J U D G E M E N T
The case of the complainant in a nutshell is as follows:
The complainant being a retired employee of CMERI, Durgapur for the purpose of constructing a residential house had made a contract with the OP by an agreement on 27.10.2010. The agreement was done to construct residential building according to the approved plan of D.M.C. and the contract value was of Rs. 7, 98,450=00 for the ground floor. Later in the agreement paper inclusion of first floor had done correcting in the agreement by hand writing without any signature and as the construction of first floor mentioned in the agreement paper later, but no enhancement of contract value alluded to the agreement paper by the contractor and the original agreement paper kept in the custody of the contractor. According to the agreement, payment had been done as per schedule of the agreement to the contractor to the tune of Rs. 17, 31,000=00 under receipt dated 20.3.2012 exceeding the estimated cost of Rs. 15, 74,086=00 submitted by the contractor on 04.7.2009. The contractor without redressing the disputes of
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the construction of the building as per agreement claimed by submitting a bill of Rs. 22,05,260=00 which was not according to agreement, estimated cost or any discussion. To settle the dispute about the total cost of building, the complainant deputed one engineer who opined after inspection an excess payment of Rs. 2, 71,600=00 has been made by the complainant to the contractor as per current schedule. But the OP reluctant to accept the decision and announced that he would neither complete the unfinished work of the residential building nor took any less amount then the claimed amount from the complainant. Then the complainant appealed to the BDCP&WC who requested the OP to be present in the meeting for amicable settlement of the dispute in presence of technical expert of the said organization. In reply OP sent a lawyer’s notice to the complainant demanding an amount of Rs. 4, 74,360=00 which should be paid within seven day i.e. on 06.10.2013, otherwise legal action may be taken against the complainant and also made a G.D. to New Town Police Station of Durgapur for non-payment of his unjust demand. The Police Officer after hearing both parties advised to attend the meeting convened for settlement by BDCP&WC but the OP refused to attend the same. Finding no other alternative the complainant being compelled to file this case before this Ld. Forum against the OP for deficiency in service and unfair trade practice made on the part of the OP and prays for relief as under:
- To pay Rs. 2,71,600=00 towards excess payment than the work done,
- To pay interest on Rs. 87,998=00 @18% from 07.01.2012, the date of payment of excess amount till the date of submission i.e. 06.10.2013,
- To pay Rs. 50,000=00 towards cost for harassment, mental agony and financial loss,
- To pay Rs. 5,000=00 towards cost of litigation for compelling the old aged person to file the instant case plus interest @12% on the above amounts till the date of payment.
The OP has contested the case by filing written version denying the entire allegation made by the complainant in his petition complaint. The OP further submits that the complainant is very much known to the OP and has good relation. The complainant approached the OP to construct his building and also from the very inception the complainant had a clear idea to cheat the OP for
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which the complainant told the OP that to obtain a loan from the bank the complainant requires an agreement within the construction cost of Rs. 8, 00,000=00 and though the ground floor cost much more than that but as the complainant and the OP had good relation and in belief the OP executed an agreement with the complainant. After satisfactory completion of the ground floor the complainant insisted the OP to construct the first floor of the said house in the same rate but the complainant in his entire complaint did not mention that the first floor is of 1277 Sq. ft., i.e. 282 Sq. ft. more than the ground floor. The OP as per the request of the complainant out of the agreement constructed the stair hall on the top floor of 156 Sq. ft., one garage of 92 Sq. ft., one parapet of 159 R. ft., Boundary wall of 112 R. ft., one water reservoir, brick work and plaster (net cement) for the well, marble and Floor tiles for 2356 Sq. ft., extra 67 no. electric points, complete pump line which the complainant did not bother to mention in his complaint. The complainant also did not bother to mention that he did not pay the extra difference money for the Basin and also the M.S. angel required for the well. The OP further submits that the cost of total work which was done by this OP is of Rs. 22,05,360=00, out of which the complainant has paid Rs. 17,31,000=00 and as soon as this OP claims the balance amount, the complainant became furious and started to play various tricks with illegal motive. The OP after completing the work satisfactorily in good faith and belief handed over the said house to the complainant and the complainant with full satisfaction entered into the house and after that he started to harass the OP by not paying the entire dues. This OP also submits that if a survey is made in the house of the complainant the entire allegations of the complainant will became false and the statement of the OP will speak for itself. After receiving the summons from the Ld. Forum the OP deputed one Civil Engineer-cum-Valuer, namely, Mr. N. C. Mitra for cost of such building and after estimating the case building the said Valuer valued Rs. 33, 21,456=00 for the said building which is more than the agreement amount. The complainant has filed this complaint only to deprive the OP and to cheat the OP after taking the house at his own hand making such wrong claims. The OP submits that there is no deficiency in service on the part of the OP and it is not liable to pay any compensation. The OP prays for dismissal of the complaint with cost.
