Jyo20131015shanthamPavam

AFFIDAVIT

filed by the complainant to supplement his original complaint dated september 30, 2012 and the reply affidavit dated february 15, 2013.

The complainant begs to further submit as follows:

A

1. The opposite party essentially is a construction company. The guidelines of their functioning is as elaborated in EXHIBIT C1 of the original complaint.

2. The Complainant is a registered client No.31329 of the opposite party and this finds mention in the copy of the ledger account of the opposite party produced herewith and marked EXHIBIT C12 .

a. the registration was done after the preliminaries as per the guidelines in para B. 3. of EXHIBIT C1 were completed.

b. Client registration is not a free service ; This complainant name was registered on payment of the stipulated fee (EXHIBIT C10 of the original complaint).

c. According to the oxford learners dictionary of current English

“client means a person who uses the services or advice of a professional person or organization”.

d. “Any person who hires or avails of any services for a consideration is a consumer” – 2. (d) ( ii) of CPA 1986.

3. In the context of the above and the opposite party's contention that the complaint was NOT maintainable before the Hon'ble Forum, which the honble forum was kind enough to rule out since , this complainant begs to submit as follows:

a. As the professionals in this field the opposite party was obliged to have told the complainant, their registered client, what they thought was good for him and advised him on the need for a written agreement; but this was never done.

b. If the written agreement was a must as the opposite party claimed, there was a deficiency in the service provided by the opposite party to their complainant there as well.

c. Not only that, at a later stage the opposite party was making an effort to use the absence of a written agreement to sabotage the complainant's rightful claims. This the complainant feels is an indicator of the ethical standards of the functioning of this “Non Profit Organization”

4. The complainant finds absolutely preposterous the statement made by the opposite party's counsel that the complainant has “approached the Hon'ble forum suppressing real facts” vide para 2. of their petition on maintainability dated 30.1.2013 . There is no reason whatsoever for the complainant to “suppress real facts” as claimed by the learned lawyer.

a. The corollary of the national commission ruling quoted by the learned counsel is that “corroborative and other supportive material could constitute sufficient evidence”. And this Complainant has enough such material at his disposal to prove his point that way.

5. There is incontrovertible evidence to prove that the opposite party had agreed to make available, for a consideration, their consultancy services for constructing a residence for the complainant. It is obvious that the complainant had hired the consultancy services of the opposite party vide para D. 1. of EXHIBIT C1.

a. There is absolute proof for the fact that the opposite party had a project “RP/PC-194/2011/RESIDENCE FOR MR. CHERIYATH JYOTHI, KAYIPADI” on their computer system. The above project also finds a mention in small print in many of the documents produced by the opposite party like EXHIBIT C3 for example. The individual named in the above project is this complainant – it is almost a unique name. Residence here means house.

b. The drawing and designing stage has been completed successfully without any glitch, and payments made ( EXHIBIT C10 of the original complaint).

c. The actual building process on ground started with the basement/foundation stage. The complainant is withholding the payment due in view of the snag in the siting of the basement and the opposite party is lamenting about the non-payment of the bill ( EXHIBIT C12 ). Obviously the opposite party has not disassociated themselves from the construction already made.

d. In the actual building process, the procedures and guideline vide EXHIBIT C1 were being followed to the letter.

e. The base/foundation alone is not an entity in itself but is one of the many parts of the whole house that the opposite party had agreed to construct.

f. In deed a detailed estimate for the proposed building has been made by the opposite party Copy of letter No. PC/RP-194/2011 dt. 29.02.2012 of the opposite party is produced herewith and marked EXHIBIT C13. On the second page of the above letter the opposite party mentions about the “remaining works to be completed.”

g. There was a problem with the siting of the building and efforts were on to sort it out amicably.

6. At this stage, suddenly like a bolt from the blue comes the letter of the opposite party dated 07.6.12 EXHIBIT C14.informing the complainant

“we are not interested in proceeding further

with the proposed building construction”

and then cutting him off completely. No reason whatsoever was given for this sudden turn around.

a. It was a despicable act of treachery and there is an element of criminal breach of trust involved which will have to be taken care of in the concerned court of law.

