KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

VAZHUTHACAUD, THIRUVANANTHAPURAM

APPEAL No. 502/2018

JUDGMENT DATED: 30.11.2022

(Against the Order in C.C. 15/2016 of CDRF, Kollam)

PRESENT:

SRI.T.S.P. MOOSATH                                                       : JUDICIAL MEMBER

SRI.RANJIT. R                                                                   : MEMBER

SRI. RADHAKRISHNAN K.R.                                        : MEMBER

APPELLANT:

P.L. Babu, Dawn, Pattathanam P.O., Kollam.

(By Adv. G. Devarajan)

                                                Vs.

RESPONDENT:

Bhasi, PWD Contractor, Register No. 179 B, Nandanam, Near Railway Gate, Eravipuram, Kollam.

                              (Party in person)

JUDGMENT

SRI.T.S.P. MOOSATH: JUDICIAL MEMBER

The complainant in C.C. No. 15/2016 of the Consumer Disputes Redressal Forum, Kollam (District Forum for short) has filed the appeal against the order passed by the District Forum by which the complaint was dismissed. 

2.  The averments contained in the complaint are in brief as follows: The complainant who is the owner of 20 cents of property in Survey Number 554/3 of Thevalakkara Village is a retired bank employee. For the purpose of constructing new building in the said property, the complainant contacted the opposite party who is a PWD contractor with building plan and requested him to construct a new building in accordance with the plan.  The opposite party agreed for the same for an approximate amount of Rs.43,00,000/-.  The complainant who had a long acquaintance with the opposite party by believing the words of the opposite party regarding cost of construction executed an agreement with him on 20.08.2014.  In the said agreement the opposite party agreed to construct a new building for an approximate amount of Rs.43,00,000/-with in a period of 1 year from the date of agreement and also agreed to handover the key of the building on completion.  The opposite party has also agreed to construct the building in 14 stages and the complainant agreed to pay the amount required for the construction of each stage in advance.  In case there is any excess in the plinth area of the building while taking measurement after completion the complainant agreed to pay excess amount according to the agreed rate and if the plinth area is less than as stipulated in the plan the opposite party agreed to reduce the amount proportionately.  It is also stipulated in the agreement that the wood required for the construction of the building has to be supplied by the complainant.  Accordingly, the opposite party started construction of the building but he failed to complete the construction work within the stipulated period.  The main reason for the failure is that the opposite party has been engaged in constructing three other buildings on contract basis during the construction of the complainant’s building.  Opposite party used to conduct the construction work of complainant’s building for one week, then after stopping the same, he would take the workers of the building to another building site and engage them there.  Hence opposite party took more than two months for the construction of first stage of the building.  Complainant when reminded the opposite party about the delay caused in the construction of complainant’s building, opposite party then told the complainant that he had to complete the construction of other two buildings urgently, otherwise, he would incur huge loss.  Thus complainant in spite of that delay paid to the opposite party each stage’s amount regularly in advance through cheques.  As per the contract agreement, opposite party ought to have completed the construction of the building before 20.8.15 but opposite party by that time could not complete the 10^th stage of the building.  Complainant then complained to the opposite party about the delay caused in the construction.  Opposite party then assured that he would complete the construction of building before 03.10.15.  In spite of that assurance opposite party could not complete the 11^th stage of the building on 05.10.15.  Misusing long acquaintance with the complainant, opposite party cunningly collected two lakhs rupees for starting the 12^th stage of the building on 05.10.15.  But he did not continue the 12^th stage work.  After receiving the amount of two lakhs on 05.10.15 opposite party without continuing the 12^th stage work, left the building site and failed to turn up later.  Complainant then tried to contact the opposite party through respected persons but opposite party conveniently avoided the complainant.  Opposite party left the site after conducting 75% of building construction and failed to conduct remaining 25% of building construction.  Hence complainant caused to send an advocate notice on the opposite party on 22.12.15 calling upon him to complete the construction of building within one month.  Opposite party did not comply the demand stated in the notice, instead he sent a reply notice to the complainant stating false and baseless allegations and claims.  Hence the complaint.

3.  The opposite party filed version raising the following contentions.  The delay caused in completing the construction work of the building was due to failure of the complainant in paying the amount in each stage of the construction in time.  He constructed the building exceeding the plinth area mentioned in the building plan.  He has almost completed the construction work and the remaining part is only nominal.  He is entitled to get more than six lakhs rupees for the additional work of 126 sq.ft done in the construction of the building in advance.   He was forced to stop the construction work due to the failure of the complainant in paying the amount for the additional construction work carried out by him. He constructed the building as per the terms of the agreement.  He completed the 12^th stage of the work as per the agreement during the span of 12 months.  He is entitled to get Rs.2,92,000/- towards the additional work carried out by him and also he is bound to construct the   13^th and 14^th phases of the building only on getting the amount due to him.  When he demanded the above amount, the complainant refused to pay the same and also stated that he would not pay any more amount other than Rs.43,00,000/- stated in Ext.P1 agreement and not prepared to give any amount towards additional construction.  The complainant intended to avoid the opposite party by filing the case without paying the amount due to him.  According to the opposite party the delay occurred in the building construction was not due to his fault and if the complainant is ready to issue cheque for Rs.6,00,000/- he is ready to complete the balance work within one month.  He has also attached a statement showing the balance amount of Rs.6,17,500/- due to him from the complainant and also a sketch showing measurements and calculations of plinth area of the building constructed for the complainant.

