FINAL ORDER

Samaresh Kumar Mitra,Member.

The case of the complainant in brief is that the O.P. is a building contractor and owner of Construction Firm name and style as “Sabitri Enterprise”, situated at 1/1 Ghosh Para Lane, Nabagram, P.O. & P.S.-Serampore, Dist.-Hooghly.

The petitioner is the owner and occupier of the property mentioned in the schedule.  For the construction of a two storied building she got a plan sanctioned by the Serampore Municipality.

The petitioner entered into an agreement with the O.P. on 8.7.2012 for the purpose of construction of a two storied building in the schedule mentioned property.  The said agreement was for construction of two storied building @ Rs.1000/- per sq.ft. in the ground floor covered area and Rs.800/- per sq.ft. in the first floor covered area with the estimation that  the petitioner would pay an amount of Rs.18,00,000/- for the said construction including labour charge, building materials costs and other ancillary charges i.e. inside wall putty, cement, priming painting finished with plastic emulsion. The construction work of the said building was due to start from July, 2012 and to be completed by 31^st March, 2013.

In the said agreement the mode of payment was also stipulated.  The petitioner paid Rs.16,00,000/- out of estimate cost of Rs.18,00,000/-.  In spite of the said payment a large work of the building remained outstanding till 31^st December, 2013.  The O.P. supplied low quality  of materials though in the agreement it was stated the O.P. will supply best quality materials.  The O.P. stopped the work of the construction on 31.12.2013.

The O.P. claimed Rs.2,00,000/- from the complainant with threatening some anti-social outsider. The petitioner asked the O.P. as to when the works of construction would be completed, she would be paid the rest money.  But O.P. asked that the construction work would be completed as per his wish.

The complainant sent a lawyer’s notice to the O.P. stating that to complete the works of construction in the petitioner’s property within 15 days from the date of receipt of the notice but no such works have ever been started.  The O.P. also sent a letter stating that if he complete the said construction the complainant had to pay Rs.4,98,800/- (Rs.20,98,800-16,00,000)= Rs.4,98,800/- to the complainant. 

The petitioner lodged a diary on 16.4.2014 to Serampore Police Station against the O.P. because the O.P. threatened the complainant to drive out from the house and would lock the house.  The petitioner became frightened and apprehended the loss of her life.

The complainant again sent another lawyer’s notice to the O.P. pointed out the defects made during the construction and also gave description of works undone by the O.P.  Following points has not been done by the O.P.;

1. Works of construction not completed though the same was to be completed by 31.3.2013.
2. Elegant Brand rod was not provided in all the lintel area construction but some substandard rod has been used.
3. A.C.C. brand cement was not used for the R.C.C. work
4. Two outside main doors of CP teak wood, as per verbal assurance, have not been supplied and fixed. Only one side door with Gamari wood has been provided.
5. Doors of four toilets of ground floor and first floor and one door at the inside stair case room are not yet been supplied and fitted.
6. Three collapsible gates at the three outside entry and exit points at the ground floor, as preverbal assurance, have not been supplied and fixed but only one collapsible gate has been fixed.  Remaining two collapsible gates has not yet been supplied and fixed.
7. Full painting in the ground floor is incomplete.
8. Completion of painting in the first floor has not done.  Only single coating has been done till now (with ICI Velvet Touch paint colour) as per verbal assurance two more coating of plastic emulsions are yet to be done.
9. Glass panes not yet supplied and fitted till now to the windows.
10. On complaint by the petitioner the O.P. dismantled a large part of construction for investigating the root cause of defects. The said dismantled parts are not plastered and putty, cement priming and colour painting are kept incomplete.
11. First floor roof has been kept incomplete and roof surface is rough and uneven.  Drainage system has not been finished well with correct sloping in the first floor roof, causing rain water getting logged for a long period of time.
12. Formation of patches on painted and putty surfaces in almost all the walls in the entire building.
13. Putty is spalling from several places of the walls, both in ground floor and first floor of construction.
14. Worming out of paint films at painted areas of the wall.
15. Good quality of bricks was not provided and as a result, efflorescence of bricks have caused defective walls and defective construction of the entire house.
16. Wall, ceiling, surfaces, doors, windows and grills work have not been finished till now.
17. CESC did not provide the electric meter for the first floor construction area, as the room was not completed as per their specification.  On 16.1.2014 CESC sent a letter to the complainant mentioning that meter could not be provided since the construction was still going on and it was incomplete.