7. The allegations of the complainant being very rude to the workers and changing the plan almost daily vide para 6. of the affidavit in lieu of chief examination by the opposite party dated august 12, 2013 are HIGHLY DELAYED AFTERTHOUGHTS brought in at the last moment in an effort to give a semblance of decency to their nefarious designs.

a. The allegation of the Complainant being rude to the workers is a blatant black lie. The ground realities are the exact opposite.

i) The feedback by the Complainant ( vide EXHIBIT C7 of the original complaint ) ends with a request to the opposite party to keep their cool. This was in the context of the one and only one untoward incident that took place at the work site.

ii) One of their engineers who was to have supervised the work, for once landed up at the work site to make measurements in order to calculate the amount due to the contractor, became wild and started shouting at the complainant. The complainant kept his cool and probably avoided a brawl. Incidentally another one of the engineers accompanying the assistant co-ordinator opposite party probably aware of such situations in the past and in view of what was to follow withdrew immediately from the place as the gentleman started the outburst and went and sat in their vehicle.

b. Building procedures and guidelines of opposite party vide para C. 1 mentions about review of the initial design before the final drawing is made and the complainant in deed did make suggestions.

i) The changes suggested by the complainant were for plausible reason and even then the final decision whether to incorporate the change or not was left to the experts, that is the opposite party, whose services the Complainant had hired for the very purpose. There was no compulsion whatsoever from the side of the complainant.

ii) Also the concerned members of the opposite party's staff never demurred on the matter for they had found the complainant's suggestions sensible.

8. Under normal circumstances no one would have wanted to have anything to do any more with such a set up. However the Complainant is literally trapped.

a. The construction methodology followed by the opposite party is unique. For the basement they use what is called rubble masonry – no cement or mortar is used. The basement is custom made to support the Laurie baker mode walls made under the rat trap mode - the walls are not solid and have blank spaces inside and roofing does not use steel. The basement already built will not be able to support a normally constructed house.

b. as such, if the complainant has to go to another builder he will first have to demolish the basement already constructed and then start from scratch; the money and time spent till date on the construction will all go waste and further time and money will have to be spent demolishing the structure and clearing the rubble.

c. In a similar situation a man with a family would have definitely gone on his knees in front of the opposite party rather than resort to litigation and that was probably how this complainant was also expected to behave!

500. This house means a lot to the complainant - not as an end in itself, but as the means to an end. That way it is a matter of his very existence or, may be, even more than that. The complainant could not have afforded to shelve the project under any circumstances.

9. It was in an effort to wriggle out of this quagmire that the opposite party had created and to make an effort to see that the nefarious designs of the opposite party do not succeed that the Complainant filed the complaint in the Hon'ble forum.

a. In the above context it is ridiculous the opposite party coming up with an allegation of “VEXATIOUS LITIGATION” in their version dated 29.12.12.

10. There is deficiency in the services provided:

a. in abruptly terminating the services provided vide EXHIBIT C14

b. in siting of the building .

11. In siting the building the opposite party has failed in translating the plan their own architects have made on to the structure they have made on ground the most jarring of them being the case of the rear yard.

a. The rear yard was changed from the 1.5 meters in the preliminary design ( Exhibit C3 ) to 2 meters depth as seen in the final drawing approved by the local body ( Exhibit C4 ); and this change was brought in by the opposite party in response to a specific request of the complainant that the rear yard be made 2 (two) meters or more deep – it can be more than two meters but not less than two meters.

b. The opposite party vide EXHIBITS C8 has accepted the fact that on the construction made on ground the rear yard is just 1.8 meters and not 2 meters.

c. That means the construction made by the opposite party has been erratic .

d. As is clearly evident from the site plan the front yard which legally was to have a minimum depth of 3 meters is 4.8mtrs or more in depth throughout the length of the building. The opposite party could have easily afforded to make the rear yard 2 meters, or even more.

e. There, thus, were no valid reasons or compulsions whatsoever on the opposite party to deviate from the approved plan, err on the negative side, and reduce the depth of the rear yard to 1.8 meters.

c. The site supervision is the responsibility of the opposite party ( vide para D.1.a. of Exhibit C1 )

Thus there is deficiency in the service provided.

