Date of Filing: 23.07.2007<br /> Date of Order: 21.01.2008<br /> BEFORE THE I ADDITIONAL DISTRICT CONSUMER DISPUTES REDRESSAL FORUM SESHADRIPURAM BANGALORE-20<br /> <br /> <br /> Dated: 21st DAY OF JANUARY 2008<br /> <br /> PRESENT<br /> <br /> <br /> <br /> <br /> Sri. Bajentri H.M, B.A, LL.B., President<br /> Smt. C.V. Rajamma, B.Sc., LL.B., PGDPR, Member<br /> Sri. M. Nagabhushana, B.Com, LL.B., Member<br /> <br /> <br /> COMPLAINT NO. 1531 OF 2007<br /> <br /> Sri. M. Albert, <br /> Emmanuel Villa,<br /> No.7, 2nd Cross, Chikkabanaswadi,<br /> BANGALORE – 560 043. …. COMPLAINANT<br /> <br /> <br /> -V/s-<br /> <br /> Sounderajan,<br /> No.76/1, Yadava Layout,<br /> (Behind Emmanuel Sugana Joythi School)<br /> Ramakrishnappa Street,<br /> BANGALORE – 560 054. …. OPPOSITE PARTY<br /> <br /> ORDER<br /> <br /> This complaint is filed seeking refund of Rs.5,40,000/- from the opposite party on the following grounds :-<br /> <br /> 2. The property bearing No.26, New Cement Lane, Austin town, Bangalore - 560 027, belongs to Smt. Parvathi, mother-in-law of the complainant. The said Parvathi being not familiar with nor able to comprehend the matters connected with construction of building, requested her son-in-law the complainant to manage the entire affairs with regard to the construction of building on the said property. On the representation of the opposite party that he is a experienced Certified Contractor, the complainant entered into a construction agreement dated: 18.05.2006 under which the opposite party agreed to obtain sanctioned plan from the Competent Authority and put-up construction of ground floor & first floor for a consideration of Rs.5,40,000/-. The complainant paid the entire amount and the same is acknowledged by the opposite party who had undertaken to deliver the completed building on 29.12.2006. But, the opposite party failed to complete the construction and constructed only till lintel level. The complainant repeatedly approached the opposite party requesting him to complete the construction, but one pretext or the other the opposite party avoided him. When on one occasion the complainant sought explanation for non-completion of the work, the opposite party physically assaulted him and attempted to tear the agreement. The complainant completed only the ground floor at his own cost and let-out the same on rent. The first floor is incomplete. Even in the ground floor lot of work is to be done. Thus the opposite party has rendered defficient service by not completing the construction of the building as agreed. Hence this complaint for a direction to the opposite party to refund the sum of Rs.5,40,000/- together with damages and costs. <br /> <br /> 3. In the version the contention of the opposite party is as under:-<br /> The complainant is not the owner of the property bearing No.26, Austin Town, Bangalore and he is not connected to the building in any manner. Only the alteration work on the building was entrusted and not the construction as alleged in the complaint. It was the second wife of the complainant who requested the opposite party to take up alteration work in the said property. The allegation that a construction agreement dated: 18.05.2006 was entered into for putting-up ground floor & first floor for a sum of Rs.5,40,000/- is denied as false. When steps were taken for altering the ground floor, the owner of the building requested to demolish the existing structure and put-up a fresh one and she agreed to pay the additional cost over and above the construction agreement. He completed the construction work as per the desire of the owner and the same exceeded the amount mentioned in the alleged construction agreement. When the opposite party demanded Rs.1,00,000/- for the additional work done, the complainant threatened him with dire consequences by taking support of anti-social elements and assaulted the opposite party at his residence. When the neighbours intervened the complainant and his henchmen left the scene and lodged complaint against the opposite party. After due enquiry made by the Police, the matter was settled amicably and the complainant agreed that the owner of the building is due Rs.1,00,000/- to the opposite party and the construction work has been fully completed. The complainant also requested for some time to settle the sum of Rs.1,00,000/-. Without settling the amount due the complainant has come-up with a frivolous complaint with malafide intention to make un-lawful gain. The owner of the building herself is liable to pay the balance of Rs.l,00,000/- towards the extra work carried out. On these grounds the opposite party has prayed for dismissal of the complaint.<br /> <br /> 4. In support of the respective contentions both the parties have filed affidavits. When the matter came up for arguments, the counsel for the opposite party remained absent. We have heard the arguments of the leaned counsel for the complainant.<br /> <br /> 4. The points for consideration are:-<br /> 1. Whether the complainant has proved deficiency in service on the part of the opposite party?<br /> <br /> 2. Whether the complainant entitled to the relief prayed for in the complaint?<br /> <br /> 5. Our findings on the above points are in the Negative for the following reasons :-<br /> <br /> REASONS<br /> 7. Admittedly the property on which the opposite party had undertaken to put-up construction of building does not belong to the complainant. According to the complainant, it belongs to his mother-in-law Smt. Parvathi, but according to the opposite party the said property belongs to the second wife of the complainant. Though the complainant claims that his mother-in-law Smt. Parvathi had asked him to look after and manage the work of construction of the building, nothing is placed on record to show that such an authority was given to the complainant. Though the opposite party admits for having undertaken to put-up construction of the building, according to him the work was entrusted by the owner of the property and not by the complainant. The opposite party has not admitted for having executed the construction agreement dated 18.05.2006. This agreement is stated to have been entered between the complainant and the opposite party. The contention of the opposite party that the construction work was entrusted to him by the owner of the property and not by the complainant indicates that the opposite party has not admitted for having entered into construction agreement with the complainant. Though in the complaint the complainant has specifically stated that the property belongs to Smt. Parvathi, in the construction agreement, it is mentioned as if the property belongs to the complainant himself. The opposite party has not denied for having received Rs.5,40,000/- agreed under the construction agreement. The allegation of the complainant is that inspite of payment of the full amount agreed, the opposite party has put-up construction only upto little level. If that is so, out of the amount paid deduction has to be given for the work carried by the opposite party. Nothing is placed on record to show that soon after the opposite party stopped the work after putting-up construction upto little level, the complainant got the work done by the opposite party estimated. The complainant claims that after the opposite party stopped the work, he got the ground floor construction completed at his own cost. On the other hand the opposite party claims that he himself completed the construction. Nothing is placed on record to show that the complainant got the construction of the ground floor completed through some body else. In the absence of evidence in that regard the contention of the complaint that he himself got the work of ground floor completed becomes difficult to believe. Admittedly, the construction work was entrusted to the opposite party. Therefore his contention that he completed the construction work becomes acceptable unless the evidence to show the contrary is adduced. Even no notice appears to have been issued to the opposite party after he stopped the construction work. The complainant has not adduced the evidence of the person who completed the work of construction of the ground floor. In these circumstances the very allegation of the complainant that the opposite party constructed the building only upto little level cannot be believed. Therefore, we hold that the complainant has failed to prove deficiency in service on the part of the opposite party. If at all the opposite party is liable to refund any amount, it is open to the complainant to file a Civil Suit. In the result, we pass the following order:-<br /> <br /> ORDER<br /> <br /> 8. The complaint is dismissed. No Order as to costs.<br /> <br /> 9. Send a copy of this Order to both the parties free of costs immediately.<br /> <br /> 10. Pronounced in the Open Forum on this 21st DAY OF JANUARY 2008.<br /> <br /> MEMBER MEMBER PRESIDENT<br /> <br /> <br /> <br /> <br /> <br />