RAJKUMAR ASSOCIATES vs C.V.PAULOSE

THE complainant''s case is as follows : the complainant is an Ex-serviceman. He is a poor person eking his livelihood with the pension paid to him. Since the complainant is the Ex-serviceman, he was allotted free of cost a house-site measuring three cents. With a view to put up a construction for the complainant, the opposite parties 1 and 2 on behalf of the third opposite party entered into an agreement. THE complainant had carried out his obligations under the contract. But the opposite parties have failed to perform the conditions of the agreement. It is solely on account of the act of third opposite party, they have failed to complete the construction. THE opposite parties have failed to perform their obligations in terms of the agreement. THE complainant has paid Rs. 5,000/- on 26.6.1992, Rs. 4,314/- on 29.9.1992, Rs. 2,290/- on 15.9.1992, Rs. 2,000/- on 15.3.1992 and Rs. 1,600/- on 28.2.1994. THE complainant also availed a loan of Rs. 7,000/- from the Coimbatore District Co-operative Housing Society, which was also paid by him. Though the complainant has paid all the amounts due as per the agreement, the opposite parties have omitted and failed to perform their obligation and complete the construction. THErefore, this complaint is lodged claiming a sum of Rs. 1,00,000/- as compensation for mental agony and hardship caused by the deficiency of service on the part of the opposite parties.

THE first opposite party contended that he is not the proprietor of M/s. Rajkumar Associates and that he had retired from the firm from 1.4.1993 and, therefore, the complaint is not maintainable against him. THE second opposite party has stated as follows : THE complainant had entered into an agreement for construction of a small tiled house measuring 16" x 10" and paid an advance of Rs. 2,000/-. As per the terms of the agreement, the complainant has make payment before the commencement of each stage of work in advance and if the complainant makes any default to make payment in advance for any particular stage, the opposite party has got right to stop the work. THE complainant has to pay Rs. 2,500/- immediately on completion of basement stage and has to pay Rs. 3,000/- on completion of wall upto 3" stage and has to pay Rs. 5,000/- after completion of wall work and has to pay Rs. 3,000/- in advance for completion of the rest of the work. First the complainant pointed out the site No. 41 as his site and made the opposite party to put up the construction upto basement stage in the wrong site. THEn the complainant pointed out another site at later stage. Thus as a result of negligence of the complainant, the opposite parties suffered a loss of Rs. 5,000/-. THE opposite party had completed the entire construction work including the roofing except fixing doors and window. Since the complainant failed to pay the last instalment, the opposite parties failed to complete the work. It is the complainant who committed the breach of obligations. After a lapse of 1 years, the complainant paid a sum of Rs. 1,600/-. THE complainant agreed to pay the construction charges at revised rate for the final stage. THE complainant failed to pay the balance. THE matter relates to breach of contract and, therefore, the complaint is not maintainable. Further, the co-operative bank supervised the construction each and every stage. THE complaint is frivolous. THErefore, the opposite parties 1and 2 pray that this complaint may be dismissed. The third opposite party has filed version stating as follows : The construction of building is a bilateral agreement between the complainant and the opposite parties 1 and 2. The third opposite party has nothing to do with the same. The third opposite party has not received any payment from the complainant and therefore is not liable to do any service. Thus, there is no deficiency in service on the part of the third opposite party. There is no secret agreement between the opposite parties. At the instigation of Mr. Sankaran and Mr. Rangasamy who are inimical to Mr. Govindarajan and due to union rivalry, the complaint is filed. Mr. Govindarajan is not a party to any agreement with the complainant and opposite parties 1 and 2 and he has not received any amount from the complainant and he is not bound to do any service to the complainant. Hence, there is no deficiency in service.

The lower Forum accepted the complaint and directed the opposite parties 1 and 2 to pay Rs. 6,204/- with interest @ 15% per annum form 28.2.1994 and further a sum of Rs. 3,000/- for mental agony and hardship and sum of Rs. 1,000/- towards costs. Aggrieved by these decisions, the present Appeal has been laid.

