Complaint filed on: 10-07-2023.

                                                      Disposed on: 16-08-2023

BEFORE THE DISTRICT CONSUMER DISPUTES

REDRESSAL COMMISSION, TUMAKURU

DATED THIS THE 16^th DAY OF AUGUST, 2023

PRESENT

SMT.G.T.VIJAYALAKSHMI, B.Com., LLM., PRESIDENT

SRI.KUMARA.N, B.Sc. (Agri), LLB., MBA., MEMBER

SMT.NIVEDITA RAVISH, B.A., LLB. (Spl)., LADY MEMBER

CC.No.88/2023

Sri. H.A.Lokesh Babu S/o Y.N.Aswathappa,

A/a 41 years, R/at Guggibande,

Chikkaballapura District, Now R/at 4^th Cross,

Basava Bhavana Road, In front of Athoshya Oil,

Mill, Siddarameshwara Extension, Tumakuru,

Karnataka.

……………….Complainant/s

(By Sri. H.P.Nataraju, Advocate)

                                                V/s

1.       Smt. Aruna C/o Late Narasimhamurthy G.N.

          A/a 45 years, R/at 1^st Cross, Upparahalli,

          Tumakuru, Karnataka.

2.       Sri. Sanjay S/o Late Narasimhamurthy G.N.

          A/a 25 years, 1^st Cross, Upparahalli,

          Tumakuru, Karnataka.

3.       The Manager, Karnataka Bank, # 757,

          Someshwara Puram Branch, Tumakuru-2,

          Karnataka.

……………….Opposite Party/s

: ORDER:

BY SRI.KUMARA.N., MEMBER

This complaint was filed by the complainant U/s 35 of consumer protection Act 2019, to direct the OP Nos.1 & 2 or OP No.3 to pay Rs.21,41,000/- to the complainant which was paid by the complainant in excess towards house construction agreement.

2.       In this case opposite parties are Smt. Aruna W/o Late Narasimhamurthy G.N., 1^st Cross, Upparahalli, Tumkur and Sri.Sanjay S/o Late Narasimhamurthy G.N., 1^st Cross, Upparahalli, Tumkur and The Manager, Karnataka Bank, #757, Someshwara Puram Branch, Tumkur-02 (hereinafter called as OP No.1, OP No.2 and OP No.3 respectively).

3. It is the case of the complaint that the OP Nos. 1 & 2 are wife and son of deceased Narasimhamurthy G.N who was house construction Contractor.  The complainant entered into house construction agreement with the deceased Narasimhamurthy G.N. on 25.10.2022.  As per the agreement entered by the deceased Narasimhamurthy G.N. and the complainant, the deceased G.N.Narasimhamurthy has to construct the house as per the conditions mentioned in the agreement.  The complainant further submits that he paid Rs.30,50,000/- to the deceased G.N.Narasimhamurthy towards house construction agreement. 

The complainant further submitted that Sri.G.N.Narasimhamurthy died on 06.06.2023and OP Nos. 1 & 2 and deceased Narasimhamurthy having S.B.Account No.7572500103442201 which is at OP No.3 and the deceased had kept a sum of Rs.7,80,000/- in the said Bank account.The complainant further submitted that on 14.06.2023 evaluated the constructed house from Mr.N.K.Rajkumar, who was Senior Engineer and accordingly the said Engineer estimated the constructed house at Rs.9,14,000/-.Accordingly, the OP Nos.1&2 need to pay excess collected amount at Rs.21,41,000/- to the complainant.It is further submitted that when the complainant asked the OP Nos. 1 & 2 to pay the said amount, but the OP Nos. 1 & 2 refused to pay the amount.Hence, this complaint.

4.        After hearing the counsel for complainant on admission, posted the matter for orders on maintainability. 

5.        On perusal of documents and hearing the arguments of the complainant’s counsel, the points that would arise for our consideration are:

1. Whether the complaint is maintainable before this Commission?

2. Whether the legal heirs of offerer are liable in this contract??

3. What Order?

6.       Our findings on the aforesaid points are as follows:

Point No.1            : In the Negative.

