IN THE DISTRICT CONSUMERS’ DISPUTES REDRESSAL FORUM AT MYSORE<br /> <br /> PRESENT: 1. Shri.D.Krishnappa<br /> B.A., L.L.B - President <br /> <br /> 2. Smt.Y.V.Uma Shenoi<br /> M.Sc., B.Ed., - Member<br /> 3. Shri. Shivakumar.J.<br /> B.A., L.L.B., - Member<br /> CC 245/08 DATED 04.12.2008<br /> <br /> ORDER<br /> <br /> Complainants 1. K.Marikalaiah, S/o Late Kalaiah<br /> 2. C.M.Ashoka, S/o K.Marikalaiah, Both are R/at Chittanahalli Village, Holenarasipura Taluk, Hassan District.<br /> (By Sri.Sridhar Chakke., Advocate)<br /> <br /> Vs. <br /> Opposite Parties 1. Suryanarayan, The Manager, Indian Overseas Bank, 30/D, Vivekananda Road, Yadavagiri, Mysore-570020.<br /> 2. B.T.Rajednra, S/o Thimmegowda, M/s Akash Constructions, Civil Contractors, No.530, 3rd Cross, Near CITB Choultry, Hebbal, Mysore.<br /> (By Sri.N.P., Advocate for O.P.1 and Y.G.S. Advocate for O.P.2)<br /> <br /> Nature of complaint : Deficiency in service<br /> Date of filing of complaint : 18.08.2008<br /> Date of appearance of O.P. : 05.09.2008<br /> Date of order : 04.12.2008<br /> Duration of Proceeding : 3 MONTHS <br /> <br /> <br /> <br /> PRESIDENT <br /> <br /> <br /> <br /> MEMBER<br /> <br /> <br /> MEMBER<br /> <br /> Sri.D.Krishnappa,<br /> President<br /> <br /> 1. The grievance of the complainants who have approached this Forum against the opposite parties is that they availed housing loan from the first opposite party. At that time first opposite party introduced the second opposite party the builder and told them to entrust the construction work to the second opposite party, therefore they had to entrust the construction work to the second opposite party to build house for them in site No.4063, 2nd Stage, Vijayanagar, Mysore. At the time of signing the papers, first opposite party took signature of the first complainant to some blank papers for being converted and to suit their convenience to draw the loan amount without their knowledge. That they had maintained a joint account, therefore while drawing the amount, signatures of both the account holders are required, but the first opposite party by unfair and misrepresentation obtained signatures of only the first complainant and without their authority or permission went on releasing the loan amount to the second opposite party in collusion, though the second opposite party had not put up the construction reaching the stages as agreed upon. They have further stated that they had given all the cheques issued in favour of the second opposite party to the custody of first opposite party, wherein they had not filled up the contents of the cheque and the amounts. The first opposite party without presenting the cheques by the second opposite party went on releasing the loan amount in favour of the second opposite party and thereby paid excess amount to the second opposite party without their knowledge. The first opposite party fraudulently obtained the signatures of the first complainant fabricated documents by taking the alleged consent and disbursed the amount to the second opposite party. That the materials of the building purchased by the second opposite party are all substandard and thus the second opposite party has employed unfair trade practice. The first opposite party deliberately failed to inform them of releasing the loan amount though they were making periodical and regular visits to the house under construction. The opposite parties have drawn a sum of Rs.8,50,000/- as on February 2006, whereas the second opposite party has not executed the work of that extent. They got the work done by the second opposite party assessed through PWD, Mysore Division who have assessed the value of the constructed building as Rs.6,48,000/- and thus the opposite parties have drawn excess of Rs.2,02,000/- from their account and thus calling these acts of opposite parties as deficient and unfair trade practice has prayed for a direction to the first opposite party to account for a sum of Rs.2,02,000/- and also to direct the first and second opposite parties further to compensate them with a sum of Rs.4,00,000/- being the cost that could be incurred by the complainants to complete the construction on the ground that second opposite party has not completed the construction and have also prayed for a direction to the opposite parties to pay damages of Rs.2,00,000/- that he has suffered with other consequential relief.<br /> <br /> 2. The first and second opposite parties have appeared through their advocate and filed separate versions. The first opposite party admitted to had advanced loan of Rs.9,00,000/- on two occasions in favour of the complainants as housing loan, but has denied having insisted upon the complainants to entrust the construction work to the second opposite party. He has also denied having taken signature of the first complainant to any blank papers and receiving cheques from the complainants drawn in favour of the second opposite party and releasing of funds in favour of the second opposite party in collusion. This opposite party further stated that thereafter after eriodical inspection and satisfying progress of the building released the loan amount on the advise of the complainants