By Smt. Suma K.P.Member
The complainant decided to construct a house of 2185 sq.feets at Kalpathy and had entrusted the construction to the opposite party and also entered into an agreement with him. As per the agreement the opposite party had agreed to construct the building @1200/sq.feet. Even if the OP had undertaken to construct the whole building in a good manner,the complainant alleges that the opposite party had not used good quality materials and had constructed the building in a substandard manner. He had accepted the amounts as per the terms of the agreement but not have completed the construction as agreed. The complainant submits that the opposite party had accepted Rs.32,00,000/- (Rupees Thirty two lakh only) towards construction charges and had withdrawn the construction without completing it. He further alleges that the above act of the opposite party amounts to deficiency of service and breach of contract. Furthermore the complainant also alleges that there are various defects in the constructed portion also. The opposite party had also collected an additional amount of Rs.5,40,000/- (Rupees Five Lakh Forty Thousand Only) for the additional works done by him. The complainant had to spent about Rs.1,50,000/- ( Rupees One lakh fifty thousand only) more to complete the balance construction. Since the opposite party had used least quality materials she had to replace the said materials which amounts to Rs.2,00,000/-(Rupees Two lakh only). Since opposite parties had not completed the construction in spite of accepting the amounts she caused a lawyer notice on 07/08/2013, but the opposite party’s had not issued any reply to the said notice in spite of accepting the same. Hence she had approached before the forum seeking a compensation of Rs.8,90,000/-(Rupees Eight Lakh Ninety Thousand Only) along with Rs.5000/- (Rupees five thousand only) as cost of this litigation to be paid by the opposite party.
The complaint was admitted and notice was issued to the opposite party for entered appearance. OP entered appearance through counsel and filed a detailed version denying all the allegations of the complaint. He admits that he had undertaken the construction of the complainant residential house of 2185 sq.feet ,but he denies the allegation that it was undertaken @1200/sq.feet. Initially the opposite party had given the estimate to the complainant at the above mentioned rate but the complainant states that she had to construct the building at a strong manner and had to do additional works like construction of compound wall, digging of borewell, construction of staircase to the open terrace, painting works of the wall including primers, construction of grill to the balcony and sit out, construction of kitchen at the first floor, fixing of hand rings to the open staircases and construction of waste water canal, plumping and electric fitting works etc. On account of all these additional works the opposite party had calculated an overall estimate of Rs.32, 00,000/-(Rupees Thirty two lakh only) and they had entered into an agreement upon the consent of the complainant. Based upon this agreement the opposite party had started the construction. As per the terms of the new arrangement the rate of construction amounts to Rs.1465/- per sq.feet. The opposite party had denied the allegation that he had accepted an amount of Rs.32, 00,000/- (Rupees Thirty two lakh only) together on several occasions. The complainant had paid only an amount of Rs.26,78,250/- towards the cost of construction. The complainant had to pay the cost of construction according to the stages as per the terms of the agreement. But the opposite party states that she had not paid the amount as per the above arrangement and as such he had to incur more expenses to complete the construction. The construction was delayed only because of the complainant’s attitude towards the payment. The opposite party had to spent more than Rs. 1,50,000/- (Rupees One Lakh fifty Thousand only) so as to complete the construction according to the agreement. The opposite party had obtained the completion certificate and door number from Palakkad Municipality on August 2013 on the name of the complainant and the complainant had conducted that the house warming ceremony and is presently residing in the same building. At the time of payment of amount the complainant used to record the same into her personal diary and used to get it endorsed by the opposite party on each payments. The opposite party denies the allegation in the complainant that he had not completed the construction as per the terms of the agreement. He had also not collected any excess amount as alleged in the complaint. The complainant had not paid even the cost of the complete construction to the opposite party. She has filed this complaint so as to escape from the liability of the payment towards the additional construction done by the opposite party. The opposite party’s mother was hospitalized and was admitted in the ICU at Thankam hospital due to serious illness and that was the reason for not issuing a reply to the lawyer notice issued by the complainant. There is no deficiency of service or unfair trade practice or breach of contract from the part of opposite party. The complainant had paid only Rs.26,78,250/-(Rupees Twenty Six Lakh Seventy Eight Thousand Two Hundred and Fifty Only) to the opposite party towards the cost of the construction. The allegation in the complaint that she had paid Rs.32,00,000/-( Rupees Thirty Two Lakh Only) is absolutely false and was created for the purpose of escaping the liability. The complainant had availed housing loan from the bank for the cost of construction. The bank used to pay the amounts according to the completion of the stages. The complainant used to obtain stage certificates from the opposite party,so as to release the amount from the bank. The complainant never cared to pay the amount released from the bank as per the completion of the stages. The complainant is liable to pay further amounts to the opposite party towards the balance cost of construction. She is residing in the alleged construction after the completion. The above case is filed with ulterior motives so as to obtain unlawful gains. Hence the complaint had to be dismissed with compensatory cost.
The complainant filed an application for seeking an order to represent through power of attorney holder. The application was allowed and the power of attorney holder filed chief affidavit. The opposite party filed application for the appointment of expert commissioner along with chief affidavit. In the interest of justice application was allowed and an expert commissioner was appointed to inspect the property an file a detailed report. The commissioner filed a report after inspection. Both parties filed objections to CR. The opposite party filed application for remitting the commissioners report to note down certain additional facts. The commissioner visited the property and filed another additional report. The opposite party filed application for the cross examination of complainant. Since the power of attorney holder was laid up, the complainant herself filed a fresh proof affidavit. The application of cross examination was allowed. The complainant was examined as PW1. Ext.A1-A21 was marked. The expert commissioner’s report was marked as Ext.C1 & C2. The complainant filed application for cross examination of opposite party and opposite party was examined as DW1.Ext.B1 & B2 was marked. Evidence was closed. Matter was heard.
Issues that arise for consideration
1. Whether there is any deficiency of service on the part of opposite party?
2. If so, what is the relief and cost entitled to the complainant?
Issues 1 & 2
We have perused the documents as well as documents produced from both side. It is evident from Ext.B2 that OP has undertaken the construction of complainant’s residence as per certain agreement. An expert was also appointed to note down the defects and the expenses incurred for the construction. The expert commissioner has filed a report to the effect that almost all the works entrusted as per the agreement has been completed by the opposite party. The total expenses assessed by the commissioner for the construction amounts to Rs.26, 50,000/-. Moreover the commissioner has not pointed out any defects in the alleged construction. He had also noted down the additional works done by the opposite party. As per the agreement entered upon, the work was entrusted for an amount of Rs.32,00,000/-(Rupees Thirty Two Lakhs Only). The OP had admitted in their version that he had received an amount of Rs.26, 78,250/- (Rupees Twenty Six Lakh Seventy Eight Thousand Two Hundred and Fifty only) towards the cost of construction. The detail regarding the payments was produced from the part of the complainant as Ext. A15- A21 showing withdrawals in the savings account of various banks. The complainant had also admitted that she had started staying in the alleged construction. The settlement of accounts regarding payment of construction had to be decided by a competent Civil Court. According to the commissioners report there is no defects noted down with regard to the alleged construction as no work was seen left by the opposite party as per the agreement. Hence we cannot attribute deficiency of service on the part of the opposite party. In view of the above observations the complaint is dismissed without cost.
Pronounced in the open court on 11th January 2017.
Sd/-
Smt. Shiny. P.R
President
Sd/-
Smt. Suma. K.P
Member
Sd/-
Sri.V.P.Anantha Narayanan
Member
