Tamil Nadu

StateCommission

CC/73/2014

K.Thirumalai - Complainant(s)

Versus

Saimass Building Construction and Contractors - Opp.Party(s)

K.ArunPrasad

09 Nov 2022

ORDER

IN THE STATE CONSUMER DISPUTES REDRESSAL COMMISSION, CHENNAI

                                   BEFORE      Hon’ble Thiru Justice R. SUBBIAH      PRESIDENT

                                                         Thiru S. KARUPPIAH                           JUDICIAL MEMBER

 

CC.NO. 73/2014

 DATED THIS THE 9^th DAY OF NOVEMBER 2022

K. Thirumalai

S/o. V.Kuppusami

No.1A, Natraj Nagar

Selaiyur, Chennai – 73                                                       ....Complainant

 

                                                  Vs 

 

Saimass Building Construction & Contractors

(Group of Saimass Consultancy & Tradings)

Rep. by its Managing Director

Mahendra Boobathy

No.30A/3, Swathi Nikethan

Kamaraj Road, New Perungalathur

Chennai – 600 063                                                           ....Opposite party

 

Counsel for complainant                               :   M/s  K. Arunprasad

Counsel for opposite party                           :   M/s. V. Balaji

 

         This complaint coming before us for hearing finally on 25.8.2022 and on hearing the arguments of counsel appearing for bothsides and upon perusing the material records this Commission made the following order:

ORDER

Justice R. SUBBIAH,  PRESIDENT    

1.       This complaint has been filed under Sec.17 of the Consumer Protection Act, 1986, as against the opposite party for the following reliefs:

    a.   directing the opposite party to pay the complainant a sum of Rs.13,36,000/- as return of payment paid for the construction expenses and Rs.8 lakhs as compensation for harassment and mental agony  caused to the complainant

b.  directing the opposite party to pay cost of the complaint  

             

2.       The case of the complainant in brief is as follows:

          The complainant entered into an agreement for construction of superstructure consisting of 1+2 floors, residential house at Plot No.12, Old Door No.173, New Door No.33, Dr.K.V.Nagar, Selayur, Tambaram, Chennai.  The said agreement was entered into on 12.2.2014, which contains various clauses including quantity and quality of materials to be used and its specifications.  As per the said agreement, the Respondent has to construct ground floor measuring to an extent of 1552 sq.ft., 1^st floor 1413 sq.ft., 2^nd floor 1208 sq.ft. and basement 152 sq.ft.  The complainant handedover an approved plan to the opposite party to proceed with the construction.  Thereafter, the Respondent entered the site on 15.2.2014 and commenced the construction of the premises on or about 15.2.2014.  As per the agreement, the complainant made the following payments viz.

1. Rs.1,00,000/- by cash on 28.10.2013
2. Rs.10000/- by cash on 14.2.2014
3. Rs.5,00,000/- by cash on 23.2.2014

The Respondent issued receipts for the said payments.  As per the terms of the agreement, the Respondent ought to have used Ultra Tech, Dalmia or Zuahzuari cement for the construction of the basement and foundation of the building, but what was actually used was Rajashree cement.   This cement ought not to have been used for any structural concrete work and masonary work.  The first stage was completed on or about 15.3.2014, thereafter proceeded till the lintel stage on or about 25.3.2014.  Subsequently after receiving the payment of Rs.5 lakhs, the Respondent insisted the complainant for the next stage of payment.  The complainant had also paid the said amount, but the opposite party has not issued the receipt for the said amount. The complainant maintained a godown at site for storing the materials like sand, cement etc.   The opposite party clandestinely broke open the lock of the godown, removed the materials stored by him and transported them to an unknown site to reduce the cost of construction with a view to increase his margin, without caring about the quality of construction. 

  Further as per agreement, the concrete grade is mentioned as M15, this grade has migrated from M15 to M20.  The minimum grade of concrete is now M20.  But the opposite party had not used the standard materials for construction, which caused mental agony to the complainant.  Moreover the opposite party sent a legal notice to the complainant on 19.4.2014, calling upon the complainant to pay a sum of Rs.12,90,000/- as compensation, and the complainant gave a reply calling upon the opposite party to pay a sum of Rs.19,20,000/-.  Thus alleging negligence on the part of the opposite party, the complainant had filed this complaint, claiming relief as stated above. 