12. It is a fact that the complainant had withheld the second installment as mentioned in para 3. of the written version by the opposite party. This was in view of the deficiencies in the service provided. All the same this fact cannot be held out as a reason for shirking the responsibilities of the service provider.

Any person who hires or avails of any services for a consideration which has only been promised could be the consumer ( No. 2. (d) ( ii ) of CPA 1986.)

The opposite party therefore is bound to rectify the error and make amends.

13. Added to this is the fact that by making the rear yard only 1.80 meters the opposite party has opened up a whole pandora's box of conundrums regarding the legality of the building being constructed.

a. Copy of information received from the karakulam panchayath under RTI act 2005 is produced herewith and marked EXHIBIT C15 which states that the building rules relevant to karakulam panchayath are the kerala panchayath building rules 2011 (KPBR 2011).

b. in the case of the building under construction, the `rear yard' means the utility open space extending laterally along the rear side of the plot and forming part of the plot – there is no change there. And this has to have a minimum depth of 2 (two) meters.

100. The approved plan with the 2 mtrs rear yard would have passed muster even under the KPBR 2011 as well. With the rear yard less than two meters the building will not comply with the approved plan and the authorities can coolly wash their hands off.

14. The complainant's basic interest was in getting the building constructed at the earliest. Also he did not want to end up with an illegal construction in his hand.

a. As such, he ignored the opposite party's harping on the municipalities building rules even as late as 29.2.2012, and made a proposition to avoid pitfalls at a later stage vide his letter No.clo2012/bld/04 dt. April 07, 2012 copy of which is produced herewith and marked EXHIBIT C16.

b. The complainant was ready to put up with the physical disadvantages of the erratic construction if a plan of the building as it existed on ground was approved by the local body. The opposite party found this proposition viable and graciously agreed to the complainant's request.

100. A fresh plan this time by their senior architect and joint director was sent to him along with their letter dated 18.4.2012 copy of which is produced herewith and marked EXHIBIT C17 where in they had agreed to get the original plan amended by the panchayath.

15. However in june 2012 when as per the information received from the opposite party he went to their office at nalanchira to collect the revised and approved plan he was met by a stranger who said he was the manager and a letter No. nil dated 07.06.12 in a single A4 sheet of paper EXHIBIT C14 was handed over to him by one of their staff member.

a. There were no response one way or the other to the complainant's letter no.2012/pp/00 dated june 07, 2012 addressed to the opposite party copy of which is produced herewith and marked EXHIBIT C18

b. this complainant feels that there is no way the opposite party can substantiate the story of the “panchayath secretary informing” them vide EXHIBIT C14 and believes that is is just another of the opposite party's tricks.

100. The relevant part of the above letter that the opposite party was not interested in the project any more. The Complainant was interested and took follow up action by initiating litigation.

16. The complainant's main concern is getting the building constructed and approved at the earliest and not monetary compensation,

for there are elements involved here that cannot be compensated in any way, like, for example, time.

In view of the above the complainant humbly prays that the Hon'ble Forum, may be pleased to grant the complainant the following

RELIEFS AND COMPENSATION

a. direct the opposite party to honour their commitment, take an active interest in the building and complete the construction as planned initially at the earliest.

b. direct the opposite party to rectify the error in siting the building and make good the deficiency in service at their cost by making the rear yard of the building under construction be of minimum 2 meters depth all through.

Failing the above the opposite party may be ordered to pay the complainant a consolidated sum of Rs. 450,000/- (Rupees four hundred and fifty thousand only ) as compensation for the material losses as well as the time and energy spent by the complainant on the above project till date.

sd.