and therefore contending to have not committed any deficiency or involving in any unfair trade practice has stated that all other allegations made against him are unfair. He has further that the complainants made complaints to their higher officers, an enquiry was held and the enquiry revealed that this first opposite party had not committed any lapses and thereby dropped further proceeding. Further, denying that the second opposite party has not put up construction as expected has stated that the first complainant has given a letter on 13.06.2006 confirming all the debits made to their loan account and also transfers of the money made from their S.B. account to the account of second opposite party and thus contending that the complaint allegations have no merits has prayed for dismissal of the complaint.<br /> <br /> 3. The second opposite party who is the builder of the complainants has also denied that construction work was entrusted to him at the instance of the first opposite party and stated that he is a qualified builder, under the agreement, he was entrusted with the construction of the building by the complainants, that the complainants were personally inspecting all the building materials used for the construction and further denying that the complainants had given cheques to the first opposite party as stated, but stated that cheques were given to him and has drawn the amount as and when the construction work progress. It is further stated that the complainants whenever they were is need of money and financial stress were taking money from him and in connection with some payment made by him, the complainants had issued a cheque and when he presented it for encashment, it came to be bounced and in that regard he filed a complaint in CC 767/07 for recovery of the cheque amount and stated that 90% of the constructional work has been done and there has been little delay in completing the work, because of the latches on the part of these complainants. He has further contended that he has done additional work more than Rs.1,90,000/- and denying that the construction made by him is only worth Rs.6,48,000/- and that he has drawn excess amount of Rs.2,02,000/- has prayed for dismissal of the complaint.<br /> <br /> 4. In the course of enquiry in to the complaint, the complainants and opposite parties have filed their affidavit evidence reproducing what they have stated in their respective complaint and versions. The complainants have produced account extracts of the loan amount, a copy of the letter said to had been given by the first complainant in favour of the first opposite party, copies of letters addressed by the second complainant in favour of the first opposite party, copy of the valuation of the building arrived by a private engineer H.S.Sheshagiri, and assessment of the building made by PWD Engineer. The first opposite party has produced the account extract of loan account of the complainants, and copies of 4 letters he had addressed to the second opposite party. The second opposite party has filed photographs of the building and a valuation of the building he got done through a chartered engineer. Heard the counsel for both the parties and perused the records. <br /> <br /> 5. On the above contentions, following points for determination arise.<br /> 1. Whether the complainants prove that the first opposite party has released the loan amount in favour of the second opposite party without assessing the progress of construction and in collusion with the second opposite party?<br /> <br /> 2. Whether the complainants further prove that the first and second opposite parties in collusion have drawn excess amount of Rs.2,02,000/- though second opposite party has done the construction work worth Rs.6,48,000/- only?<br /> 3. To what relief the complainants are entitled to? <br /> <br /> 6. Our findings are as under:-<br /> Point no.1 : In the Negative.<br /> Point no.2 : In the Negative.<br /> Point no.3 : See the final order.<br /> <br /> REASONS<br /> <br /> 7. Points no. 1 and 2:- There is no dispute between the parties with regard to housing loan advanced by the first opposite party in favour of the complainants in a sum of Rs.9,00,000/-. The allegations of the complainant that they had entrusted the construction work to the second opposite party at the instance of first opposite party is vehemently denied by both the opposite parties, therefore the complainant who is required to prove that allegation has not placed any material, as such the said allegations remained un-established.