SMT. RAVI SUSHA : PRESIDENT
Complainant filed this complaint U/S 12 of Consumer Protection Act 1986 seeking to get an order directing opposite party to pay an amount of Rs.3,50,000/- being the excess amount received by the OP. Further Rs.84,000/- being the rent paid during the delay period by the complainant together with Rs.50,000/- towards compensation for the mental agony and cost of the complaint.
The facts of the complaint are that:-
The complainant is the owner of landed property No.RS270/10 of SRO Anjarakandy. . The OP is a building construction contractor. On 23/3/2016 complainant and OP executed an agreement by which complainant entrusted the construction work to the OP. It was stipulated in the agreement that the complainant shall construct the two storied house at a rate of Rs.1200/- per sq.ft. The said work includes the construction of structure, plastering, wood work, grills, flouring work and electrification. The contract amount includes the cost of materials and labour. OP agreed to complete the construction within 11 months from the date of execution of agreement and Rs.2,00,000/- was paid in advance. It was also stipulated that the complainant shall pay the remaining amount after completing the each stages of work. Total area of construction is 1992 sq.ft and total amount assessed for the construction was Rs.23,30,400/-. The OP agreed to purchase the material for the entire construction including wood and grills. Since the complainant was not in station , the supervisation was made by his father and wife. Even though the OP agreed to purchase wood he did not comply the same. So the entire wood required for carpentry work was purchased by the complainant. As on 18/2/2017 complainant paid an amount of Rs.2086350/- to the OP . But the OP did not complete the construction as agreed. He kept the site incomplete and left the place. OP did not complete the carpentry work, grill work, stair case work and plastering work. OP have actually received excess amount from the complainant. When the complainant demanded the OP to return the excess amount another agreement was executed in between the complainant and OP on 11/10/2017. It was stipulated in the said agreement that the complainant can engage another contractor and complete the remaining work and the remaining work can be assessed in the presence of two engineers, OP agreed to return the excess amount assessed by the engineers to the complainant. The engineers engaged by the complainant and OP assessed the value of the work carried out by the OP. It was found that an amount of Rs.3,50,000/- was due from the OP. But the OP did not pay the said amount. So on 23/5/2018 another agreement was executed between them by which OP agreed to return Rs.1,50,000/- on 2/7/2018 and Rs.2,00,0000/- on 20/11/2018 but OP has not complied that agreement also. The complainant decided to construct the house for the residence of his wife and children. They were residing in a rented house by paying Rs.12000/- per month. The act of OP amounts to unfair trade practice and deficiency of service. Hence this complaint.
After receiving notice, OP entered appearance through counsel and filed his written version. OP denies all the allegations stated in the complaint. OP submits that he undertook the construction work of the new house belonging to the complainant as per agreement dtd23/3/2016 executed between him and complainant. Even though the OP started with the construction work of the house of the complainant due to non availability of funds from the complainant , he was constrained to stop the work and both himself and the complainant’s father arrived at settlement on 26/3/2017 where by the complainant’s father agreed to finish the work with the aid of an outsider and arrived at an agreement dtd.11/10/2017 as to what to do with the future work of the house. As per agreement dtd.11/10/2017 both the OP and the complainant’s father agreed to appoint their respective engineers to measure the house and find out the expense to be met for completion work of the house in future and if there is any expenditure to be met by either side it should be settled within 6 months of agreement or will be subjected to legal action. OP submits that since the complainant was working abroad, he did not make any follow up regarding the same or entrusted anybody to do anything as stated in the agreement dtd.11/10/17 or his father took any initiative to comply with as per the agreement. No steps were ever taken by either sides to measure the house till date. OP further states that a complaint was filed by the complainant before Chakkarakkal police stating that he has to get a sum of Rs.3,00,000/- from OP. An agreement was straight away written from the police station dtd.23/5/2018 where in the OP was compelled to put the signature on all the three pages form the Chakkarakkal police station and his wife was compelled to put her signature as a witness. The OP submits that the complainant is not entitled to any of the relief as sought for and prayed for the dismissal of complaint.
The evidence adduced consisted of the proof affidavit of complainant and Exts.
A1 to A3.
After that both learned counsels of parties filed their respective written argument notes.
The submission of the learned counsel for the complainant is that though the OP entered into an agreement with complainant to complete the construction of his residential building within 11 months, even after receipt of Rs.2086350/- from the complainant, OP has not completed the construction after the expiry of 11 months. Carpentry work, grill work, stair case work and plastering work were remaining. Further though OP agreed to purchase wood, he did not purchase the same. The entire wood was purchased by the complainant’s father who was supervising the construction on behalf of the complainant since he was in gulf country. Further stated that when the complainant demanded the OP to return the excess amount, on 11/10/2017, 2nd agreement was executed by which OP permitted the complainant to return the excess amount received of OP as assessed by two engineers engaged by both the parties. Thus an amount of Rs.3,50,000/- was assessed. But the OP did not return the said amount. Further stated that, on 23/5/2018 another agreement was executed between them by which OP agreed to return Rs.1,50,000/- on 2/7/2018 and Rs.2,00,000/- on 20/11/2018 but OP has not complied that agreement also. Then the complainant’s father has completed the work with the aid of another contractor. Complainant alleged that the act of OP in not completing the work even after getting excess amount from him amounts to deficiency of service.
