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TAMIL NADU STATE CONSUMER DISPUTES
REDRESSAL COMMISSION, MADRAS
Hon’ble Thiru Justice S.A. Kader, President;
Dr. (Tmt.) Ramani Mathuranayagam & Thiru V.S. Kandasamy, Members
PUBLIC SECTOR EMPLOYEES WELFARE AND SOCIETY—Complainant
versus
BALAJEE CONSTRUCTIONS & ANR.—Opp. Parties
O.P. 216 of 1994—Decided on 10.2.1995
Counsel for the Parties :
For the Complainant :Thiru S. Anantha Narayanan, Advocate.
For the Opp. Parties No. 1 :Thiru S. Thankasamy, Advocate.
For the Opp. Parties No. 2 :Thiru Mothilal, Advocate.
Headnote:(i) Consumer Protection Act, 1986 - Sections 12/17 - and 2(1)(g) - Deficiency in Service - Complainant entered into agreement for construction of flats - As per agreement complainant required to pay Rs. five Lakhs as advance - Paid Rs. one lack only - First opposite party denied receipt of amount - Excepting this nothing happened - No agreement came into existence - First opposite party bound to refund amount - Failure to refund amount deficiency in service.
Held: It is admitted by the complainant himself that the 1st opposite party demanded an advance of Rs. 5,00,000/- before 15.10.1993 and another sum of Rs. 5,00,000/- before 31.10.1993. The complainant has not complied with this demand. It claims to have paid only a sum of Rs. 1,00,000/- as advance. Though the 1st opposite party had denied receipt of this amount in the counter statement, in the affidavit filed by Mr. Narayanamoorthy, the partner of the 1st opposite party firm, it is admitted that a sum of Rs. 1,00,000/- has been received from the complainant on 13.12.1993 by means of a cheque. Excepting for this payment, nothing else has happened. No agreement has come into existence. The 1st opposite party is, therefore bound to refund the amount of Rs. 1,00,000/- The failure to refund the amount amounts to deficiency in service. (Para 7)
(ii) Consumer Protection Act, 1986Section 2(I)(d) - Consumer - Payment made by contractor to opposite party No. 2 by cheque issued by complainant - Services of 2nd party not engaged by complainant Complainant not consumer.
Held: So far as the 2nd opposite party is concerned, the complainant cannot claim to be consumer. The 2nd opposite party is a firm of Architects. According to the 2nd opposite party it prepared the sketch for this proposed building as per the instructions of the 1st opposite party and it is the 1st opposite party which has to pay for the services rendered by the 2nd opposite party. But, in the instant case, the service charge of Rs. 11,500/- has been paid by the 1st opposite party by means of a cheque issued by the complainant. The complainant has not engaged the services of the 2nd opposite party and the complainant is not, therefore, a consumer. The sum of Rs. 11,500/- paid by the complainant is only on behalf of the 1st opposite party who has instructed the 2nd opposite party to prepare the sketch and drawings. This amount is therefore payable only by the 1st opposite party. The 1st opposite party is also liable to pay interest for the amounts parted with by the complainant. The claim for compensation of Rs. 4,00,000/- is totally untenable and cannot be allowed. (Paja 8)
Thiru Justice S.A. Kader, President—This is a complaint under Section 17 read with Section 12 of the Consumer Protection Act.
2. The complainant is a Society of Public Sector Employees registered under the Tamil Nadu Societies Act with the Distinctive No. 173/ 92. The object of the society is to purchase land, frame lay out schemes and distribute plots among its members. In September ‘93, it entered into an agreement with the 1st opposite party, Building Promotor for the construction of flats in Survey No. 104/4, Triplicane Taluk. The 1st opposite party by his letter dated 22.9.93 gave the terms and conditions. The complainant offered to pay an advance of Rs. 5,00,000/- before 30.12.93 and another sum of Rs. 3,00,000/- before 31.12.93 and the balance after the approval of the plan by the M.M.D. A. The 1st opposite party wanted the advance to be paid before 15.10.93 and another sum of Rs. 5,00,000/- before 31.10.93 Under instructions from the 1st opposite party, the complainant consulted the 2nd opposite party, Architect for preparing the sketch and specifications for approval by the M.M.D. A. A sum of Rs. 11,500/- was paid by the complainant by cheque to the 2nd opposite party. A sum of Rs. 1,00,000/- was paid by the complainant by cheque to the 1st opposite party. The opposite parties 1 & 2 did not get the approval from the M.M.D.A. Alleging negligence, the complainant has filed this complaint for recovery of the sum of Rs. 1,11,500/- and compensation in the sum of Rs. 5,00,000/- against both the opposite parties.
3. The 1st opposite party in its separate counter admitted that the complainant approached it for construction and this opposite party agreed to put up construction at Rs. 625/- per sq. ft. It demanded a payment of advance of Rs. 5,00,000/- before 15.10.93 and another sum of Rs. 5,00,000/- before 31.10.93. There was no further communication from the complainant. Even the receipt of Rs. 1,00,000/- from the complainant is denied. The 2nd opposite party is the Architect whose services is at times engaged by the 1st opposite party. It is not true that the sum of Rs. 11,500/- has been paid to the 2nd opposite party by the complainant as per the instructions of the 1st opposite party. There was no deficiency in service.
4. The 2nd opposite party pleaded that it is a firm of Architects engaged in designing buildings and getting approvals. It also supervises the construction work. As per the instructions of the 1st opposite party, the 2nd opposite party finalised the drawings for the proposed construction and submitted it to the 1st opposite party. The payment for the services should normally be made by the 1st opposite party. But, in this case, the 1st opposite party paid the sum of Rs. 11,500/- by cheque drawn by the complainant. The complainant never engaged the services of the 2nd opposite party. The complainant is not a consumer as regards the 2nd opposite party and there is no deficiency in service.
5. Exs. A1 to A4 ar 4 B1 to B3 are marked by consent. Proof affidavits are filed. No oral evidence has been let in.
6. The point for consideration is whether there has been any deficiency in service on the part of any of the opposite parties and to what relief if any is the complainant entitled.
7. Point : — The case of the complainant is that it entered into an agreement with the 1st opposite party for the construction of flat’ in Survey No. 104/4 on turn key basis. It is admitted by the complainant himself that the 1st opposite party demanded an advance of Rs. 5,00,000/- before 15.10.93 and another sum of Rs. 5,00,000/- before 31.10.93. The complainant has not complied with this demand. It claims to have paid only a sum of Rs. 1,00,000/- as advance. Though the 1st opposite party had denied receipt of this amount in the counter statement, in the affidavit filed by Mr. Narayanamoorthy, the partner of the 1st opposite party firm, it is admitted that a sum of Rs. 1,00,000/- has been received from the complainant on 13.12.93 b