<br /> <br /> 8. The complainants have not produced the estimate of the building to know the estimate arrived for construction and completion of the building. However, the complainants had availed loan of Rs.9,00,000/- from the first opposite party. In the absence of estimation and agreement entered between parties, it is not possible to find out whether the second opposite party should have completed the entire construction and hand over possession of the same to the complainants. The complainants who have alleged that first opposite party has released funds in favour of the second opposite party without assessing the stages of the building have also not produced any documents or any understanding arrived between them to show the stages at which the loan should have been released and the quantum of loan that could be released. The complainants further alleged that the release of funds by the first opposite party in favour of the second opposite party has been done without there being any progress in the building and reaching a particular stage, should have placed evidence before us to show that what are the stages at which the first opposite party was required to release the loan amount and whether that first opposite party has released the loan amount without ascertaining the reaching of that stage. The first opposite party in his version and also in the affidavit evidence has categorically stated that they after periodical inspection and progress of the building released the funds in favour of the second opposite party and denied any erratic releasing funds without ascertaining the stages. The complainants in their complaint and also in the affidavit evidence have admitted that they through out the period of construction periodically visiting the construction area. If the complainants were to be sure that first opposite party was releasing loan amount in favour of the second opposite party without adequate progress of the building or when the building had not reached the particular stage, they could have instructed the first opposite party not to release the funds in favour of the second opposite party by issue of stoppage letter. But they did not choose to do so. On the other hand even after the periodical visits to the building under construction they allowed the first opposite party to release the funds and second opposite party to collect that funds. The second opposite party has produced photographs of the building to show the progress of the building and he has stated that 90% of the construction work has been done. The stage found in the photographs and the contention of the first opposite party with regard to the percentage of construction has not controverted by the complainants. Therefore, under these circumstances, we find no merits in the allegations of the complainants that the opposite parties in collusion have drawn the money from the account without much progress in the construction of the building. As already stated by us above if the complainants had placed any material before us with regard to the stages at which the funds ought to have been released we would have been in a position to assess whether the first opposite party has released the funds in excess or without satisfying the expected stage. As seen from the photographs from outside the building has almost reached the completion stage. Since the complainants have not further stated with regard to the internal fittings or the progress that the second opposite party required to do we cannot on the basis of oral say we are unable to arrive to the conclusion that the second opposite party has drawn excess amount, than the actual work he has done. <br /> 9. In order to ascertain the extent of amount spent for construction of the building with the consent of these complainants, the bank authorities got the building assessed through an Assistant Executive Engineer of PWD Mysore circle. The said Engineer has given his report with assessment. Thereafter, the same building has also been got assessed by a private Engineer and that assessment is also before us. The second opposite party has produced an assessment got done by him through his own Engineer. The assessment of the building got done by the second opposite party is shown as Rs.10,99,243/- whereas the assessment of the Assistant Executive Engineer PWD is shown at some stage as Rs.8,01,255/- and another stage at Rs.6,72,367/-. The third assessment made by another private engineer is shown as Rs.7,53,401/-. Basing on the assessment arrived by the PWD Engineer and Private Engineer H.S.Sheshagiri the counsel for the complainants argued that the work done by the second opposite party is lesser than the amount he has drawn and therefore submitted for a direction to the opposite parties to refund excess amount. The learned counsel representing the complainants very much relied upon the assessment made by the PWD Executive Engineer. As evident from the assessment made by the Assistant Executive Engineer PWD originally the building is shown to have been estimated as Rs.8,01,245/- whereas that printed figure has been scored of in the ink and below it, it is written as Rs.6,72,367/-, but the total estimate shown in words remained as Rs.8,01,245/- only as it is not corrected. Again in the whole of the estimate except scoring of this final figure and substituting a different amount, we do not find any corrections in the assessment. Added to this the Engineer of PWD who has prepared the report on the facing sheet also he has shown the estimate of the building as Rs.8,01,242/-, but again here this typed figure is scored off by substituting as Rs.6,72,367/- in pen. At both these places we find no initials of any body. The engineer who has submitted his report found to be in the habit of making correction and singing in green ink, whereas