By Sri. MOHANDASAN.K, PRESIDENT
Complaint in short is as follows:-
- The complainant has got a landed property at Perinthalmanna amsom desom in
Survey No.59/7, Plot No.6S6/2000 about 1080 sqm. The complainant and her husband availed a housing loan from SBI Perinthalmanna branch to construct a house and for that purpose she obtained a detailed plan and estimate from M/S mark builders and developers KSEB complex, East kodungalloor. She obtained permission from the Perinthalmanna Municipality. The complainant thereafter contacted opposite party who is constructing residential buildings nearby places and after a detailed discussion with the opposite party contract was given to the opposite party. The complainant and opposite party executed a building contract on 13/09/2015. As per the terms of the agreement the opposite party has to construct building as per the plan. The total amount of contract was Rs.16,77,000/-. Thereafter works regarding door, window and other wooden articles were excluded and accordingly reduced 1,00,000/- rupees from the total amount and the contract re-fixed for Rs.15,77,000/-. The complainant paid amounts to the opposite party whenever it was required. But the opposite party instead of completing the works as agreed it was not done and the materials used were with different quality. The opposite party could not complete the work as agreed, the opposite party could not finish even plumping and electrical works till 2015 April. The complainant availed non experienced persons and used low quality materials and also could not carry out tile works as agreed in the agreement. The opposite party day by day changed the workers and thereby the opposite party could not complete the work as agreed. The opposite party constructed stair room with lesser width which was against the terms of agreement and thereby water fell in to the bottom and it was stored over the terrace. The opposite party did not plastered over the terrace and that was the reason for storing of water over the terrace. Complainant several times requested opposite party to find out solutions for the issue but he did not cared to consider the request. The complainant had asked the opposite party to prepare an estimate for an additional work of septic tank, putty finishing paint etc. But the opposite party did not prepare estimate and without obtaining consent the opposite party did septic tank work which was against norms. Hence the septic tank is not at all useful. Putty finishing work also stands unfinished. The opposite party did not issue the correct expenses or even estimate of the work to the complainant.
2. Though the opposite party received Rs. 14,80,000/- the opposite party has not carried out the work proportionate to the payment. The complainant asked the opposite party to complete the work at the earliest since the family of the complainant desired to shift to newly constructed house. But the opposite party dragged the matter stating one or other reasons. Ultimately the complainant issued a notice through email terminating the agreement describing the cause for the same. The reply of the opposite party was that to see in court and issued a reply on 13/07/2016 to that effect. On 14/07/2016 the opposite party issued a notice to the complainant and thereby claimed work has completed and some additional work carried out, towards an amount of Rs.2,14,825/- rupees is due from the complainant to the opposite party and the agreed amount was Rs.1,67,000/-as per agreement. The complainant issued a detailed reply notice to the same. The complainant informed the opposite party if the opposite party is prepared to finish the work on a bilateral discussion and also rectifying defects within 30 days. Though the counsel for opposite party received notice on 04/08/2016 he did not act. The complainant could not occupy the new constructed house after completing the work.
3. Complainant submitted that there is crack to wall and also leaking from the stair case due to want of water cutting. It was compelled to replace tiles affixed in toilets on various occasions. There are certain works are pending in kitchen and work area. There is no slab or zinc or tiles in that area. So far plumbing and electrical work are incomplete. Flooring work and tile work also not yet finished. Septic Tank, soak pit are not placed. Due to service of unskilled workers the vitrified tiles and granite tiles stands spoiled.
4. The submission of the complainant is that the opposite party is liable to finish the work as agreed and to realize the balance amount from the complainant. But the opposite party not completing the assured work but harassing the complainant by stopping the construction work. The act of the opposite party caused much hardships and inconvenience to the complainant. Complainant and her husband availed loan of Rs.12,00,000/- from SBI Perinthalmanna towards the construction of residential building. But due to deficiency in service of the opposite party. The construction works not yet completed. Complainant is suffering for the last two months due to non- cooporation of the opposite party. The opposite party not allowing the complainant to complete the remaining works. Complainant submit that prize of material cost and labor charge has been increased since the date of agreement. The complainant and her husband suffering mental agony due to the non-completion of construction work. The prayer of the complainant is to pay Rs.2,00,000 to the complainant to finish the remaining work as per agreement, that she is entitled to get a compensation of Rs.1,00,000/- for the deficiency in service along with cost and other appropriate reliefs.