The O.P. replied the letter dated 24.6.2014 of Mr. Amit Kr. Rakshit, Advocate for the petition through his Advocate Mr. Alok Kr. Majumder, making cock and bill story and denying the allegations labeled against the O.P. In the letter dated 27.5.2014 the O.P. has claimed to have completed the construction and handed over the same to the petitioner as per terms and conditions of the agreement but in the letter dated 12.7.2014 wrote that owing to incessant rain for a long period and payment not made by the petitioner in time as per stipulated terms of the agreement, the execution of the work is delayed.  The complainant paid about 88.89% of the agreed money i.e. Rs.16,00,000/- out of Rs.18,00,000/-.

That O.P. claimed further sum of Rs.4,01,360/- which is quite absurd and imaginary.  The O.P. cannot claim extra work of construction beyond 994 sq.ft. each in the ground floor.  Finding no other alternative the complainant filed this case before this Ld. Forum and prayed relief with direction to pay Rs.15,93,600/- for keeping the house of the petitioner incomplete and in defective condition and for reconstruction of the same, to pay Rs.50,000/- as compensation for harassment and also to pay litigation cost.

The O.P. contested the case by filing written version denying all the material allegations as leveled against him. The O.P. submits that he is a building contractor and proprietor of a construction firm name and style “Sabitri Enterprise” at 1/1, Ghosalpara Lane, Nabagram, P.S.-Serampore, Dist.-Hooghly.

The petitioner is the owner of the plot of land under holding No.54/1/15, S.C. Chatterjee Street, Serampore, P.S.-Serampore, Dist.-Hooghly, who approached the O.P. for construction of two storied building in her said holding vide sanctioned plan by the Serampore Municipality and accordingly entered into agreement dated 5.7.2012.  In the agreement it was clearly written and stipulated that the petitioner would have to pay Rs.1000/- only per sq.ft. for ground floor construction and Rs.800/- only per sq.ft. for first floor construction.  It was also agreed that the rate fixed including cemented floor, putty work in the inside of walls.  Cement priming and painting finished with plastic emulsion in the inside walls of the building, plinth height would be 3’ feet from brick made path way.  It has been mentioned therein that outside walls are not to be painted.  It has been further written and stipulated in regard to specifications of work that RCC work with ACC cement and balance work with Ambuja Cement, frame of door and window would be of sal wood and shutter would be of gamari wood, out of which ground floor windows shutter will be fully paneled and 1^st floor window shutter would be fully glazed, rod would be used named ‘Elegant’.

It was agreed and acknowledged by the petitioner that the petitioner would liquidate and pay Rs.5,00,000/- only by 31^st October, 2012, Rs.6,00,000/- only by 31^st March, 2013 and balance amount by 30^th May, 2013.  That after completion of 95% of building along with extra work, she has taken possession and observed Sacred Ceremony of entering the premises (Griha Probesh).  This O.P. gave the bill to the complainant relating to cost of construction amounting to Rs.20,01,360/-, as per specification of materials as agreed upon and after carrying out extra works of the room for worshiping the deity, septic tank, roof parapet wall, meter room, decorative chajjas over window, cantilever verandah at west side, arch wall in entrance and kitchen at 1^st floor.  This O.P. since 13.5.2014 made several request in writing to make payment of his balance expenses who intentionally avoiding in making payment and to deceive and defraud the O.P.  It also appears that petitioner has not made her word of making payment in time.  However, she made payment of Rs.16,00,000/- towards the total claim and remains due of Rs.4,01,360/- only from herself.

The O.P. further submits that he is a bonafide contractor has been suffering trouble for want of his lawful money to smooth running of his business and under compulsion, he lodged petition before I/C., Serampore Police Station and S.P. Chinsurah, stating the said fact.  As per terms of agreement dated 5.7.2012, the petitioner remains bound to pay off the balance dues towards construction of her residential building.  Instead thereof the petitioner has devised a plan to misappropriate his legitimate dues and has sent a false letter dated 24.6.2014 through her Advocate.  This O.P. sent reply on 12.7.2014 to her Advocate and apprehends that to avoid the payment the petitioner can transfer the property to any third party. 

It is further mentioned that only painting work in ground floor and glass panes fixing are left out owing to non-payment of bill and in the inside of 1^st floor glass panes can’t befitted till completion of painting work.  The petitioner always inspected the works regularly and satisfied with the materials.  So, the question does not arise as to substandard materials used in the above noted work.

