite party failed to inform the correct details of construction but at the same time, on coming to know of complainant’s arrival, the opposite party has left to France. Hence this complaint.

9. Refuting the avermnets found in the complaint filed by the complainant, the opposite party filed his reply statement and states as follows:
It is admitted that there was an agreement between the complainant and the opposite party for construction of a house. When at the time opposite party started to construct the building, the neighbour by name Joseph, S/o.Aroquianadhin having residence at No.16, Gabriel Street, Vinoba Nagar, Oulgaret Municipality, Pondicherry made obstruction for raising further construction. Similarly, one another neighbour by name Devi, W/o.Late.Elias also obstructed the construction. Thereby the dispute was brought to the knowledge of the complainant and to his representative. Later they had admitted before the local Panchayat and also before Rev. Father of Catholic Church of Vinoba Nagar as they are having certain liabilities and also made assurance to solve the disputes amicably. The Opposite party further submitted that having agreed mutually between the parties the opposite party has started to construct the building, during the year 2008 and constructed pillars. In the meantime, on 05.11.2008, he has received a advocate notice from Advocate P.Segar issued for and behalf of the neighbour Joseph, S/o.Aroquianadhin of Vinoba Nagar, Pondicherry by instructing to stop forthwith all further construction and to remove the materials kept in the neighbour’s property and on seeing the same, the opposite party was shocked and surprised. Infact, he was not able to understand the reason behind it. It is settled fact that when any matter is under litigation or in dispute normal delay be caused to the parties until otherwise the issues are being settled amicably. Under these circumstances, the complainant is very well know the reason for pending construction. On 09.02.2009 the complainant has issued legal notice to this opposite party with vexatious allegations and on reading the same, the opposite party properly replied through his counsel on 23.03.2009. The complainant unnecessarily issued another reply/rejoinder notice dated 29.04.2009 to him with the same cause of action. The opposite party aggrieved by the said defamatory notice has filed a civil suit as against the complainant in O.S.No.442/2009 on the file of the Hon’ble I Additional District Munsif, Puducherry and the same was pending for disposal. Neither the owner of the property nor his representative never come forward to settle the issue amicably. The opposite party assured that if the civil dispute between the owner and the rival claimant being settled he is ready to start the construction. Hence, the complaint filed by the complainant is not having any merits.

10. Before the District Consumer Disputes Redressal Forum, Puducherry, on the side of the complainant, Power of attorney of the complainant was examined as CW.1 and marked Ex.C1 to Ex.C4. On the side of the opposite party, the opposite party himself was examined as RW.1 and marke Exs.R1 to R6. Thiru.Lawrence Gunaseelan, Assistant Engineer, PWD, Puducherry has been examined as CW.2 and marked three documents as Ex.X1 to X3.

11. Later, on perusal of evidence, the District Consumer Disputes Redressal Forum, Pondicherry, came to the conclusion that there was deficiency in service and accordingly passed the order as stated in para No.4.

12. Aggrieved over the same both the complainant and the opposite party are before this Commission with respective appeals.
The learned counsel appearing for the appellant in FA No.15/2017 has vehemently submitted before this Commission that after entering into an agreement on 18.09.2007, out of total costs (Rs.11 lakhs), the opposite party has received Rs.10,40,000/- and later he has not fulfilled his obligation by constructing the entire building as per the agreement.

13. Per contra, the learned counsel appearing for the respondent in FA No.15/2017 made his submission that though there was an agreement between the complainant and the opposite party, only due to the reason with neigbhours of constructed area raised objection, the opposite party is not in a position to complete the construction and therefore there is no deficiency in service on the side of the opposite party.

14. Now, on considering those aspects with relevant records, admittedly one Joseph and Devi raised objections and the same was referred to Local panchayat and Rev. Father of Catholic Church of Vinoba Nagar. Infact the same was reflected in Ex.R2, which is the advocate notice issued by one Segar, Advocate on behalf of one Joseph, S/o.Aroquianadhin.

15. In respect of the said advocate notice neither the complainant nor the opposite party has sent any reply by stating that there was no dispute over the title of constructed area. Apart from that in the report/Ex.X1 submitted by the qualified Engineer, CW.2/ Lawrence Gunaseelan, also in his evidence, he has clearly stated that at the time of measuring the property, somebody raised objection. He filed report stating that in respect to the ownership of the property they have dispute and also he stated that he is facing problem in measuring the property. Later, he filed a memo before the District Forum, Puducherry seeking police aid for measuring the property and the same was ordered. Therefore, though the person who has filed complaint was not examined before the District Forum, hence, we are of the opinion that the plea raised by the opposite party that somebody has raised objection for costrucitng the building is true one and therefore, inability on the part of the opposite party in completing the construction is justified on his side.

16. In the meanwhile, the allegation leveled by the complainant as against the opposite party through Advocate Notice was suitably replied and therefore it cannot be said that the opposite party has voluntarily left to France in order to avoid enquiry raised by the complainant in India.

17. However, it is admitted on either side that the portion of construction was completed and the same was proved through expert opinion (Ex.X2), the building valuation report. The said building valuation report has been prepared as per Pondicherry schedule of rate 2007-08 and as such the construction of worth of Rs.5,69,000/- was completed by the opposite party. On the other hand, it is admitted on either side that the complainant has paid Rs.10,40,000/- to the opposite party as per agreement Ex.A2.

18. In this regard, relying on the report of Ex.X2 it would necessary that the balance amount to be refunded to the complainant towards unfinished or uncompleted work as per construction agreement.

19. Since there is no dispute regarding entering into agreement between them and also about the payment of Rs.10,40,000/-. In this regard it is already stated that only due to the circumstances which was arisen in construction area, the opposite party is unable to complete the construction. Therefore, it would appropriate to direct the opposite party to refund Rs.4,71,000/- for unfinished or uncompleted work as per construction agreement. The District Consumer Disputes Redressal Forum, Puducherry has taken the same view, therefore, we are all unanimously confirm the view taken by the District Consumer Disputes Redressal Forum, Puducherry for refund of the above said amount.

20. Further, the District Consumer Disputes Redressal Forum has fixed compensation of Rs.50,000/- which is payable by the Opposite Party to the complainant. In this regard, as already discussed for the lapse committed by the opposite party he is not is responsible and therefore, paying compensation of Rs.50,000/- is unnecessary.

21. It is the case of the complainant that the opposite party is not a qualified engineer. Only after defrauding the complainant, the Opposite Party entered into agreement and therefore, he is liable to pay higher compensation for wrong committed. Now, on going through the evidence available on records, it would appears that the agreement was executed in France and later during the trail, the principal who is the sufferer has not appeared before the District Forum and gave evidence. So, without scrutinizing the evidence given by the principle, it is not fair to accept the case of the complainant in toto. Therefore, considering the facts and circumstances of the case, we are of the opinion that directing the Opposite party to refund a sum of Rs.4,71,000/- with interest at the rate of 12% per annum from the date of complaint till the realization is sufficient to meet the ends of justice, in otherwise, the determination of compensation is unnecessary. Both parties are directed to bear their own costs.

In the result, FA No.21/2017 is partly allowed by setting aside the compensation and cost as ordered by District Forum, Puducherry.

FA No.15/2017 is dismissed. Parties are directed to bear their own costs.

Dated this the 19th day of August 2022.