BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, PONDICHERRY

C.C.No.17/2012

Dated this the 3^rd day of May 2017

(Date of Institution:29.05.2012)

1. V. Vengatachalapathy, son of Govinda Reddiar

2. R. Latha, wife of V. Vengatachalapathy

Both are residing at Plot No.32, First Main Road

Ganapathy Nagar, Oulgaret Commune 

Puducherry.

…      Complainants

Vs

D. Vazhumuni, son of Devarasu

No.67, Periathope, Sellipet,         

Mannadipet Commune,

Puducherry

…      Opposite party

BEFORE:

            THIRU. A. ASOKAN, B.A., B.L.,

            PRESIDENT 

THIRU V.V. STEEPHEN, B.A., LL.B.,

           MEMBER

FOR THE COMPLAINANTS                :  Tvl. G. Krishnan, R. Rajavelu and

                                                                    D. Sundar, Advocates.

FOR THE OPPOSITE PARTY                :  Tvl. V. Govindaradjou and     

1. Loganathan, Advocates.

O R  D  E  R

(By Thiru.V.V. STEEPHEN, Member)

This is a complaint filed by the complainant under section 12 of the Consumer Protection Act, 1986 praying direct the opposite party to:

1. Pay a sum of Rs.3,50,000/- to the complainants for the monetary loss in the incomplete work;
2. Pay a sum of Rs.50,000/- as compensation for mental sufferings of the complainants;
3. Pay a sum of Rs.5,000/- towards cost of this complaint.

          2.  The case of the complainant is as follows:

The complainants have purchased the House Plot No.32, First Main Road, Ganapathy Nagar, Oulgaret Commune, Puducherry under the registered Sale Deed, dated 27.01.2005.  The Complainants approached the opposite party through their relative one Mr. Mohan Sundar of Kutchipalayam for the construction a house at the above address.  Accordingly both parties have entered in to a Written Construction Agreement dated 25.06.2009 for  construction of total plinth area of 1513 sq,ft at the rate of Rs.1,000/- per sq. ft.  aggregating the total amount of
Rs. 15,13,000-00 and the same has to be paid in nine installments.  As such the agreement for construction was signed by the both parties on 28.06.2009 and on the same date the opposite party has received an advance payment of Rs. 1,50,000/- from the Complainants.  The opposite party has received the above said advance payment of Rs.1,50,000-00 six months before the commencement of the construction work and subsequent payments have been made by the complainants as per stipulated schedule under the agreement for construction dated 25.06.2009.  The construction work has been commenced by the opposite party only on 25.01.2010 and he had  started the construction work very slowly from 25.01.2010 to 09.09.2010 which took place nearly nine months instead of four months as contemplated in the agreement and the opposite party has received a total consideration of Rs. 14,95,000-00 from the complainants which was endorsed by the opposite party in the backside of the agreement dated 25.06.2009.  Apart from these amounts the opposite party had also been received a sum of Rs.20,000/- from the second complainant’s father Mr. V. Ramdass and in all Rs.15,15,000-00 have been received by the  opposite party for that construction from the complainants.  During the above construction the opposite party was engaging lot of construction work in various places due to which he could not properly concentrate the complainant’s house and the opposite party took very long time for constructing the building and the  opposite party stopped the construction work in an incomplete manner in September 2010 and given assurance to the complainants to celebrate house warming ceremony in the month of September 2010 after that he will complete the all balance of incomplete works within 15 days from the first week of October 2010 and his words have been believed and entrusted by the complainants and celebrated the house warming ceremony on 12.09.2010.  The complainants repeatedly requested the opposite party to complete the remaining construction as his assurance and he has deliberately postponed the construction work and never turned up.  The complainants have decided to inspect the building by one
P. Sathiyamoorthy, Registered Civil Engineer on 10.10.2010 and he had inspected the building and it was found that the construction area was constructed by the opposite party is only 1161 sq.ft instead on 1513 sq.ft as contemplated in the construction agreement dated 25.06.2009.   Due to the attitude of the opposite party, the complainants suffered mental loss.  Further, the complainants  have immediately informed the same to the opposite party in person and in phone call but the opposite party has not responded it and so far the opposite party has not given completion certificate to the complainants.  The complainants have no other option to complete the balance of the incomplete work by engaging another contractor by name  P. Sathiyamoorthy and he has estimated the incomplete area as Rs. 3,50,000-00 under the certificate dated 18.10.2010 and the complainants have agreed with Mr. P. Sathiyamoorthy , Civil Engineer to complete the balance work and paid the said amount Rs.3,50,000-00 to him and the balance of incomplete work has been constructed by the complainants through the above said Engineer under the certificate dated 18.10.2010 which was also informed to the opposite party through the mediators and he has also agreed to refund the said amount of Rs.3,50,000-00.  The complainants have made repeated demand in several occasions to the opposite party regarding for refunding the said amount of Rs.3,50,000/- but there was no response from the opposite party and hence, the complainants have lodged a police complaint before the Reddiarpalayam Police State, Puducherry on 20.01.2012 the police called him and enquired about the said police complaint but the opposite party did not co-operate the police enquiry and the police registered G.D entry.  After the said police complaint the opposite party issued a false and frivolous notice in order to escape from paying the said amount of Rs.3,50,000/- to the complainants.  The contentions of the opposite party’s notice dated 01.02.2012 is false , untenable and invented one.  Hence, this complaint