There is no deficiency of service from the end of the O.P.  It was intimated in the reply dated 12.7.2014 that the petitioner should pay the balance dues within 15 days from the date of receipt of that reply letter which she has not obeyed.  In that connection the O.P. has already sent notice through his lawyer demanding payment of his dues to the tune of Rs.4,01,360/-.  But the petitioner did not pay the same.  Accordingly this O.P. filed a Money Suit  before the Ld. Civil Judge (Sr.Division), Serampore being No.114/2014 and the petitioner has falsely filed this case before this Forum to escape her liability in the said suit.  Hence, the case.

The complainant filed evidence on affidavit which is nothing but the replica of complaint petition. Op also filed evidence on affidavit.

 Argument advanced by the parties heard in full. They also filed the written notes of argument which are taken into consideration for passing final order.   

From the discussion herein above, we find the following Issues/Points for consideration.

ISSUES/POINTS   FOR   CONSIDERATION

 1. Whether the Complainant Smt. Arati Das ‘Consumer’ of the opposite party?

2. Whether this Forum has territorial/pecuniary jurisdiction to entertain and try the case?

3. Whether the O.P. carried on unfair trade practice/rendered any deficiency in service towards the Complainant?

4. Whether the complainant proved her case against the opposite party, as alleged and whether the opposite party is liable for compensation to her?

DECISION WITH REASONS

   In the light of discussions here in above we find that the issues/points should be decided based on the above perspectives.

1. Whether the Complainant ‘Arati Das’ is a ‘Consumer’ of the opposite party?                   

    From the materials on record it is transparent that the Complainant is a “Consumer” as provided by the spirit of section 2(1)(d)(ii) of the Consumer Protection Act,1986. The complainant paid advance money to the OP with the intention to construct a two storied house, the OP received the same and constructed the said building as agreed being the building contractor and proprietor of construction firm and admitted in his written version, so this complainant being a consumer of the OP is entitled to get service from the OP.

 (2).Whether this Forum has territorial/pecuniary jurisdiction to entertain and try the case?

 Both the complainant and opposite party are residents/carrying on business within the district of Hooghly and cause of action took place within the district. The complainant prayed for a direction upon OP to  pay a sum of Rs.15,93,600/- for keeping the house of the petitioner  and in defective condition and for reconstruction of the same, to pay Rs.50,000/- as compensation for harassment and also to pay litigation cost, ad valorem which is within Rs.20,00,000/- limit of this Forum. So, this Forum has territorial/pecuniary jurisdiction to entertain and try the case.

 (3).Whether the opposite party carried on Unfair Trade Practice/rendered any deficiency in service towards the Complainant?

            The case of the complainant is that with the intention to construct a two storied building over her property she made an agreement with the O.P. on 28.7.2012 and estimated Rs.18,00,000/- in total.  The construction as per agreement includes labour charges, building material cost, inside wall putty, cement primer and painting finished with plastic emulsion.  It was schedule to start the construction work in the month of July, 2012 and to be completed by 31.3.2013.  As per agreement the petitioner paid Rs.16,00,000/- but a large part of building work remain outstanding by 31.12.2013.  The complainant several times approached to the O.P. to complete the construction work individually and by her Advocate sent letter.  But her request comes into all in vain. According to letter dated 24.11.2014 the O.P. completed 95% work and extra work and the complainant took the possession after observing sacred ceremony of entering the premises.  The complainant also stated that for getting balance consideration money the O.P. rushed to the house of the complainant along with a few antisocial for which the complainant compelled to take recourse of administration.  The O.P. presently residing in the incomplete house constructed by the O.P. for which the complainant preferred the recourse of this Forum praying reliefs as incorporated in the prayer portion of the complaint petition. 

