RAJKUMAR ASSOCIATES Vs. C V PAULOSE

JUDGEMENT

(1.) The complainant's case is as follows : the complainant is an Ex-serviceman. He is a poor person eking his livelihood with the pension paid to him. Since the complainant is the Ex-serviceman, he was allotted free of cost a house-site measuring three cents. With a view to put up a construction for the complainant, the opposite parties 1 and 2 on behalf of the third opposite party entered into an agreement. The complainant had carried out his obligations under the contract. But the opposite parties have failed to perform the conditions of the agreement. It is solely on account of the act of third opposite party, they have failed to complete the construction. The opposite parties have failed to perform their obligations in terms of the agreement. The complainant has paid Rs.5,000/- on 26.6.1992, Rs.4,314/- on 29.9.1992, Rs.2,290/- on 15.9.1992, Rs.2,000/- on 15.3.1992 and Rs.1,600/- on 28.2.1994. The complainant also availed a loan of Rs.7,000/- from the Coimbatore District Co-operative Housing Society, which was also paid by him. Though the complainant has paid all the amounts due as per the agreement, the opposite parties have omitted and failed to perform their obligation and complete the construction. Therefore, this complaint is lodged claiming a sum of Rs.1,00,000/- as compensation for mental agony and hardship caused by the deficiency of service on the part of the opposite parties.

(2.) The first opposite party contended that he is not the proprietor of M/s. Rajkumar Associates and that he had retired from the firm from 1.4.1993 and, therefore, the complaint is not maintainable against him. The second opposite party has stated as follows : The complainant had entered into an agreement for construction of a small tiled house measuring 16" x 10" and paid an advance of Rs.2,000/-. As per the terms of the agreement, the complainant has make payment before the commencement of each stage of work in advance and if the complainant makes any default to make payment in advance for any particular stage, the opposite party has got right to stop the work. The complainant has to pay Rs.2,500/- immediately on completion of basement stage and has to pay Rs.3,000/- on completion of wall upto 3" stage and has to pay Rs.5,000/- after completion of wall work and has to pay Rs.3,000/- in advance for completion of the rest of the work. First the complainant pointed out the site No.41 as his site and made the opposite party to put up the construction upto basement stage in the wrong site. Then the complainant pointed out another site at later stage. Thus as a result of negligence of the complainant, the opposite parties suffered a loss of Rs.5,000/-. The opposite party had completed the entire construction work including the roofing except fixing doors and window. Since the complainant failed to pay the last instalment, the opposite parties failed to complete the work. It is the complainant who committed the breach of obligations. After a lapse of 1 years, the complainant paid a sum of Rs.1,600/-. The complainant agreed to pay the construction charges at revised rate for the final stage. The complainant failed to pay the balance. The matter relates to breach of contract and, therefore, the complaint is not maintainable. Further, the co-operative bank supervised the construction each and every stage. The complaint is frivolous. Therefore, the opposite parties 1and 2 pray that this complaint may be dismissed.

(3.) The third opposite party has filed version stating as follows : The construction of building is a bilateral agreement between the complainant and the opposite parties 1 and 2. The third opposite party has nothing to do with the same. The third opposite party has not received any payment from the complainant and therefore is not liable to do any service. Thus, there is no deficiency in service on the part of the third opposite party. There is no secret agreement between the opposite parties. At the instigation of Mr. Sankaran and Mr. Rangasamy who are inimical to Mr. Govindarajan and due to union rivalry, the complaint is filed. Mr. Govindarajan is not a party to any agreement with the complainant and opposite parties 1 and 2 and he has not received any amount from the complainant and he is not bound to do any service to the complainant. Hence, there is no deficiency in service.