Date of Filling:      17.10.2007

                                                                                                                       Date of Disposal:  06.09.2019

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM

THIRUVALLUR-1

PRESENT: THIRU.  J. JUSTIN DAVID, M.A., M.L.                                    .…. PRESIDENT

                   TMT.      K. PRAMEELA, M.Com.                                             ….. MEMBER-I

                   THIRU.  D.BABU VARADHARAJAN, B.Sc., B.L.                    ..… MEMBER-II

CC.No.01/2008

THIS FRIDAY THE 06^th  DAY OF SEPTEMBER 2019

M.Krishnakumar,

S/o.Mrs.M.Banumathi,

Plot No.81, Defence Colony,

Muthapudupet,

I.A.F., Avadi, Chennai -600 055.                                                        …..Complainant.

                                             //Vs//

1.S.Jaganath,

   Constructor,

   No.10/1, Somasundaram Street,

   T. Nagar, Chennai -600 017. 

2.P.Govindarajulu,

   The Proprietor,

   M/s.Subamangala Constructions,

   No.1, Ellaiamman Koil Street,

   Defence Colony, Muthapudupet,

   I.A.F. Avadi, Chennai -600 055.

3.The Branch Manager,

   State Bank of India,

   Porur Bazaar Branch,

   No.15, Jaya Nagar Estate,

   Mount poonamallee high Road,

   Porur, Chennai -600 116.                                                            …..Opposite parties.

This Complaint is coming up for final hearing before us on 09.08.2019 in the presence of M/s. R.Shankar, counsel for complainant, M/s. K.Raghupathi, counsel for the 1^st opposite party, Mr. T.V.Suresh, counsel for the 3^rd opposite party and complaint against the 2^nd opposite party gave up by the complainant and therefore this forum dismissed the complaint against the 2^nd opposite party on 28.10.2010 and perused the documents and hearing the arguments on both, this forum delivered the following.

ORDER

PRONOUNCED BY THIRU. J. JUSTIN DAVID,  PRESIDENT

This complaint has been preferred by the complainant Under Section 12 of the consumer protection Act-1986 against the 1^st and 2^nd opposite parties seeking a direction to complete the construction work as per the construction agreement, to submit the land and building approval plans for the complainant’s land and building, to direct the 2^nd opposite party to pay amount with interest for incomplete construction work which was done by the complainant, to direct  the 3^rd opposite party to recover the amount from the 2^nd opposite party for the construction work which was not completed by the 2^nd opposite party with interest and deduct it from the principal loan amount of the complainant, to direct all the opposite parties to pay a sum of Rs.2,50,000/- towards mental agony and sufferings and to pay a sum of Rs.2,00,000/-for their negligence and deficiency of service caused to the complainant and to pay a sum of Rs.5,000/-towards cost.