5. On admission of the complaint notice was issued to the opposite party and on receipt of notice the opposite party entered appearance and filed detailed version. The opposite party admitted that there was an agreement between the complainant and opposite party on 13/09/2015. But all other averments and allegations in the complaint are denied by the opposite party. The opposite party contended that the time for completion of the work was extended on mutual consensus between the parties. It is submitted that total consideration for the completion of work was Rs.15,97,200/-. But the terms of agreement were varying on mutual terms considering nature of work in addition to the work stated in original agreement, many other works were added and partly completed also. The statement of the complainant that the payment made promptly is not correct. As per the terms the complainant has to pay Rs.3,99,300/- on 13/09/2015 but the complainant paid 3,50.000/- on 14/09/2015. The complainant paid Rs. 70,000/- on 16/10/2015. The complainant should have paid Rs.3,19,440/- on 23/10/2015. The complainant paid 3,00,000/- rupees on 17/11/2015 but on that day as per the agreement the complainant ought to have paid Rs.9,58,320/- but the complainant paid only 7,20,000/- there was a due to the respondent an amount of Rs.2,38,320/-. As per the terms of agreement the work has to be completed 2016 February. The opposite party had completed basement work by October 2015 itself and the opposite party was able to complete the same within the time frame. The allegation that the opposite party did not complete the work is baseless. But he had completed 98% of work as agreed. The remaining works were regarding electrical and plumbing which were delayed. It was the duty of the complainant to purchase electrical fitting and plumbing materials but the complainant did not provide materials at the site as per the clause in the agreement. The allegation of the complainant that the opposite party used low quality materials is baseless and denied. The allegation that unskilled labors were employed in the site is also not correct and denied. The opposite party submitted that the brother of the complainant who is working in a construction company named Baskar Apartments monitored the entire work at the site, his frequent intervention with the progress of the work caused disharmony among the labors, some workers discontinued with their employment as a result the entire burden fell on the shoulders of the opposite party. The opposite party contented that there was a request from the opposite party for Rs.50,000/- on 10/07/2016 during the last stage as promised by the complainant. But, without providing financial assistance the complainant sent termination message on 11/07/2016 and complainant refused to pay the amount of Rs.2,81,965/- for additional works done. The opposite party also submitted that the complainant did not allow the opposite party to take the working capitals which all costs more than to Rs. 50,000/- from the work site. The defects mentioned by the complainant is due to the pending works in the site. The opposite party submitted that he has been shared estimate for all the works done in the site. The allegation that stair room sunshade was not proper is baseless. The stair room sun shade of the building was concreted as per the request of the complainant’s brother and the water cutting labor charge is to be given by the complainant as per the clause and the roof plastering was incomplete which is part of pending work. The opposite party enlisted pending works from the opposite party and also narrated the additional work done and the cost thereon. The additional work done by the opposite party assessed for Rs.2,81,965/-. The opposite party submitted that the delay occurred in the completion of work is not due to the fault of the opposite party but the complainant availed more than enough time to decide and finalize the type of the tiles to be purchased. The complainant was accompanied the opposite party to Coimbatore for purchasing tiles during 2016 April and that time the completion of work was mutually extended. The opposite party submitted that the complainant did not provide doors, windows, shutters toilet shutters etc at appropriate time. There was in enormous delay on the part of the complainant to carry out their part as per the agreement. The opposite party submitted that the complainant requested to stop the tiles works for fitting the doors and windows. The complainant completed works on doors and windows during May 2016 only.
6. The opposite party submitted that while the opposite party searching for new labors the real discord between the complainant and opposite party triggered Mr. Promod who had sufficient experience in the civil work started to find defect at all possible points, the site supervisor who under took the use of employment at the site suffered a lot because of the unwanted unsolicited intervention of Mr. Promod. When the opposite party received termination mail called the complainant for a compromise but the complainant was not ready for any settlement and they insulted even without considering opposite parties wife’s health condition .The allegation that the work was carried out not in conformity with Municipal Building rules is absolutely false and the reason for the crack to the valve at the kitchen work area was negligible and the project was not being on a large scale , no soil testing was done and that may be earth movement attributed to an act of god. The opposite party submitted the work in rooms and halls were actually completed, the complainant being dissatisfied the pattern of design directed the opposite party to relay after removing the already curved tiles. The complainant instructed the opposite party to lay tiles in the kitchen firstly but later asked the opposite party to remove the laid tiles and directed to put granite instead of clause in the agreement. The complainant was always following the instructions of her brother MR. Promoted who work with builder group. The opposite party submit that he lost substantial amount for labor under this construction. The opposite party submitted that the granite and vitrified tiles were damaged by the brother of complainant who visited the site daily. The work of septic tank soak pit was done under the supervision of brother of the complainant and the complainant requested the original place of the septic tank to shift to the current place since the septic tank was closed to the border of relative which cause some inconvenience.