( c. jyothi )

Complainant

Jyo20131015shanthamPavam

AFFIDAVIT

filed by the complainant to supplement his original complaint dated september 30, 2012 and the reply affidavit dated february 15, 2013.

The complainant begs to further submit as follows:

A

1. The opposite party essentially is a construction company. The guidelines of their functioning is as elaborated in EXHIBIT C1 of the original complaint.

2. The Complainant is a registered client No.31329 of the opposite party and this finds mention in the copy of the ledger account of the opposite party produced herewith and marked EXHIBIT C12 .

a. the registration was done after the preliminaries as per the guidelines in para B. 3. of EXHIBIT C1 were completed.

b. Client registration is not a free service ; This complainant name was registered on payment of the stipulated fee (EXHIBIT C10 of the original complaint).

c. According to the oxford learners dictionary of current English

“client means a person who uses the services or advice of a professional person or organization”.

d. “Any person who hires or avails of any services for a consideration is a consumer” – 2. (d) ( ii) of CPA 1986.

3. In the context of the above and the opposite party's contention that the complaint was NOT maintainable before the Hon'ble Forum, which the honble forum was kind enough to rule out since , this complainant begs to submit as follows:

a. As the professionals in this field the opposite party was obliged to have told the complainant, their registered client, what they thought was good for him and advised him on the need for a written agreement; but this was never done.

b. If the written agreement was a must as the opposite party claimed, there was a deficiency in the service provided by the opposite party to their complainant there as well.

c. Not only that, at a later stage the opposite party was making an effort to use the absence of a written agreement to sabotage the complainant's rightful claims. This the complainant feels is an indicator of the ethical standards of the functioning of this “Non Profit Organization”

4. The complainant finds absolutely preposterousⁱ the statement made by the opposite party's counsel that the complainant has “approached the Hon'ble forum suppressing real facts” vide para 2. of their petition on maintainability dated 30.1.2013 . There is no reason whatsoever for the complainant to “suppress real facts” as claimed by the learned lawyer.

a. The corollaryⁱⁱ of the national commission ruling quoted by the learned counsel is that “corroborative and other supportive material could constitute sufficient evidence”. And this Complainant has enough such material at his disposal to prove his point that way.

5. There is incontrovertibleⁱⁱⁱ evidence to prove that the opposite party had agreed to make available, for a consideration, their consultancy services for constructing a residence for the complainant. It is obvious that the complainant had hired the consultancy services of the opposite party vide para D. 1. of EXHIBIT C1.

a. There is absolute proof for the fact that the opposite party had a project “RP/PC-194/2011/RESIDENCE FOR MR. CHERIYATH JYOTHI, KAYIPADI” on their computer system. The above project also finds a mention in small print in many of the documents produced by the opposite party like EXHIBIT C3 for example. The individual named in the above project is this complainant – it is almost a unique name. Residence here means house.

b. The drawing and designing stage has been completed successfully without any glitch, and payments made ( EXHIBIT C10 of the original complaint).

c. The actual building process on ground started with the basement/foundation stage. The complainant is withholding the payment due in view of the snag in the siting of the basement and the opposite party is lamenting about the non-payment of the bill ( EXHIBIT C12 ). Obviously the opposite party has not disassociated themselves from the construction already made.

d. In the actual building process, the procedures and guideline vide EXHIBIT C1 were being followed to the letter.

e. The base/foundation alone is not an entity in itself but is one of the many parts of the whole house that the opposite party had agreed to construct.

f. In deed a detailed estimate for the proposed building has been made by the opposite party Copy of letter No. PC/RP-194/2011 dt. 29.02.2012 of the opposite party is produced herewith and marked EXHIBIT C13. On the second page of the above letter the opposite party mentions about the “remaining works to be completed.”

g. There was a problem with the siting of the building and efforts were on to sort it out amicably.

6. At this stage, suddenly like a bolt from the blue comes the letter of the opposite party dated 07.6.12 EXHIBIT C14.informing the complainant

“we are not interested in proceeding further

with the proposed building construction”

and then cutting him off completely. No reason whatsoever was given for this sudden turn around.

a. It was a despicable act of treachery and there is an element of criminal breach of trust involved which will have to be taken care of in the concerned court of law.