2.The brief  facts of the complaint is as follows:-

The 1^st opposite party is a building contractor and the 2^nd opposite party is the proprietor of M/s Subamangala Constructions. In the year 2004 the 1^st and 2^nd opposite parties jointly approached the complainant through their agents and explained about their housing construction scheme. As per their scheme long term loan being arranged by the 1^st opposite party through the bank of the 3^rd opposite party to purchase land and construct house.  Believing attractive words of the 1^st and 2^nd opposite parties, the complainant agreed for the same.  Therefore on 22.09.2004 the 1^st opposite party had executed a sale deed for Rs.2,88,000/- in respect of the vacant housing land comprised in Survey No.16/5, Patta No.17, in plot No.81 to the total extent of 1800 square feet situated at Defence Colony, No.10, Muthapudupet Village, Ambattur Taluk, Thiruvallur in favour of the complainant and the same was registered as document No.5059/2004 at SRO, Avadi, Chennai -54.  On24.08.2004 the 1^st opposite party had entered construction agreement at the cost of Rs.4,00,000/- and assured the complainant to give physical possession within nine months from the date of the construction agreement. On 22.09.2004 the 3^rd opposite party had granted Rs.6,10,000/- loan to the complainant.  The 2^nd opposite party had taken the construction work, but the house was not constructed as per the specifications mentioned in the construction agreement and not given physical possession to the complainant within stipulated time of nine months.  It is come to the knowledge of the complainant that the vendor and builder of the land and building, the 1^st and 2^nd opposite parties sold out the land and construct the building without any approval plans and also the 3^rd opposite party sanctioned the loan amount without verifying the same.  The 3^rd opposite party had disbursed the portions of the loan amount directly to the vendor and the builder.  The complainant came to know from the bank records the entire loan amount was given to the 2^nd opposite party directly before completion of the building work.  It is further came to the knowledge of the complainant that the 1^st and 2^nd opposite parties had forged the signatures of the complainant in some of the documents and submitted the same to the bank of the 3^rd opposite party in order to get the loan amount directly from the bank. The opposite party has not constructed the house as per the specifications mentioned in the construction agreement and not completed the house till this date and thereby both 1^st and 2^nd opposite parties have caused wrongful loss to the complainant with an intention to cheat him.  The 3^rd opposite party is acting against the norms of the banking rules and acted in favour of the builders.  While so, the 1^st and 2^nd opposite parties requested the complainant to take over the possession of the house and assured him to complete the entire work within one month from the date of occupation, therefore on 05.05.2005 the complainant occupied the said house in a partly completed condition, but till this date the 1^st opposite party has not completed the construction work in spite of the complainant’s repeated demands and request and therefore the complainant sent a legal notice on 28.12.2006 for necessary action to complete the construction work, but till this date no work has been completed.  In the mean time the complainant has done some unfinished works in the house out of his own funds. The 2^nd opposite party has filed civil cases against the 1^st and 3^rd opposite parties before the District Munsif Court at Ambattur stating that he has not received any amount from the 3^rd opposite party’s bank for the construction work for the complainant’s house and someone else forged the name of his firm and encashed the said amount through current account No.2337 of Syndicate Bank, Teynampet Branch, Chennai-18.  Hence the complainant along with the 3^rd opposite party’s bank is liable to pay the construction amount.  In the above case the 3^rd opposite party has filed a reply statement stating that the entire loan amount was sanctioned in the complainant’s name and it has been paid to the M/s. Subhamangala Constructions through the pay orders and the same were encashed by the builder M/s Subhamangala Constructions through the Syndicate Bank, Teynampet Branch, Chennai – 18 and from the above said statement of the 3^rd respondent, the complainant was very much confused.  The 2^nd opposite party lodged a criminal complaint against the 1^st and 3^rd opposite parties and the same is pending before the Central Crime Branch, Team-IV.  Therefore the opposite parties are liable for their acts and only due to their negligence and deficiency in service, the above building work was not completed for more than three year.  Therefore the complainant prays that this forum may pleased to pass order to complete the construction work as per the construction agreement, to submit the land and building approval plans for the complainant’s land and building, to direct the 2^nd opposite party to pay the cost of incomplete construction work with interest which was done by the complainant, to direct  the 3^rd opposite party to recover the amount from the 2^nd opposite party for the construction work which was not completed by the 2^nd opposite party with interest and deduct it from the principal loan amount of the complainant, to direct all the opposite parties to pay a sum of Rs.2,50,000/- towards mental agony and sufferings and to pay a sum of Rs.2,00,000/-for their negligence and deficiency of service caused to the complainant and to pay a sum of Rs.5,000/-towards cost.

