IN THE CONSUMER DISPUTES REDRESSAL COMMISSION, ALAPPUZHA
Tuesday the 29th day of September, 2020
Filed on 15.09.2017
Present
1. Sri.S.Santhosh kumar(President)
2. Smt. Sholly.P.R ,LLB (Member)
In
CC/No.248/2017
Between
Complainant:- Opposite party:-
1. Dr.V.Rajamaniamma Jison Jose
P 4/2 Vikram MES Quarters Kunnupuram House
Panampalli Nagar-34 CMC 26, Cherthala
Kochi (Adv.Deepak)
(Adv.T.K.Harilal)
SMT. SHOLLY.P.R (MEMBER)
This is based on a consumer complaint filed u/s 12 of Consumer Protection Act. 1986.
1. The averments in the complaint in short are as follows:-
On 16/9/2015 the complainant and opposite party entered into an agreement for construction of a two storied building in the property owned and possessed by the complainant comprised in Re-survey No.656/3 of Cherthala(S) Village. The term for completion of construction was fixed as six months and the total cost of construction was agreed as 53,71,560/-(Fifty three lakh seventy one thousand five hundred and sixty). The amount to be paid to the opposite party on each stage of construction was termed in the agreement. On believing the opposite party and as per the terms and conditions of the said contract the complainant entered into the agreement. As per the agreement the construction started in January 2016. The opposite party was also liable to hand over the key of the building after completing the construction in July 2016 as per the agreement. Since the complainant’s husband was suffering from cancer disease, she could not able to inspect the property and analyse the progress of the work. But the payment for the construction work was made by the complainant as demanded by the opposite party. By misusing this opportunity the opposite party received Rs.39,00,000/-(Thirty nine lakh) as installments from the complainant directly and through Bank transaction as well as cheque transaction. She was constrained to pay the said amount by believing the words made by the opposite party regarding the each stage of construction work. Even at the time of complainant’s husband was hospitalized in a critical condition the opposite party demanded more money and on refusal of the same the opposite party became violent and threatened the complainant for denying his demand. There after she was informed that the opposite party had received more amounts without completing each stage of construction as stipulated in the agreement. More over during half way of construction, the opposite party left the site along with the building materials stored in the site and thereby the opposite party committed deficiency in service against the agreement. Further the complainant valuated the construction with the assistance of an experienced Civil Engineer and the cost arrived at was Rs.21,78,618(Twenty One lakh Seventy eight thousand six hundred and eighteen) only. So she was entitled to the said amount and demanded the opposite party to return Rs.17,21,382/-(Seventeen lakh twenty one thousand three hundred and eighty two) together with interest at the rate of 12% and it was also informed that she had withdrawn from the contract with the opposite party. On 20/3/2017 the complainant sent legal notice to the opposite party demanding the said amount and compensation for the said circumstances, but the same was returned with endorsement “unclaimed”. Hence this complaint.
2. The opposite party resisted the complaint by filing a detailed version raising the following contentions.
The complainant is not maintainable either in law or on facts. The complainant has no locus standi to file this complaint. The complainant and opposite party has not entered into any agreement as alleged in the complaint. The allegation that the agreement executed between the complainant and opposite party on 16-9-2015 is not correct. The expense for construction estimated Rs.53,71,560/-(Fifty three lakh seventy one thousand five hundred and sixty) in the agreement is not true and it is concocted. Actually there was only a oral agreement between the complainant and opposite party. The complainant with intimacy had directed the opposite party to construct a residential building and on that he was instructed to construct the building by spending money transferred by the complainant through her account and as per the directions given by the engineer appointed by the complainant. A compound wall was also constructed simultaneously in the site as per the directions of the complainant. It is true that the complainant’s husband was suffered disease. On such a situation the complainant entrusted the supervision of the construction and thereby the opposite party has done all those duties due to his sincerity towards the complainant even managed to advance money for ensuring building materials in the site. He never received any amount directly from the complainant. It is not true that he had received a total amount of Rs. 39,00,000/-(Thirty nine lakh) from the complainant. The opposite party had only done the work as directed by the complainant and the engineer deputed by the complainant for constructing the building. The averments that the complainant could not visit the construction site due to the acute disease of her husband is only to the very purpose of this complaint.
