IN THE CONSUMER DISPUTES REDRESSAL FORUM, ALAPPUZHA
Monday, the 31st day of July, 2017.
Filed on 14/03/2017
Present
- Smt. Elizabeth George (President)
- Smt. Jasmine D (Member)
in
C.C.No.74/2017
between
Complainants:- Opposite parties:-
Sri. Vipin Sri. Jayaprasad.P
S/o Mohandas, S/o Prasannan
Parayakkattu Veedu, Karackalchira Veedu
Avalukunnu PO Mararikulam North
Alappuzha. Panchayath, Ward X
Alappuzha.
(By Adv. K.Dharmapalan&
M. Raveendradas) Proprietor,
J.P.Builders & Developers,
S.L.Puram PO, Alappuzha.
O R D E R
SMT. JASMINE D. (MEMBER)
The case of the complainant in short is as follows.
The complainant and the opposite party entered into an agreement on 22/9/16 for the purpose of constructing a residential building in the property owned by the complainant. As per the said agreement the opposite party agreed to construct a double storied residential building having a total area of 1771 sq.ft. at the rate of Rs.1800/- per sq.ft. As per the said agreement the total cost estimated for construction of the house is Rs.31,87,800/- and complainant had paid a total amount of Rs.10,75,000/- in advance on the agreement date itself. But the opposite party left the work without even finished the work up to the little level. There after the opposite party left the work without executing the work as per the agreement. The complainant contacted the opposite party many times and requested to complete the entire work but the opposite party failed to do so. Thereafter the complainant had sent a legal notice to the opposite party on 21-2-2017 stating that if the opposite party would not starts the construction work witnin 15 days after receiving the said notice the complainant is withdrawing from the contact and the same were received by the opposite party on 23/2/17. But the opposite party failed either to complete the work or to give proper reply to the legal notice and hence on 7/3/12 the said agreement remain cancelled. The opposite party has committed deficiency in service. According to the complainant the opposite party has received a total amount of Rs.10,75,000/- from the complainant but the work done by the opposite party is only for Rs.6,75,000/-. The opposite party has collected an extra amount of Rs.4,00,000/- from the complainant. Since the opposite party has not acted in accordance with the agreement the complainant sustained huge financial loss, inconvenience and much mental agony. Hence filed this complainant seeking refund of the extra amount received by the opposite party together with compensation and cost.
2. Notice against the opposite party served but did not appear before the Forum hence opposite party was set expartee.
3 Complainant filed proof affidavit and documents Ext.A1 to A3 were marked. An expert commissioner was appointed by the Forum and report filed by the expert commissioner was marked as Ext.C1.
- Considering the allegation of the complainant and contention of the opposite party this Forum has raised the following issues for consideration.
1) Whether there is any deficiency in service on the part of the opposite party?
2) Whether the complainant is entitled to get any relief as prayed for?
5.Issues 1 and 2
The case of the complainant is that the complainant had entered into an agreement with the opposite party on 22/9/16 for constructing a residential building. As per the said agreement the opposite party agreed to construct a double storied building having a total area of 1771 sq.ft at the rate of Rs.1800/- per sq.ft and the time period is 12 months. As per the said agreement total cost estimated for constructing the house is Rs.31,87,800/- and the complainant had paid a total amount of Rs.10,75,000/- in advance. But the opposite party left from the work without completing the construction work. According to the complainant the opposite party has not even completed the work upto the lintel level. The complainant contacted the opposite party many times and requested to complete the work but the opposite party failed to do so. Thereafter the complainant had sent a legal notice to the opposite party on 21/2/17. But the opposite party has not given any reply to the legal notice nor started the construction work contract terminated. The complainant sustained much financial loss inconvenience and mental agony due to the act of the opposite party. Hence filed this complaint.
Along with the complaint, the complainant also filed an interim application for restraining the opposite party or anybody under him from obstructing the complainant in completing the construction of the building and it was allowed.
Complainant filed proof affidavit and produced 3 documents which were marked as Ext.A1 to A3. Ext.A1 is the original agreement executed between the complainant and opposite party and Ext.A2 series is the copy of legal notice and postal receipt. Ext.A3 is the copy of AD card. In this case an expert commissioner was also appointed he inspected the building and filed report which was marked as Ext.C1. From Ext.A1 it can be seen that the complainant and the opposite party entered into an agreement for constructing the residential building having an areas of 1771 sq.ft at the rate of Rs. 1800/- per sq.ft. From Ext.A1 it can also be seen that the opposite party has received a total amount of Rs.10,75,000/-. According to the complainant the agreement is for constructing the entire double storied building but the opposite party on contrary to the agreement left from the work without completing the work. According to the complainant the opposite party has received an excess amount of Rs.4,00,000/- from him. The complainant sent Ext.A2 to the opposite party stating that the contract will be terminated if he fails to complete the work up to the lintel level within 15 days after receiving the notice Ext.A3 shows that the said legal notice was served to the opposite party. But no reply was given to the said legal notice. In C1 report it is stated that the work done by the opposite party will cost only Rs.6,81,815/-. He also filed a detailed estimate of the work done by the opposite party as per the prevailing market rate of the locality. From Ext.C1 it is evidenced that opposite party has collected an excess amount of Rs.3,93,185/-. Notice was served to the opposite party but he did not appear before the forum. The opposite party was given sufficient opportunity to contest the case. But he did not turn up. The unchallenged averments of the complainant through proof affidavit along with supporting documents proves the case of the complainant. In view of the above discussion we are of the opinion that the failure on the part of opposite party in completing the construction work of the residential building of the complainant as per the Ext.A1 agreement amounts to deficiency in service. The complainant herein sustained much mental agony and inconvenience due to the act of the opposite party. Ext.C1 shows that the opposite party did not complete the work and an excess payment was received for the work done. The contract terminated and the complainant is entitled to get refund of the excess amount received together with compensation and cost. So the complaint is to be allowed.
In the result the complaint is allowed. The opposite party is directed to refund the excess amount collected Rs.3,93,185/-(Rupees Three lakh ninetythree thousand one hundred and eighty five only) to the complainant. The opposite party is further directed to pay an amount of Rs.10,000/-(Rupees Ten thousand only) towards compensation and Rs.3000/- (Rupes Three thousand only) for the cost of the proceedings.
The Order shall be compiled with within one month from the date of receipt of this order failing which the amount of Rs.3,93,185/- shall carry interest at the rate of 9% per annum from the date of order till realization.
Dictated to the Confidential Assistant transcribed by her corrected by me and pronounced in the Open Forum on this the 31st day of July, 2017.
Smt. Jasmine D (Member
Smt. Elizabeth George (President)
Appendix
Evidence of the complainant:
Ext.A1-Agreement
Ext.A2-Copy of legal notice and postal receipt
Ext.A3-Copy of AD card
Ext.C1-Commission Report.
S/
