DISTRICT CONSUMER DISPUTES REDRESSAL FORUM PALAKKAD
Dated this the 30th day of September 2019
Present: Smt.Shiny.P.R. President
: Sri.V.P.Anantha Narayanan, Member Date of filing: 29/05/2017
CC/87/2017
M.P.Sreenivasan,
S/o.C.K.Parameswaran,
Lakshmi Ganapathy Apartments,
43B, Pillayar Koil Street,
Jafferkhanpet,
Ashok Nagar, Chennai – 600 083. - Complainant
(By Adv.V.K.Venugopalan)
Vs
1. The Managing Director,
M/s.HANCO Builders Pvt. Ltd.,
Janaki Kripa, Mani Iyer Road,
Chathapuram Junction, Kalpathy(PO),
Palakkad Taluk, PIN – 678 003.
2. H.Anandanarayanan, - Opposite Parties
S/o.Late C.A.Hariharan,
residing at ‘Harisree’,
Nethaji Nagar, Olavakkode(PO),
Palakkad Taluk, PIN – 678 002.
(By Advs.John John &Chenthamarakshan
for Opposite Parties 1 and 2)
O R D E R
By Sri.V.P.Anantha Narayanan, Member
Brief fact of complaint are mentioned below:
The complainant wanted to construct a house building in his property as per the approved building permit and plan No:EJB12/48/09-10/PW5 dated 18/01/12 and the opposite party was entrusted with the construction work as he is a builder friend of the complainant. An MOU was executed between the complainant and the opposite party for the house construction on 01/12/2012. The area and the sq. feet rate and the total amount payable regarding the works are reflected in the MOU. It was also agreed that extra work/additional construction is based on extra cost which was not done by the opposite party. According to the complainant, even if prompt payments were made by him by availing bank loan, the construction was delayed and the opposite party also never bothered to complete it. The complainant made timely payments because he had availed Rs.23,50,000/- as housing loan from the Kalpathy Corporation Bank branch and the opposite party delayed the work; further due to the poor quality work the roofing was to be reset again to contain the leak. Complainant also pleads that the bank sanctions the installment amounts only on completing the respective stages of work and furnishing certificates there for. As per MOU dated.01/12/2012 amounts due were: before foundation Rs.7,20,000/-, on lintel completion Rs.6,00,000/-, on roof slab completion Rs.4,80,000/- on plastering completion Rs.3,60,000/-. Thus total amount due was Rs.24,00,000/- and amounts paid totally were Rs.23,10,000/- including Rs.1,00,000/- paid for tiles purchased. According to the complainant almost the entire amount was paid by the complainant to the opposite party by 11/11/2014 and the opposite party did not complete the works of compound wall, iron gate, water sump, painting, bore well, ground clearing, plan drawing, procuring of occupancy certificate and building number. The complainant pleads that the opposite party was demanding amounts in advance. The complainant was working in Bangalore in a private firm and hence he could not visit the place as he wished for making payment. As such two cheques were handed over in advance on 22/06/2015 amounting to Rs.2,27,000/- towards the works to be completed and obtaining of completion certificate and building number from Palakkad Municipality. Since the opposite party did not commence the work for the next two months, the complainant told the opposite party that he is engaging another person to complete the work and the opposite party is not entitled to present the cheques for collection as no amount was due to him. The complainant engaged another contractor Mr.Arun.P.R for plan drawing, site clearing, compound wall construction and gate, plumbing, water sump, electrical balance works and sit out grills construction for which he was paid Rs.2,35,300/- except for sump work. According to the complainant, he has to suffer a loss of Rs.2,35,300/- towards his bill dated. 12/05/2015 issued by him towards the works which could have been done by the opposite parties for which amounts have been already received by them and the complainant also incurred loss due to delay in completing the works. Complainant also submits that on completion of the roofing, heavy leak was noticed from the roofing and found that the entire work completed was of poor quality which caused to the complainant mental agony. Complainant also argues that payments due to the opposite party as per the MOU is for constructing 1,401 sq. ft. building at Rs.1,300 /- sq. ft. which amounts to Rs.18,21,300/- only and the balance as per MOU was for civil works ie. for the works of compound wall, iron gate, septic tank, sintex overhead tank, water sump, painting, borewell, ground clearing, plan drawing etc. The opposite party had sent a notice on 06/06/2016 demanding Rs.90,000/- for completing civil works, claiming completion of all other works except compound wall and gate. Complainant pleads that opposite party claims in the notice that additional works are done by the opposite party which are granite flooring instead of vitrified tile flooring in the sit out and the pooja room, shifting the location of the sintex water tank from the first floor to the top of the stair room, repairing the existing well, polishing of doors and windows providing