DATE OF FILING : 3.9.2013

IN THE CONSUMER DISPUTES  REDRESSAL FORUM, IDUKKI

Dated this the  22nd  day of  February, 2019

Present :

SRI. S. GOPAKUMAR PRESIDENT

SMT. ASAMOL. P    MEMBER

CC NO.293/2013

Between

Complainants       :  1.   C.M. Johnson,

     Chackamkunnel House,

     Chithirapuram P.O.,

     Anachal, Idukki. 

2.  C.M. Augustine, 

     Chackamkunnel House,

     Chithirapuram P.O.,

     Anachal, Idukki. 

    (Both by Adv:  K.M. Sanu)

And

Opposite Party                                          :     Benny V.J.,

Vadakkumparambil House,

Eetty City, Anachal P.O.,

Idukki. 

(By Adv:  Thomas Paul)

 

O R D E R

 

SRI. S. GOPAKUMAR, PRESIDENT

Complainants are brothers having 4.75 acres of land in Kunchithanni Village.  The opposite party, who is a timber merchant agreed to purchase Eucalyptus trees planted in 3 acres of land in the complainant’s property for an amount of Rs.16.5 lakhs.  An agreement has been created for the same on 16.11.2012 and an amount of Rs.50000/- has been given as advance.  For the balance Rs.16 lakhs, it was agreed to pay 9.5 lakhs on 6.12.2012 and the balance Rs.6.5 lakhs within 20.12.2012, after transporting 5 loads of Eucalyptus timber.  In the early of 2013, the entire Eucalyptus trees were cut down and transported from the property of the complainants.  The amount as per the 3rd instalment was not at all given to the complainants, so the complainants are entitled to get Rs.2 lakhs from the opposite party.  Out of the total Rs.16 lakhs, the opposite party paid Rs.14.5 lakhs.  This act of the opposite party made 

(cont…..2)

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heavy financial loss to the complainants.  Several times the complainants requested for getting the balance amount which is the 3rd instalment, but it was denied by the opposite party.  So the complainants were constrained to issue a lawyer notice on 13.5.2013 and it was received by the opposite party and a reply was issued stating flimsy reasons.  After that a Caveat petition was filed before the Munsiff Court, Devikulam.  So the complainants are entitled to get the balance amount with 18% interest.  Hence this petition is filed.

        As per the written version filed by the opposite party, it is stated that the petition is not maintainable as per the Section 2(1)(d) of the Consumer Protection Act. The relationship between the complainants and the opposite party is of the seller and buyer.  As per a contract, the opposite party purchased E-Grantees timber of the complainants for a total consideration of Rs.16.5  lakhs.  The allegation of the complainants is that the opposite party made a breach of contract by not paying the money as agreed by the opposite party.  So the remedy available is to approach a Civil Court.  It is admitted that the complainants agreed to sell E-Grantees trees of an extent of 3 acres of land owned by the complainants for an amount of Rs.16.5 lakhs.  The amount was agreed to be paid in 3 instalments.  After transportation of the 6th load of timber the 3rd instalment was paid to the complainant.  While the trees were cut and removed, the opposite party realized that the complainant misrepresented about the extent of land and the extent of land was considerably less than 2.5 acres.  So the opposite party caused huge loss because of the same.  The entire instalments were also paid before cutting all the trees.  So the opposite party directed the complainants to pay back an amount of Rs.1.4 lakhs due to the misrepresentation of the extent of land.  Eventhough the complainants agreed to pay the same, later the complainants changed their mind and issued a lawyer notice to the opposite  party demanding Rs.6.5 lakhs and that was duly replied by the opposite party.  In the lawyer notice, the complainants demanded Rs.6.5 lakhs, but in the complaint they demanded only Rs.2 lakhs as the balance amount.  So this petition is filed for avoiding or defending any case which would have been filed against the complainants by the opposite party for the damages caused on the ground of misrepresentation of the land.  By taking advantages that no receipt has been issued by the complainants while the     (cont…..3)

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payments were done.  This petition is filed for breach of  contract and so the petition will not comes under the purview of the Consumer Protection Act and the complainants may be directed to pay Rs.10000/- as cost to the opposite party.