The 1st contention of OP is that he could not complete the construction work within the stipulated time in agreement date 23/3/2016 because of non-availability of funds from the complainant. The 2nd contention raised by the OP is though 2nd agreement dtd.11/10/2017 was executed between OP and the complainant’s father, to appoint their respective engineers to measure the house and find out the expense to be met for completion work in future, the complainant’s father did not make any follow up regarding the same. Further contended that during the pendency of this complaint , complainant did not try to appoint an expert to assess the amount needed for the balance work. Another contention is that Ext.A3 dtd.23/5/2018 was executed as per intervention of Chakkarakkal Police on the basis of a complaint of the complainant and the OP and his wife was compelled to put their signature in Ext.A3 agreement under threaten and hence it has no legal value.
With regard to 1st plea of OP , the agreements produced by the complainant are to be verified. On perusal of Et.A1 agreement, it was specifically stated that the entire construction work of the house as agreed in it shall be done by OP at the rate of Rs.1200/- per sq.ft. within 11 months from the date of starting of work. Further total amount shows as Rs.23,30,000/- and agreed to pay Rs.2,00,000/- as advance. Further in Ext.A2 agreement dtd.11/10/2017 executed by both parties, it is seen that OP admitted that from the agreed work, wood work, grill work, stair case work and plastering work could not be done, so Ext.A2 was agreed to be executed. It is also admitted by OP in Ext.A2 that the entire wood required for the carpentry work was purchased by the complainant. Further on the last page of Ext.A1, payment made by complainant to OP is clearly specified, including the advance payment of Rs.2,00,000/-. From the facts stated in Exts.A1&A2 and also the payment details, obviously evident that the 1st contention raised by OP is not correct.
It is evident that after receiving an amount of Rs.20,86,350/- from the complainant as on 18/2/2017, OP did not complete the construction work as agreed. The said act itself is deficiency in service and dereliction of duty on the side of OP.
With regard to next contention of OP about Ext.A3 agreement, it is clearly stated in Ext.A3 agreement in page 2 that രണ്ടാം നംപര്കാരനിൽ നിന്നും ഒന്നാം നംപര്കാരൻ
അധികമായി കൈപറ്റയതും,ഇഞ്ചിനിയറുടെ മേൽനോട്ടത്തിൽ അളന്ന് തിട്ടപ്പെടുത്തിയതിൽ 2017 ഒക്ടോബർ 11ന് ഒരു എഗ്രമെന്ർറ് ഒപ്പ് വെക്കുകയും ഉണ്ടായി. ഒന്നാം നംപര്കാരൻ സഹകരിക്കാത്തത് കാരണം അളന്ന് തിട്ടപ്പെടുത്താൻ പറ്റാത്തതുകൊണ്ട് ചക്കരക്കൽ പോലീസ് സ്റ്റേഷനിൽ ഒരു പരാതി സമർപ്പിച്ചതിന്ർറെ അടിസ്ഥാനത്തിൽ രണ്ടാം നംപര്കാരനെ പോലീസ് സ്റ്റേഷനിൽ വിളിപ്പിക്കുകയും 2018 മെയ് മാസം 23 തീയ്യതി അളന്ന് തിട്ടപ്പെടുത്താന്ർ തീരുമാനിക്കുകയും ചെയ്തു.
Further in Ext.A3 agreement, OP agreed to pay Rs.3,50,000/- to complainant in two instalments. It is an admitted fact that OP has not paid any amount as agreed in Ext.A3 agreement. According to OP, he has put his signature in Ext.A3 by pressure and threatening by the police in Chakkarakkal police, hence it is not binding up on him. Here OP does not have case that he has taken steps to invalidate Ext.A3 agreement or lodged complaint against police who threatened him to sign it. Hence from the facts as stated in Ext.A3 agreement, and as no steps has been taken by OP to nullify Ext.A3, the contention raised by OP with regard to Ext.A3 agreement cannot be believed. Moreover OP has not rendered oral evidence to establish the contentions and also to prove that Ext.A3 was prepared under influence of complainant. Mere contentions in the version will not be considered as evidence without rendering evidence. So from the evidence it is clear that OP will have to repay Rs.3,50,000/- the excess amount received by him from the complainant. OP raised a contention that without expert evidence, to measure the house till date and to assess the amount received and what was the work done by a contractor outside etc. Here appointing an expert to assess the amount to which OP had due work cannot be quantified because before filing this complaint, the construction work was completed by the complainant through another contractor after executing Ext.A2 agreement. Moreover Ext.A3 is sufficient to show that OP had received Rs.3,50,000/- in excess from the complainant. So the non payment of Rs.3,50,000/- by the OP to complainant amounts to deficiency in service on the part of OP. Hence complainant is entitled to get relief. Here complainant failed to establish his averment that he had paid Rs.84,000/- as rent for seven months .
Considering the aforesaid facts and circumstances and also from the available evidence, complaint is allowed in part. OP failed to establish his contentions.
In the result, complaint is allowed in part. Opposite party is directed to pay Rs.3,50,000/-(being the excess amount received ) to complainant. Opposite party is also to pay Rs.25,000/- towards compensation and Rs.10,000/- as cost to the proceedings of this case. Opposite party shall comply the order within one month from the date of receipt of this order, failing which the awarded amount carries interest @9% per annum from the date of order till realization . Complainant is at liberty to execute the order as per provisions in Consumer Protection Act 2019.
Exts:
A1 to A3- Agreement dtd.23/3/2016,11/10/2017,23/5/2018
PW1-Vidya.K.V-P.A.holder of complainant
Sd/ Sd/ Sd/
PRESIDENT MEMBER MEMBER
Ravi Susha Molykutty Mathew Sajeesh K.P
eva
/Forwarded by Order/
ASSISTANT REGISTRAR