Point No.2 & 3     : Negative to the below

:R E A S O N S:

Point Nos.(1) to (3):-

7. The complainant counsel argued that, the complainant entered in to material house construction agreement dated 25-10-2022, with the deceased Narasimhamurthy G.N. on 25.12.2022 agreement signed by both parties, on same day and the complainant paid Rs 500000.00 to the diseased Narasimhamurthy GN, rest of the money to be paid in four installments @ 30%, 30%, 30% & 10 % to the deceased Narasimhamurthy G.N, accordingly the complainant paid Rs.30,50,000/- to the deceased G.N.Narasimhamurthy. The deceased Narasimhamurthy GN, died on 06.06.2023 without executing the contract fully.  The deceased Narasimhamurthy having S.B.Account No.7572500103442201 at OP No.3 having balance of Rs.7,80,000/- in the said Bank account. The complainant approached the OP No 1 & 2 and OP No 3, and inform the matter to OPs, but OPs denied. The complainant further submitted that on 14.06.2023 evaluated the constructed house from Mr.N.K.Rajkumar, who was Senior Engineer and accordingly the said Engineer estimated the constructed house valued at Rs.9,14,000/-.  Accordingly, the OP Nos.1&2, who were wife and son (legal heirs) of deceased G.N.Narasimhamurthy, they are liable for pay excess money collected i.e.Rs.21,41,000/- to the complainant.  The complainant counsel prays to register the complaint and issue notice to OPs.

8. On perusal of the house construction contract dated 25-10-2022, the contract was between the deceased G.N.Narasimhamurthy and the complainant, but not OP No 1 & 2, either as representative or even as witnesses. It’s clear that OP No 1&2, and OP No 3 are strangers and not aware of the facts of house construction contract dated 25-10-2022, the contract was between the deceased G.N.Narasimhamurthy and the complainant. As per the contract agreement witnesses were, Sri M Thippeswamy S/o late Bettappa and Smt.Nalini w/o H.A.Lokesh Babu (Complainant). On perusal of the housing loan sanction letter of the complainant, the complainant was / is an employee of the Syndicate Bank (Canara bank), sanctioned Rs 50.00 lakhs housing loan to the complainant with specific release condition of ( para 5),releases shall be made specifically in the name of vendors only. And post release terms and conditions, Inspection has to be done for every releases and utilization has to be ensured. On perusal of the bank statement of the complainant, Bank transferred Rs 175000/- on, 30-09-2022, Rs 18378/- on 18-05-2022, Rs 25432/- on 23-05-2022, Rs 50000/- on 28-09-2022, Rs 250000/-on 10-10-2022, Rs 150000/- on 21-10-2022, Rs 100000/- on 27-10-2022, Rs 50000/- on 03-11-2022, Rs 200000/- on 19-11-2022, Rs 300000/- on 29-11-2022, Rs 800000/- on 30-11-2022, Rs 400000/- on 14-12-2022,Rs 300000/- on 21-12-2022, Rs 80000/- on 18-01-2023 and Rs 200000/- on 19-01-2023.

9. The Bank sanctioned housing loan of Rs 50.00 lakhs to the complainant, with specific condition of releases should be in the name of vendors. A vendor is a person or company that sells goods or services, in this case release should be to the building material manufacturer or trader or sellers (cement, iron etc), but not to the contractor. Every releases after the inspection and satisfactory utilization, but Bank violated the banking rules while releasing amount.

10.     According to Section 2(h) of The Indian Contract Act, 1872, “An agreement enforceable by law is a contract”. As all agreements are not contracts, some essentials should be fulfilled to make one as mentioned in Section 10 of The Indian Contract Act, 1872. Section 10 of, The Indian Contract Act, 1872, states “ All agreements are contracts if they are made by the free consent of parties competent to contract, for a lawful consideration and with a lawful object, and are not hereby expressly declared to be void.”

PERFORMANCE OF CONTRACT; A promisor is the one making a promise and to whom the promise is being made is known as the promisee. Both create rights and obligations against each other. Thus it is a promise in exchange for another promise.

Contracts to be performed ; According to Section 37 of The Indian Contract Act, 1872, “ The parties to contract must either perform, or offer to perform, their respective promises, unless such performance is dispensed with or excused under the provisions of this Act, or of any other law.”    Promises bind the representatives of the promisors in case of death of such promisor before the performance, unless a contrary intention appears from the contract. If the promisor has made an offer of performance to the promisee, and the offer has not been accepted, the promisor is not responsible for non-performance. Also he does not thereby lose his right under the contract but discharges his obligation under the same. This is an attempt to perform a contract under Section 38 of The Indian Contract Act, 1872.