teak wood doors and polishing for the pooja room doors instead of ordinary door and painting, granite flooring for stair case and steps instead of vitrified floorings, stainless steel railing for the stair case instead of MS grills. Ferro cement shelves provided in kitchen, store room and bed rooms. Complainant submits that additional cost incurred for purchasing high quality vitrified flooring tiles is false because Rs.1,00,000/- was already paid against it by the complainant directly and the complainant never asked for change of sanitary fitting of Jaguar brand instead of Parryware brand as claimed in the opposite party’s notice. According to the complainant the notice was replied stating true facts. After the suit before the Munsiff Court, Palakkad complainant measured the construction and found that the total constructed area is only 1,267 sq. ft. instead of 1,401 sq. ft. as claimed. The entire construction was found to be of very poor quality also. All the doors and frames except the front door and the pooja room door are found to be of soft wood and getting deteriorated. Complainant also pleads that the cheques were handed over to the opposite parties before completion of the above mentioned works due to the opposite parties expressing financial difficulties. The cheques were handed over in advance for the works to be completed. The highly delayed poor quality work on the part of the opposite parties in respect of the construction entrusted to him by the above MOU caused to the complainant damages for Rs.5,00,000/- which comprises Rs.1,74,200/- (the difference in the area of the construction promised as per MOU and actually constructed ie. 1,401 sq. ft minus 1,267 sq. ft = 134 sq. ft @ @ Rs.1,300/- per sq. ft equals Rs.1,74,200/- plus Rs.2,05,300/-) (compound wall, iron gate, septic tank, plumbing, electrical balance works, sintex overhead tank water sump, painting, bore well ground clearing, plan drawing and getting occupancy certificate) plus Rs.1,20,500/- claimed for mental agony and inconvenience caused to the complainant. The complainant also submits that no amount is due to the opposite party from him; on the other hand the delayed poor quality work caused damages and mental agony to the complainant to the tune of Rs.5,00,000/- and the opposite party is legally liable to compensate the complainant with the said amount along with interest and cost. Complainant also pleads that the opposite party has neither cleaned the well nor constructed the retaining wall as against the opposite party’s claim. The well was existent even before, also opposite party’s claim to have completed the putty work of internal wall and the white cement coat painting work of the house is not true. The granite in the sit out and pooja room was of opposite party’s choice and there will be negligible difference considering its area; the additional cost incurred for purchasing higher quality vitrified flooring tiles was paid by the complainant then and there and the complainant never insisted for fitting of Jaguar brand sanitary fittings as claimed by him. There is clear deficiency in service and unfair trade practice on the part of the opposite parties in this case. Complainant also pleads that the completion period of the construction was to be taken between the parties as 18 months from the date of payment of the 1st installment which was 18/12/2012 and an amount of Rs.2,00,000/- was paid then. The building should have been completed on 18/06/2014 but the opposite parties deliberately delayed the construction and failed to complete it. Hence the complainant has to complete the work engaging another contractor named Arun.P.R for the completion of the work and occupancy certificate could be obtained from Palakkad Municipality only on 15/05/2015. The OP was filed on 15/05/2015 and tax was demanded on 18/05/2015 and paid on 20/05/2015. However notice was issued by the opposite party on 06/06/2016 only on knowing about the issuance of the completion certificate. Hence this complaint is filed within the stipulated time. On 18/06/2014 the period of completion of the construction expired, on 15/05/2015 the building was completed and occupancy certificate was issued on 15/05/2015, tax was demanded by Municipality and on 20/05/2015 it was paid. According to the complainant the cause of action for the complaint erose on 01/12/2012 when MOU was entered into between the parties. On 06/06/2016 when notice was issued by the opposite party to the complainant claiming amounts, on 30/06/2016 when reply was issued, on 05/12/2016 when the opposite party preferred to sue the complainant claiming balance sum. Complainant prays to this Hon’ble Forum to order the opposite parties to pay Rs.1,74,200/- along with 18% interest from 01/01/2015 till realization, to pay Rs.2,05,300/- with 18% interest from 15/05/2015 paid to the second contractor by the complainant for getting the works completed, to order payment of Rs.1,20,000/- as compensation for the delay caused to complete the work and for the mental agony, inconvenience caused and cost of the complaint etc.
