Andhra Pradesh

Chittoor-II at triputi

CC/28/2014

Kristipati Sivasankara Reddy, S/o K.P. Dasthagiri Reddy - Complainant(s)

Versus

Rapheal Interior Private Limited, Rep. by its Proprietor, Rapheal Kennedy Joseph - Opp.Party(s)

M.Vani

07 Jul 2015

ORDER

Filing Date:21.05.2014

Order Date: 07.07.2015

 

 

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II,

CHITTOOR AT TIRUPATI

 

 

      PRESENT: Sri.M.Ramakrishnaiah, President ,

        Smt. T.Anitha, Member

 

 

TUESDAY THE SEVENTH DAY OF JULY, TWO THOUSAND AND FIFTEEN

 

 

C.C.No.28/2014

 

Between

 

Kristipati Sivasankara Reddy,

S/o. K.P.Dasthagiri Reddy,

Hindu, aged about 44 years,

Residing at D.No.1-20/3, Sreenivasapuram,

Tiruchanoor Road,

Tirupati,

Chittoor District.                                                                              … Complainant

 

 

And

 

Rapheal Interior Private Limited,

Rep. by its Proprietor,

Rapheal Kennedy Joseph,

Holding its office at:

1^st Floor, Maheswari Towers,

Banjara Hills, Road No.1,

Hyderabad.

 

Residing at:

Plot No.8, Eswarayya Enclave,

Siddartha Nagar, Domaiguda,

Nagaram Road,

Near Appal School,

Hyderabad.                                                                                         …  Opposite party.

 

 

            This complaint coming on before us for final hearing on 22.06.15 and upon perusing the complaint, written version and other relevant material papers on record and on hearing M.Vani, counsel for the complainant, and S.M.Subhani, Smt.S.Ameerunnisa Begum, counsel for the opposite party, and  having stood over till this day for consideration, this Forum makes the following:-

 

ORDER

DELIVERYED BY SRI. M.RAMAKRISHNAIAH, PRESIDENT

ON BEHALF OF THE BENCH

           

            This complaint is filed under Section-12 of C.P.Act 1986 by the complainant for the following reliefs 1) to direct the opposite party to pay a sum of Rs.13,50,000/- towards cost of the pending works, 2) to direct the opposite party to pay a sum of Rs.3,00,000/- towards rectification of defective work, 3) to direct the opposite party to pay a sum of Rs.3,00,000/- towards compensation for causing mental agony, 4) to direct the opposite party to pay the costs of the complaint and 5) to pass such other orders as the Forum deem fit and proper in the circumstances of the case.

            2.  The averments of the complaint in brief are:-  that the complainant is the absolute owner of the building. On 22.02.2012, the complainant and the opposite party have entered into an agreement in respect of interior design and decorations to the building of the complainant for Rs.45,00,000/-, which is towards the cost of service charges, including material, labour and transportation etc. Opposite party promised to complete the designing work set-out in the agreement within 5 months. The original agreement was retained with the opposite party, that the complainant made the entire payment on different dates under various heads, but the opposite party did not complete the work so far, when the complainant questioned the abnormal delay in completion of the interior decoration work, the opposite party gave cheques for Rs.13,50,000/- in the name of one Rudrasekhar Reddy, mediator as security. So far the opposite party neither completed the work nor attended on the works, nor paid back the above amount of Rs.13,50,000/-, nor delivered the possession of the house on completing the interior decoration works, as such he was forced to stay in a rented premises. Hence the complaint.

            3.  The opposite party filed his written version admitting that himself and the complainant have entered into an agreement dt:22.02.2012, according to which the complainant has to pay Rs.45,00,000/- and the opposite party has to complete interior and exterior design and decoration works within 5 months. But there was delay due to the attitude of complainant, such as electrical and plumbing works are to be taken-up by the complainant himself but it was entrusted to the opposite party against Clause-18 of the agreement, as such there occurred delay.