The complainant has filed Xerox copy of agreement between the complainant and the OP dated 27.01.2010, Xerox copy of estimated cost of proposed two
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storied building given by the OP on 04.7.2009, Xerox copy of payment made by the complainant to the OP, final bill of OP dated 02.02.2013, Xerox copy of valuation by one Civil Engineer P. K. Nag and other related Documents. The complainant has also filed written notes of argument. The OP has also filed some documents related with the complaint.
-: Decision with reasons :-
On going through the records and documents and hearing argument from both sides it is seen that the complainant made an agreement with OP on 27.01.2010 for construction of ground floor for residential purpose with a contract value of Rs. 7, 98,450=00. Subsequently there was a correction for construction of the said house and construction of first floor has also been included in the said agreement but there was no agreement regarding the contract value of the construction of the first floor and other works. The complainant has stated in Para 3 that in terms of agreement payment had been done as per schedule of the agreement to the contractor to the tune of Rs. 17, 31,000=00, exceeding the estimated cost of Rs. 15, 74,086=00. The allegation of the complainant is that without redressing the disputes of the construction of the building as per agreement the OP claimed Rs. 22, 05,260=00 by submitting a bill which is without any agreement, estimated cost or any discussion. From the documents submitted by the complainant we find that the OP has given an estimated cost of proposed two storied building for residential purpose on 04.7.2009 to the tune of Rs. 15, 74,086=00. The OP has given the final bill on 02.02.2013 to the complainant to the tune of Rs. 22, 05,260=00. It has also been found from the documents that the complainant has paid Rs. 17, 31,000=00 to the OP up to 20.3.2012. It is found from the final bill that the Op has demanded Rs. 7,98,400=00 for the ground floor (995 Sq. ft.) which is as per agreement by and between the complainant and the OP dated 27.01.2010 and the rest amount i.e. (Rs. 22,05,260 – Rs. 7,98,400) Rs. 14,06,860=00 is demanded for first floor (1277 Sq. ft.) and other construction works and extra work which has not been mentioned in the agreement signed by and between the complainant and the OP. infact, there is no agreement by and between the parties regarding the contract value of construction of the first floor and other construction works. Though it has been found from the record and documents that both the complainant and the OP engaged their own valuer to assess the value of the construction, but neither the complainant nor the OP has
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filed any application before this Ld Forum for survey of the said building to assess the value of the said constructed residential house, from where this ld. Forum can come into a conclusion regarding the real valuation of the said building. In such a precarious situation, this Forum has no other option but to dismiss the complaint as the complainant has miserably failed to substantiate his claim in the petition of complaint that there is a deficiency in service and unfair trade practice on the part of the OP. Hence, it is
O r d e r e d
that the petition of complaint filed by the complainant is dismissed on contest without any cost.
Let a copy of this order be supplied to the parties free of charge.
(Asoke Kumar Mandal)
Dictated and corrected by me. President
DCDRF, Burdwan
(Durga Sankar Das)
Member
DCDRF, Burdwan
(Durga Sankar Das)
Member
DCDRF, Burdwan