        The main issue of maintainability of the complaint was allowed by this Forum by its order dated 31.11.2013 and dismissed the complainant on the ground that the matter in question is based on an agreement.  So it is absolutely a Civil matter and will not come under the purview of Consumer Protection Act, 1986.

        Against this order, the aggrieved party approached the Hon’ble Consumer Disputes Redressal Commission and the Hon’ble CDRC found that the complaint is maintainable here in and passed a judgement by setting aside the order of this Forum, on 30.3.2015 in appeal No.85/2014.  Hence the matter again reopened herein on 30.5.2015.

        During the course of trial, opposite party filed a petition for appointing a commissioner to ascertain the fact that there are a lot of trees are ripe for cutting left in the complainant’s property and its approximate number and the nature of the plants re-grown after the cutting has to be brought before the Forum.  After hearing both sides, this Interim Application of the opposite party allowed.  Adv: Vikraman Nair is appointed as the Advocate Commissioner.  After executing the Order, the commissioner filed a detailed report.

        Complainant and one witness was examined as PWs1 and  2.  The documents produced are marked as Exts.P1 to P4.  Ext.P1 is the tax receipt,  Ext.P2 is the copy of agreement dated 16.11.2012,   Ext.P3 is the copy of legal notice dated 13.5.2013 Ext.P4 is the copy of caveat petition  dated 31.7.2013.  From the defence side, the Commissioner and the opposite party was examined as DWs1 and 2. Ext.R1 legal notice issued by the complainant.  Ext.R2(series)  reply to the legal notice and its postal receipt and AD cards and Ext.C1 Commission report are marked. 

        Heard both sides.  

        The point that arose for consideration is whether there is any deficiency in service from the part of opposite parties and if so, for what relief the complainant is entitled to ? (cont…..4)

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        The POINT :-We have heard the counsels for both the parties and had gone through the evidence.  

 

        It is an admitted fact that the complainants and the opposite party entered in an agreement on 16.11.2012 for cutting Eucalyptus trees which is planted nearly three acres of land owned by the complainants 1 and 2.  As per the Ext.P2 agreement, opposite parties are decided to purchase these trees for an amount of Rs.16.5 lakhs and Rs.50000/- was paid an advance an the date of agreement and they are further agreed to pay the balance amount of Rs.16 lakhs in two instalments.  Therefore some disputes arose between them resultant to issue a legal notice to the opposite party by the complainant demanding him to pay Rs.6 lakhs as the balance sale consideration as per the agreement.  On going through the Exts.P3, the copy of demand notice, it is seen that this notice was issued to the opposite party on 13.5.2013.  As per Ext.R2(series), the opposite party sent reply to this notice on 24.7.2013.  As per Ext.P4 copy of caveat petition, it is seen that opposite party filed caveat before the Munsiff Court, Devikulam on 31.7.2013.  On a joint perusal of these documents,  it is very clear that immediately  after the receipt of the legal notice, the opposite party  sent its reply and filed caveat against the complainants.  In these reply notices, opposite party specifically stated that, “As agreed, my client cut and removed the grants trees from your clients property and paid the entire balance consideration in two instalments viz., the 1st before cutting the trees and the 2nd after taking the 5th truck load and before taking the 6th load.  But thereafter it was understood that the extent of property was considerably less than three acres by putting my client to a monetary loss of Rs.1.4 lakhs.  Instead of paying this amount to my client, your client caused you to issue the notice alleging falsehoods as a defensive measure.”  This contention was repeated in the reply version also.  Further contention of the reply version is that, “however in the complaint, the complainants demanded Rs.2 lakhs as the balance payable by the opposite party.  The complainant issued lawyer notice and filed this complaint, with a view to prevent the opposite party from moving a case for getting damages caused to the opposite party on the ground of non-representation.”

 

(cont…..5)

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        At this juncture, it is very pertinent to note that, through the lawyer notice complainant demanded an amount of Rs.6.5 lakhs as balance sale consideration from the opposite party and at the same time, he demanded Rs.2 lakhs as balance payment as per the Ext.P2 agreement.  At the same time, opposite party demanded Rs.1.4 lakhs from the complainant as his loss in this business dealing due to the mis-representation in the extent of property as per the Ext.P2 agreement.