            4.  The opposite party started designing of the house interior and exterior as well, including furniture lay outs, furniture positions, false ceiling drawings, electrical plans, exterior elevation drawings, painting colours and all other interior works. He started the work initially on 10.06.2012 with the windows, electrification and plumbing and executed the said works, as the complainant made the opposite party to execute some more works other than the works mentioned in the agreement such as plumbing and sanitation works, there was delay in completing the works. That the opposite party has completed 75% of the works as on the date of house warming ceremony on 23.11.2013, remaining 25% of the work is pending. As per the accounts, the complainant has yet to pay Rs.10,50,000/-, when the opposite party demanded to pay the said amount, the complainant bluntly refused to pay the same. Due to state bifurcation, the labour could not go over to Tirupati all the way from Hyderabad. The complainant did not cooperate with the opposite party in executing the works. Apart from it, the complainant and his henchmen used to abuse the opposite party through telephones in flinty language. That on 29.03.2014, the complainant, his wife and his henchmen went to the house of opposite party in the absence of opposite party, misbehaved and man-handled the wife of opposite party and in that connection a criminal case was also filed before the police. Because of all above said reasons, the work could not be completed and there was no deficiency of service on the part of opposite party. The opposite party need not to pay Rs.13,50,000/- to the complainant, that the complainant is not entitled to either of the reliefs sought for and prays the Forum to dismiss the complaint with costs.

            5.  Both parties have filed their respective chief affidavits and written arguments. Exs.A1 to A15 were marked on behalf of the complainant. Though some documents were filed by the opposite party, neither the opposite party nor his counsel turn-up to advance oral arguments and got the documents marked.

            6.  Now the points for consideration are:-

            (i).  Whether there is deficiency in service on the part of opposite party?

            (ii)  Whether the complainant is entitled to the reliefs sought for?

            (iii)  To what relief?

            7.  Point No.(i):- to answer this point, it is pertinent to state that admittedly there is an agreement between the complainant and opposite party dt:22.02.2012, that for the purpose of interior decoration of the house of complainant, the complainant has to pay Rs.45,00,000/- to the opposite party. As per the agreement, 50% of the total cost, which comes to Rs.22,50,000/- shall be paid at the time of agreement, later after material reached the site, the complainant has to pay 30% of the total cost, which comes to Rs.13,50,000/-, then after the frame work is over, the complainant has to pay 15% of the total cost, which comes to Rs.6,75,000/-, then remaining 5% i.e Rs.2,25,000/- shall be paid by the complainant after completion of the work. The opposite party agreed to complete the work within 5 months from the date of confirmation, with these conditions, both parties have signed the agreement and the original agreement was retained with the opposite party undisputedly. The opposite party has started the work initially on 10.06.2012. According to the terms and conditions between the parties, the opposite party has to complete the work within     5 months from the date of confirmation under Ex.A3, but till June 2012, the opposite party did not commence the work i.e. he has exhausted nearly 4 months only for commencing the initial work.

            8.  The specific allegation that was made by the complainant is that the complainant has paid the entire amount of Rs.45,00,000/- to the opposite party, but the opposite party failed to complete the work even till the arguments are over in this case i.e. by 22.06.2015. In the written version of the opposite party as well as in his written arguments, he himself mentioned that he has completed 75% of the work by 23.11.2013 i.e. even after one year 9 months, he has completed only 75% of the work entrusted to him. He contended that 25% of the work is pending and the complainant has to pay Rs.10,50,000/- to the opposite party and when it was demanded by the opposite party, complainant bluntly refused to pay the same, as such he could not complete the work. The contents of the agreement are very specific that he has to complete the interior decoration within 5 months from the date of confirmation, unless the opposite party completes the work within agreed time, he cannot demand the payment. The facts and circumstances of the case and admitted facts also reveals that even after expiry of 1 year 9 months from the date of agreement, the opposite party could complete only 75% of the work, which was also disputed by the complainant. So for as payments are concerned, under Ex.A6 the complainant paid Rs.15,86,620/-. According to Ex.A12, which consists of 5 receipts, a total amount of Rs.12,50,000/- was paid and under Ex.A13 bills (34 in number), the complainant has paid Rs.3,77,463/-, thus a total amount of Rs.32,14,087/- was paid under the above exhibits. The opposite party did not say anywhere in his pleadings, in his evidence affidavit or his written arguments that the complainant did not pay 50% of the amount on the date of agreement. If that amount of Rs.22,50,000/- is included to the above said amount of Rs.32,14,087/-, total amount received by the opposite party comes to Rs.54,67,087/-. The complainant also did not mention anywhere that he has paid 50% of the total amount on the date of agreement. The complainant alleging that the opposite party has received Rs.13,50,000/- in excess to the agreed amount of Rs.45,00,000/-. Therefore, he is claiming the excess amount of Rs.13,50,000/-. If the agreed amount of Rs.45,00,000/- deducted from the total amount of Rs.54,67,087/-, the balance amount to be paid by the opposite party is Rs.9,67,087/-, there was no such pleading from either party, this version cannot be accepted. However, it is apparent on record that the opposite party has received only Rs.32,14,087/- and not more than the agreed amount of Rs.45,00,000/- but failed to complete the interior designing and decoration work till today.