7. The allegations of the complainant being very rude to the workers and changing the plan almost daily vide para 6. of the affidavit in lieu of chief examination by the opposite party dated august 12, 2013 are HIGHLY DELAYED AFTERTHOUGHTS ^iv: brought in at the last moment in an effort to give a semblance of decency to their nefarious ^v designs.

a. The allegation of the Complainant being rude to the workers is a blatant black lie. The ground realities are the exact opposite.

i) The feedback by the Complainant ( vide EXHIBIT C7 of the original complaint ) ends with a request to the opposite party to keep their cool. This was in the context of the one and only one untoward incident that took place at the work site.

ii) One of their engineers who was to have supervised the work, for once landed up at the work site to make measurements in order to calculate the amount due to the contractor, became wild and started shouting at the complainant. The complainant kept his cool and probably avoided a brawl^vi. Incidentally another one of the engineers accompanying the assistant co-ordinator opposite party probably aware of such situations in the past and in view of what was to follow withdrew immediately from the place as the gentleman started the outburst and went and sat in their vehicle.

b. Building procedures and guidelines of opposite party vide para C. 1 mentions about review of the initial design before the final drawing is made and the complainant in deed did make suggestions.

i) The changes suggested by the complainant were for plausible ^vii reason and even then the final decision whether to incorporate the change or not was left to the experts, that is the opposite party, whose services the Complainant had hired for the very purpose. There was no compulsion whatsoever from the side of the complainant.

ii) Also the concerned members of the opposite party's staff never demurred on the matter for they had found the complainant's suggestions sensible.

8. Under normal circumstances no one would have wanted to have anything to do any more with such a set up. However the Complainant is literally trapped.

a. The construction methodology followed by the opposite party is unique. For the basement they use what is called rubble masonry – no cement or mortar is used. The basement is custom made to support the Laurie baker mode walls made under the rat trap mode - the walls are not solid and have blank spaces inside and roofing does not use steel. The basement already built will not be able to support a normally constructed house.

b. as such, if the complainant has to go to another builder he will first have to demolish the basement already constructed and then start from scratch; the money and time spent till date on the construction will all go waste and further time and money will have to be spent demolishing the structure and clearing the rubble.

c. In a similar situation a man with a family would have definitely gone on his knees in front of the opposite party rather than resort to litigation and that was probably how this complainant was also expected to behave!

500. This house means a lot to the complainant - not as an end in itself, but as the means to an end. That way it is a matter of his very existence or, may be, even more than that. The complainant could not have afforded to shelve the project under any circumstances.

9. It was in an effort to wriggle out of this quagmire^viii that the opposite party had created and to make an effort to see that the nefarious designs of the opposite party do not succeed that the Complainant filed the complaint in the Hon'ble forum.

a. In the above context it is ridiculous the opposite party coming up with an allegation of “VEXATIOUS LITIGATION” in their version dated 29.12.12.

10. There is deficiency in the services provided:

a. in abruptly terminating the services provided vide EXHIBIT C14

b. in siting of the building .

11. In siting the building the opposite party has failed in translating the plan their own architects have made on to the structure they have made on ground the most jarring of them being the case of the rear yard.

a. The rear yard was changed from the 1.5 meters in the preliminary design ( Exhibit C3 ) to 2 meters depth as seen in the final drawing approved by the local body ( Exhibit C4 ); and this change was brought in by the opposite party in response to a specific request of the complainant that the rear yard be made 2 (two) meters or more deep – it can be more than two meters but not less than two meters.

b. The opposite party vide EXHIBITS C8 has accepted the fact that on the construction made on ground the rear yard is just 1.8 meters and not 2 meters.

c. That means the construction made by the opposite party has been erratic ^ix.

d. As is clearly evident from the site plan the front yard which legally was to have a minimum depth of 3 meters is 4.8mtrs or more in depth throughout the length of the building. The opposite party could have easily afforded to make the rear yard 2 meters, or even more.

e. There, thus, were no valid reasons or compulsions whatsoever on the opposite party to deviate from the approved plan, err on the negative side, and reduce the depth of the rear yard to 1.8 meters.

c. The site supervision is the responsibility of the opposite party ( vide para D.1.a. of Exhibit C1 )

Thus there is deficiency in the service provided.