4.  The complainant was examined as PW1 and Exts. P1 to P4 were marked on his side.  The report, plan and photographs produced by the expert commissioner were marked as Ext. C1 series and the Expert Commissioner was examined as PW2.  The opposite party was examined as DW1.  But no document was marked on his side.

5.  Considering the evidence adduced by the parties and hearing both sides the District Forum has passed the order by which the complaint was dismissed. 

6.  Aggrieved by the order passed by the District Forum, the complainant has preferred the appeal.

7.  Heard the counsel for the appellant and the respondent who appeared in person and perused the records.

8.  The parties are referred according to their rank/status in the complaint. 

9.  There is no dispute to the fact that on 20.08.2014 the complainant and the opposite party entered into Ext. P1 agreement regarding the construction of a house building by the opposite party in the property of the complainant in accordance with the plan for an approximate amount of Rs. 43,00,000/-.  As per Ext. P1, the construction of the building has to be completed within one year, on or before 20.08.2015.  The opposite party agreed to construct the building in 14 stages and the complainant agreed to pay the amount required for the construction of each stage, in advance.  It was also agreed that if there is any excess in the plinth area of the building while taking measurement after completion, the complainant agreed to pay the excess amount according to the agreed rate and if the plinth area is less the opposite party agreed to reduce the amount proportionately.  The allegation of the complainant is that the opposite party failed to complete the construction of the building within the stipulated period and stopped the construction, after accepting Rs. 2,00,000/- towards the construction of the 12^th stage.  But the opposite party partially completed the 11^th stage of construction and thereafter he failed to complete the construction and he left the place/site.  According to the complainant the opposite party has completed only 75% of the construction which is worth Rs. 32,25,000/-.  By way of different occasions the opposite party obtained Rs. 40,00,000/- from the complainant.  So according to the complainant opposite party obtained Rs. 7,75,000/- in excess from him.  Alleging deficiency in service on the part of the opposite party, the complainant had filed the complaint.  The prayer of the complainant is to direct the opposite party to complete the construction of the building within a month after accepting Rs. 3,00,000/- from him, the balance amount of Rs. 43,00,000/- as stated in Ext. P1.  In case he fails to do so the opposite party is to be directed to give back the amount of Rs. 7,75,000/- obtained from the complainant in excess and pay Rs. 5,00,000/- as compensation to him.  It is contended by the opposite party that he had completed the construction of the 12^th stage of the building.  It is stated by him that he has to make several changes in the construction work as suggested by the complainant and he has also carried out additional work of 126 sq. ft. and he is entitled to get Rs. 2,93,800/- towards the additional work carried out by him.  When he demanded the amount complainant refused to pay the amount and he stated that he will not pay any amount other than Rs. 43,00,000/- mentioned in Ext. P1 and he will not pay any amount towards the additional construction.  It is stated by the opposite party that he had completed almost all the works and he had purchased and stored materials for the remaining work.  The construction equipments were also kept in the site.  The complainant intended to avoid him by filing the complaint making false allegation against him.  According to the opposite party the delay occurred not because of his fault and if the complainant is ready to pay Rs. 6,00,000/- he is ready to complete the balance work within one month.  According to the opposite party he is entitled to get Rs. 7,91,086/- from the complainant including the cost of additional work and the value of materials purchased and stored at the work site and value of implements belonging to him and kept at the work site.  According to the opposite party complainant did not allow him to carry out the works and the article purchased and kept by him in the work site were appropriated by the complainant.

10.  The District Forum after considering the evidence found that there is no deficiency in service or unfair trade practice on the part of the opposite party.  It is also found that the complainant is not entitled to get any amount from the opposite party and instead of that, the opposite party is entitled to get some amount from the complainant.  But since there is no provision for Counter Claim in the Consumer Protection Act, the opposite party has to file civil suit for realisation of the amount if he so desires. 