3. The contents of the written version of the 1^st opposite party is briefly as follows:-

The 1^st opposite party is engaged in the business of land promoting in the name and style M/s. Land Mark promoters and in the field for the past 20 years and has high reputation in the said filed. The complainant approached the 1^st opposite party to purchase land and get necessary building plan approval from the concern authorities and construct the house in the said vacant land.  Accordingly the 1^st opposite party had executed a sale deed for a sale consideration of Rs.2,88,000/- in respect of the vacant housing land comprised in survey No.16/5 patta No.17, in plot No.81 to the total extent of 1800 square feet situated at defence colony  No.10, Muthapudhupet village, Ambattur Taluk, Thiruvallur District in favour of complainant and the same was registered as document No.5059/2004 at SRO, Avadi. The complainant has entered with the construction agreement with one Mr.Govindarajulu, M/s. Subamanagala Constructions on 24.08.2004 to construct a house and handed over the physical position to complainant according to the terms and conditions set out in the construction agreement.  The 1^st opposite party has carried out all the works to the complainant with full satisfaction. It is only, the 2^nd opposite party to construct the house and handed over possession to the complainant in time. It is wrong to say that the 1^st opposite party caused wrongful loss to the complainant or misused his power. The complainant has lodged criminal complaint against all the opposite parties before the Commissioner of police, Chennai and the same was investigated by the crime branch were signed in the memorandum by the complainant and the 1^st opposite party in which the complainant has agreed to withdraw the complaint and accepted that the complainant would not further take any civil or criminal actions against the 1^st opposite party and therefore the above said complaint was closed. The 1^st opposite party has obtained proper building plan approval and layout approval, only based on the plan approval the 3^rd opposite party has sanctioned the loan.  Therefore there was no negligence and deficiency of service as alleged in the complaint by the complainant and the complainant is not eligible to get the relief as prayed in the complaint and thereby the complaint is liable to be dismissed by this forum.

4. The contents of the written version of the 2^nd  opposite party is briefly as follows:-

 The 2^nd opposite party is a builder by profession engaged in construction for the past 18 years in the name and style of M/s Subamangala Constructions.  The 1^st opposite party is the builder/promoter/owner of the land. The complainant purchased the land and house from the 1^st opposite party and the loan arrangements of both to purchase the land as well as construction made by the 1^st opposite party to the complainant along with 21 other complainant who had filed the complaint before this forum and the sale deed executed by the 1^st opposite party in favour of the complainant.  The complainant has not entered any construction agreement with the 2^nd opposite party.  The 2^nd opposite party has worked in the project on request made by the 1^st opposite party and the 1^st opposite party has to pay a sum of Rs.87,28,000/- since 2004 to the 2^nd opposite party and he has done the work as per verbal agreement between the 1^st and 2^nd opposite party.  The complainant has obtained the approval with help of the 1^st opposite party and the loan has been sanctioned by the 3^rd opposite party only after close scrutiny of the approval papers and hence there is no contract between the complainant and the 2^nd opposite party.  It is to the knowledge of the 2^nd opposite party that the complainant along with 21 others complainants had clandestine understanding with the 1^st opposite party and more over the above said 21 other complainants along with the present complainant had received consideration from the 1^st opposite party to mute them over the said issue. Therefore it is prayed this forum may be pleased to dismiss the complaint against the 2^nd opposite party.

5. The contents of the written version of the 3^rd  opposite party is briefly as follows:-

The complainant and 1^st and 2^nd opposite parties approached the 3^rd opposite party’s bank seeking housing loans.  The 3^rd opposite party on appraisal of the documents and particulars submitted by the complainant agreed to grant a housing loan to purchase of land and also to meet the cost of construction of the building to be constructed on the said property.  The sale consideration payable for the land was paid directly to the owner of the land viz., 1^st opposite party, upon which the sale deed was executed and registered by the owner of the land to the complainant.  As regards the payment to the 1^st and 2^nd opposite party, the loan was sanctioned by the 3^rd opposite party and is to be paid in three installments at three different stages of construction.  The respondent issued three cheques No.357893 dated 25.11.2004 for Rs.1,16,933/-,  No.358146 dated 11.01.2005 for Rs.1,16,933/-,  No.358397 dated 04.03.2005 for Rs.1,16,933/- towards the cost of the construction of the building. The payment was paid to M/s Subamangala constructions and the builder as per the builder’s agreement. The building plan was sanctioned for most of the properties and only for certain property it was on the verge of getting sanction.  It was only due to this, the 3^rd opposite party sanctioned the loan to the complainant. At no point of time, till December-2006, the complainant made any complaint to the bank with regard to the construction.  As per the construction agreement and as admitted in the complaint by the complainant the entire construction ought to have been completed within nine months from the date construction agreement.  The loan amount was released in three installments and paid the 2^nd opposite party on different stages of construction.  The complainant is well aware of the payments made by the bank to the 2^nd opposite party.  The 3^rd opposite party sanctioned the loan and the loan was dispersed as per the banking rules and norms and there is no deficiency of service on the part of the 3^rd opposite party and therefore the forum may be pleased to dismiss the complaint.