            9.  The opposite party giving the reasons for the delay in completing the interior designing work to the house of complainant, that the complainant has assigned other works than the works covered by the agreement to the opposite party, as such there was some delay in executing the work, another ground is that the complainant did not cooperate with the opposite party in making payments as per terms of agreement, on that ground also there was some delay. Another ground is that because of state bifurcation, the workers refused to go to Tirupati all the way from Hyderabad / Secunderabad, as such the opposite party requested the complainant to engage labour from Tirupati itself in order to complete the work and whatever the expenses in that regard will be born-out by the opposite party, but the complainant did not cooperate with the opposite party in this regard also, as such there was some more delay in execution of the work. Another ground is that the complainant and his henchmen used to abuse the opposite party through phones in flinty language and that the complainant, his wife and their henchmen went to the house of opposite party in his absence, misbehaved with the wife of the opposite party and man-handled her also, in that connection a police case was also filed (opposite party in his written version stated that a copy of FIR will be filed in the Forum) but so far no such document is filed in the Forum. Even though some documents were filed in the Forum by the opposite party, neither the opposite party nor his counsel choose to advance the oral arguments and got those documents marked on his behalf in support of his case. It appears prima facie that the opposite party having availed totally 3 years 5 months so far, trying to take advantage of every incident. Though the state bifurcation was taken place on 02.06.2014, the opposite party did not assign any cogent reasons as to why he could not complete the work till June 2014 and wants to take advantage of the ‘state bifurcation’. This type of attitude cannot be accepted and it proves that the opposite party intentionally avoided to complete the work having received more than Rs.32 lakhs out of the total cost of the interior decoration from the complainant, which amounts to deficiency in service. In a decision reported in IV (2014) CPJ 4 (NC) -  Sovereign Developers and Infrastructure Ltd. Vs. Sujit Kumar Dhar  their Lordships of National Commission held that a builder entered into an agreement, it is his bounden duty to strictly comply with the terms and conditions of the agreement, on failure to do so, parties are entitled to enforce the terms and conditions of the agreement. In another decision reported in IV (2014) CPJ 589 (NC) - Emaar Mfg Land Pvt. Ltd. & another Vs. Krishan Chandar – their Lordships of National Commission held that when entire consideration is deposited, agreement executed, non-delivery of possession amounts to deficiency in service, unfair trade practice, appellants being the builders are enjoying the possession of flat as well as entire amount of consideration, whereas respondent is running from pillar to post to get his hard earned money back. Appellants should have given firm date of handover of possession at the time of taking booking amount itself, unfair trade practice established, punitive damages of Rs.5,00,000/- awarded and directions issued. In the present case, a specific note was made at the bottom of last page of the agreement dt:22.02.2012 as “NOTE: the e-mail confirmation regarding hand over of the completed civil work a confirmation shall be given by the client post which from the date of the e-mail sent from then 5 months will be the completion time to complete the site”. So, the confirmation was sent to the complainant through e-mail after receiving the confirmation only initial work has been started by the opposite party according to his written version. No where it is specifically mentioned by opposite party when he received the confirmation. But as the opposite party started the work on 10.06.2012, it can be presumed that the opposite party received confirmation before 10.06.2012.