The O.P. contested the case by filing written version, evidence on affidavit and written argument. The case of the O.P. is that he being a building contractor and proprietor of a construction firm entered into an agreement with the complainant on 5.7.2012 to construct the house of the complainant at the rate of Rs.1000/- only per sq.ft. for ground floor and Rs.800/- only per sq.ft. for first floor.  In accordance with the agreement the O.P. agreed to construct the building including cemented floor, putty work in the inside wall, cement priming and painting finished with plastic emulsion in the inside wall of the building and the plinth height would be three feet from the brick made path way.  He also stated that there is outside wall are not to be painted.  The specification of work that RCC work with ACC cement and balance work with Ambuja cement, frame of door and window wood be sal wood and shutter would be gamari wood out of which ground floor window shutter will be fully paneled and first floor window shutter will be fully glazed and Elegant Rod will be used.  It was also agreed in between the parties that a sum of Rs.5,00,000/- will be paid by 31.10.2012, Rs.6,00,000/- will be paid by 31.1.2013, Rs.6,00,000/- will be paid by 31.3.2013 and balance amount is to be paid by the complainant by 30.5.2013.  After completion of 95% work of the building with extra work the complainant took the possession of her building.  Then the O.P. filed the bill relating to the construction of the building including extra work amounting to Rs.20,01,360/-.  But the complainant paid a sum of Rs.16,00,000/- out Rs.20,01,360/-.  So, a sum of Rs.4,01,360/- is due till date.  The O.P. several times approached to the complainant but the complainant willfully avoided the claim of the opposite party.  The O.P.in his argument admitted that due to non-payment of the dues, only painting work in ground floor and glazed panels fixing are left out and in the inside of the first floor glazed panel cannot be fitted till completion of painting work.  The O.P. assailed that the complainant watched and inspected the works of the building regularly and satisfied with the materials so, there is no question of using substandard materials used during the construction of impugned building. 

After going through the evidence on affidavit, documents in the case record and hearing the argument this Forum is in the opinion that the O.P. handed over the impugned building to the complainant in incomplete condition which the O.P. admitted in several occasion.  Immediately after getting possession the complainant put forward the matter of incompletion work but the OP  willfully avoided to complete the construction work with a lame excuse that a sum of Rs.4,01,360/- is still pending at the time of possession of the building.  The photographs supplied by the complainant during the course of proceeding clear depicts that after completion of work the building the condition of the building became worsened.  But the complainant never sought for inspection commission by a competent person during the course of proceeding, rather she filed a report of  independent Chartered Engineer dated 12.06.2014 which is not tenable in the eye of law. The O.P. tried to repair a few portion by diminishing the plaster and left the same work for a prolonged period.  So, from the above discussion the complainant paid a sum of Rs.16,00,000/- out of Rs.18,00,000/- as per agreement. But the complainant got the incomplete building from the O.P. which tantamount to deficiency of service on the part of this OP regarding the charge of extra work the O.P. could not substantiate his claim by producing sufficient documents in respect of work order as well as mode of payment in excess of consideration money.  But the complainant never denied the demand of the OP regarding the extra work and he also admitted in his complaint petition that a sum of Rs.2,00,000/- is due from the consideration money.  It is crystal clear that the complainant failed to pay a sum of Rs.2,00,000/- out of his consideration money.  At the same time the O.P. left a few construction work incomplete as a result the complainant suffering at the behest of negligence on the part of this O.P. For which the complainant compelled to take the recourse of this Forum. It is a bare act of violation of terms and conditions of the agreement in between the complainant and the O.P.  As such this Forum is in the opinion to direct the O.P. to complete the incomplete work of the  and to repair complainant including the painting work which is not up to the mark in accordance with the terms and condition of the agreement subject to payment of a sum of Rs.2,00,000/- as remaining due amount out of consideration money to complete the work as stated above and  further Rs.2,00,000/- is to be paid by the complainant to this OP after completion whole work.  The OP is also directed to file a completion certificate from any Civil Engineer to this Forum after completion of the work.

  Going by the foregoing discussion hence it is ordered that the complainant abled to prove the deficiency of service of the opposite party for non completing the building by adducing cogent document/evidence so the prayer of the complainant is allowed in part. However considering the facts and circumstances there is no order as to cost. With the abovementioned observation the complaint is thus disposed of accordingly.

4). Whether the complainant proved his case against the opposite party, as alleged and whether the opposite party is liable for compensation to him?

  The discussion made herein before, we have no hesitation to come in a conclusion that the Complainant abled to prove the deficiency of service of the opposite party in respect of completion of construction work.

ORDER

     Hence, ordered that the complaint case being No.217/2014 be and the same is allowed in part on contest against the opposite party.      

  The Opposite Party is directed to complete the remaining work and the repairing of damaged portion of the building of the complainant within a month after getting Rs.2,00,000/- from the complainant and after completion of the remaining work the OP will get another Rs.1,00,000/- from this complainant for charges of extra work. The complainant is directed not to interfere the work of the OP as the work will be done according to the agreement made between the parties. 

Both parties are at liberty to approach before this Forum for violation of order.

   Let a plain copy of this order be supplied free of cost to the parties/their Ld. Advocates/Agents on record by hand under proper acknowledgement/ sent by ordinary post for information & necessary action.