The complaint was admitted and notices were issued to the opposite parties to enter their appearance and file their versions. In the version filed by the opposite party (1st opposite party), he denies all the averments in this complaint except those expressly admitted. At the same time this opposite party admits the MOU dated 01/12/2012 executed between him and the complainant and also the table of payments given in Para 4 of the complaint, but this opposite party denies the allegations in Para 5 of the complaint that the opposite party failed to complete items of works. This opposite party contends that the cheques mentioned in Para No.6 of the complaint were not cashed by this opposite party and hence no loss was suffered by the complainant on this account. This opposite party also denies the allegations in Paras 8 & 9 and in the Para No.10 the averment that leaks were found on the roof and the entire completed work was of poor quality is false. According to this opposite party no loss or damage was suffered by the complainant as alleged and no mental agony or inconvenience was caused to the complainant; the complainant is not entitled to any relief claimed. This opposite party also contends that he promptly completed the construction of the house as per the MOU executed between him and the complainant adhering to the standards norms of construction using quality building materials and employing skilled workers without any latches. This opposite party was unable to complete the compound wall work and gate due to the boundary line dispute between the complainant and the adjacent owner. The complainant requested the opposite party to postpone the work of the compound wall by his e-mail letter dated 23/09/2015. The estimated cost of the compound wall and gate was Rs.75,000/- and this work was left undone for reasons beyond the control of the opposite party. According to this opposite party total amount entitled to be received by him was Rs.24,00,000/- out of which only Rs.23,10,000/- was received from the complainant, deducting Rs.75,000/- on account of compound wall work and gate this opposite party is entitled to receive Rs.15,000/- from the complainant. This opposite party also argues that he had done additional works at the site as per the request of the complainant and thus incurred an additional expense of Rs.2,20,308/-. This opposite party prays to the Hon’ble Forum to accept the contentions of this opposite party and dismiss this complaint with compensatory costs.
Complainant and the opposite party filed chief affidavits and the complainant filed additional affidavit. An interim application 309/19 to appoint an expert commissioner was filed and Mr.Anandan was appointed as expert commissioner to inspect the property and file a detailed report, but the commissioner returned warrant and Mr.T.P.Govindaraj was appointed as an expert commissioner in the place of Mr.Anandan. Again warrant was returned by the new commissioner also. Fresh panel was produced and Mr.Venugopal was appointed as an expert commissioner in the place of Mr.T.P.Govindaraj. His commission report was filed and marked as Ext.C1. The complainant submitted no objections to CR, while the opposite party filed objections to CR. Exts.A1 to A8 were marked from the side of the complainant and Exts.B1 and B2 were marked from the part of the opposite parties. Both parties were heard.
The following issues arise in this case for consideration by this Hon’ble Forum.
- Whether there is any deficiency in service and unfair trade practice committed by the opposite parties in this case?
- If so, the relief and cost which the complainant is entitled for?
