S.N.BASU,MEMBER - (1.) THIS is an Appeal directed against the judgment and orders dated 25.4.08 passed by the Nadia District Consumer Forum in its C.F. Case No. 60/98 directing the Appellant/OP to pay Rs. 30,000 as compensation as also cost of Rs. 1,000 to the complainant/Respondent. Being aggrieved by the said judgement the present Appeal has been preferred.
(2.) THE facts of the case briefly are that the Complainant/Respondent, who is a retired person, entered into an agreement on 26.12.1997 with the Appellant/OP to the effect that the OP would construct the flat on the first floor @ Rs. 221 per Sq.ft. for a total area of 670 Sq.ft. amounting to Rs. 1,36,357 and the Respondent would also pay Rs. 3,800 on account of remodeling of the staircase as per drawing. As per the said agreement, the complainant was to pay 30% of the total cost before starting the work and thereafter 35% before casting of the roof and 25% before fitting and fixing of doors and windows and the balance 10% would be adjusted after completion of the work. The Respondent paid Rs. 35,000 on the date of agreement. It was subsequently decided that the Respondent/Complainant would provide bricks, all window frames, doors and windows and for supplying the said items he would pay a total amount of Rs. 1,15,000 instead of Rs. 1,36,357 as agreed in the agreement. The Appellant also agreed to construct a staircase to the roof of the first floor against payment of Rs. 10,000. The Respondent paid a total amount of Rs. 1,21,900. On 3.6.1998 the Appellant/OP suspended the construction work with some pleas and did not resume the same in spite of repeated requests and even after receiving the Advocate's letter. The complainant was thus harassed and suffered mental agony including damage to the building. The Respondent thereafter filed a complaint before the Forum below praying for a direction upon the OP to complete the construction work and payment of compensation for harassment and mental agony. The learned Forum after hearing both sides and on perusal of the documents passed the above order.
(3.) THE Appellant contended that the learned Forum passed its order dated 25.4.2008 without considering the facts and circumstances of the case. He contended that the allegation regarding non -completion of the construction work is vague since there was no agreement. The petition was also time -barred and the impugned order was passed ex parte. He also contended that though the Respondent had originally agreed to supply the bricks and certain other materials, no bricks were supplied by him. The Respondent also requested him to construct the staircase leading to the roof of the fist floor for a total space of 120 Sq.ft., but he did not pay any amount against the estimated cost of Rs. 26,520 in respect of the said staircase. He also contended that though it was initially agreed that the total construction area would be 670 Sq.ft., the construction ultimately came to 740 Sq.ft. He also contended that he repeatedly requested the Respondent to adhere to the terms and conditions contained in the written agreement, but the Respondent did not cooperate with him. He finally contended that he was ready to complete the construction if the Respondent was agreeable to pay a further amount equivalent to 19% of the consolidated rate as per Annexure -A. He has, therefore, come up with the prayer that the said order of the Forum below dated 25.4.1998 should be set aside. We have perused the Memo of Appeal and the impugned judgment passed by the learned Forum. We have heard the learned Advocates of both the sides and perused the documents placed before us. We find that as per written agreement it was decided that the Appellant would construct the first floor measuring 670 sft. @ Rs. 221 per Sq.ft. against a total payment of Rs. 1,36,357 and the Respondent would also pay Rs. 3,800 on account of the staircase up to the roof of the first floor. The schedule of payment was also clearly indicated in the said agreement and the Respondent had also made a total payment of Rs. 1,21,900. It has been contended by the Appellant the parties subsequently decided that the Respondent would supply the bricks, doors and windows and thereby he would make a total payment of Rs. 1,15,000 in place of Rs. 1,36,357 as originally decided in the agreement. The Appellant, however, denied that he had received any materials from the Respondent and it was alleged that subsequently it was decided that the first floor staircase would be constructed against payment of Rs. 10,000 and not Rs. 3,800. The Appellant contended that he is agreeable to complete the construction provided the residual sum of Rs. 28,706 is paid to him as per a hand -written calculation sheet enclosed to the Memo of Appeal. In the face of such claims and counter claims we are inclined to say that in the absence of any written agreement regarding subsequent decisions relating to supply of materials by the Respondent and also payment of higher cost on account of the staircase, the contention of the Appellant is not acceptable. In terms of the said agreement the Respondent must make full payment of Rs. 1,40,157 (Rs. 1,36,357 + Rs. 3,800) less 10%, i.e. 14,015 which would be adjusted after completion of the work. He has already made payment of Rs. 1,21,900 and, therefore, he shall make further payment of Rs. 4,242 immediately to make the amount equivalent to 90% of the contracted price as per agreement and should pay the remaining amount of Rs. 14,015 after construction work is completed.;