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2004 DIGILAW 90 (HP)

B. K. PAL PROFESSOR (RETIRED) v. TENZIN

2004-05-06

ONKAR CHAND THAKUR, PREM CHAUHAN, SURINDER SARUP

body2004
ORDER : Justice Surinder Sarup (Retd.), President :- The present complaint has been filed on the pleadings that the complainant is owner of land in village Dhanda, Tehsil and District Shimla, where he proposed to raise three-storeyed building as per Plan vide Annexure C-1. For this purpose, he hired the services of the opposite party who is a builder-cum-contractor. As per the terms and conditions agreed upon between them, rate for constructed area in all respects was fixed at Rs. 500/- per sq. Ft. Similarly, it was agreed that the rate for open terrace area would be Rs. 275/- per sq ft, while the rate for ground floor area excluding finishing was agreed at Rs. 200/-per sq ft. It was further agreed that the total cost of the entire work should not exceed Rs. 17.00 lacs. It was further agreed that an advance of Rs. 2.00 lacs shall be paid by the complainant to the opposite party in advance, while the mode and schedule of payments was also agreed as per the contents of Annexure C-2 dated 1.7.1997, stipulating that the construction would be completed within 8 months from the date of execution of the said agreement i.e. 1.7.1997, meaning thereby that the same should be completed by the end of December, 1998. 2. According to the complainant, the opposite party did not complete the construction or hand over the possession of the constructed house till the time of filing of the complaint on 20.7.2000. It is further alleged that the complainant had strictly complied with his part of the terms of the agreement by making payment of a total amount of Rs. 14,52,000/- before 24.7.1999 and only a balance of Rs. 2,50,000/- remains to be paid, although not even the one story has been completed. It is stated that he got the rough assessment of the constructed area made from a reputed Architect Engineer/Interior Designer of Shimla as per the details vide Annexure C-3. A legal notice dated 4.5.2000 was also issued to the opposite party vide copy Annexure C-4 but to no avail. Hence, the complaint with the prayer that a total amount of Rs. 8,15,000/- with future interest may be awarded. The allegations in the complaint are duly supported by the affidavit of the complainant 3. During the course of the proceedings of this complaint, the opposite party had appeared in person on 16.11.2000 on our direction. Hence, the complaint with the prayer that a total amount of Rs. 8,15,000/- with future interest may be awarded. The allegations in the complaint are duly supported by the affidavit of the complainant 3. During the course of the proceedings of this complaint, the opposite party had appeared in person on 16.11.2000 on our direction. His plea was that he was ready to executed the work allotted to him by the complainant but the delay has occurred on account of his repeated interference. He further gave an undertaking, on the assurance of the complainant that there will be no interference on his part, that he would complete the construction within one month. Ultimately, nothing came out of this offer and on 10.7.2001, reply to the complaint was filed, to which the complainant also filed a rejoinder. Thereafter, a number of opportunities were allowed to the opposite party to file his evidence, the complainant having filed his evidence at the very first opportunity, and he filed his evidence on 14.12.2001. By order dated 26.8.2002, when the opposite party absented himself, there was even no representation on his behalf by Counsel, the application for appointment of Local Commissioner of the complainant was accepted and Shri H.S. Bist, a retired Executive Engineer, HP. P.W.D., was appointed as such. He was directed to go to the spot, carry out a thorough inspection and then submit his report within two months. 4. In his report dated 24.10.2002, the said Local Commissioner has recorded that on 28.9.2002, both the parties were present, so also the Counsel for the complainant, but no document like agreement, drawing of the building and other relevant documents were made available by the opposite party to him. However, the original agreement incorporating the terms and conditions was made available by the complainant alongwith copy of the drawing on which the work was to be executed. As per the detailed observations made in the said report of the Local Commissioner, he found a large number of serious defects in the constructed portion of the building. In his conclusion, the Local Commissioner opined that the opposite party has not executed this building work as per the drawing of the Architect, which has defeated the very purpose of the building. There are permanent defects in the staircase, which cannot be set right without reconstruction after dismantling of the existing one. In his conclusion, the Local Commissioner opined that the opposite party has not executed this building work as per the drawing of the Architect, which has defeated the very purpose of the building. There are permanent defects in the staircase, which cannot be set right without reconstruction after dismantling of the existing one. The Kitchen and the toilets have also not been construction, as per drawing and there is no surface drain construction to carry out the rain the kitchen/bath waters. The plinth protection has not been done. The ground floor level is tower than the surface ground which would have resulted in percolation of surface ground water during rains. Finally, the Local Commissioner has stated in his report that the work of the building is incomplete as per the conditions of the agreement and drawing plan. 5. On an opportunity being afforded to the opposite party, the objections to the report to the Local Commissioner were filed, but on going through the same, we do not find any such cogent plea which would make us discard the otherwise well considered and reasoned report of the said Local Commissioner, who being an Engineer would be deemed .as an expert in the matter. We, therefore, accept the said report and relying the same, we come to the conclusion that the stand taken in the complaint appears to be justified. The same reveals deficiency in service on the part of the opposite party who has not denied having accepted a considerable part of the cost as agreed upon between the parties for the construction of the building in question It would be relevant to refer to the reply in respect of para-14 of the complaint wherein a specific plea has been raised that the complainant has paid an amount of Rs. 14,52,000/- to the opposite party. All that is stated in the corresponding para of the reply is mere denial. At the same time, it has been pleaded therein that the complainant has failed to the make the balance payment, meaning thereby that what has been specifically pleaded as regards the alleged payment, has not been denied convincingly. 6. 14,52,000/- to the opposite party. All that is stated in the corresponding para of the reply is mere denial. At the same time, it has been pleaded therein that the complainant has failed to the make the balance payment, meaning thereby that what has been specifically pleaded as regards the alleged payment, has not been denied convincingly. 6. In the above circumstances, we accept the complaint to the extent that for the deficiency in service on the part of the opposite party in the facts and circumstances established on the record in the present case, he is liable to pay a sum of Rs. 3,00,000/- to the complainant and we issue a direction accordingly. We further award on amount of Rs. 5,000/- as compensation for the harassment caused to the complainant by the opposite party as well as Rs. 2,000/- as costs. The complaint is disposed of in these term.