7. The opposite party submitted that the defect mentioned by the complainant is part of pending works in the site. The opposite party still ready for completing the work provided the complainant give the amount for the additional works done by the opposite party and remaining amount for the works done as per the agreement. The opposite party submitted that the complainant completed the doors and windows socks during May 2016 and husband of the complainant accompanied with opposite party to Coimbatore for selecting tiles during April 2016 and which shows the time for completion of work was mutually extended. The opposite party is submitted that he has done the additional work in the site with the amount of opposite party by arranging by pledging jewels of opposite party wife and using credit card whose interest has been increased to a huge amount, which caused heavy financial burden for the opposite parties and which created black mark in the bank records and also affected the CIBIL score of the opposite party. Due to this issue social status of opposite party also affected. The complainant insulted the opposite party at the time of compromise talk. It was regular to make telephone calls by the complainant to the wife of opposite party even after 11pm in the night for work status enquiry and to point out the complaints.
8. The opposite party submitted that he is ready for completing the work if the complainant gives the amount for the additional work done by the opposite party and remaining amount for the pending works in the site. The complainant sent the termination mail and thereby the opposite party forced to leave the site and was not ready for any kind of settlement. Hence opposite party raise a counter claim of Rs.2,81,965/- against complainant. The prayer of the opposite party is to direct the complainant to pay the above said amount with appropriate relief to the opposite party.
9. The complainant and opposite parties filed affidavit and documents. The documents filed on the side of complainant marked as Ext. A1 to A9. Ext. A1 is photo copy of detailed plan and estimate of the building. Ext.A2 is copy of Building permit from Perinthalmanna Municipality. Ext. A3 is copy of agreement Ext. A4 is copy of payment slip. Ext. A5 is copy of Gmail of cancelation message dated 11/07/2016. Ext. A6 is copy of lawyer notice issued dated 14/07/2016. Ext. A7 is a copy of notice dated 01/08/2016. Ext. A8 is copy of postal acknowledgement. Ext. A9 is copy of email dated 17/07/2016. Commissioner’s reports marked as Ext. C1 to C3. Ext. C1 is commissioner reports. Ext. C2 are series of photos. Ext. C3 is final report of Adv. Commissioner’s along with expert report. The opposite party filed measurement details which is marked as Ext. B1.
Heard both side, perused affidavit and documents.
The following points arise for consideration.
- Whether there was any deficiency in service on the part of the opposite party?
- Relief and cost?
10. Point No.1
The complainant and opposite party admitted that there was an agreement between them executed on 13/09/2015 to construct a house to the complainant. As per the terms the construction work has to complete within 5 months from the date of execution of the agreement. The total amount fixed for construction work was Rs.15,77,000/-. But the opposite party did not finish the work within stipulated time and he utilized non-experienced workers and the materials used were low quality. Though the complainant was entrusted some additional work it was done by the opposite party partially without preparing estimate and following specifications.
The opposite party received Rs. 14,80,000/-from the complainant. Due to the above reasons the complainant sent an e-mail message cancelling the contract on 11/07/2016 to the opposite party. The opposite party sent a reply notice immediately demanding 2,14,825/- rupees towards the cost of additional work. In this circumstances the complainant seeking a compensation of Rs.1,00,000/- and an additional amount of Rs.2,00,000/- rupees towards completing the remaining construction work of the house.
The contention of the opposite party is that the complainant herself caused for the delay in completion of construction work. The opposite party submits that the complainant made default in payment of construction cost as agreed in contract. The opposite party had completed the basement work of the contract in the month of October 2015 itself. The complainant along with her brother Mr. Promod who is working as part of a construction group called Bhaskar Apartments interfered throughout in the construction work and made unnecessary obstructions. The complainant and her brother demanded extra works and thereby caused delay. The opposite party also submitted that various occasions’ works were not permitted to carry. On 10/07/2016 the opposite party demanded 50,000/- rupees towards extra work but the result was termination of agreement through e–mail on 11/07/2016. The submission of the opposite party is that the remaining works were only small portion and that could have done within short period. The attempt of the complainant was to escape from the payment of cost towards the extra work.