Issues 1 & 2 in detail
Exts.A1 to A8 are produced by the complainant to prove their pleas and Exts. B1 & B2 are filed by the opposite parties in support of their contentions. Ext.A1 is the MOU entered into between the complainant and the opposite parties to prove that the complainant has entrusted the work of construction of his residence with the opposite parties for a total consideration of Rs.24,00,000/-; this Ext. also shows the total area to be constructed as 1401 square feet, cost of construction as Rs.1,300/- per square feet. This Ext. also states the total consideration of Rs.24,00,000/- includes the cost of construction of Rs.18,21,300/-(1,401xRs.1,300/-) and the balance towards charges for civil works which includes compound wall, iron gate, septic tank, sintex overhead tank, water sump, painting, borewell and other expenses including ground clearing, plan drawing etc. It also shows 11 specifications in construction of this building, completion period of this house as 18 months, schedule of payments, responsibilities and brand of materials and fittings to be used by the opposite party contractor. It is the basis of this construction contract. Ext.A2 is a copy of lawyer notice sent by the opposite parties counsel to the complainant which informs him that additional works were done by the opposite party on complainant’s request, namely granite flooring instead of vitrified flooring in the sit out and pooja room(Jet Black Granite), shifting the location of the overhead tank (sintex tank) from the 1st floor to the top of the stair room for which the entire pipe line which was drawn had to be changed and redone, repairing the existing well in the property including the masonary work, polishing of the doors and windows instead of painting, providing teakwood doors and polishing for the pooja room instead of ordinary door and painting, granite flooring for staircase and steps instead of vitrified flooring, stainless steel railing for the staircase instead of MS grill, ferro cement works provided in kitchen, store room and bed rooms, additional cost incurred towards purchase of higher quality vitrified flooring tiles, the difference in cost for providing sanitary fittings of Jaguar brand instead of parryware and CP fittings of Jaguar brand instead of mare brand; total additional cost of Rs.2,20,308/- is claimed by the opposite party for the above additional works done by him as per the lawyer notice marked as Ext.A2. Ext.A3 is the true copy of the reply sent by the complainant’s counsel dated 30/06/2016 to the opposite parties counsel’s notice dated 06/06/2016 which shows that an amount of Rs.2,27,000/- was paid in advance as two cheques for the construction to be effected. It also shows amounts paid to opposite parties on different dates which totaled Rs.22,10,000/-. This Ext. most importantly states that despite making prompt payments and majority of total consideration to the opposite parties by the complainant, the construction was delayed and opposite party never completed it also. Since the opposite party did not commence the work for the next two months complainant informed the opposite party that he is engaging another person to complete the work and engaged Mr.Arun, another contractor and completed the work not done by the opposite party at a cost of Rs.2,35,300/- and obtained completion certificate from Palakkad Municipality by 15/05/2015; this Ext. also states amounts paid and amounts due as per MOU, Rs.1,00,000/- paid by the complainant towards tiles purchased. This Ext. further states that on completion of the roofing heavy leak was seen and the roofing has to be repaired. It is also stated that complainant never asked for change of sanitary fittings of Jaguar brand instead of Parryware as claimed in Ext.A2 notice and also the claim of additional cost incurred towards purchase of higher quality vitrified flooring tiles is also false. Ext.A4 proves that construction of the disputed building of the complainant is certified under the permit number EJB12/48/09-10/PW5 dated 18/01/2012 which also shows area of the building as GF as 100 m2, stair room as 9.00 m2, porch as 9.00 m2. Ext.A4 is a true copy of the occupancy certificate dated 15/05/2015. Ext.A8 is the bill dated 12/05/2015 for the compound wall, gate, plumping and electrical balance work for the residence of the complainant amounting to Rs.2,35,455/- issued by Arun.P.R, contractor engaged by the complainant to complete the works not done by the opposite parties which proves that complainant has got done works not done by the opposite party through P.R.Arun(2nd contractor) for Rs.2,35,455/-. This Ext. also shows the cost of compound wall work, gate, painting work, 45 cmx45 cm chamber for external drainage charges(soil and waste line charges). Ext.B1 & B2 are produced by the opposite parties. Ext.B2 is email of the complainant dated 23/09/2015 to the 2nd opposite party which proves that the complainant requested the opposite party to put off the work of the compound wall. Ext.C1 is the expert commissioner’s report which states that the total area of construction of the disputed building of the complainant is 1442 square feet including portico. It also states that main door is of teakwood, and other doors are of country