3.       The case of the complainant was resisted by the opposite party as follows:

          The construction agreement was entered into between the complainant and the opposite party on 12.2.2014.  In the said agreement it had been categorically agreed by the complainant that they have to obtain planning permission from Panchayath/ Municipality.  Based on the said planning permission, the opposite party has to proceed with the construction on the basis of plan of Civil Engineer of the complainant who is BU Architect.  The complainant obtained sanction from Tambaram Municipality on 23.1.2014, the competent authority permitted the complainant to construct 1) 800 sq.ft in ground floor, b) 1425 sq.ft in first floor, c) 818 sq.ft in the second floor and d) 44 sq.ft in lift area.  However the complainant engaged BU Architects and obtained plan from said Architect and directed the opposite party to proceed with the construction on the basis of working plan given by said BU Architect.  The working plan given by BU Architect is in total contravention of sanctioned plan by the Tambaram Municipality.  The approved plan was given by the opposite party and the complainant gave working plan of their own architect to the opposite party to proceed with the constructions.  This fact was suppressed by the complainant.  The complainant had paid Rs.1 lakh by cash on 28.10.2013 and Rs.10000/- by cash on 14.2.2014 and Rs.5 lakh on 23.2.2014.  Thus the opposite party had received a sum of Rs.610000/- from the complainant and issued a valid receipt on the same day.  They have completed the construction upto lintel level by spending Rs.12 lakhs.   The foundation has been laid down on the basis of working plan with the materials described in the agreement with specific ratio narrated in the agreement itself.  The opposite party used the materials as per the agreement after satisfaction of the complainant himself.  That is the reason the complainant had allowed the opposite party to raise the construction at the lintel stage.  On 5.4.2014, one load of cement ordered for Padappai Project, was wrongly brought to the site.  The complainant had taken photograph of said materials and trying to mislead as if the opposite party had used Rajashree Cement.  The opposite party had constructed the building with good quality of materials as per the construction agreement.  The opposite party had never received a sum of Rs.5 lakhs on 27.3.2013 as alleged by the complainant.  It is denied that complainant had maintained godown at site for storing materials like sand, cement etc.  Infact on 10.4.2014, the complainant’s father threatened the site engineer and others to leave the site.  The opposite party’s building materials to the worth of Rs.2 lakhs is lying in the site.  In order to avoid the lawful payment of Rs.610000/- to the opposite party, the complainant had indulged in katta panchayath and lodged false complaint before the police.  The complainant had not adopted the procedure as contemplated under Sec.13 of CP Act 1986.  The valuation report given by the Sivaprakasam Associates is not binding on the opposite party since it was prepared behind the back of the opposite party.  The opposite party spent Rs.1174813/-.  The opposite party adhered the ratio specification by using the materials specified in the construction agreement.  The present complaint is the counter blast to the opposite party’s legal notice 19.4.2014, wherein the opposite party called upon the complainant to pay Rs.1290000/-. The complainant has to explain how he arrived the magical figure of Rs.13,36,000/-.  Thus they sought for dismissal of the complaint. 

 

4.       To prove their respective cases, proof affidavits were filed on eitherside alongwith documents, which are marked as Ex.A1 to A10 on the side of the complainant and Ex.B1 on the side of the opposite party. 

 

5.       We have carefully heard the submissions on eitherside, and perused the documents.

 

6.       On perusal of the complaint, we find that the complaint had been preferred with bald and vague allegations.  No cause of action had been made out to prove that there is deficiency of service on the part of the opposite parties.  The only document filed by the complainant in support of their case is the Test report of Tech-Civil material testing laboratory.  As seen from the report under Ex.A4 dt.25.4.2014, the opposite party is not a party to the document, and moreover the name of the party was mentioned as M/s.Shakthi Developers, Chennai, and not the name of the complainant.  Therefore, this could be considered only as a self serving document, and no reliance can be placed towards the said document. 

          Secondly, it is the specific case of the complainant that as per the agreement clauses, the opposite party had to use only ultratech cement, but this was denied by the opposite party stating that the cement meant for someother project had been wrongly brought to the complainant‘s site.  By taking advantage of the same, the complainant is alleging false accusation against the opposite party.  Similarly the allegation that they have used the substandard iron bars was also denied by the opposite party. 

          In view of the above, we are of the considered opinion that there is a disputed question of facts involved in this matter.  Therefore, this court cannot come to any justifiable conclusion by merely going through document.  This kind of case needs elaborate cross examinations, which is not possible before this commission in summary proceedings.  Therefore, the appropriate Forum to decide the issue is only the civil court, where the complainant can agitate their grievance, and not before this commission.   Accordingly, the complaint is liable to be dismissed.

 

 

7.       In the result, the complaint is dismissed.  No order as to cost.

 

 

                S.KARUPPIAH                                                                                  R SUBBIAH     

                JUDICIAL  MEMBER                                                                 PRESIDENT

 

Exhibits filed on the side of complainant

A1    12.02.2014    Agreement

A2    19.04.2014    Legal notice by OP

A3    20.04.2014    Complaint copy and CSR copy

A4    25.04.2014    Lab Report

A5    30.04.2014    Legal notice by complainant

A6    16.05.2014    Report valuation

A7    28.10.2013    Receipt for Rs.1,00,000/-

A8    14.02.2014    Receipt for Rs.10,000/-
A9    23.02.2014    Receipt for Rs.5 lakhs

A10                     Photos

 

Exhibits filed on the side of  Opposite party

B1                         Working Plan given by the complainant to OP

 

 

 

 

                   S.KARUPPIAH                                                                      R SUBBIAH     

                JUDICIAL  MEMBER                                                                 PRESIDENT