12. It is a fact that the complainant had withheld the second installment as mentioned in para 3. of the written version by the opposite party. This was in view of the deficiencies in the service provided. All the same this fact cannot be held out as a reason for shirking the responsibilities of the service provider.

Any person who hires or avails of any services for a consideration which has only been promised could be the consumer ( No. 2. (d) ( ii ) of CPA 1986.)

The opposite party therefore is bound to rectify the error and make amends.

13. Added to this is the fact that by making the rear yard only 1.80 meters the opposite party has opened up a whole pandora's box of conundrums regarding the legality of the building being constructed.

a. Copy of information received from the karakulam panchayath under RTI act 2005 is produced herewith and marked EXHIBIT C15 which states that the building rules relevant to karakulam panchayath are the kerala panchayath building rules 2011 (KPBR 2011).

b. in the case of the building under construction, the `rear yard' means the utility open space extending laterally along the rear side of the plot and forming part of the plot – there is no change there. And this has to have a minimum depth of 2 (two) meters.

100. The approved plan with the 2 mtrs rear yard would have passed muster even under the KPBR 2011 as well. With the rear yard less than two meters the building will not comply with the approved plan and the authorities can coolly wash their hands off.

14. The complainant's basic interest was in getting the building constructed at the earliest. Also he did not want to end up with an illegal construction in his hand.

a. As such, he ignored the opposite party's harping on the municipalities building rules even as late as 29.2.2012, and made a proposition to avoid pitfalls at a later stage vide his letter No.clo2012/bld/04 dt. April 07, 2012 copy of which is produced herewith and marked EXHIBIT C16.

b. The complainant was ready to put up with the physical disadvantages of the erratic construction if a plan of the building as it existed on ground was approved by the local body. The opposite party found this proposition viable and graciously agreed to the complainant's request.

100. A fresh plan this time by their senior architect and joint director was sent to him along with their letter dated 18.4.2012 copy of which is produced herewith and marked EXHIBIT C17 where in they had agreed to get the original plan amended by the panchayath.

15. However in june 2012 when as per the information received from the opposite party he went to their office at nalanchira to collect the revised and approved plan he was met by a stranger who said he was the manager and a letter No. nil dated 07.06.12 in a single A4 sheet of paper EXHIBIT C14 was handed over to him by one of their staff member.

a. There were no response one way or the other to the complainant's letter no.2012/pp/00 dated june 07, 2012 addressed to the opposite party copy of which is produced herewith and marked EXHIBIT C18

b. this complainant feels that there is no way the opposite party can substantiate the story of the “panchayath secretary informing” them vide EXHIBIT C14 and believes that is is just another of the opposite party's tricks.

100. The relevant part of the above letter that the opposite party was not interested in the project any more. The Complainant was interested and took follow up action by initiating litigation.

16. The complainant's main concern is getting the building constructed and approved at the earliest and not monetary compensation,

for there are elements involved here that cannot be compensated in any way, like, for example, time.

In view of the above the complainant humbly prays that the Hon'ble Forum, may be pleased to grant the complainant the following

RELIEFS AND COMPENSATION

a. direct the opposite party to honour their commitment, take an active interest in the building and complete the construction as planned initially at the earliest.

b. direct the opposite party to rectify the error in siting the building and make good the deficiency in service at their cost by making the rear yard of the building under construction be of minimum 2 meters depth all through.

Failing the above the opposite party may be ordered to pay the complainant a consolidated sum of Rs. 450,000/- (Rupees four hundred and fifty thousand only ) as compensation for the material losses as well as the time and energy spent by the complainant on the above project till date.

sd.

( c. jyothi )

Complainant