6. In order to prove the case, on the side on the complainant, proof affidavit submitted for his evidence and Ex.A1 to Ex.A17 were marked.  While so, on the side of the 1^st opposite party, the proof affidavit submitted as his evidence but no document was marked and the 3^rd opposite party has submitted proof affidavit as his evidence and Ex.B1 was marked and also adduced written and oral argument on both sides.

7. At this juncture, the points for determination before this Forum is as follows:-

1. Whether there is any deficiency in service on the side of the opposite parties as alleged in the complaint?

2. Whether the complainant is entitled for compensation and cost as claimed in the complaint from the opposite parties?

3. Whether the complainant is entitled for other reliefs as claimed in the complaint from the opposite parties?

4.   To what other reliefs, the complainant is entitled to?

8.Point No:1 & 2:-

The complainant originally filed this complaint against the 1^st opposite party Mr.S.Jaganath, the 2^nd opposite party Mr.P.Govindarajulu and 3^rd opposite party The Branch Manager, State Bank of Hyderabad.  Subsequently on 28.10.2010 the complainant counsel made an endorsement in the complaint stating that the complainant had give up claim against the 2^nd opposite party.  Therefore this forum passed an order dated 28.10.2010 stating that the complaint against the 2^nd opposite party is dismissed, hence the complaint against the 2^nd opposite party dismissed on 28.10.2010. Further in the above complaint, the 3^rd opposite party namely State Bank of Hyderabad remained ex-parte on 17.06.2015. The State Bank of Hyderabad merged with State Bank of India in the year 2018 and hence the complainant filed CMP.No.85/2018 to add the Branch Manager, State Bank of India, Porur Bazaar Branch as 3^rd opposite party and the same has been allowed.  Therefore 3^rd opposite party is the Branch Manager, State Bank of India, Porur Bazaar Branch.

9. The 1^st opposite party is a building contractor and the 1^st opposite party being the power agent of the owner of the land executed a sale deed in favor of the complainant on 21.09.2004.  Ex.A1 is the copy of sale deed executed by the 1^st opposite party in favour of the complainant.  The complainant purchased vacant land to an extent of 1800 square feet at plot No.81 in the lay out situated at Defence Colony, No.10, Muthapudupet Village, Ambattur Taluk, Thiruvallur District.   On 24.08.2004 the complainant entered into a construction agreement with the 1^st opposite party to construct a house in the plot purchased by the complainant.  Ex.A2 is the copy of construction agreement.  As per the construction agreement the 1^st opposite party agreed to construct the building measuring a total area of 525 square feet for a total cost of Rs.4,00,000/- and also agreed to complete the construction within nine months from the date of agreement.

10. The complainant alleged that the 1^st and 2^nd opposite parties have not completed the construction as per the construction agreement within the stipulated time and there are many defects in the construction and thereby committed deficiency in service. On the other hand, the 1^st opposite party and the complainant entered in to a compromise memorandum on 31.01.2007 and the same was admitted by the complainant in his written argument.  But the complainant has suppressed the above said compromise agreement in his complaint.  The complainant filed this consumer complaint before this forum on 17.10.2007 stating that the 1^st and 2^nd opposite parties has not completed the construction within time and 3^rd opposite party also paid the housing loan amount to the 1^st and 2^nd opposite parties without consent of the complainant and committed deficiency in service.  But the complainant suppressed the compromise agreement entered between the 1^st opposite party and 24 persons on 31.01.2007 and this complainant is also a party to the compromise agreement.  Therefore it is clearly seen that the complainant has not approached this forum with clean hands.

11. The 1^st opposite party filed the copy of compromise agreement dated 31.01.2007 along with written argument.  The 1^st opposite party has agreed the delay in completion of the construction work in his written argument.  As per the compromise agreement the 1^st opposite party agreed to complete the construction work for 11 persons within six months from the date of compromise agreement and also agreed to pay a sum of Rs.50,000/- for the 11 persons.  Further the 1^st opposite party said he has completed the construction for 16 persons out of 27 persons.  As agreed by the 1^st opposite party in the compromise agreement he has paid a sum of Rs.50,000/- by way of cheques for nine persons.  The other two persons namely S.Buvaneshwari and Thirupal not received the amount and they have not filed any consumer complaint.