this corrections are made in blue ink. On perusal of the entire report of the PWD Engineer, it emerges that these over writings are made subsequently to show the estimate of the building is lesser than what was arrived by him. Even as against this, the complainants in their complaint and version have stated as if the PWD Engineer has assessed the building only at Rs.6,48,000/- which is for below than the manipulated figure in the PWD engineer report. The other estimate made by one H.S.Sheshagiri is shown at Rs.7,53,401/-, whereas the estimation got done by the second opposite party is of Rs.10,99,243/-. Thus, private assessments got done through chartered engineers are in much variance from that of the estimate made by the PWD engineer. Therefore, we find that the estimates arrived by these three agencies do not exactly reflect the cost of construction reached and therefore they cannot be totally relied upon. The complainants have not made any attempts to get the building estimated through an expert reflecting the cost of construction prevailing in the open market during the relevant period. The second opposite party alleged to have drawn a sum of Rs.8,50,000/- and even the contention of the second opposite party that he has done additional work worth Rs.1,90,000/- over and above the agreed work has not rebutted by the complainant by denying the same. Even otherwise, the burden is on the complainants to prove that the first opposite party without satisfying himself about the progress of the building has released excess amount and that second opposite party has drawn excess amount, then what has been spent on the building. But, the complainants shave not placed any acceptable oral or documentary evidence to substantiate the said contention. As such we find no hesitation to hold that the complainants have failed to prove the said allegations. This conclusion of ours in our view is irresistible, in view of the fact that the building has reached a final stage, as evident from the photographs placed before us and even from the fact that the complainants through visiting the building site, when the building was in progress they at no stage raised objection with regard to the quality of the materials used or with regard to the progress of the building and for releasing of funds by the first opposite party in favour of the second opposite party. Thus, the complainants having kept quite at all these stages have now come up with this complaint, but have failed to substantiate the same.<br /> <br /> 10. The first opposite party has relied upon a letter said to have been issued by the first complainant in their favour on 13.06.2006. In this letter, the first complainant stated to have confirmed all the debits made by the first opposite party to their account and also releasing of funds in favour of the second opposite party. The counsel for complainants invited our attention to the averments of the complaint and also affidavit evidence and stated that the first opposite party at the time of sanctioning the loan had obtained signatures of second complainant to blank papers and stated that signature was obtained in the blank paper to enable them to release funds in favour of the second opposite party and accordingly that document is concocted. The second complainant is said to be an advocate by profession and the first complainant found to be a retired State Government employee and that first complainant found to have signed in English to this letter dated 13.06.2006. The counsel for the first opposite party on this letter argued that, the first complainant being a father of the second complainant confirmed all the acts of this first opposite party with regard to debiting of the loan amount and releasing of the amounts in favour of the second opposite party cannot be now permitted to contend to the contrary. The complainants who have contended that signature was obtained in the blank paper by first opposite party, it is for them to establish the same. But, no effort is made to substantiate the same, as such mere allegations of the complainants that this confirmation letter dated 13.06.2006 is concocted by obtaining signature of the first complainant on the blank paper cannot be believed and this letter is sufficient to say that acts of first opposite party are confirmed. Even otherwise we have held above that the complainants have failed to prove their allegations against any of these opposite parties, as such the complaint in our view lack merits and is liable to be dismissed. With the result, we answer point no.1 and 2 in the negative and pass the following order:- <br /> <br /> ORDER<br /> <br /> 1. The Complaint is dismissed.<br /> 2. Parties to bear their own costs.<br /> 3. Give a copy of this order to each party according to Rules.<br /> <br /> (Dictated to the Stenographer, transcribed by her, transcript revised by us and then pronounced in the open Forum on this the day 4th December 2008)<br /> <br /> <br /> <br /> <br /> <br /> (D.Krishnappa) <br /> President <br /> <br /> <br /> <br /> (Y.V.Uma Shenoi)<br /> Member<br /> <br /> <br /> <br /> (Shivakumar.J.)<br /> Member<br /> <br /> <br /> <br /> <br /> <br /> <br /> <br />