Date of Filing:18.02.2021

Date of Disposal:23.03.2023

BEFORE THE IV ADDL DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION BENGALURU

1^ST FLOOR, BMTC, B-BLOCK, TTMC BUILDING, K.H ROAD, SHANTHINAGAR, BENGALURU – 560 027.

ORDER

SMT.NANDINI.H.KUMBHAR,

MEMBER

1. The complainant has  filed by the complaint under section 35 of C.P.Act, 2019 against the Opposite Party(herein after called as “OP”) alleging deficiency in service.

2.   Brief facts of the complaint is as follows: 

The complainant submits that there is an agreement between complainant and OP on 25.05.2019 for construction work of residential house for consideration of Rs.50,00,000/- paid by the complainant to OP at the rate of Rs.2,000/- per sq.ft. for construction of 1^st & 2^nd floors. Out of which the OP has received amount of Rs.21,00,000/- from the complainant at the time of entering into agreement and by the time of casting of 1^st floor roof against the amount which was to be paid by the complainant as agreed  amounting to Rs.17,50,000/- only. As against which, the OP has failed to carry out further construction as agreed. In view of the failure on the part of OP for further construction works the complainant got issued demand notice through the counsel on 09.03.2020 inter-alia stating that, the complainant was made to pay an amount of Rs.1,58,000/- towards excavation charges by stating that the same was not within the purview of the agreement. Thereafter, on 18.01.2020 a bill was set by OP demanding Rs.16,15,000/- towards material and labour contrary to the terms of agreement. Wherein, as per clause-10 at page No.4 the complainant had to pay 2^nd trench as Rs.7,50,000/- and OP had not yet put slab of 2^nd floor and complainant had not required to make any payment.

3. The complainant further submitted that the OP after receiving legal notice of the complainant tendered apology for stoppage of works and assured and did commenced the work activities and requested to pay additional of Rs.5,00,000/- and thus received from the complainant and agreed to complete the construction will be carried out in terms of agreement, but the OP has not at all carried out the construction activities. On 10.08.2020 the complainant sent e-mail to OP by expressing displeasure that the OP has deviated from the terms and conditions of the contract and area of construction is entirely different from the plans provided earlier and on 08.08.2020 wherein the OP informed that he will not be constructing 4^th bedroom as per agreement and till date he has construction 2160 sq.ft. and value of Rs.28,03,000/- including GST. Hence, the complainant should pay the difference amount of Rs.2,03,000/- i.e. Rs.28,03,000/- less Rs.26,00,000/- paid by the complainant till the date which is against terms of contract. The OP had sent a bill of Rs.16,15,000/- on 18.01.2020 initially when the OP had to pay Rs.7,50,000/- lakhs only. If the said amount was not paid, OP have to stop the work, but after receiving  amount of Rs.26,00,000/- OP has not completed construction work. The complainant issued another legal notice to OP on 22.01.2021, but the OP has not turned up and also complainant has got issued demand notice for specific performance of contract. Aggrieved by the act of the OP, the complainant filed this complaint seeking refund the excess amount received by the OP along with other reliefs as prayed in the complaint.

4. Notice to the OP duly served, and represented by counsel and filed written version in support of their contention.

5. The complainant has filed chief-examination affidavit by reiterating the complaint allegations and also filed documents in support of his plea. 

6. Heard arguments and matter is posted for orders.

7. The points that arise for our consideration are;

1. Whether the Complainant prove that there in deficiency of service on the part of the OP as alleged in the complaint and thereby prove that he is entitle for the relief sought?

2. What order?

8. The findings on the above points are as under:

Point No.1               :       Negative

Point No.2               :       As per final order

REASONS

9. POINT NO.1:- That there is an agreement between complainant and OP on 25.05.2019 for construction work of residential house for consideration of Rs.50,00,000/- paid by the complainant to OP at the rate of Rs.2,000/- per sq.ft. for construction of 1^st & 2^nd floors. Out of which the OP has received amount of Rs.21,00,000/- from the complainant at the time of entering into agreement and by the time of casting of 1^st floor roof against the amount which was to be paid by the complainant as agreed  amounting to Rs.17,50,000/- only. As against which, the OP has failed to carry out further construction as agreed. In view of the failure on the part of OP for further construction works the complainant got issued demand notice through the counsel on 09.03.2020 inter-alia stating that, the complainant was made to pay an amount of Rs.1,58,000/- towards excavation charges by stating that the same was not within the purview of the agreement. Thereafter, on 18.01.2020 a bill was set by OP demanding Rs.16,15,000/- towards material and labour contrary to the terms of agreement. Wherein, as per clause-10 at page No.4 the complainant had to pay 2^nd trench as Rs.7,50,000/- and OP had not put slab of 2^nd floor and complainant had not required to  make any payment.

