Order-12.
Date-18/06/2015.
Complainant Nirendra Nath Kundu by filing this complaint submitted that op is a contractor residing at the address mentioned in cause title, situated with the limits of Girish Park Police Station and also within the jurisdiction of this Forum.Complainant is the absolute owner in respect of a plot of land lying and situated at District – North 24 Parganas, DSR – Barasat, having holding No. 1964, 2 No. Pannajhil, Ward No. 21 (old), No.4 (new), under Barasat Municipality.
Op was engaged as a contractor for construction of one two storied building in a partial manner, upon the said ploy of vacant land, admeasuring 1638 sq. ft. as requested by the op to the complainant.By virtue of their mutual understanding, subject to certain terms and conditions, the complainant entered into one agreement with the op and by virtue of the aforesaid agreement, it was mutually agreed by and between the parties that complainant would pay the op a total consideration amount of Rs. 21 lakhs only for the construction work undertook by the op in accordance with the plan and specification at the rate of Rs. 900/- per sq. ft. and as per the mode or payment, the complainant issued one account payee cheque bearing No. 465354 dated 17.07.2014, drawn on State Bank of India, Madhyamgram Branch, amounting Rs. 2,10,000/- only which was the 10 percent of the expected value at the time of completion of the aforesaid agreement.
Since then the complainant has been frequently moving at the respective address of the op and op informed the complainant over phone that he started the construction work, for which more money was needed purchasing steel, cement and bricks and further informed that if such further payment would not be made by the complainant, he would restrain himself for further construction work and accordingly, complainant believing the representation made by op and further considering his urgency of development work, issued another account payee cheque in favour of op being cheque no. 015924 dated 11.10.2014 drawn on State Bank of India, Shibpur/Madhyamgram Branch, amounting to Rs. 2,00,000/- and it is pertinent to mention that both the cheques have been deposited for encashment by the op and both of the cheques were honoured.
According to the agreement the op started his construction work on 26.08.2014 and thereafter, started earth cutting operation on the said plot in a haphazard manner and which did not bear any relation for completing the said earth cutting operation of the structure upto plinth level and thus started delaying the time period specified for the completion of the said construction work.Though the second installment of giving 15 percent of the total consideration value would arise after completion of the plinth work, but prior to completion of the said work, the op started threatening the complainant and however managed to obtain more Rs. 2,00,000/- only and it was told by the op to the complainant that for smooth running of the said development project, he was needed help of a competent Engineer of his choice and thus the op had entered into one agreement with one Bidyut Sarkar.
Op after physical verification of the progress of the work on 30.10.2014, complainant ascertained that no such progress happened and thereafter, started contacting the op, by the op was avoiding complainant day after day on various pleas.It was also found by the complainant that the op created an work environment which was not congenial to the neighbours and the op dug the quantity of earth, which was not required, for which project cost was enhanced for additional sand to be filled extra for making the ground stable.In spite of repeated reminders and best efforts made by the complainant, the op failed providing any document, receipt, voucher to show his actual expenditure and op by this time excavated the earth in a most unscientific manner and without maintaining any civil construction method, caused damage to the land as well as environment which caused problem to the neighbours also and irritated them.On demand made by the complainant, the engaged Engineer Bidyut Sarkar submitted a report stating that for such whimsical act made by the op, the complainant would suffer an additional amount of Rs. 1,50,000/- and on request of the complainant, Bidyut Sarkar further submitted a statement of account declared that only Rs. 77,875/- would be the actual expenditure of the work of construction already done by the op.
But surprisingly complainant received a letter from the op stating that the op was no longer interested to continue with the aforesaid construction project, grounds stated therein and as such the op further promised refunding the balance amount within 7 days from such letter after submitting the statement of expenditure incurred by him along with all vouchers, cash memos, etc. duly certified by the Engineer-In-Charge appointed by him.In the said letter op categorically undertook that he received Rs. 4,10,000/- from the complainant for the subject project.
Thereafter without finding any alternative, the complainant compelled issuing a legal demand notice under registered post with A/D, addressed to the op advising him returning the entire balance amount along with cost of damage with normal Bank interest applicable to a senior citizen within 7 days from the date of receipt of such letter, with a further request providing relevant documents showing actual expenditure and in the above circumstances for negligent and deficient manner of service and for adopting unfair trade practice, complainant is entitled to get interest and compensation etc.