3. The reply version filed by the opposite party briefly discloses the following:

          The complaint is not maintainable either in law or on facts.  The opposite party denied the allegations contained in para III (1 to 6) of the complainant.  The opposite party admitted that he has entered into an agreement with the complainants on 25.06.2009 towards the construction of a single storied residential building.  As per the agreement, the complainants have to pay a sum of Rs.3.00 lakhs as first instalment, but they have paid only Rs.1,50,000/- on 28.06.2009 and failed to pay the balance amount as agreed.  Since the complainants have not complied with the terms of the agreement towards payment, the opposite party could not complete the work as per schedule.  The delay in commencement of work is due to delay in payment.  Further, the complainants often changed their mind and insisted this opposite party to demolish the constructed portion and put up new constructions by altering the plan.  Further stated that both the complainants inspected the property daily during the construction work and they also insisted upon this opposite party to do extra works which were not contemplated in the agreement.  In view of the persisting pressure exercisted upon this opposite party in the complainants, this opposite party was not in a position to complete the construction as per the agreement.  This opposite party denied the allegations that he has constructed the building only to the extent of 1161 sq. ft. instead of 1513 sq. ft.  The complainants have wantonly and deliberately failed to mention the construction of portico, water tank, stair case and stair case head room.  The above face was suppressed by the complainants.  The opposite party further stated that several mediations have taken place between him and the second complainant and as a result of this, a joint undertaking was entered into between the complainants and this opposite party on 19.09.2010 and as per the terms of the said undertakings, the opposite party was required to complete the front gate, stair case, toilets, stair case handle, rear side door with gate, flooring in the terraced, electric point switch, EWC in bathroom, painting, main door polish, concrete slabs in pooja room, water tank, slab for ramp in the front, steps in the rear side, window lock and wash basin.  In the aforesaid works, the painting has to be undertaken by the complainants themselves.  That after deducting a sum of Rs.7,000/- the complainants have to pay a sum of Rs.1,11,200/- and the extra works have tobe done by the complainants themselves.  The complainants have also failed to comply with the terms of the memorandum and have also failed to pay a sum of Rs.1,11,200/- as agreed by them.  The complainants have lodged a complaint before Reddiarpalayam Police Station, the opposite party appeared in person and explained the situation and then the police officials have dropped the proceedings.  While so, the complainant issued a legal notice dated 01.02.2012 requiring the complainant to pay the amount due to this opposite party.  The said notice was duly replied by the opposite party.  There was absolutely no negligence or any deficiency of service on the part of the opposite party.  Hence, prayed for dismissal of the complaint with exemplary costs. 