The fact that as per the terms it was agreed to carry out work within 15 months from the date of agreement. But it can be seen that notice of termination issued by the complainant only on 11/07/2016 i.e. after ten months of the date of agreement. So it can be seen that there was delay in completing the work. The question arise is that whether there was any justifiable reason for causing delay in completing the construction work. The specific contention of the opposite party is that there was additional work demanded by the complainant and it was done also. The contention of the opposite party that there was delay in payment and also shortage in payment as per terms of the agreement. It can be seen from the agreement and from the report of adv. Commissioner, as well as expert commissioner the construction of the house was not in accordance with the approved plan obtained from Municipality. Since the complainant brother alleged to have knowledge in the construction area could have rightly pointed out the variation and could have stopped the further work of construction. It can be seen no point of time there was an interference from the part of the complainant, which means the complainant was conceded for the variation of approved plan and she had consented for the same. The extent as per the agreed building plan between the complainant and opposite party is 1277 sq. Feet, but the expert has reported even without considering the extra works the sq. Feet work completed as 1370.36. The Advocate. Commissioner has reported the extent as 1680 square feet. So there is no roof of doubt regarding extra work done by the opposite party as part of construction work of the complainant’s residential building. The opposite party also contended that as part of the agreement some of the responsibility like supply of electrical fittings and plumbing materials were entrusted with complainant and to be supplied at the site which the complainant has not complied. So there was delay in electrical and plumbing works. The opposite party submitted that complainant took more than enough time to finalize the tiles to be purchased and finally during the month of April 2016 both the husband of complainant and opposite party went to Coimbatore to purchase the tiles, which also shows that the complainant and opposite party mutually agreed to consider further time to complete the construction work. The opposite party also contended that the complainant did not provided doors, window shutters, toilet shutters etc, at appropriate time which also contributed causing delay in construction work. The submission of opposite party is that the complainant could complete works regarding doors and windows only during 2016 May. The complainant interfered due to dissatisfaction with the pattern of design of tiles and demanded to relay after removing already curved tiles. There was intermittent changes on ideas regarding tiles from the side of complainant. The opposite party submit that the fickle complainant was always following the instructions of her brother Mr. Pramod who works with a builder group. The opposite party submit that the granite and vitrified tiles were damaged by the brother of the complainant who visited the site daily. It is submitted that septic tank and soak – pit work has done under the supervision of complainant brother and as per the request from the complainant original place of septic tank has been shifted to the current place as the septic tank was close to the border of relative which cause some inconvenience. The opposite party submitted that the report submitted by the Advocate Commissioner as well as expert Commissioner are biased and one sided. According to opposite party the expert Commissioner is the same person who has prepared the plan for the house under dispute. More over the expert is working in the complainant brother Pramod’s Apartment and he has got shares also in that apartment. The expert commissioner failed to furnish the exact measurement details.
We have gone through the report submitted by the Advocate Commissioner as well as the expert commissioner. Both of them have reported some defects in the construction work and also non – completion of the work as agreed by the agreement. The opposite party submit that some more work is to be completed and the opposite party is ready and willing to carry out the work within a short period. The Commission accept the reports regarding defects of construction mentioned in the reports but it is to be noted that the contention regarding additional work done by the opposite party has not properly considered by the commissioners and so there is facts in the contention of the opposite party against the report of the commissioners. The opposite party contended the work of the construction was supervised not only by the complainant but also by her brother who is competent to watch the quality of work. They did not properly pointed out defect in appropriate time. The opposite party submitted that the construction work is at the finishing stage and it appears as correct as per the reports of the commissioners. Hence, the contention of the opposite party is correct that the demand of cost towards additional work provoked the complainant to terminate the contract.
In the above facts and circumstances the allegations regarding delay caused in completing the work was not solely because of the deficiency in service on the part of the opposite party. Nonperformance of terms of the agreement by both parties and variation from the terms mutually agreed by parties resulted in delay in finishing the construction work. It is also be noted that the construction work was keenly watching by the complainant and her brother throughout the work. There was no interference in a proper way to rectify the defects in appropriate time. In the circumstances we do not find merit in the contention of the complainant and we dismiss the complaint accordingly.
Dated this 7th day of January, 2022.
