PRESIDENT DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, SAMBALPUR

                                                              CONSUMER COMPLAINT NO.94/2022

Present-Dr. Ramakanta Satapathy, President,

  Sri. Sadananda Tripathy, Member,

Abani Kumar Sahu,

S/O-Late Ram Prasad Sahu,

R/O-Bhatra,PO/Ps-Dhanupali,

Dist-Sambalpur-768005.                                                         .……….......Complainant.

Vrs.

Saroj Kumar Nath, Contractor,

S/O-Suresh Chandra Nath, R/O-Swapneswar Nagar,

Po/Ps-Dhanupali,

Dist-Sambalpur-768005                                                          …....……….Opp. Party

Counsels:-

1. For the Complainant         :- Sri. P.P.Panigrahi, Adv.
2. For the O.P.                        :- Sri. D.K. Ajmeria & Associates

Date of Filing:26.12.2022,Date of Hearing :09.10.2023, Date of Judgement : 28.11.2023

  Presented by Dr. Ramakanta Satapathy, PRESIDENT

1. The case of the complainant is that the Complainant entered into an agreement for construction of a house building with the O.P. contractor on 04.04.2022 for the basement, first and second floor on the terms and conditions stipulated in the agreement. The cost of construction was fixed to Rs. 49,94,300/- (Rs. 24,93,750/- for basement and Rs. 23,00,550 for first floor). The construction was partly self funded by the Complainant and partly obtaining loan of Rs. 25.00 lakhs from Utkal Grameen Bank. The Complainant paid Rs. 30.00 lakhs to the O.p. on different date through NEFT fund transfer system. The O.P. No.1 on 30.10.2022 abandoned the construction work without assigning any reason and remained unapproachable. After much difficulty when the O.P. was caught, he intimated the Complainant. The Complainant pointed out the defects in construction work such as leaking from fresh concrete roof of ground floor and use of substandard construction materials. The O.P. assured to remove the defects but it was in vain. When the matter was raised again and again the O.P. became vindictive and stopped construction work. The core structure of the ground floor and wall up to lintel height for first floor has been constructed and since 30.10.2022 the work was stopped. After taking excess payment and with defective work the O.P. is deficient in his work  and deficient in service but also unfair in trade practice. Being aggrieved this Complaint has been filed.
2. The O.P. after appearance submitted that as a civil contractor on 04.04.2022 agreement was executed with complaint. The Complainant at every stage at the time of payment paid less amount and in regular habit of making complain regarding the quality of work and labour engaged. The Complainant when not paid Rs. 8.00 lakhs balance amount for the work done, the O.P. was compelled to stop the work. In regular interval if payment is not made to labours and materials cost it is difficult for a contractor to continue his work. The Complainant be directed to pay Rs. 8.00 lakhs to continue the work in time. There is no deficiency in service nor unfair trade practice on the part of the O.p. and complaint is liable to be dismissed as not maintainable and with cost.
3. Perused the documents filed by the Complainant:

1. Copy of Record of Right of Sambalpur Town unit No.1, Bhatra in the name of Complainant.
2. Agreement dated 04.04.2022.
3. Loan sanction letter No. 109/08.08.2022 of Utkal Grameen Bank, Sambalpur.
4. I) Money receipt No. 156 dated 06.04.2022

II)M.R. No. 168 dated 28.06.2022.

III) M.R. No. 157 dated 10.06.2022.

IV) M.R. No. 176 dated 07.09.2022

V) M.R. No. 181 dated 10.09.2022

VI) M.R. No. 161 dated 26.07.2022

5. Money released letter dated 31.10.2022 by U.G. Bank, Dhanupali.
6. NEFT transaction dated 31.10.2022 for Rs. 400024.00.

31.10.2022- Rs. 300,000/-

11.11.2022- Rs, 300,000/-

7. Photographs of the construction made.
8. Valuation report of Er. Rajesh M. Agrawal dated 29.04.2023.
9. Payment bill amount of Rs. 15,000/- issued by Rajesh M.Agrawal.

The O.P. has only filed the valuation report issued by Er. Srikanta Kumar Panigrahi.

4. The Complainant examined Rajesh M.Agrawal as a witness and cross examined by the O.P. Likewise the O.P. examined Er. Srikanta Kumar Panigrahi as a witness and he was cross-examined by the Complainant
5. Perused the agreement dated 4^th April 2022 wherein the O.P. contractor agreed to construct building the basement, 1^st floor and 2^nd floor at Bhatra, Sambalpur over M.S. Khata No. 35/756 plot NO. 1214/3393, Plot No. 125/3392 and plot No. 1216/3391. The O.P. was agreed to engage his own labour, materials including digging 21 number of column foundation over the plots measuring 2500 sq. fts(basement)  Rs. 950/- per Sq. ft from lay out to roof casting, centring and binding etc. The O.P. agreed to supply Jindal iron rods, Ultratech cement for general use and Konark for dhalai. The 1^st floor and 2^nd floor construction cost fixed at Rs. 870/- per sq. ft. Back-side Balcony each floor  Rs. 475/- sq. ft and front balcony with supporting pillar size 9 foot x 12 foot with stair roof price.

The mode of payment by the Complainant was fixed on following terms:-

1. After foundation digging, 20 base jail and column dhalai including beam and rod binding, the O.P. will receive 20% of cost of total plinth area. After beam dhalai and ground level filling and levelling another 10%  of total plinth area cost shall be paid to the O.P.
2. After side-wall judai-lintel and up to cantering total roof and balcony area, back-side stair, 2 set of laterine bathroom 70% of total roof area amount to be paid to the O.P.
3. After roof casting 80% of total amount of roof area to be paid after plastering wall, beams another 10% will be given after completion of building and out plaster from 2^nd floor, 1^st floor, basement, rest 30% will be paid(each floor 10% amount balance over contractor).