            10.  Ex.A3 electrical and plumbing lay out though specified, then final elevation Nerolac paints, shades decided by the complainant were also conveyed to the complainant with proposed designs and elevations. In the month of September 2012, the complainant sent a message through e-mail stating that they have opening of his house on 20^th November 2012, they have no time, the work should be completed very fast and requested the opposite party to start the work soon and they also pointed out that work is very slow and make it fast, as fast as the opposite party can, and also given the pending works viz. wood work, flooring, grill work, grills, POP work, paints, electricity work, plumbing. So send all the workers today very urgently. Again on 26.09.2012 another message is sent calling upon the opposite party to complete the work as soon as possible. Similarly on 21.12.2012 also the complainant informed the opposite party till now the work is not completed, all works are pending even wood work, flooring, home theater, glass work and paints and requested the opposite party atleast to start with gate work and compound wall, please try to do all these works as early as possible. On 03.06.2013, the opposite party sent email to the complainant to wait till 10.06.2013 to start the proceedings of completion of the project as agreed, likewise inspite of number of requests made by the complainant, the opposite party failed to complete the work till today. It appears that the opposite party is so negligent and has dis-inclination to complete the work having accepted more than Rs.32 lakhs and even more from the complainant and made the complainant to run pillar to post for redressal. Under the above circumstances, we are of the opinion that the opposite party committed deficiency in service having accepted amount of Rs.32,14,087/- from the complainant and he failed to complete the interior designing work to the building of complainant till today. Accordingly, this point is answered.

            11. Point No.(ii):-  Since it is apparent on record that the opposite party having entered into an agreement dt:22.02.2012 and agreed to complete the work within a period of 5 months from the date of acceptance of the interior designing by the complainant waited till June 2012 and after obtaining approval or confirmation from complainant for design drafted / prepared, initially, though started the work from 10.06.2012 (admittedly), till June 2015 the work is not completed, though the complainant paid admittedly an amount of Rs.32,14,087/-, even more than it, the opposite party failed to complete the work so far and the work is pending by the date of complaint, which is also shown in the complaint under items 1 to 41 in pages.3 and 4 of the complaint and further specific allegation is that the work done is also not in accordance with the specifications agreed and sub-standard materials were used by the opposite party. The complainant asked the opposite party to rectify those defects, for which the opposite party appears to have paid deaf ear, thus it appears that the opposite party does not shown any interest / inclination either to rectify the mistakes in the work already done or to complete the pending works so far and caused much loss and mental agony to the complainant. Under Ex.A8 on 30.06.2013 the opposite party assured that he will complete the work soon and issued two cheques bearing No.080016 for Rs.3,50,000/- and another cheque bearing No.080017 for Rs.10,00,000/- in the name of one Rudra Sekhar Reddy and kept those cheques as security for the work to be completed. The opposite party also failed to pay the amount covered by Ex.A8 to the complainant and also failed to complete the work till date. Thus the complainant as a consumer got every right to seek for redressal before this Forum and his reliefs sought for are also appears to be proper and reasonable. Therefore, we are of the opinion that the complainant is entitled to refund of amounts towards cost of pending works and also towards rectification of defective works and compensation. Accordingly this point is answered.

            12. Point No.(iii):-  points involved in this case are:-

            a)  Agreement dt:22.02.2012 – admitted.

            b)  time to complete the work as shown in detail in Ex.A2 agreement is five (5) months from the date of confirmation of handing over the building to opposite party after completion of civil work. The opposite party did not mention specifically when he received confirmation and taken possession of the building. Since, admittedly the opposite party has started the work on 10.06.2012, it can be presumed that he has taken over the building on confirmation of completion of civil work before 10.06.2012. But till date work is not completed.

            c)  mode of payments are:-

            (a).  as per terms and conditions of agreement, it is not the case of either party, the payments were made in accordance with the terms and conditions of agreement (Ex.A2).

            (b).  As per documentary evidence:-

            (i).  As per Ex.A6  -   a sum of Rs.15,86,620/- was paid.

            (ii). As per Ex.A12 – a sum of Rs.12,50,000/- was paid.

            (iii) As per Ex.A13 – a sum of Rs.  3,77,467/- was paid.

            (iv)  As per Ex.A14 – a sum of Rs.    22,000/- was paid.

                                                                

                                    In Total:              Rs.32,36,087/- was paid

                                                                

 

            On pleadings, evidence affidavit, though the complainant contended that he has paid the total amount of Rs.45,00,000/-, no substantial proof is placed before the Forum. On the other hand, the complaint shows that the complainant has paid Rs.35,25,000/-, it is not disputed by the opposite party.

            d)  payments made:-

            (a)  whether in excess to the total amount of Rs.45,00,000/-  - No; it is only

                  Rs.35,25,000/- admittedly.

