S.KOSAL KUMAR-/ vs TMT.KANAKAMBUJAM

THIS appeal is directed against the order dated 30.12.1996 in O.P. No. 163/95 on the file of the District Consumer Disputes Redressal Forum, Chengalpattu. The appellant is the opposite party while the respondent is the complainant.

NECESSARY and requisite facts as are absolutely essential may in brevity be related in order to understand the crux of the issue arising for consideration in this action. One Tmt. Kanakambujam (complainant) was desirous of constructing a house of her own at Plot No. 128, Rajendra Prasad Road, Parvathy Nagar, Old Perungalathur, Saidapet Taluk, Chengalpattu District. She, as a matter of fact, for constructing the house approached the builder one Kosal Kumar, proprietor, Sri Jothi Constructions, Rajendra Prasad Road, Parvathi Nagar, Old Perungalathur, Saidapet Taluk, Chengalpattu District (opposite party). The opposite party was amenable to construct a house for the complainant in the said plot. Consequently, an agreement for construction came into existence between the parties on 4.6.1994. Various details relating to the construction of the said house were arrived at and those details figured as terms and conditions in the agreement for the completion of the construction of the house. The cost of construction was agreed at Rs. 2,70,000/-. The agreement also contain terms regarding the payment of the amount of cost of construction by the complainant to the opposite party. The construction was to be finished and possession to be handed over to the complainant on or before 3.10.1994. A clause was also provided in the agreement that if any change in the construction is undertaken, the extra or additional cost involved therein must have to be borne by the complainant.

The opposite party undertook the construction of the house pursuant to the agreement entered into between him and the complainant. It appears, he was unable to complete the construction before the targeted date, namely, 3.10.1994. This apart, he left the construction in the middle and went away. Consequently, the complainant caused a legal notice dated 24.6.1995 issued to the opposite party calling upon him to pay Rs. 70,695/- for the pending work, to pay Rs. 63,625/- for the loss of interest and a compensation of Rs. 50,000/- for mental agony, and Rs. 350/- towards the cost of notice, within 7 days from the date of receipt of the notice failing which she will be constrained to take necessary steps to recover the amounts from him with costs. The opposite party, of course, sent a reply dated 30.6.1995 through a Counsel of his choice stating that he had finished more than 85% of the work and the work finished was estimated at Rs. 3,51,713/- as against the total payment made by the complainant to the extent of Rs. 2,70,000/-. Therefore, he would claim in the said notice a sum of Rs. 81,713/- for the extra work done by him. He would also claim that the price of materials rose and consequently the cost of construction got enhanced and on a representation made by him to the complainant, he would say that the complainant agreed to pay and additional sum of Rs. 15/- per sq. ft. of construction.

THE complainant, being placed in such a predicament situation, having no other alternative but to resort to knock at the doors of the Forum below for certain reliefs as prayed for in the complaint. On service of process, the opposite party, it appears entered appearance through a Counsel of her choice namely learned Counsel M/s. G.V. Kalpana and filed a counter opposing the claim as put forward by the complainant. The pith and substance of the counter bristles to this. The complaint is fit to be dealt with by a Civil Court since it involves taking of voluminous evidence on different factors of construction. As per the direction of the complainant, he undertook certain additional constructions namely construction of a portico, elevation work, decoration work, slope roof, extra electrical arrangements, dining table, ward robe provision, pooja room provision etc., on payment of extra cost for those items of work. The complainant refused to pay the additional cost for the work so done. That apart, there was a price rise in the building materials and the complainant agreed to pay additional sum of Rs. 15/- per. sq. ft. of construction. Later on, she refused to pay even the additional sum of Rs. 15/- per. sq. ft. for the rise in cost of materials. If the complainant pays the cost or expense incurred by him for the extra or additional construction put up by him at the instance of the complainant besides payment of an additional sum of Rs. 15/- per. sq. ft. on the ground of rise in cost of materials, he would be prepared to complete the work. As such, the complaint is liable to be dismissed.