 4, The complaint was filed by the complainants Venkatachalapathy and Latha and on the  side of the complainants Thiru. Venkatachalapathy was examined as CW1 and Exs.C1 to C8 and Ex.R1 were marked through CW1 and witnesses Thiru C. Ramadoss and Thiru P. Sathiamoorthy were examined as CW2 and CW3.  On the side of Opposite party, one D. Vazhumuni, the opposite party himself was examined as RW1 and Exs.R1 and R2 were marked. 

5. POINTS FOR DETERMINATION:

1. Whether the complainant is a Consumer
2. Whether the OP has attributed any act of deficiency of service towards the complainant.
3. Whether the complainant is entitled for any relief?

6. POINT No.1:

          The first complainant alone entered into an agreement with Opposite Party for the construction of a house in a plot (Ex.C1) purchased by the complainants and as per the terms of the agreement (Ex.C2) executed between the first complaiant and the OP, it was agreed by OP to construct a house for a total plinth area of 1513 sq. ft. at the cost of Rs.1000/- per square feet aggregating to a sum of Rs.15,13,000/-.  On perusal of the endorsement made by the OP in the last page of Ex.C2, it is observed that an amount of Rs.14,95,000/- was received by OP towards the construction work and these facts were not denied by the OP and hence on the light of these facts, the first complainant alone is considered to be a consumer as against the OP.  This point is answered accordingly. 

7. POINT No.2:

          The first complainant (CW1) entered into an agreement Ex.C2 with OP (RW1) for a construction of a house in the plot Ex.C1 purchased by the CW1 and as per the terms of the agreement dated 25.06.2009 it was agreed by OP to construct a house covering a plinth area of 1513 sq.ft. on receiving a payment of Rs.15,13,000/-.  It is submitted by the complainant that a sum of Rs.14,95,000/- was received by OP and left the construction of the house incomplete and never turned up.  Thereafter, the complainant engaged a Civil Engineer CW3 to complete the construction of house left incomplete by RW1 on an estimation of Rs.3,50,000/-(ExC4)  arrived by CW3.  Hence, this complaint is filed as against opposite party claiming compensation and for other reliefs.

          8. The OP denied all the allegations leveled against him and contended that the complainant delayed in the payment of the instalment and due to persisting insistence for deviation in the construction agreement and for putting up a new construction which were not stipulated in the terms and conditions (Ex.C2) the construction could not be completed as per the terms of the agreement.  It was further contended by the OP that thereafter, a joint undertaking was entered into between the CW1 and the OP RW1 that the complainant has to pay a sum of Rs.1,11,200/- to the OP and that RW1 has to complete the work specified in the joint undertaking Ex.R3.  But, since the complainant has not complied with the terms of agreement Ex.R3, the OP could not complete the work as agreed upon in Ex.R3 and hence, there is no deficiency of service and pleads for dismissal of this complaint.

          9. The records and evidence adduced by both the complainant side and OP side were carefully examined and perused by the Forum and observes as follows:

          10. The complainant has entered into an agreement on 28.06.2009 (Ex.C2) with the OP for a construction of a house and fixed a sum of Rs.15,13,000/- for the execution of the agreement.  As per the terms of the agreement, it was agreed that RW1 has to complete the construction of house within four months from the date of receipt of the payment of first instalment from the complainant.  On perusal of Ex.C2, it was observed that as on 05.09.2010 a payment of Rs.14,95,000/- was received by the OP and this fact is not denied by the OP.  But, on the perusal of mode of payment, it was observed that the CW1 has to pay a sum of Rs.3,00 lakhs towards the first instalment, then thereafter, on receipt of the first instalment, the OP has to construct the house within four months, but the payment endorsement made on the last page of Ex.C2, reveals that an amount of Rs.1,50,000/- only was paid on 28.06.2009, thereafter there was a delay of 8 months for the full payment of first instalment to the OP as per the terms and agreement.  On further perusal of the entries of payment in Ex.C2, it is observed that the payment was not made in accordance with the terms of agreement and hence, having lapses on the part of the complainant, the contention of the complainant that there was delay in the construction of house by OP cannot be taken into consideration. 