By whom contracts must be performed ;

According to Section 40 of The Indian Contract Act, 1872, the contract is to be performed by following :

• Promisor himself: Section 40 of The Indian Contract Act, 1872, says if the contract, in particular, is based upon personal skill the promisor is the only person who can perform the same. Whereas in a general sense also the promisor should have the intention to perform the contract.

• Agent: If it is not particularly mentioned an agent can perform the contract for the promisor too.

• Representatives: In other cases like death and incapacity, promisors’ representative may himself or further appoint a competent person to perform the contract.

• Competent Third Party: When performance is accepted from third-party promisee can’t enforce performance of the contract according to Section 41 of The Indian Contract Act, 1872.

• If a promise is joint and several then the other joint promisors need to fulfill the same. Even one joint promisor can be made liable as a whole and further he can get compensated by the others.

DOES THE CONTRACT END ON DEATH OR INCAPACITY? ; If a party to a contract dies before he has performed the contract that, by itself, does not put an end to the obligation to perform the same. The promisee can bind the representatives of the promisors in case of the death of the promisor before the performance.  If the performance of a contract requires personal skill or personal confidence, the death of the party in such a case, puts an end to the contract and thus representatives cannot be made liable for performance (Robinson v Davison),

SUCCESSION TO BENEFIT OF CONTRACT AND PERFORMANCE OF CONTRACT; When the contract is not based on personal skill or expertise, on death or incapacity of the promisor, the representatives of the promisor are bound to perform the contract. Thus binding the legal representatives to perform the contract is known as succession.

Doctrine of Frustration; As general rule parties to contract are having an intention towards the fulfillment of their part and in case of breach, party breaching is liable to compensate for the same. But an exception to this rule is laid down in Section 56 of the Indian contract act 1872. Section 56 deals with the doctrine of frustration as being acts which cannot be performed. Under this doctrine a promisor is relieved of any liability under a contract in the event of the breach of contract and contract will be deemed to be void. Section 56 is based on the maxim “ les non cogit ad impossibilia” which means that the law will not compel a man to do what he cannot possibly perform.

The basis of the doctrine of frustration was explained by the Honorable Supreme Court of India in the case of Satyabrata Ghose v. Mugneeram (16 November, 1953) in which its, held that the basic idea upon which doctrine of frustration is based is that of the impossibility of performance of the contract and the expression frustration and impossibility can also be used as synonyms.

Generally, frustration of contract can be in the following cases ;

• Death or incapacity of a party:- Where a party to the contract has died after entering into contract or the party is incapable of performing the contract, in such a situation the contract will be void ( Robinson v Davison).

• Frustration by virtue of legislation:- Where, a law promulgated after the contract is made, makes the performance of the agreement impossible and thereby the agreement becomes void ( Rozan Mian v Tahera Begum).

• Frustration due to change of circumstances:- This particular situation deals with those cases where there was no physical impossibility of performance of the contract, but because of the change in circumstances, the main purpose for which the contract was entered has been defeated.

11.     THE SUPREME COURT OF INDIA in the CIVIL APPEAL NO.3311 OF 2015 S.P. Misra & Ors Vs Mohd. Laiquddin Khan & Anr ,opinioned that;

“we are of the view that the respondents were not parties to the partnership deed and that the partnership stands dissolved, in view of death of one of the partners, the respondents have not derived the benefit of assets of the partnership firm, the decree obtained by the predecessor of the appellants, is not executable against the respondents herein.

12. Construction contractor job requires skills / techniques, of plumbing, building materials, Construction workers handling and guiding, safety regulations, analytical skills, customer-service skills and initiative.etc

13.     In the above discussions, in this case, deceased G.N.Narasimhamurthy was a construction contractor having skill / confidence and techniques of house construction, accordingly the complainant entered house constriction contract and the OP No 1 & 2 and OP No 3 were not party in the contract or even witnesses and not having knowledge of the said housing contract entered between the complainant and the deceased G.N.Narasimhamurthy. By considering facts of, If the performance of a contract requires personal skill or personal confidence, the death of the party in such a case, puts an end to the contract and thus representatives cannot be made liable for performance (Robinson v Davison),accordingly in this case the OP No 1 & 2, who are legal heirs of the  deceased G.N.Narasimhamurthy, not posses any skill or confidence in construction field, and OP No 3 is not a customer of the complainant, hence complaint is not maintainable, accordingly we proceed to pass the following order.

:O R D E R:

The complaint filed by the complainant is dismissed as not maintainable.  No costs.

Furnish the copy of order to the complainant and opposite party at free of cost.