THE agreement which is marked as Ex. A1 has been entered into on 15.3.1992. THE agreement specifies that a sum of Rs. 2,000/- was required in advance on the date of agreement. It further specifies that immediately after the completion of basement Rs. 2,500/- should be paid as first instalment and after the completion of wall upto 3 feet Rs. 3,000/- should be paid; after completion of walls Rs. 5,000/- should be paid and that Rs. 3,000/- should be paid for completing other works. It further provides only after the amounts are paid, the works will be done and that if any failure is there to remit the amount, the construction, will be made only to the extent of payment made. Period is also mentioned for the completion of the work. From the recipts produced we find that a sum of Rs. 2,000/- was paid on 15.3.1992 and a sum of Rs. 5,000/- was paid on 26.6.1992 and a sum of Rs. 2,290/- was paid on 15.9.1992, a sum of Rs. 4,314/- was paid on 29.9.1992 and a sum of Rs. 1,600/- on 28.2.1994. On 23.8.1993, a letter has been executed by V. Ranganathan Kumar stating that they have received Rs. 13,500/- and that they would complete the construction before 6.9.1993. From the letter of the appellants we find that till 23.8.1993 a sum of Rs. 13,500/- has been paid. After 23.8.1993, they have been paid Rs. 1,600/- on 28.2.1994. THErefore, the allegations made in Ex. B1, the letter sent by V. Ranganathan Kumar shows that the version that a sum of Rs. 1,896/- was still due cannot be accepted at all. A Commissioner was appointed in this case to note the nature of construction. THE Commissioner has stated that the complaint mentioned property is the semi-finished and damaged tiled house situated at Malumichampatti village, Coimbatore District. THE Commissioner found a damaged cement jali (ventilation purpose) at point ''E'' and also found the provisions left at points ''F'' and ''G'' for the purpose of racks in the wall. He also found that three steps, in the entrance place were damaged and broken. He found the cracks in some portions in the walls and some portions of the wall were unplastered. Doors and windows have not been fixed in the property. He found only 50% of the tiles in the roofs and found another 50% of tiles broken and dumped into the ground, inside the property. He also stated that there is no clear road or passage in the petition mentioned property since this is situated in interior place and there is no bus facility and there is no current connection and water connection to the petition mentioned property. He also stated that he found several semi-finished buildings constructed to the extent of lintel level and basement level and there were no occupants in and around the petition mentioned property. Valuation Certificate given by the Surveyor is also produced which shows that an area of 207 sq. ft. is the incomplete building and cost of which is Rs. 9,000/- and thus the building has been constructed by red soil foundation and basement using low class brick wall in superstructure with roof covering Mangalore tiled roof incomplete. The complainant is a member of the National Ex-servicemen Coordination Committee and as a Ex-serviceman he has been allotted this property. For the purpose of raising construction on the site allotted to him he had entered into the agreement with the opposite parties 1 and 2 besides paying a sum of Rs. 2,000/-. He has made other payments as we find it from the receipts produced by the complainant. From the Commissioner''s Report, we find that the construction is incomplete. It has been constructed with a low quality brick and that roof has not been completed and that doors and windows have not been fixed. It is also seen from the Commissioner''s Report that there are other houses as well in and around this house and they are also semi-finished. From the very nature of the construction noted by the Commissioner as well as from that of the report of the Surveyor, we find that as against the payment of Rs. 15,000/- and more received by the opposite parties 1 and 2, they have put up a constrcution which is inferior in quality and semi-finished; the roof is not completed; the windows and doors are not fixed; the walls have not been properly plastered, the basement and walls have been put in a red soil foundation with low quality bricks. Thus we find that for the money received, the construction made is appallingly disproportionate. The contention of the learned Counsel for the appellants is that since the house is situated in an interior place which has no access, the damage has resulted by non-occupation as well as by the act of the third parties and therefore it would not give any room to contend that there has been any deficiency in service. The complainant has adduced the material to show that he has paid more than Rs. 1,5000/-. He has adduced evidence to say that the quality of construction is bad and that the extent of construction is far less than Rs. 15,000/- received by the opposite parties 1 and 2. That the opposite parties 1 and 2 put up a pucca construction and that it has been damaged by the act of third parties or by reason of non-occupation is not at all stated in their version or in the proof affidavit. It is only stated now as an argument apparently drawing inspiration from the Report of the Commissioner. The contention of the appellants'' Counsel that the complainant failed to make payment cannot be accepted in view of the letter of undertaking dated 28.3.1993. Till that day, they have received more than Rs. 13,000/- and after that also they have received a sum of Rs. 1,600/-. But they have only put up construction upto basement level. A different story was also set out in the version stating that there was a confusion in the property and the opposite parties were asked to put up construction at site No. 41 which was wrongly identifed, as the site allotted to the complainant and the opposite parties were made to put up structure and spent a cost of Rs. 5,000/- for the same and thereafter only the present site viz. No. 74, was identified and construction was put up. If that is so, it is not known how in the undertaking letter they have not mentioned about this. It is also not known why a further agreement was not entered into between the parties to this effect specifying that sum of Rs. 5,000/- to be paid by the complainant. When the Commissioner was appointed, they could have taken the service of the Commissioner to prove that the construction of basement level on site No. 41. That they have failed to do so. Therefore, this contention is also an afterthought. If really they have completed the construction and handed over the same, nothing prevented the opposite parties from obtaining a letter to that effect from the complainant. Only then it is open to them to urge that they have completed the construction and handed over the possession. But the defects that are now pointed out by the complainant could not have been caused subsequently either by the complainant himself or by the act of third parties. Therefore, looking it from any angle, we find that there is deficiency in service on the part of the opposite parties 1 and 2. They have failed to put up construction though they have received the amount in excess from the complainant. As regards the third opposite party, no relief is claimed. There is no contract between the complainant and the third opposite party nor the third opposite party received any amount directly from the complainant for the construction. Therefore, it is clear that the third opposite party cannot be made liable for the same. Therefore, in such circumstances, we are of the view that the order of the lower Forum is well considered order and we do not find any reason to interfere with the same. Consequently this Appeal is dismissed with costs of Rs. 260/-. Time for compliance : 2 months. Appeal dismissed.