12. The learned counsel for the complainant argued that the 1^st opposite party has not completed the balance construction work as per the compromise agreement.  On perusal of the documents this forum finds there is delay in completing the construction and 1^st opposite party also not completed the construction as per the construction agreement.  The above attitude of the 1^st opposite party amounts to deficiency in service.

13. The complainant filed an application to appoint an advocate commissioner to inspect the complainant’s property to find out the defects in the construction.  The advocate commissioner inspected the complainant’s property and submitted his report and the commissioner also filed photos to prove the defects in the construction.  According to the commissioner, there are some cracks in the wall and the floor.  Hence there are defects in the building and the defects due to the negligent construction made by the 1^st opposite party.  The 1^st opposite party also agreed that there is delay in completing the construction and he has not completed the construction within time. It is the duty of the 1^st opposite party to complete the construction as per the construction agreement within the stipulated time, but the 1^st opposite party has not completed the construction as per the construction agreement and the same amounts to deficiency in service and therefore the 1^st opposite party is liable to pay a sum of Rs.25,000/-  towards compensation for causing mental agony to the complainant due to the deficiency in service on the part of the 1^st opposite party. Thus the point No.1 and 2 are answered accordingly.

14. Point No.3:-

The complainant prays for an order to direct the 1^st and 2^nd opposite parties to complete the construction work as per the construction agreement, to submit the land and building approval plans for the complainant land and building, to direct the 2^nd opposite party for incomplete construction work to pay amount with interest which was done by the complainant, to direct  the 3^rd opposite party to recover the amount from the 2^nd opposite party for the construction work which was not completed by the 2^nd opposite party

15. With respect for an order directing the 2^nd opposite party to complete the construction work there is no proof on the side of the complainant what are the remaining works to be done by the 2^nd opposite party. Further the complainant made an endorsement stating that there is no claim against the 2^nd opposite party and therefore this forum dismissed the complaint against the 2^nd opposite party.  The 1^st opposite party and the complainant entered in the compromise agreement on 31.01.2007 to complete the remaining construction work and also paid Rs.50,000/- to the persons to whom construction has not completed and the complainant also agreed to the same.  But the complainant suppressed the above fact in the complaint.  Hence the complainant is not entitled for the said relief.

16. With respect for an order directing the 3^rd opposite party to recover the amount from the 2^nd opposite party, the 3^rd opposite party has paid the loan amount as per the agreement entered between the complainant and the 1^st opposite party.  Further the complainant has not objected when the payments were made by the 3^rd opposite party to the 1^st opposite party.  The complainant has not made any written request to the bank to stop payment to the 1^st opposite party.  Hence the complainant seeking this relief against the bank without any valid proof. With respect to alleged fraudulent transaction, the complainant already filed a complaint before police and the police can take action.  Therefore the complainant is not entitled for other reliefs as claimed in the complaint.  Thus the point No.3 is answered accordingly.

Point No.4:-

In the result, this complaint is allowed in part.  Accordingly, the 1^st opposite party is hereby directed to pay a sum of Rs.25,000/-(Rupees twenty five thousand only) towards compensation for causing mental agony to the complainant due to the deficiency in service on the part of the 1^st opposite party and also to pay a sum of Rs.5,000/- (Rupees five thousand only) towards cost of this litigation to the complainant.  With respect to other reliefs claimed in the complaint and also this complaint against the 2^nd and 3^rd opposite parties is dismissed.

The above amount shall be payable by the 1^st opposite party within two months from the date of receipt of the copy of this order, failing which, the said amount shall carry interest at the rate of 9% per annum till the date of payment.

Dictated by the president to the steno-typist, transcribed and computerized by him, corrected by the president and pronounced by us in the open forum of this 06^th September 2019.

 -Sd-                                       -Sd-                                                        -Sd-

MEMBER-II                         MEMBER-I                                         PRESIDENT

List of documents filed by the complainant:-

List of documents filed by the 3^rd opposite party:-

List of documents filed by the 1^st opposite party:--Nil-

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MEMBER-II                                    MEMBER-I                                         PRESIDENT