Fact remains on 04.06.2015 op appeared by filing power and prayed for banking order of argument hearing.Prayer was considered, subject to payment of penal cost of Rs. 8,000/- along with filing of written version before this Forum by 17.06.201.on 17.06.2015 both the parties were present and op himself was present but cost was not paid, no written version was also filed and no other step was taken.So, the case is heard finally and it is fixed for hearing the argument, the main op Tapan Kumar Paul on 04.06.2015 and 17.06.2015 were present and signed on the left side page of the order sheet that he was present on both the days.So, the case was heard finally for decision.
Decision with reasons
After hearing the parties personally before this Forum, it is found that op admitted personally that there was an agreement and he also admitted that he received Rs. 4,10,000/- initially for construction of the work.But he has further submitted that he already cancelled the contracted agreement as per his own will without any duress and he also stated that he already reported to the complainant if the same complaint is awaited ........- he has no objection and he also admitted that he promised to pay back the balance amount within 7 days after submitting the statement of expenditure incurred by him along with all vouchers, cash memos, etc.Further admitted that he reported the matter to the complainant on 14.11.2014 in writing (Annexure-5).
This question is when the fault is admitted then what is the role of the op.op has admitted in writing that he is not willing to continue the construction.But he has admitted that he received of Rs. 4,10,000/-.But he has not submitted any bill, voucher etc. in support of so far construction work, but already complainant engaged an engineer and that engineer after inspection and valuation submitted a report that upto the present work as done by the op, the total amount of Rs. 1,00,000/- has been spent, not more than that.Against that op has not challenged it.At the same time op is present before this Forum, but has not filed written statement only vide oral submission to his own letter (Annexure-5) supports that he is not willing to continue the construction work.Then it is his duty to show how much amount is spent for initial construction work so far done by the op.But op is unwilling to produce such documents but already by an engineer complainant evaluated the work of the op and it is found that the value of such work is only Rs. 1,00,000/-.But op has received Rs. 4,10,000/- as admitted by letter (Annexure-5) dated 14.11.2014 that he is willing to refund the balance amount.But balance amount has not been paid.
Now the question is how much amount the complainant is entitled to get back from the op?When op has not submitted any document in support of his expenditure incurred by him for his work done so far.Then we must have to rely upon the report of the engineer who had been appointed by the complainant and that engineer Bidyut Sarkar, C/o Contech Engineers of Sanjib Mansion submitted that in fact Bidyut Sarkar certified the said construction work in present of the complainant and op Tapan Kumar Paul and in fact up to this stage Rs. 77,875/- has been spent by the op and in the Annexure-C, the report in which Tapan Kumar Paul also signed on 08.11.2014 and it is also proved from the said report that the land under construction was excavated without following any civil engineer procedure and it is most unscientific and untechnical resulting the damage of the land and extra charge for filling the ground by purchasing sand to stable the ground and for that purpose further cost is required for further progress of the work and in view of the above fact at best op has spent only Rs. 1,00,000/-.But he already received an advance of Rs. 4,10,000/- and when op already is willing to continue the work and he has cancelled the agreement, then op is bound to refund Rs. 3,10,000/- at once because op has not complied with the terms and conditions of the agreement in between the complainant and op dated 16.07.2014 and willfully cancelled the said agreement.
So, in the above circumstances, it is the fault, negligent and deficient manner of service on the part of the op and by that act complainant has been deceived by the op and at the same time op has caused mental pain, agony, sufferings and at the same time complainant has lost huge money.So, the complainant is entitled to get/refund of Rs. 3,10,000/- from the op along with compensation of Rs. 50,000/- for causing mental pain and sufferings and also for causing damage in respect of the land for cancelling the same without any unscientific method and as per direction of any engineer and also for unilaterally cancelled the agreement.
Thus the complaint succeeds.
Hence, it is
ORDERED
That the complaint be and the same is allowed on contest with cost of Rs. 10,000/- against the op.
Op is hereby directed to refund Rs. 3,10,000/- to the complainant and also for causing mental pain, agony and harassment to the complainant and also for damaging the entire land by the op at the time of excavation, op shall have to pay compensation of Rs. 50,000/- to the complainant.
Op shall have to pay Rs. 3,10,000/- refund amount + Rs. 10,000 as litigation cost + Rs. 50,000/- compensation i.e. total Rs. 3,70,000/- to the complainant within one month from the date of this order failing which for non-compliance of the same, penal interest at the rate Rs. 500/- per day shall be assessed till full satisfaction of the decree, if penal interest is collected, it shall be deposited to this Forum and if it is collected complainant shall get 50 percent of the said amount.
Even if op fails to comply the order, in that case, op shall be prosecuted u/s 25/27 of C.P. Act 1986 for which further penalty and fine shall be imposed against the op.