10. The complainant further submitted that the OP after receiving legal notice of the complainant tendered apology and assured to  commence the work activities and requested to pay additional of Rs.5,00,000/-  and same was received from the complainant, but the OP failed to carried out the construction activities. On 10.08.2020 the complainant sent e-mail to OP by expressing displeasure that the OP has deviated from the terms and conditions of the contract and area of construction is entirely different from the plans provided earlier and failure on the part of the OP and informed that he will not be constructing 4^th bedroom as per agreement and till date he has construction 2160 sq.ft. and value of Rs.28,03,000/- including GST. Hence, the complainant should pay the difference amount of Rs.2,03,000/- i.e. Rs.28,03,000/- less Rs.26,00,000/- paid by the complainant till the date which is against terms of contract. The OP had sent a bill of Rs.16,15,000/- on 18.01.2020 initially when the OP had to pay Rs.7,50,000/- lakhs only. If the said amount was not paid, OP have to stop the work, but after receiving  amount of Rs.26,00,000/- OP has not completed construction work. The complainant issued another legal notice to OP on 22.01.2021, but the OP has not turned up. Aggrieved by the act of the OP, the complainant filed this complaint seeking refund the excess amount received by the OP along with other reliefs as prayed in the complaint.

11. The OP represented by  counsel and filed written version. The OP has denied the complaint allegations and any deficiency on their part. The OP has contended that till date 50%  of frames structure to the tune of Rs.25,32,225/-. Further GST and other charges are liable  to pay by the complainant to the tune of Rs.6,91,801/- wherein total  amount comes to Rs.32,24,026/-. In the said amount the complainant has paid Rs.26,00,000/- only. Therefore, complainant is liable to pay Rs.6,24,026/- to OP as on today. Inspite of repeated approach to the complainant, but the complainant neglected to pay. On the contrary the complainant approached Vidyaranyapura Police station and also Mahila Sahayavani. The OP submits  that the complainant without complying the construction agreement through the OP is ready and willing to perform his part of contract, but the complainant is doing all unnecessary things along with her husband and father. Hence, OP has sent legal notice on 16.01.2021 for recovery of Rs.6,24,026/-, after receiving the legal notice, there is no reply was given and OP has decided to initiate recovery proceedings before the competent Civil Court for the balance amount due from the complainant side. Hence, the present complaint is not maintainable either on legal grounds or on factual grounds. The complainant is guilty of suppressing of material facts and has failed to make out a case of deficiency of service and unfair trade practice. Hence, OP prayed to dismiss the complaint.

12.  The complainant filed chief examination affidavit  by reiterating the complaint averments as against the OP and also produced relevant documents in support of his contentions. From the perusal of the documents produced by the complainant, the complainant has produced construction agreement made on 25.05.2019 between the complainant and represented by proprietor Mr.Venkatesh Challam signed by both the parties. And as per the agreement the OP has agreed to complete the work and the payment should be made as per the terms and condition of the agreement and the complainant has to make the payment as per schedule within 07 days from the date of invoice. The complainant had paid Rs.26,00,000/- till date and the complainant states that the payment was paid as against terms of contract. Apart from this the OP had sent bill of Rs.16,15,000/- on 18.01.2020. As per agreement the complainant had to pay Rs.7,50,000/- only and OP informed of the said amount was not paid he would be stop the work and as per the agreement the OP has commence the work during 1^st week of November 2019, till date only 1^st and ground floor slab has been done. After receiving amount of Rs.26,00,000/- from complainant, OP failed to carry out the work as agreed and demanding further amount from the complainant. In this regard the complainant has filed estimation report.

13. From the facts and circumstances of the complaint and the documents produced, the complainant has produced  estimation report of the building, but the complainant has not produced any expert report of the previous contractor i.e. OP, that how much work has been done and what kind of material used and percentage of the construction activities has taken place, only pleaded that after receiving Rs.26,00,000/- the OP has not even done work of 50%  of the amount received. To prove the construction work, technical report of an expert for how much work has done by OP is also required.

14. On merits, we find that though the allegations regarding defects in the construction carried out cannot be determined without elaborate evidence of expert witness to be adduced by the parties.  Yet regarding   deficiency in service, the complainant has not taken the trouble either to produce such expert evidence of the estimation of OP or to request this commission for appointment of an expert independent body to visit and examine the alleged work which was carried out by OP. The case of the complainant rest on allegations made orally in the complaint that OP left some of the construction work as agreed under contract undone and unfinished.

15. In view of the above discussion and an perusal of complaint and also by considering the contentions of OP, the commission has come to the conclusion that, the complainant has failed to prove the deficiency on the part of the OP for want of expert report of the construction work carried out by the OP. Accordingly, in view of the above reasons, we answer Point No.1 we answer in Negative.

16. POINT NO.2:-  In the result, we passed the following:

ORDER

1. The complaint filed by the Complainant U/s.35 of the Consumer Protection Act, 2019 is dismissed. No costs.

2. Furnish free copy of this order to both the parties. 

 (Dictated to the Stenographer, got it transcribed, typed by him and corrected by me, then pronounced in the Open Commission on 23^rd  March 2023)

(RAMACHANDRA M.S.)

PRESIDENT

(NANDINI H KUMBHAR)             (CHANDRASHEKAR S.NOOLA)       

         MEMBER                                        MEMBER

Witness examined on behalf of the complainant by way of affidavit:

Smt.Sunita -who being the complainant

Documents produced by the complainant:

Witness examined on behalf of the OP by way of affidavit:

Documents produced by the OP:

(RAMACHANDRA M.S.)

PRESIDENT

(NANDINI H KUMBHAR)          (CHANDRASHEKAR S.NOOLA)

         MEMBER                                     MEMBER

SKA*