Judgment:
Per Shri P.N. Kashalkar, Honble Presiding Judicial Member.
1. This appeal has been filed by the Original Complainant himself who is aggrieved by the judgement/order dated 29.09.2007 passed in Consumer Complaint No. 388/2002, which had been dismissed by the Consumer Disputes Redressal Forum, District - Satara.
2. The facts to the extent material may be stated as under:
Complainant is resident of Ghodbunder Road, Kavesar, Thane. He had filed consumer complaint against Momin Constructions of Village -Tarale, Taluka â Patan, District â Satara, in Consumer Disputes Redressal Forum, District - Satara. He pleaded that, he had decided to construct house at Village Chorade, Taluka â Khatav, District â Satara. He contacted Opposite Party who is in construction business. He agreed to get constructed his house from Opposite Party for a sum of Rs.3,25,000/-, which would be in RCC structure. According to Complainant he paid to Opposite Party from time to time cash amount of Rs.3,25,000/- and Opposite Party had issued receipts therefor. Within three months construction was to be made by Opposite Party, but Opposite Party could not make construction within three months and left the job work in incomplete stage. He pleaded that there was leakage in slab, plastering was not done to the walls, the Opposite Party had not put shahabadi floor in the house. He had not put doors, windows, he did not do electric fitting, he had not constructed latrine and bathroom. However, on 22.04.2002 he sent a letter to the Complainant and asked for exorbitant charges for construction of the house and therefore, he filed consumer complaint in the District Forum alleging deficiency in service on the part of the contractor. He claimed certain amount for keeping incomplete construction, he also claimed Rs.50,000/- as compensation for mental harassment and Rs.5,000/- towards costs.
3. Opposite Party filed written statement and denied the allegations made in the complaint. Opposite Party pleaded that the complaint filed by the Complainant is fraudulent and imaginary. Opposite Party admitted that there was agreement between Complainant and his brother â Shivaji Kondiba Mane on 14.05.2000 and he had agreed to complete house of Complainant as well as of Shivaji Kondiba Mane. Initially, Complainant was required to pay 40% of total construction costs as advance amount which was Rs.90,758.40. The Complainant initially paid Rs.40,000/- on 14.05.2000 and remaining amount was not paid within stipulated time. Hence, interest accrued thereon for unpaid amount @ 17% per annum. Opposite Party demanded an amount of Rs.75,121.89 inclusive of interest @ 17% per annum. Complainant and his brother, both assured him that after they received loan amount from the bank they would pay the remaining balance amount. Hence, he started construction, but he was not paid the amount. The Complainant assured to pay Rs.1,75,000/- to him and recorded this fact on the stamp paper agreement. When construction was going on, Complainant did not pay the remaining advance amount as per stages. He suffered a lot of inconvenience and difficulties in continuing the construction, because payment was not forthcoming from the Complainant. Therefore, while carrying out construction he could not ensure perfect construction because payment was not forthcoming from the Complainant and he had told this fact to the Complainant in clear terms. He simply assured that after availing loan which is sanctioned he will make the payment. But after 5/6 months Complainant did not pay the amount, Complainant did not provide requisite water for construction and therefore, he could not construct house properly. This happened because of non-cooperation given by the Complainant. For substandard construction, Complainant and Lumnekhol Gramastha Mandal were responsible. He pleaded that even after bank sanctioned the loan he did not pay the balance amount of Rs.1,75,000/-, though his brother Shivaji Kondiba Mane had deposited Rs.20,000/- with him. According to Opposite Party, the Complainant was in arrears of Rs.1,40,922.20 and since he had not paid the amount his house was left in incomplete stage because of non-payment of dues by the Complainant.
4. Opposite Party further pleaded that he had not agreed to complete the construction of house within three months as alleged. There was agreement between them on 14th May, 2000 and as per agreement Complainant was duty bound to comply with the terms of agreement, but Complainant did not comply with those terms and Complainant and Lumnekhol Gramastha Mandal resorted to unfair trade practice they passed resolution against Momin Constructions. Though, initially rate prescribed for RCC structure was Rs.375/- per sq. ft., it was reduced to Rs.325/- per sq. ft. wrongfully and illegally, he was forced to accept reduced rate by Lumnekhol Gramastha Mandal, Mumbai. He pleaded that Complainant had not come before the Forum with clean hands, therefore, he was not entitled to get any relief from the forum. The Complainant and Lumnekhol Gramastha Mandal used muscle powers to threaten him and therefore, he claimed that he was entitled to get amount of Rs.1,00,000/- as compensation from the Complainant. He further pleaded that, as per agreement the Complainant had not paid installments, Complainant had not supplied him water and therefore, he cannot complain of deficiency in service on the part of the Opposite Party. He disputed Commissioners report filed along with the complaint. He pleaded that Commissioner had given report as desired by the Complainant and it was not the correct report. He found many faults in the work of commission and pleaded that said Commissioners report may be rejected in toto. He pleaded that the complaint be dismissed with costs, since Complainant has not paid total amount of Rs.1,40,922.20.
5. Both the parties filed Affidavits and considering the affidavits and documents placed on record including Commissioners report the forum below by the impugned judgement held that in the complaint it was not mentioned how much work was remaining incomplete as per agreement. The forum below also observed that at the instance of Complainant, Honble Commissioner was appointed and he filed Commissioners Report at Exhibit-16. From both the Commissioners report it was clear that some work was remained to be done by the Opposite Party, but Opposite Party was prepared to do the same. The forum below noted that the Complainant had not asked for the relief to get completed the said incomplete work from the Opposite Party. He simply asked for certain amount with reference to the incomplete work left by the Opposite Party, but forum below also noted that Complainant was not prepared to pay remaining balance amount to the Opposite Party and therefore, it was pleased to dismiss the complaint. Aggrieved thereby the Complainant has filed this appeal.
6. We heard submissions of Advocate â Shri Uday Wavikar for the Appellant. None appeared for the Respondent.
7. We are, however, finding that there is no merit in the appeal. No doubt, the work of construction has been left incomplete by the Opposite Party. But, Complainant is required to pay whole amount of consideration, then only building contractor can be directed to complete the construction which is left in incomplete stage because of non-payment of dues. On 22.04.2002, it appears that there was a meeting between Complainant and Momin Construction with the intervention of Lumnekhol Gramastha Mandal, Mumbai and Momin Construction had issued details of amounts unpaid by Complainant and other persons who had entrusted the construction work, like Complainant to Momin Constructions. As per this letter, amount of Rs.88,874.12 was recoverable towards charges by Momin Constructions from Tanaji Mane and his brother Shivaji Mane. In the appeal filed by Tanaji Mane, some receipts in the name of Shivaji Mane have been produced. As per Respondents written statement he has to recover amount of Rs.1,40,922.20 from the Complainant. Since Complainant had not paid the said amount, Momin Construction â Respondent herein left the work of construction at incomplete stage for which Complainant himself should be blamed. Complainant had also not provided water as per agreement and this affected quality of the construction. In the circumstances, despite there being admitted position that construction has been left at incomplete stage, we cannot allow this appeal to direct Respondent to make construction complete in all respect when appellant was not prepared to pay a single paisa to the Respondent. We, therefore, agree with the findings recorded by Ld. District Forum and hold that Appellant is to be blamed for the incomplete work left by Respondent and Respondent cannot be held guilty of deficiency in service in the circumstances obtainable. Hence, we pass the following order:
Order:
(1) Appeal stands dismissed.
(2) No order as to costs.
(3) Inform parties accordingly.