 

        This contradictory statement of both parties created a confusion in our mind and for finding a solution in this matter, we decided to go through the entire materials on records and the deposition of witness.  As per Ext.P2 agreement, in 2nd paragraph it is specifically agreed that, H¶mw I£n-I-fpsS, Dt±-iyw aq¶v G¡À Øe-¯p-ff c­WvSmw XhW sh«n\p ]mI-amb bq¡men ac-§Ä 16,50,000 þ ]Xn-\m-dc e£w þ cq] Ccp-I-£n-Ifpw hne k½Xn¨v AXn 50000 þ A³]-Xn-\m-bncw þ cq] AU-zm³kv XpI Ct¶-Zn-hkw ssI¸-än-bn-cn-¡p-¶p.  _m¡n XpI-bmb 16,00,000 þ ]Xn-\m-dp-e£w þ cq]-bn 9,50,000 þ H³]-Xp-e-£¯n A³]-Xn-\m-bncw cq] 6.12.2012 þ Unkw-_À Bdmw XnbXn Xcm-sa¶pw _m¡n XpI-bmb 6,50,000 Bdp-e-£¯n A³]-Xn-\m-bncw cq] A©v temUv XSn Ibänhn«-Xn-\p-ti-jw, AXm-bXv c­m-bn-c-¯n-¸-{´WvS­v Unkw-_À Ccp-]Xmw XnbXn þ 20.12.2012- þ bv¡v ap³]mbn X¶p-sIm-f-fm-sa¶pw c­WvSmw I£n k½-Xn-¨n-cn-¡p-¶p.  The contention of Ext.P2 agreement is clear and specific that, they are agreed to cut the eucalyptus trees having ripe for 2nd cut and it is further agreed to pay the 3rd instalment after the 5th load that is, on or before 20.12.2012.  The averment of the complainant is that, the opposite party paid only Rs.14.5 lakhs, as against 16.5 lakhs.  On the contrary the version of the opposite party is that the complainants are not allowed him to cut and remove so many trees which was ripe for cut as per the agreement and the total space, which was allowed him to cut was only 2.5 acres instead of 3 acres as per the agreement.  For ascertaining the remaining trees which is ripe for cut and ascertaining the extent of land as per Ext.P2 agreement, the Forum appointed one advocate commissioner as per the petition of the opposite party.  After visiting the scene, the commissioner reported that the extent of the 

(cont…..6)

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property is 289 cents, that is, 2.89 acres.  The commissioner further reported that he found nearly 50 eucalyptus trees which is ripe for cut standing in the lower portion and the boundary of the land.  He further reported that (para 3), Cu ac-§Ä h®-¡p-Sp-Xepw hfÀ¨ Df-fhbpw ac-¡p-än-bn \n¶pw InfnÀ¯ ssXac§fp-tS-Xn \n¶pw hy-X-y-kvX-am-bn-«p-f-f-Xp-am-Wv.  The 4th question of the commission application was that, “such other things deemed just and equitable also may be ascertained”.  In this question, the commissioner answered in page No.4 of the report  is that, Cu  tIknse FXnÀI-£n-bmb s_¶n, hmZn-bmb tPm¬k-Wnsâ km¶n-²-y-¯n ]d-ªXpw dnt¸mÀ«n tcJ-s¸-Sp-¯-W-sa¶v Bh-iys¸«-Xp-amb Imcyw NphsS tNÀ¡p-¶p. 

 

      A\-ymb¸«nI  hkvXp-hnse  apgp-h³ ac-§fpw  c­WvSmw sh«n\p ]mI-am-sW¶pw Cu ac-§Ä¡v apgp-h-\p-ambn 16 1/2 e£w cq] hne k½-Xn-¨Xv F¶pw F¶m acw sh«n-¯p-S-§n-b-t¸mÄ AXn-cp-I-fn \n¡p-¶Xpw tdmUn\v  Xmsg \n¡p-¶-Xp-amb ac-§Ä sh«m³ k½-Xn-¨nà F¶pw X³aqew F\n¡v {]Xo-£n-¨-Xn  Ipdhv  temUp  XSn-bmWv  e`n-¨Xv  F¶pw   AXp-sIm-­WvSpWvS-­mb \jvSw aqe-amWv hmZn-IÄ¡v sImSp-¡p-hm-\p-ff Hcp e£¯n \mÂ]-Xn-\m-bncw cq] sImSp-¯p-XoÀ¡m¯Xv F¶pw ]d-ªp.  