The opposite party has never threatened the complainant demanding money. The complainant used to visit the site and she was aware of each and every minute thing happened in the site. The construction was not done in accordance with the approved plan as the engineer and the complainant altered the plan in accordance with their convenience. Sometimes the partly constructed work was demolished as the direction given by the Engineer who is not having any competency at all.
The original dispute between the parties arose when the complainant demanded same illegal help from opposite party for trapping the prior owner of the property where in the building is constructed as there are a series of Civil cases pending between them. The opposite party was not conceded for her demands. Hence she shouted at him and then the opposite party find it difficult to work with the complainant and he demanded to return the amount advanced by him for the construction. Then the complainant assured that she will return the amount after ascertaining the work with an expert. But she did not keep her word and on the other hand she filed the complaint with a view to avoid the opposite party without giving money he entitled as advance to the complainant.
The agreement produced by the complainant is fabricated by using the blank stamp paper used to sign from the opposite party and other white papers printed by the complainant. It can be realized from the date of purchase of the same and the date of execution of the said document. Opposite party had not accepted all the pages of the said document except 1st and last pages and there is no witness in execution of the said document and thereby not enforceable. The averment that a Civil Engineer examined the site and calculated the expense incurred for construction was only 21,78,618/-(Twenty one lakh seventy eight thousand six hundred and eighteen) is false. None of the Civil Engineer had not examined the site and not prepared a report as averred in the complaint. If such as examination was done by the Engineer and prepared a report the complainant would have submit the report before this commission. The complainant sent legal notice to the opposite party after ensuring his absence in his house for making false evidence.
There is no deficiency in service on the part of the opposite party since the strength of the building, materials used, mode of construction etc have not been disputed in the complaint. Hence there arose no question regarding compensation. As there is no legally enforceable agreement between the parties the complainant cannot be granted the relief as sought for in the complaint. Therefore the complaint may be dismissed with compensatory cost of the opposite party
3. In the view of the above pleadings the points that arise for consideration are:-
1. Whether there is legally enforceable agreement between the complainant and opposite party?
2. Whether the complainant is entitled to get back Rs. 17,21,382/- with interest from the opposite party?
3. Whether there is any deficiency in service on the part of the opposite party?
4. Whether the complainant is entitled to get compensation?
5. Reliefs and costs?
Evidence on the side of the complainant consists oral evidence of PW1 and Ext.A1 to A11(Ext.A6 is series- 2 nos) documents and report of the expert and the plan were marked as Ext.C1 and C1(a). Evidence on the side of the opposite party is oral evidence of RW1. Both parties filed notes of argument and heard both sides.
5. Point No. 1 to 4:-
For avoiding repetition of discussion of materials these four points are considered together. The specific case of the complainant is that she entrusted the opposite party to construct a house building in her landed property for the purpose of the occupation of herself and her family. It is the further case of the complainant that she and opposite party entered into an agreement on 16/9/2015 regarding the construction and its allied terms. The said document is marked as Ext.A1. The opposite party has challenged the execution of the said document. According to the opposite party in his version as well as in proof affidavit averred that the agreement between the parties made on 16-9-2015, but the stamp paper bearing No. 35078, 35079 in which the said agreement prepared were purchased on 8/1/2016. A plain reading of Ext.A1 would indicate that prior to the purchase of the stamp papers the Ext.A1 was executed. On perusal of Ext.A1 it can be seen that the date of issuing the stamp paper purchased by the complainant is 8/1/2016 and in which the agreement executed on 16-9-2015. As alleged by the opposite party we are also doubted how can a person execute a document before the date of purchase of stamp papers. The burden is upon the complainant to answer this question. But when she was cross examined her answer that “ CXv Rm³ H¸n« F{Knsaâv BWv. 16.09.2015  Atà H¸n«Xv. A¶v F{Knsaâv CÃ. Hcp amXrI am{Xta Dm¡nbpffp. 8.1.2016  ]{Xw hm§nbXv Rm\mWv.”