wood, workmanship is average, windows are of country wood, door number 1 and windows numbers 2 of the washing area have to be replaced pooja door shutter is of teakwood, frame is of country wood and others have to be repaired for maintenance for which Rs.47,100/- are required towards the cost of replacement and repairs. Out of all doors and windows of the disputed building. This Ext. also states that cost of ferro cement shelves is Rs.12,150/-, for pooja room replacement cost is Rs.10,100/-, cost of flooring of sit out is Rs.6,500/- and cost of ground cleaning is Rs.7,000/-. There is evidence of rework on roof top in the entire roof area of 1330 square feet, quality of polishing of doors and windows is poor, main door and pooja room door shutters only polished, pooja room door frame painted with enamel coat.
We have perused the affidavits and documentary evidences produced by both the parties before this Forum and understand that as per the MOU agreement dated 01/12/2012 between the complainant, and Hanco builders,(opposite parties) complainant has entrusted his house construction works to the opposite party. Ext.A1 MOU agreement also proves that the total area to be constructed is 1401 square feet and the total consideration is Rs.24,00,000/- which includes the cost of construction at Rs.1,300/- per square feet and the balance towards charges for civil works. Completion period of the disputed building is also clearly mentioned in the Ext.A1.
We observe that in spite of making prompt payments by the complainant towards this construction and payment of majority of the amount(Rs.23,10,000/-) out of the total contract price of Rs.24,00,000/-, by 11/11/2014 to the opposite parties, the opposite parties have failed to complete this building work within the stipulated period of 18 months as per MOU. We also find that the expert commissioner in his report (marked as Ext.C1) mentioned that there is evidence of rework on roof top and both the complainant and the opposite party were agreed for the rework done and relaid the concrete top 4-5 cm. thick above roof slab for the entire roof area of 1,330 sq.ft. to check huge leakage in the disputed constructed building. The expert commission report also points out that one door and two windows at washing area should be replaced and other doors are to be repaired for its maintenance and quality of polishing of doors and windows is poor, pooja door frame is painted with enamel coat etc. As per the MOU (Ext.A1) the construction completion period was agreed as 18 months between the complainant and the opposite party from the date of payment of the 1st installment of Rs.2,00,000/- on 18/12/2012; the disputed building therefore should have been completed by the opposite party on 18/06/2014, but it is seen that the opposite party deliberately delayed the disputed construction work and failed to complete it on or before 18/06/2014 which prompted the complainant to engage another contractor (Mr.Arun.P.R) to complete the disputed work agreed to be completed by the opposite party as per the MOU dated 01/12/2012. As such occupancy certificate and completion certificate could be obtained from Palakkad Municipality only by 15/05/2015. Also it is clear from Ext.A8 that the complainant had to incur Rs.2,35,455/- as additional expenditure for civil works which should be completed by the opposite party as per MOU. In addition we also view that as per Ext.A2(lawyer notice sent by the opposite party’s counsel to the complainant) the claim for Rs.2,20,300/- preferred by the opposite party towards extra works done by him is also false because the opposite party has not produced a copy of instructions allegedly stated to have been given by the complainant to the opposite parties to do the extra works mentioned in Ext.A2 and also the opposite party has not produced any bills for these extra works done by him to confirm that Rs.2,20,300/- has been actually incurred by the opposite party which is mentioned as done on the basis of alleged complainant’s instruction as per Ext.A2. Thus we view that delay in completion of the entrusted contract work of residence of the complainant by the opposite party and consequent delay in getting occupancy and completion certificate, poor quality work of the opposite party, huge leakage in the disputed building and hence evidence of rework on the entire roof which is also reported by the expert commissioner, replacement and repair cost for doors and windows payment for civil works mentioned in MOU by the 2nd contractor on the opposite party’s failure to do the same, having to incur extra cost for extra work allegedly done by the opposite party, which is not mentioned in MOU and without any instructions(no proof for instructions from the complainant and no bills seen produced by the opposite parties for extra works allegedly done by the opposite party as mentioned in Ext.A2 notice) has proved serious deficiency in service and unfair trade practice committed by the opposite party, as a result of which a lot of mental agony has to be suffered by the complainant; further the above said deficiencies on the part of the opposite party have also caused huge financial loss to be incurred by the complainant. Hence we decide to allow the complaint.