THE complainant during the course of enquiry filed proof affidavits apart from marking documents on his side namely Exs. A1 to A7. THE opposite party, despite making his appearance through a Counsel of his choice and filed a counter, did not opt to place before the Forum below any proof affidavit or document in the shape of exhibits despite adequacy of opportunity was given to him to do so. Consequently, there was no option left for the Forum below to hear the complainant and pass orders. As a matter of fact, the complainant was heard and the matter was posted for orders on a specified date. THE opposite party, in the meantime, it appears, had chosen to send a communication in letter form styled as proof affidavit by post. It appears, he also sent xerox copies of certain bills by post. THE Forum below did not accept the letters so sent as proof affidavit filed by the opposite party inasmuch as the same was not sworn to. Besides the Forum below simply kept the xerox copies of certain bills as forming part and parcel of the records without the same being marked. The Forum below after taking into consideration the materials legally placed on record, recorded a finding that there was deficiency in service on the part of the opposite party. On such finding, the Forum below directed the opposite party to pay to the complainant a sum of Rs. 23,689/- with interest thereon @ 18% p.a. with effect from 24.6.1995 the date of notice under Ex. A3 till date of payment besides payment of cost quantified in a sum of Rs. 3,000/- by the opposite party to the complainant, dismissing the complaint in other respects. Aggrieved by the order as above, the opposite party resorted to the present action by engaging a Counsel of his choice namely learned Counsel Mr. S. Badrinath.

ON service of process, the complainant entered appearance through a Counsel of his choice namely, learned Counsel Mr. N. Karunanidhi.

WE heard the arguments of respective learned Counsel appearing for the parties and from the pith and substance of the argument so projected, the one and only point that crops up for consideration is as to whether the order of the Forum below is sustainable in law, on the facts and in the circumstances of the case. Point : There is no pale of controversy that the opposite party, builder, agreed to construct the house at Plot No. 128, Rajendra Prasad Road, Parvathy Nagar, Old Perungalathur, Saidapet Taluk, Chengalpattu District, belonging to the complainant according to the specifications and terms and conditions as contained in the agreement Ex. A1 dated 4.6.1994 entered into between him and the complainant. It is also not in dispute that the cost of construction of the house to be constructed by the opposite party is to the tune of Rs. 2,70,000/-. Yet another fact about which there is no dispute is that the complainant paid the entirety of the cost of construction of Rs. 2,70,000/- to the opposite party before ever the construction was completed. It is also not in dispute that the construction by the opposite party in all facets has to be completed on or before 3.10.1994 and as a matter of fact, he did not complete the construction and left it in the middle and went away.

The fact that he left the construction in the middle and went away is categorically admitted by him in the reply notice Ex. A4 dated 3.6.1995 issued to the complainant through his Counsel. The fag end of the first paragraph of Ex. A4 contains the blanket admission by the opposite party as relatable to leaving the work of construction in the middle and the relevant portion reads as under : "My client finished the work upto plastering work. The balance work is only placing door, window, shutter, white-wash colouring, weathering course."

This apart, he would also make a candid admission on this aspect of the matter in paragraph 10 of the counter filed by him and the relevant portion reads as under : "If the complainant pays the additional amount for the work done additionally in the schedule property, I agree to complete the work. The work as per my estimation the balance of work undone is only placing the door, windows and shutters, white-washing, weathering course and placing the closets."

It is thus crystal clear that on the showing of the opposite party himself that the construction of the house was not complete even on the date of issuing of the reply notice which event happened on 30.6.1995 which is long subsequent to the targeted date of completion of construction, namely, 3.10.1994, as agreed to by him in the agreement under Ex. A1. This sort of an act on the part of the opposite party cannot be described as anyone other than the barren act of deficiency in service on his part and this sort of a finding, of course, for different reasons, the Forum below had recorded. The fact that the Forum below recorded deficiency in service on the part of the opposite party for altogether different reasons is of no consequence. The reasons are rather obvious. This Commission is the first Appellate Forum. Therefore, the Commission is possessed of all the powers as possessed by the Forum below, a District Forum, a Forum of first instance, to sift, scan and analyse the materials placed on record as a Forum of first instance and come to an entirely independent conclusion for reasons to be stated in the order or come to the same conclusion as had been arrived at by the Forum below for altogether different reasons. Such being the case, our concurrence with a finding recorded by the Forum below as respects the deficiency in service on the part of the opposite party as had been done by the Forum below cannot at all be found fault with for the simple reason that such a finding had been recorded for altogether different reasons. The sordid fact remains that there is gross deficiency in service on the part of the opposite party.

LEARNED Counsel Mr. S. Badrinath, would make a vociferous submission in a flamboyant style that the Forum below thoroughly failed in considering the case as projected by the opposite party in the counter filed and as a consequence, prejudice to the cause of justice has arisen, the consequence of which is that there is no other go for this Commission except to remand this matter to the Forum below for consideration afresh. To such a vociferous submission, we are unable to affix our seal of approval, on the facts and in the circumstances of the case. The reasons are manifold. No doubt true it is that the agreement under Ex. A1 contains a clause with regard to change in the construction of the house to be constructed. Such a clause figures as Clause No. 7 under the agreement Ex. A1 and it reads as below : "The party of the first part shall bear the cost of any change in construction other than shown in the abovesaid plan involving additional cost."

