S.N. ARUNAGIRI vs PL.SUNDARAM

THE opposite party-PL. Sundaram representing that he is the Power of Attorney Agent of the land owner and Promoter of a building scheme known as Rajive Card ens, undertook to put up a building for the complainant as per the specifications given in an agreement dated 17.8.1992. THE case of the complainant is that he paid for the land a sum of Rs. 70,625/- and obtained a registered sale deed Document No. 3202/1992. As per the building agreement entered into, the complainant was to pay a total sum of Rs. 4,32,000/- at various stages as per Clause 5 of the agreement. THE complainant has paid a total sum of Rs. 5,40,125/- and he has also paid another sum of Rs. 8,000/- for teak wood. Unfortunately, the opposite party did not live upto the expectations as per the building agreement and the building construction was only upto the basement level in September, 1992 and at the roof level in November, 1992, and thereafter, he did nothing. He completed the civil frame of the construction without flooring, sanitary, water connection and electricity fittings. Even though the opposite party has received the full amount he has not completed the building within 15 months as stated in the building agreement. Thus, without completing the job, strangely the opposite party sent a letter dated 2.9.1994 to the complainant making a fantastic extra claim of Rs. 1,93,000/-. So alleging, the complaint has been filed for directing the opposite party to make the building ready immediately and deliver possession to the complainant or to direct the opposite party to pay the said sum of Rs. 5,48,000/- paid by the complainant to him, with interest thereon at 18% per annum. He has further prayed that the opposite party may be directed to pay a sum of Rs. 1,00,000/- for the breach of contract by failing to construct and deliver the flat within the agreed time, and to pay Rs. 50,000/- for mental agony.

THE opposite party in his written version contended that subsequent to the builder''s agreement, the complainant wanted additional construction of portico and verandah of an extent of 340 sq.ft. and wanted extra amenities, and the complainant assured to bear the extra cost thereof. THE opposite party wrote a letter dated 2.9.1994 to the complainant requesting him to pay an additional cost of Rs. 1,15,110/- for the additional construction and Rs. 77,890/- for the delayed payment, totalling to Rs. 193,000/-. It is further contended that the complainant did not adhere to the schedule of payment and has taken more than 25 months for releasing the amount. Without payment of the abovesaid additional amount payable by the complainant he insisted upon the opposite party to hand over the building to him with all extra amenities and therefore, the delay had occurred. THE building is almost ready and the opposite party is prepared to deliver possession within a month, provided the complainant would bear the extra cost. In these circumstances the complaint has to be dismissed. The points that arise for consideration are: (1) Whether there was deficiency in service on the part of the opposite party ? and (2) If so, to what relief, if any, the complainant is entitled ?

It is not in dispute that the complainant has paid a sum of Rs. 5,40,000/- as the cost of the building to be constructed. It is found in the Builder''s Agreement dated 17.8.1992 filed by the complainant that the total cost of the building construction is Rs. 4,69,375/-. From this it appears the complainant had paid an amount of Rs. 70,625/- more than the amount mentioned in the agreement as the cost of construction. But it is not clearly stated in the complaint as to why this extra amount was paid. According to the complainant, he has paid the entire amount for the cost of construction but the opposite party has not completed the building and delivered the same to him within the time specified in the agreement. While so, it is the case of the opposite party that the complainant wanted him to do some extra work of portico and verandah of an extent of about 340 sq. ft. and that work was carried out, and for that the complainant was liable to pay a sum of Rs. 1,15,110/- which amount the complainant has not paid. The further contention of the opposite party is that for the delayed payment, the complainant is liable to pay a sum of Rs. 77,890/-. But the complainant denies that he asked the opposite party to do the extra work as stated by him and therefore, he is not liable to pay any amount as claimed by the opposite party. The complainant would further deny that there was any delay in payments. As regards the contention of the opposite party that he did some extra work, there is no reliable evidence at all. In this connection, he would bring to our notice a letter dated 17.9.1993 written by the complainant to him. A reading of this does not show that the complainant has asked the opposite party to do any extra work. But the opposite party has brought to our notice another letter dated 4.2.1994 written by the complainant to him. A perusal of this letter shows a mention of some work in respect of floor, wash basins, kitchen, bath rooms, front door, electricity points. TV and Telephone points, attached toilets, terrace, water tank etc. Nothing whatsoever has been mentioned about portico and verandah. May be, the complainant has paid a sum of Rs. 70,625/- more than the amount mentioned in the agreement as the cost of construction, as seen supra, for the work mentioned in his letter dated 4.2.1994. As regards the contention that there was delayed payment by the complainant, the complainant has paid in several instalments, but it is not stated by the opposite party as to which instalment/s was/were delayed. The opposite party has written a letter dated 2.9.1994 to the complainant claiming an extra sum of Rs. 1,15,110/- as additional cost and Rs. 77,890/-for the delayed payments. To this, the complainant has sent a reply forthwith denying his liability to pay any such amount. Thus, we find there is no substance in the contention of opposite party. It follows, therefore, that the opposite party is guilty of deficiency in service in not completing the construction and handing over possession thereof even after receiving the entire amount payable by the complainant.

IN the result, we direct the opposite party to complete the construction of the building and hand over possession of the same to the complainant within two months from today. We further order the opposite party to pay a sum of Rs. 10,000/- (Rupees ten thousand only) as damages for mental agony caused to the complainant and also a sum of Rs. 2,000/- (Rupees two thousand only) as cost of these proceedings within two months from today. The other claims made in the complaint are rejected. Complaint allowed with costs.