We order the opposite parties to be jointly and severally liable to pay to the complainant Rs.2,05,300/- (Rupees Two Lakhs Five thousand and three hundred only) claimed by the complainant towards compound wall construction, iron gate, septic tank, plumbing, electrical balance works, sintex overhead tank, water sump, painting borewell, ground clearing, plan drawing; in addition we also order jointly and severally the opposite parties to pay to the complainant Rs.10,000/-(Rupees Ten thousand only) as compensation for mental agony suffered by the complainant which is seen caused due to long delay in completion of his residential building work by the opposite party and failure on the part of the opposite parties to complete this work of the complainant, poor quality of the work and huge leakage found in the constructed building and having to do rework on the entire roof area of the complainant of 1330 square feet (which is also confirmed by expert commissioners’ report); in addition we also direct the opposite parties jointly and severally to pay Rs.5,000/- (Rupees Five thousand only) to the complainant towards cost of this proceedings.
At the same time we cannot allow the complainant’s prayer for getting from the opposite party Rs.1,74,200/- being the difference between the cost of the area of construction promised of 1,401 square feet as per Ext.A1 MOU and area of construction of 1,267 square feet stated to have been measured by the complainant in respect of the disputed building construction of the complainant because the expert commissioner has reported in his Ext.C1 report that the area of construction of the disputed building as 1,442 square feet and we also observe that the opposite parties have not raised any objection to this area mentioned in Ext.C1 report.
This order shall be executed within one month from the date of receipt of this order; otherwise complainant is also entitled to receive 9% interest p.a on the total amount due to him from the date of this order till realization.
Pronounced in the open court on this the 30th day of September 2019.
Sd/- Shiny.P.R
President Sd/-
V.P.Anantha Narayanan
Member
Appendix
Exhibits marked on the side of complainant
Ext.A1 – Copy of MOU entered into between the complainant and the opposite parties.
Ext.A2 – Copy of the lawyer notice issued by the opposite party’s counsel dated 06/06/2016
Ext.A3 – Copy of the reply notice issued by the complainant’s counsel dated 30/06/2016
Ext.A4 – Photo copy of occupancy certificate issued from Palakkad Municipality in the name of
the petitioner dated 15/05/2015.
Ext.A5 – Photocopy of intimation received from Palakkad Municipality determining the annual
tax for the new building dated 18/5/2015.
Ext.A6 – Photocopy of demand notice for tax in respect of new building
Ext.A7- Photocopy of tax paid receipt issued by Palakkad Municipality dated 20/5/2015.
Ext.A8 – Bill for the compound wall, gate, plumbing and the electrical(balance work for the
residence of the complainant by the second contractor Arun.P.R.
Exhibits marked on the side of Opposite Parties
Ext.B1- Copy of email dated 25/07/2015 sent by opposite party to the complainant.
Ext.B2- Copy of email dated 23/09/2015 sent by complainant to the opposite party.
Commission Report
Ext.C1- Commissioner’s report dated 31/05/2018.(Original)
Witness examined on the side of complainant
NIL
Witness examined on the side of opposite parties
NIL
Cost - Rs.5,000/-