            (b)  yet to pay or still due? :-

                   works done to be valued to that of the amount paid.

            (c)  works done and yet to be done:-

                   as admitted by opposite party only 75% of the work was completed and

                  remaining 25% of the work is pending.

Accordingly the amount is to be calculated.  

In view of our discussion on points 1 and 2, though it is pleaded that the complainant has paid more than the agreed amount of Rs.45,00,000/-, the contents of complaint should be taken into consideration. As per the complaint, the complainant has paid Rs.35,25,000/-, the opposite party admitted that 75% of the work is completed and 25% of the work is pending execution, which discloses that 75% of the work costs about Rs.33,75,000/- but the opposite party received Rs.35,25,000/-, the balance amount is Rs.1,50,000/- was received in excess to the cost of the work done. Though the complainant mentioned that he has paid more than Rs.45,00,000/- to the opposite party that was not mentioned specifically in the complaint with specific statement. Therefore, this aspect cannot be considered. Under the above circumstances, we are of the opinion that the complainant is entitled to receive the excess amount paid over and above the cost of 75% of the work and also entitled to receive the cost of defective works at Rs.3,00,000/- and also he is entitled to compensation of Rs.1,00,000/- from the opposite party . Accordingly, the complaint is to be allowed.

            In the result, the complaint is allowed in part directing the opposite party to pay Rs.1,50,000/- (Rupees one lakh fifty thousands only) received in excess of the work done and to pay Rs.3,00,000/- (Rupees three lakhs only) towards cost of the defective work and also to pay Rs.1,00,000/- (Rupees one lakh only) towards compensation and also towards mental agony caused by the opposite party and also to pay Rs.2,000/- (Rupees two thousand only) towards cost of the complaint. The opposite party further directed to comply with the orders within six (6) weeks from the date of receipt of copy of this order, failing which the total amount of Rs.5,50,000/- shall carry interest at 9% p.a. from the date of complaint, till realization.

Typed to dictation by the stenographer, corrected by me and pronounced in the Open Forum this the 7^th day of July, 2015.   

 

       Sd/-                                                                                                                      Sd/-                                                                   

Lady Member                                                                                                       President

 

 

APPENDIX OF EVIDENCE

 

WITNESSES EXAMINED ON BEHALF OF COMPLAINANT

 

PW-1: Kristipati Sivasankara Reddy (Evidence Affidavit filed).

 

WITNESSES EXAMINED ON BEHALF OF RESPONDENT

 

EXHIBITS MARKED ON BEHALF OF THE COMPLAINANT/S

 

Exhibits	Description of Documents
Ex.A1.	A photo copy of Sale deed Dt: 10.05.2006 in the name of the Complainant.
2.	A photo copy of Agreement in between complainant and opposite party.              Dt: 22.02.2012(Original is in possession of Opposite Party).
3.	A photo copy of Conversation in between the complainant and the Opposite Party through E-Mail. Dt: 23.06.2012.
4.	Virtual photographs of the proposed interior design work as shown by the Opposite Party to the complainant.
5.	Bills pertaining to material purchase (Original).
6.	A true copy of Bank Account statement.
7.	Letter executed by the Opposite Party in favour of the complainant. Dt: 11.12.2012.
8.	Two Cheques issued by Opposite Party to the complainant (Original). Dt: 30.06.2013.
9.	Rental agreement of the complainant (Original). Dt: 18.03.2013.
10.	A photo copy of approved building plan. Dt: 18.12.2011.
11.	Photographs with C.D.
12.	Payment receipts (Original). Dates: 03.04.2012 and 19.03.2012.
13.	Bills pertaining to purchase of construction material (All Original Bills).
14.	A true copy of Receipt.
15.	Photographs.

 

EXHIBITS MARKED ON BEHALF OF THE RESPONDENT/S

 

                                                                                NIL 

                                                                                                                                                                                                                                                                                    Sd/-

                                                                                                                President

 

// TRUE COPY //

// BY ORDER //

 

 

Head Clerk/Sheristadar,

       Dist. Consumer Forum-II, Tirupati.

 

 

 

  Copies to:-   1. The Complainant.

                        2. The opposite party.