Here the complainant totally denies the execution of the agreement on 16/9/2015. Moreover if there was any understanding or any oral agreement the complainant could have clarified the ambiguity regarding the dates at the time of preferring the complainant and preparing the proof affidavit as deposed above. At this juncture the veracity of Ext.A1 is doubtful and thereby it is inadmissible since no supporting and corroborative evidence adduced by the complainant. Moreover there are no pleadings incorporated by the complainant and not even a single word deposed when she mounted in the box with regard to this point. The contention regarding the signature of the parties, it is seen on Ext.A1 the signature of the complainant and that of opposite party put only one the 1st page and last page. The total pages of Ext.A1 is 9 including construction details and agreements. No such page number also shown in Ext.A1. In last page also it is payment details. Regarding affixture of signature on contract relied a judgment in Hindustan Construction Co. Vs. Union Bank of India. AIR(SC) 1967 0526. In which the accepted observations are not in par with this matter and the said observation was regarding the accuracy and correctness of the certified copy of the document from its original as a “signed document”.
In the above circumstances since the complainant could not establish the reliability of Ext.A1 we are in a view to accept the citation 2015 Kerala High Court 3134 submitted by the opposite party in Rizvi Builders, Goa Vs. Lamarck R.C Clemente(deceased) and others the Hon’ble Bombay High Court verdicted that no compensation can awarded if there is no concluded agreement between parties.
Another claim by the complainant is that even though the opposite party had accepted an amount of Rs. 39,00,000/- from the complainant for the construction of building, the opposite party had only utilized an amount of Rs. 21,78,618/- and that opposite party is liable to return Rs.17,21,382/- to the complainant. On perusal of Ext.A5, original Bank Pass book and Ext.A7 copy of account details of the complainant the opposite party had received a total amount of Rs. 26,20,000/-(Twenty six lakh twenty thousand) from the complainant from 18/1/2016 onwards. In Ext.A6 series, two counterfoils of the cheque book in the account of the complainant during the alleged period certain entries are made by the complaint herself without any authenticated proof. Moreover there is no evidence produced with regard to the amount directly given to the opposite party as alleged in the complaint. Furthermore while the opposite party was cross examined, the counsel for the complainant suggested that Rs.26,20,000/- (Twenty-six lakh twenty thousand) received by the opposite party through cheque and NEFT transfer. This was evidented from the Ext.A5 and Ext.A7 as early discussed.
Ext.C1 Expert report and C1(a) plan prepared by the Asst. Engineer PWD(Rtd) reveals that total cost of production for the building is 23,24,686/-(Twenty three lakh twenty four thousand six hundred and eighty six) and the expense incurred for the compound wall constructed to the boundary of the property of the complainant is Rs.3,32,000/- (Three lakh thirty thousand ). Even though the opposite party had filed objection to the Expert Report, We are constrained to accept the same without examining the commission since it was reported that the said engineer is expired. As per the Ext.C1 (a) the total cost of production for the building and compound wall is 26,56,680/-(Twenty six lakh fifty six thousand six hundred and eighty). It is admitted that the Ext.C1 and C1(a) prepared in the presence of both parties and the complainant also admitted while she was in the box that the compound wall also constructed by the opposite party. In this circumstances we have no hesitation to accept the Ext.C1 and C1 (a) report and this point is concluded in favour of the opposite party and ordered that the complainant is not entitled to recover an amount of Rs. 17,21,382/-
as claimed in the complaint.
In the above circumstances there is no need to more discussion regarding the deficiency in service. These points are answered accordingly.
Point No.4
The complaint stands dismissed. No costs.
Dictated to the Confidential Assistant, transcribed by her correct by me and pronounced in open Commission on this the 29th day of September, 2020.
Sd/-Smt. Sholly.P.R(Member)
Sd/-Sri.S.Santhosh Kumar(President)
Appendix:-Evidence of the complainant:-
PW1 - Dr. V.Rajamaniyamma(Complainant)
Ext.A1 - Agreement
Ext.A2 - Copy of Lawyers Notice.dtd.20/3/2017.
Ext.A3 - Postal Receipt
Ext.A4 - Notice.
Ext.A5 - Pass book
Ext.A6series - Cheque Books(2 nos)
Ext.A7 - Statement of accounts
Ext.A8 - Photocopy of Phone messages.
Ext.A9 - Owner ship certificate.
Ext.A10 - Documents
Ext.C1 C1(a) - Report
Evidence of the opposite parties:-
RW1 - Jison Jose(Opposite party)
// True Copy //
To
Complainant/Oppo. party/S.F.
By Order
Senior Superintendent
Typed by:- Br/-
Compared by:-