The opposite party would take up a stand in his counter that he put up certain extra constructions as per the instruction of the complainant and the complainant refused to pay the cost of construction of the extra construction put up by him. This aspect of the matter is not only getting reflected in the counter but also gets reflected in the reply notice issued under Ex. A4. The question herein is as to whether the opposite party placed any material on record in proof of the extra construction carried out by him at the instruction by the complainant. The answer to such a question cannot be anyone other than an emphatic "No", on the facts and in the circumstances of the case. Further, he had not even pleaded the specific terms and conditions agreed to between the parties with regard to the extra construction he had put up at the instance of the complainant leaving alone placing materials in the shape of documents in proof of the same. Pertinent it is to mention at this juncture, the salient provisions adumbrated under Sections 91 and 92 of the Indian Evidence Act, 1872 (for short,"the Act, 1872"). Section 91 deals with evidence of terms of contracts, grants and other dispositions of property reduced to the form of a document. Sub-section (1) of the said section which alone is relevant for the present purpose prescribes that "when the terms of a contract or of a grant, or of any other disposition of property, have been reduced to the form of a document, and in all cases in which any matter is required by law to be reduced to the form of a document, no evidence shall be given in proof of the terms of such contract, grant or other disposition of property, or of such matter, except the document itself, or secondary evidence of its contents in cases in which secondary evidence is admissible under the provisions hereinbefore contained".

SECTION 92 is relatable to the exclusion of evidence of oral agreement and the said section prescribes that "when the terms of any such contract, grant or other disposition of property, or any matter required by law to be reduced to the form of a document, have been proved according to the last section, no evidence of any oral agreement or statement shall be admitted, as between the parties to any such instrument or their representatives in interest, for the purpose of contradicting, varying, adding to, or subtracting from, its terms". To the said section, five provisos are appended to and of them, proviso 2 is relevant for our purpose and it prescribes that "the existence of any separate oral agreement as to any matter on which a document is silent, and which is not inconsistent with its terms, may be proved. In considering whether or not this proviso applies, the Court shall have regard to the degree of formality of the document". As already indicated, with regard to the change in construction, Clause 7 of the agreement under Ex. A1 makes provisions for the bearing of the cost of such extra construction on the shoulders of the complainant. The question begging herein is as to whether any evidence worth the same had been placed on record by the opposite party to point out that he, in fact, carried out any extra construction pursuant to an oral agreement providing for the terms and conditions of such extra construction to be carried out by the opposite party. We have already stated that the opposite party failed in a colossal way to place on record any such material in proof of his case as relatable to the extra construction he had made to the construction activity he had undergone pursuant to an agreement he had entered into with the complainant. The other defence taken by the opposite party in the reply notice under Ex. A4 as well as in the counter is relatable to the agreement said to have been entered into between him and the complainant as to his bearing an additional sum of Rs. 15/- per. sq. ft. of the construction on account of escalation or rise in price of materials. This sort of an agreement pleaded is definitely inconsistent with the terms of the agreement under Ex. A1. Reading the salient provisions adumbrated both under Sections 91 and 92 - Proviso 2 of Act, 1872, we are of the view that the opposite party cannot at all plead such agreement and therefore, even the question of placing materials on such aspect of the matter will not at all arise for consideration.

THE cost of left out portion of construction by the opposite party had been evaluated by the Forum below at Rs. 23,689/- based upon the report of the Commissioner marked as Ex. C1 and the finding so recorded by the Forum below, on the facts and in the circumstances of the case, cannot at all be stated to be not sustainable in law.

IN this view of the matter, the argument projected in a flamboyant by learned Counsel appearing for the appellant deserves to be thrown lock, stock and barrel. We accordingly do so. For the reasons as above, the order of the Forum below cannot at all be stated to be not sustainable in law. We answer the point accordingly. The appeal as such deserves to be dismissed.

In fine, the appeal fails and the same is dismissed. We, however, on the facts and in the circumstances of the case, award cost of Rs. 5,000/- to be paid by the appellant/opposite party to the complainant as cost of this appeal. We make it clear that the order of ours is required to be complied with by the opposite party within a month from the date of receipt of our order or otherwise the complainant will be at liberty to invoke the provisions of Section 27 of the Consumer Protection Act, 1986. Appeal dismissed.