DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, PALAKKAD
Dated this the 14th day of February, 2023
Present : Sri. Vinay Menon V., President
: Smt. Vidya A., Member
: Sri. Krishnankutty N.K., Member Date of Filing: 08/03/2019
CC/52/2019
Thomas John,
S/o. Late K.J.John,
Residing at Kanichukat House,
Chirath, Akathethara Panchayath,
Palakkad
Rep.by Power Attorney Holder
Santhi George,
W/o.George John - Complainant
(By Adv. M/s K.K. Srinivasan & K. Dhananjayan)
Vs
Jaison K.R.
S/o.Raju K.S.
Kattuvila House,
Chirakkakode,
Anand Nagar (PO),
Vellanikkara, Thrissur – 680 654 - Opposite party
(By Adv. M/s Benny Job & N.B. Anilkumar)
O R D E R
By Sri. Vinay Menon V., President
- Nut-shelled pleadings of the complainant pertains to alleged deficiency in service on the part of the opposite party in not completing the building works undertaken by him as per an agreement entered into between the complainant and the opposite party. He asserts that, inspite of clear terms and conditions in the agreement entered into between them, the opposite party had not finished the works of the building and has strewn materials all over the work site. Thereafter he has stopped working. The complainant is entitled to refund of the entire amounts expended by him. This complaint is filed seeking for return of the amounts expended by him and for consequential and incidental reliefs.
- The O.P. filed version contesting the complaint pleadings. He claimed that complainant and O.P.s were friends and had earlier business dealings. He alleged that he had carried out the works of the foundation, which in itself cost more than the amount that was anticipated, in view of the terrain. The complainant failed to pay amounts as per terms and conditions. The amounts paid by the complainant pertain to other transactions which the complainant and opposite party had earlier and had no bearing whatsoever with the construction of the residential building.
- The following issues arise for consideration:
- Whether the opposite party had failed to comply with the terms of the building construction agreement?
- Whether there is deficiency in service/unfair trade practice on the part of the opposite party?
3. Whether the complainant is entitled to any of the reliefs sought for?
4. Reliefs, if any?
4. (i) Complainant filed proof affidavit and marked Exts. A1 to A5.
(ii) Evenafter granting over 6 effective postings covering over 2 years from 12/02/2020, the O.P. failed to file proof affidavit or mark any documents. Hence his evidence was closed. At the fag end of trial, the O.P. filed an application as I.A. 562/22 seeking appointment of an Expert Commissioner. This application was dismissed as it was highly belated.
Issue Nos.1 & 2
5. In the facts and circumstances of the case, these two issues are considered together. Per pleadings and counter pleadings, we are to decide on the cost of the foundation constructed by the opposite party. The complainant alleges that he had paid over Rs. 16,00,000/- to the opposite party and is entitled to refund of the same along with interest. The said allegations are stoutly refuted by the opposite party.
6. In view of the stout refusal by the opposite party, it was incumbent upon the complainant to prove his case by cogent evidence the cost of construction of the foundation and incidental matters that are necessary to arrive at a conclusion. But the complainant has failed to adduce any evidence so as to arrive at a final conclusion as regards the total amount expended.
7. But the pleadings, admissions and denials coupled with entries in the exhibits leave some space for arriving at a presumption of costs. As per version pleadings, cost of construction of the foundation along with labour and other charges comes to around Rs. 5,00,000/-.
Ext. A2 is the agreement entered into between the complainant and O.P. with regard to the construction of the residential building. Ext. A2 is executed on 25/03/2018.
Ext. A3 is a statement of account. Ext. A3 shows 3 money transfers on 21/03/2018 (of Rs. 45,000/-), 25/04/2018 (of Rs. 3,30,000/-) and 05/05/2018 (of Rs. 7,24,000/-) in favour of the O.P.
Ext. A5 is a tax invoice dated 04/04/2018 showing transfer of Rs. 50,000/- issued to the O.P. Similarly Ext. A5 is another tax invoice dated 27/3/2018 evidencing transfer of Rs. 1,00,000/- to the O.P.
A perusal of Exts. A3, A4 and A5 would prove that the complainant had paid a total of Rs. 12,50,000/- to the opposite party. Opposite party stoutly objected to receiving these amounts for the purpose of residential construction the complainant. But the opposite party has failed to adduce any evidence regarding his claim of any earlier transaction. Except for Rs. 45,000/- that the O.P. received on 21/03/2018, all other amounts were received on dates post entering of Ext. A2 agreement on 25/03/2018.
8. Hence we presume, in the absence of any cogent evidence to contrary from the O.P., that the amounts deposited by the complainant to the opposite party was for the purpose of construction of residential building. Reducing Rs. 45,000/-, the total amount transferred by the complainant as evidenced by Exts. A3, 4 and 5 comes to 12,05,000/-.
The Opposite party had failed to adduce any evidence regarding the total expense regarding the cost of construction of foundation. Version pleading is that the expenses came to Rs. 5,00,000/-. Power of attorney for the complainant has not objected to this amount in the proof affidavit. In the absence of any contra evidence by the complainant to show the actual amount, we presume that the complainant has accepted amount to be Rs. 5,00,000/-.
Less Rs. 5,00,000/- from Rs. 12,05,000/-, balance amount is Rs. 7,05,000/-. This amount is in the custody.
9. It goes without saying that the O.P. stands in a fiduciary position vis a vis the complainant. He is bound to account for each and every amount expended by him and submit proper accounts. Retention of unused amounts, without accounting to the complainant or even before this Commission is nothing but an act of financial irresponsibility and deficiency in service. He has committed unjust enrichment.
10. Thus we hold that there is deficiency in service o the part of the opposite party.
Issue No. 3 & 4.
11. As already stated supra, the opposite party is in illegal possession of Rs. 7,05,000/- being the unexpended amount. The complainant is entitled to refund of this amount. We therefore order as herein below:
1) The opposite party shall return Rs.7,05,000/- to the complainant alongwith interest @10% per annum from 8/3/2019 (date of filing of complaint) till the date of repayment.
2) The opposite party shall pay an amount of Rs.50,000/- as compensation for deficiency in service.
3) The opposite party shall pay a cost of Rs.50,000/- to the complainant.
4) The aforesaid order shall be complied within a period of 45 days from the date of receipt of a copy of this order failing which the complainant shall be entitled to receive from the opposite party an amount of Rs.250/- per month or part thereof till the date of final payment.
Pronounced in open court on this the 14th day of February, 2023.
Sd/-
Vinay Menon V
President
Sd/-
Vidya.A
Member
Sd/- Krishnankutty N.K.
Member
APPENDIX
Exhibits marked on the side of the complainant :
Ext.A1 – Original Power of Attorney dated 8/10/18
Ext.A2 – Copy of agreement dated 25/3/2018
Ext.A3 – Statement of account for customer No.837186993
Ext.A4 – Original Tax invoice dated 4/4/2018 issued by Lulu International Exchange
Ext.A5 - Original Tax invoice dated 27/3/2018 issued by Lulu International Exchange
Exhibits marked on the side of the opposite party:
Nil
Court Exhibit: Nil
Third party documents: Nil
Witness examined on the side of the complainant: Nil
Witness examined on the side of the opposite party: Nil
Court Witness: Nil
NB : Parties are directed to take back all extra set of documents submitted in the proceedings in accordance with Regulation 20(5) of the Consumer Protection (Consumer Commission Procedure) Regulations, 2020 failing which they will be weeded out.