Septic tank, Side wall drainage, ramp(gate) back side door with no extra cost. Floor area of basement 6 foot metalling dhalai with 8mm distance of 1^st for strengthening the floor.

From the mode of payment it reveals that work completion shall be made first and then payment is to be made by the Complainant to the O.P.

The Complainant has paid the following amount to the O.P. as per receipt granted by O.P. and account statement.

06.04.2022          Rs. 4.00 lakhs

28.06.2022          Rs. 4.00 lakhs

10.06.2022          Rs. 4.00 lakhs

07.09.2022          Rs. 3.00 lakhs

10.09.2022          Rs. 3.00 lakhs

26.07.2022          Rs. 5.00 lakhs

31.10.2022          Rs. 4.00 lakhs

11.11.2022          Rs. 3.00 lakhs

Total-                   Rs. 30. lakhs

The O.P. submitted that the Complainant when not paid Rs. 8.00lakhs balance amount up to the work completed, he was compelled to stop the work. In case payment to labour and materials not paid in time, it is difficult for a contractor to continue work smoothly. Further O.P. submitted that there is no any deficiency on his part and the Complainant not paid Rs. 8.00 lakhs work done which is the cause of dispute.

​

From the statement of Er. Rajesh M.Agrawal it reveals that basement floor is 2463.75 Sq. ft. + Balcony area 426.25 Sq ft whereas Er. S.K. Panigrahi shown the basement floor as 2975.Sq. ft and 1^st floor 2975 Sq. ft. Agreement shows 2500 Sq ft approximate area of basement and 2500 Sq. Ft as 1^st floor. The cost of construction of basement comes to

2500 Sqft X 950 = Rs. 23,75000/-.

Likewise front balcony and rear balcony cost comes to Rs. 2,03,490.00 and Rs. 1,01,745/- respectively as per statement of Er. S.K. Panigrahi as per statement of Er. S.K. Panigrahi and 90% work of the basement is over. Er. R.M. Agrawal visited the spot and specifically stated that the following items of ground floor has not been completed.

1. Inner, outer and cuiling plaster having area of 4638 sq ft.
2. Septic Tank
3. M.S. front gate and rear exist stair case.
4. Front R.C.C. Ramp & Stair case with check wall.
5. Three sides drain having plastering and the cost has been shown Rs. 3,19,677/-. In the other hand Er. S.K. Panigrahi not specifically explained which works were not done. In cross-examination Sri. S.K. Panigrahi submitted that on 2^nd July 2023 he had been to the disputed site and as it was locked he could not enter into it. When the witness physically not verified the construction, the calculation reflected in valuation report is not acceptable whereas Er. Rajesh M.Agrawal physically entered into premises and gave a detail report. Accordingly, report of Rajesh M.Agrawal is acceptable.

The Ground floor(1^st floor) work has been done in this manner:

1. Cement concrete works in columns cantering, Shuttering and laying of concrete made.
2. Brick works in the Super structure with fly ash bricks in cement mortar
3. Reinforcement straighter and bending done.
4. Cement concrete and slab projection at window bottom still level and binding wire etc. The cost shown as Rs. 4,64,000/-. The ground floor work is also not complete.

As per terms and conditions of the agreement 80% of total amount of roof area to be paid after plastering wall, beams etc. and 10% shall be given after completion of building. The O.P. has received Rs. 30.00 lakhs but 90% work of the basement is over. As per agreement the Ground floor work is incomplete as per specification and it was admitted by O.P. that after completion the amount shall be paid by Complainant. The stand taken by the O.P. that for non payment of Rs. 8.00 lakhs he discontinued the construction work is not acceptable, as per specification in agreement work has not been done by the O.P. but demanded Rs. 8.00 lakhs which he should have demanded after completion.

Taking into consideration the agreement this Commission on 27.12.2022 passed order and directed the O.P. to complete the building by 28.03.2023 but the O.P. not complied the order of the Commission on the ground that the Complainant has not paid Rs. 8.00 lakhs for which he is unable to execute the works. No any reply/show-cause has been submitted by the O.P. nor complied the order of the Commission. It amounts to disrespect to the Commission and accordingly liable to pay compensation to the complainant. Due to non-execution of the work the Complainant is in a stand still position, bearing interest on the loan taken from Utkal Grameen Bank, Dhanupali.

6. From the discussion Supra the O.P. has not acted as per the terms and conditions of the agreement dated 04.04.2022. The O.P. has taken excess amount than the build up area cost i.e. ( Rs. 30,00,000/- - Rs. 28,40,000/- = Rs. 1,60,000/-) from the Complainant and accordingly liable to refund the amount as within specified period the work is not done as directed by this Commission i.e. 28.03.2023.
7. Non-performance of duty as agreed upon in the agreement by the O.P. amounts to deficiency in service and harassment to a senior citizen. Accordingly, the following order is passed:

ORDER

The complaint is allowed on contest against the O.P. The O.P. is directed to refund Rs. 1,60,000/- with 9% P.A. interest w.e.f.  28.03.2023 to the Complainant. In case of non-payment the amount will carry 12% interest P.A. till realisation. For non- compliance of order of this Commission dated 27.12.2022 the O.P. is directed to pay compensation of Rs. 24.00 lakhs to the Complainant with litigation cost of Rs. 20,000/-. The Complainant is at liberty to further continue the construction work as per his sweet will as the O.P. failed to perform his part of contract.

Order pronounced in open court on this 28^th day of Nov. 2023.

Supply free copies to the parties.