11.  In Ext. P3/C1 series it is stated by the technical expert that the opposite party has carried out only 75% of the construction work.  However, in Ext. C1 report it is stated by the Expert Commissioner that the construction of structural work has been completed.  In Ext. C1 report, the Expert Commissioner has specifically stated that the building has been constructed in a satisfactory manner, but by deviating from the approved plan and the construction is not in accordance with the agreement. However, even according to the Expert Commissioner the opposite party has carried out the construction work to the tune of Rs. 36,50,000/-.  The total amount as per Ext. P1 agreement for the construction of the entire building is Rs. 43,00,000/-, @ Rs. 1800/- per sq. ft, apart from supplying wooden article required for the construction of the building.  As rightly found by the District Forum as per the arithmetic calculation (elaborately mentioned in paragraph 15 of the order of the District Forum) the assessment of the Expert Commissioner that the opposite party had constructed only 75% appears to be incorrect and baseless.  Even if the calculation is accepted, the work carried out by the opposite party would be 84.88%, for which the opposite party is entitled to get Rs. 36,49,840/- from the complainant as per the terms of Ext. P1 agreement.  According to the Expert Commissioner the total plinth area of the two storied building constructed by the opposite party is 2367 sq. ft.  In addition to that the opposite party had constructed the car porch having an extent of 147.5 sq.ft. Therefore the total plinth area constructed is 2514.5 sq. ft. (2367 sq.ft. + 147.5 sq.ft.).  The District Forum pointed out the admission of PW1 during cross examination by the opposite party that as per the approved plan the total plinth area is 224.65 sq. m., but when the building is finished the total plinth area is 2514.5 sq. ft.  The rate per sq.ft. is Rs. 1,800/-.  It is clear from the admission of PW1 that after finishing the construction, the plinth area was in excess of agreed plinth area.  The complainant has agreed to pay charges for the excess area @ Rs. 1,800/- per sq.ft. and it is stated in Ext. P1 also.  So if the entire construction work as per the terms of Ext. P1 agreement is carried out the opposite party is entitled to get Rs. 45,26,100/- (2514.5 sq.ft. x 1800).  Admittedly the opposite party had received Rs. 40,00,000/- only from the complainant.  So, as rightly found by the District Forum if the remaining works are also to be carried out the complainant is liable to pay amounts to the opposite party.

12.  The District Forum considering the admission of PW1 in cross examination by the opposite party and Ext. C1 came to the conclusion that the delay for non-completion of the disputed building within the agreed period is not due to the lapse or laches on the part of the opposite party, but due to several factors contributed by the complainant himself.  In paragraphs 8 to 13 of the order of the District Forum the factors contributed by the complainant himself for the delay in completion of the construction of the building are discussed in detail, such as non-payment of the second instalment in time, the changes brought out in the construction work and excess construction, the non-supply of seasoned wood and the construction of the compound wall etc.  Considering all these facts, the District Forum found that no laches or deficiency in service can be attributed to the opposite party for the delay in completing the construction works, especially when the quality of the work done by the opposite party even according to the expert commissioner is satisfactory, except the levelling of the floor which can be easily corrected while laying tiles on the floor.  We consider that there is no reason/ground to interfere with the said finding of the District Forum. 

13.  According to the Expert Commissioner, the opposite party had made construction to the tune of Rs. 36,50,000/-.  In Ext. C1 report it is reported by the Expert Commissioner that for carrying out the remaining works in the building, Rs. 8,00,000/- is necessary.  He had listed 9 items of works to be completed in the building and the amounts required for those construction.  The District Forum in paragraphs 22 to 30 of the Order elaborately discussed about each of the 9 items mentioned by the Expert Commissioner to be carried out in the building and the actual amounts required for each construction.  We are not repeating the same.  But it can be seen that the District Forum arrived at the amounts for carrying out each work, after considering various aspects.  The District Forum found that only Rs. 4,32,500/- is necessary for carrying out those works.  It can be seen that the said amount arrived by the District Forum for the works to be carried out is just and reasonable.  The total amount which the opposite party is entitled to get for completing the building construction of 2514.5 sq.ft. is Rs. 45,26,100/-.  The amount required for carrying out the remaining work is only Rs. 4,32,500/-.  So as rightly found by the District Forum it can be seen that the remaining works to be carried out in the building is 9.56% which can rounded to 10%.  So the report of the Expert Commissioner that 25% of the remaining works are to be completed in the building construction is not correct.  The opposite party is entitled to get 90% of the total construction cost which will be Rs. 40,73,850/-.  Admittedly the complainant paid Rs. 40,00,000/- only to the opposite party.  Considering all these facts the District Forum found that the complainant is not entitled to get any amount from the opposite party as claimed in the complaint.  We consider that there is no reason/ground to interfere with the said finding. 

The District Forum found that there is no merit in the complaint and dismissed the complaint.  There is no reason/ground to interfere with the Order passed by the District Forum.  So the appeal is liable to be dismissed.

In the result, the appeal is dismissed.  Parties are directed to suffer their respective costs.   

T.S.P. MOOSATH   : JUDICIAL MEMBER

RANJIT. R                : MEMBER

                                                                        RADHAKRISHNAN K.R.  : MEMBER

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