Date of filing: 25/06/2019
Date of Judgment: 09/03/2023
Mrs. Sashi Kala Basu, Hon’ble President
This complaint is filed by the complainant Rekha Halder under section 12 of the Consumer Protection Act, 1986 against opposite party (referred as OP hereinafter) namely Sanjoy Dey, alleging deficiency in rendering of service on the part of the OP.
Case of the complainant in short is that by virtue of a deed of perpetual lease executed and registered on 10/10/2012 complainant became lessee in respect of land measuring about 11 chitak 31 sq. ft. along with an old dilapidated structure thereon measuring 526 sq. ft. lying and situated at 89, Tollygunge Road. Complainant muted her name as lessee in respect of the said lease hold property in the KMC record. Subsequently complainant entered into an agreement orally with OP on 16/01/2018 for construction of a flat consisting of two bed rooms, one kitchen and one bathroom on the roof of the ground floor of the existing structure and the said oral agreement was also reduced into writing on 21/03/2018. The settled price for such construction was Rs. 7,25,000/-. Complainant has already paid Rs. 5,75,000/- in total to the opposite party. But despite receiving the said amount, OP failed and neglected to complete the construction work and demanded extra amount from the complainant by sending a notice dated 25/09/2018 to the complainant. Complainant replied to the said notice on 03/10/2018. OP has already received nearly 80% of the amount but has done the construction work less than 40%. The criminal case has also been initiated by the Charu Market Police Station against the OP. So the present complaint is filed by the complainant praying for directing the opposite party to complete the construction job of the flat in terms of the agreement or alternatively to refund the balance amount of money with 18% interest to the complainant, to appoint a Civil Engineer to ascertain the extent of the work done by the OP to, pay Rs. 5,00,000/- for harassment and mental agony and to pay litigation cost of Rs. 50,000/-.
OP has contested the case by filing written version denying and disputing the allegations contending specifically that there was no sanctioned plan for which OP had to face several problems during the construction work. It is specifically contended that the major portion of the work of construction has already been done and the rest work could not be completed due to the obstruction by the neighbours. The complainant also did not cooperate with the OP and also was reluctant to make the payment. However he is ready to complete the rest of the work if so directed. So the OP has prayed for dismissal of the case.
During the course of evidence complainant has filed affidavit in chief followed by filing of questionnaire by the OP and reply by the complainant. But OP did not file any affidavit in chief and also did not participate at the time of argument of the case. Only brief notes of argument has been filed by the complainant.
So the following points require determination:-
- Whether there has been any deficiency in rendering of service on the part of the OP?.
- Whether the complainant is entitled to the relief as prayed for?
.DECISION WITH REASON
Both the points are taken up for a comprehensive discussion. In order to substantiate her claim that an agreement has been entered into between the parties, complainant has filed the copy of agreement which bears no date. However execution of the said agreement between the parties has not been disputed and denied by the OP. On perusal of the said agreement, it appears that parties entered into agreement to construct a flat on the ground floor roof of the existing structure and the consideration price was settled Rs. 7,25,000/-. As per the agreement construction was to be completed by O.P. within three months from the date of commencement of the work and the payment was to be made by complainant as the work progressed. The nature of the work and material to be used is reflected in the quotation annexed with the said agreement. Payment of Rs. 5,75,000/- as claimed by the complainant has not been denied and disputed by the OP either in the written version or during the evidence. The only dispute in this case is that according to the complainant less than 40% of the construction work has been done whereas according to OP about 80% of the construction work has already been done. However it may be pertinent to point out that neither parties took any step during the course of the proceeding to appoint an Advocate Commissioner for holding local inspection in the premises to bring the fact about extent of the construction work done by the OP. Since according to the complainant less than 40% work is done and not 80% as claimed by the OP, it was necessary for the complainant to take step for holding inspection by an advocate commissioner to bring the fact about the extent of the construction. But for the reason best known to the complainant, no such step was taken. It is settled principal of law that the party seeking the relief has to establish his / her case. Be that as it may since it is evident that the construction work as per the agreement has not been completed and according to the OP due to the objection and resistance by the neighbours he was unable to complete the construction work and also as complainant has prayed for alternative relief of refund of the sum after deduction the value of construction done by the OP, it will be appropriate to direct the OP to refund the sum. But since before this commission, there is absolutely no material about the extent of construction already gone, it will be justified to direct the OP to refund the sum of Rs. 1,00,000/- to the complainant holding the construction already done around 60/65% along with compensation for harassment and mental agony. Rs. 30,000/- will be justified as compensation.
Hence,
ORDERED
CC/309/2019 is allowed on contest. OP is directed to refund the sum of Rs. 1,00,000/- and pay further sum of Rs. 30,000/- as compensation to the complainant within 60 days from this date. In default of payment the entire sum shall carry interest @ 9% p.a. till realization. OP is further directed to pay litigation cost of Rs. 8,000/- within aforesaid period of 60 days, out of which Rs. 5,000/- will be deposited by OP in the legal aid account of this commission as complainant has been provided legal aid by appointing an advocate from the legal aid panel.