          11. The complainant further contended that the construction work was not completed by the OP and it was admitted by OP but submitted that since the complainant has pressurized the OP insisting for deviation in the construction agreement, not stipulated in the agreement and further due to non-payment by the complainant the OP could not complete the work.  On the perusal of the endorsement of the entries made in the last page of agreement Ex.C2 it is observed that an amount of Rs.14,95,000/- was received by OP to that of Rs.15,13,000/- as per the amount fixed in the terms of the agreement and the payment received also not disputed by the OP and the contention of the complainant that the construction work of the house was left incomplete was also admitted by the OP and further the OP listed out the incomplete work during cross-examination as "Last coat painting work, ramp, rear stair case, cement flooring of terrace, fixing stair case tiles and putting stair case hand rails were not completed as on September 2010".   Further on the perusal of the joint undertaking dated 19.09.2010 Ex.R1 executed between RW1 and CW1, it is observed that the OP has admitted the list of pending works to be completed in the construction work agreement Ex.C2 and the other part of the Ex.R2 reveals that the complainant must pay a sum of Rs.1,11,200/- to the OP / RW1.  It is further observed that the list of pending works in the construction work admitted by the OP finds place in the estimation certificate Ex.C4 issued by the Certified Engineer (CW3) who had been engaged by the complainant to complete the construction work.  Further, the OP has not denied the items of work specified by the Engineer CW3 in his estimation report Ex.C4.    It is contended by the OP that the estimation of Rs.3,50,000/- given by the CW3 for the completion of incomplete work of the construction of house is not fair.  It is observed by the Forum that the rate fixation for the nature of work differs from person to person and moreover, the rate prescribed is based on the incomplete work left out by the OP and it is not practically possible to fix the rate on sq. ft basis as it is followed in taking up new projects, hence, the contention of the OP that the estimation given by CW3 for completion of work is not fair cannot be taken into consideration.  Further, with regard to the payment of Rs.1,11,200/- ought to have been paid by the complainant as per Ex.R1, the OP is at liberty to approach the appropriate Forum for the recovery of the same.

          12. In the light of the above facts, it is held clear that despite Opposite Party (RW1) receiving an amount of Rs.14,95,000/- towards the total amount of Rs.15,13,000/- as per the terms of agreement, leaving the construction of the building incomplete and having been admitted by OP (RW1), the factum of incomplete construction as pleaded by the complainant, the acts of the OP definitely constitutes deficiency of service as against the complainant causing mental agony to the complainant.  This point is answered accordingly.

          13. POINT No.3:

          In result, this complaint is allowed.  The OP is directed to

1.  Pay a sum of Rs.3,50,000/- for the monetary loss incurred by the complainant. 
2. Pay a  sum of Rs. 25,000/- compensation for the mental agony suffered by the complainant due to the deficiency of service.
3. Pay a sum of Rs.5000/- towards cost of this proceedings.

  Dated this the 3^rd day of May 2017.

1. ASOKAN)

PRESIDENT

(V.V. STEEPHEN)

   MEMBER

COMPLAINANTS' WITNESS:

CW1           09.06.2014           V. Vengatachalapathy

CW2           14.01.2015           C. Ramadoss

CW3           30.12.2014           P. Sathiamoorthy

OPPOSITE PARTY'S WITNESS:   

RW1           24.06.2015           Vazhumuni.

COMPLAINANTS' EXHIBITS:

OPPOSITE PARTYS' EXHIBITS:  

LIST OF MATERIAL OBJECTS:  NIL

1. ASOKAN)

PRESIDENT

(V.V. STEEPHEN)

   MEMBER