 

        On going through the report of the commissioner, it is seen that, the extent of the property is 2.89 acres and the trees which he found standing therein is ripe for its 1st cut.  As per the Ext.P1 agreement, the parties decided to cut the trees from the property having an extent of below 3 acres and exclusively ripe for 2nd cut.  While cross examination, the commissioner deposed that, 50 ac§Ä \n¡p-¶Xv   fresh plant BWv.  On evaluating the finding of the commissioner and the contention of the Ext.P2 agreement, we can came to a conclusion that complainant has not played and fraud or misrepresentation as stated by the opposite party in their reply version.  Moreover, opposite party admitted before the commissioner that, opposite party has not paid balance amount of 1.4 lakhs to the complainant due to the loss he incurred in this deal.  Opposite party was examined as DW2.  He deposed that he is a wood dealer 

(cont…..7)

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and having much experience in this field.  Moreover, he is well aware of the complainants and this property since he is a neighbour of the complainant.  After visiting the property and after confirming the extent and number of trees in the property, he decided to purchase the trees for an amount of Rs.16.5 lakhs.  Further the sale agreement is for cut and remove the trees which are ripe for 2nd cut.  May be after cutting the trees the opposite party has caused a loss of Rs.1.4 lakhs.  This is usually happen in the business.   Sometimes there may an unexpected gain or unexpected loss.  That cannot be a ground for deviating from the business agreement.  Here on evaluating the entire materials on record, it is seen that the opposite party is bound to pay an amount of Rs.1.4 lakhs to the complainant as he admitted before the commissioner.  This fact is not denied by the opposite party or they failed to file any objection to the commission report.  It is further found that immediately after the receipt of legal notice, opposite party filed a caveat against the complainant to protect himself from a court order.  This means that opposite party was afraid of a legal proceedings from the part of the complainant for realising the amount which he is legally bound to pay the complainant.  Eventhough opposite party demanding some amount from the complainant in their reply version and reply notice, it is surprising that, no effort has been taken by him to realise the amount from the complainants.  Opposite party has not raised his finger against the complainant for the alleged fraud or misrepresentation that allegedly committed by the complainants.  On cross examination the learned counsel for complainant specifically put a question relating to this.  But opposite party has not any clear or specific reason to convince that what prevented his to file a petition against the complainants for the alleged misrepresentation or cheating.

On the basis of above discussion, the Forum found that what the complainant stated in their affidavit and complaint is proved by them with supporting clear and cogent evidence.  The version of the opposite party cannot be believable or acceptable.  It is found that the opposite party is bound to pay Rs.1.4 lakhs to the complainant in the above discussed business deal.

Under the above mentioned circumstances, the complaint allowed.  Opposite party is directed to pay Rs.1.4 lakhs to the complainants along with interest at the rate of 12% from 20.12.2012, till the date of payment.   Opposite

(cont…..8)

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party is further directed to pay Rs.10,000/- as compensation and Rs.3000/- as cost within 30 days from the date of receipt of a copy of this order, failing which the amount shall carry 12% interest per annum from the date of default, till its realisation.

      Pronounced in the Open Forum on this the 22nd day of February, 2019

Sd/-          SRI. S. GOPAKUMAR, PRESIDENT

Sd/-

SMT. ASAMOL. P., MEMBER

 

 

APPENDIX

Depositions :

On the side of the Complainant :

PW1        -   Johnson C.M.

PW2        -   Rajan Joseph.

On the side of the Opposite Party :

DW1       -  Vikraman Nair N.G.

DW2      -  Benny Joseph.

Exhibits :

On the side of the Complainant :

Ext.P1    -   tax receipt.

Ext.P2   -  copy of agreement dated 16.11.2012.

Ext.P3   -  copy of legal notice dated 13.5.2013. 

Ext.P4   -  copy of caveat petition  dated 31.7.2013.  

On the side of the Opposite Party :

Ext.R1            - legal notice issued by the complainant.

Ext.R2(series) - reply to the legal notice and its postal receipt and AD cards. Ext.C1          - Commission report.

 

 

                  Forwarded by Order,

 

 

           SENIOR SUPERINTENDENT