DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, PALAKKAD

Dated this the 21^st  day of  February, 2022

Present    :  Sri.Vinay Menon V.,  President

                :  Smt.Vidya A., Member                                                   Date of Filing: 5/08/2015 

     CC/106/2015

Mohanan,

S/o  Vella,

Valiyaveetil House,

Nenmeni Post,

Kollengode, Chittur Taluk,

Palakkad – 678 506

(By Adv.K.Dhananjayan)                                                        -           Complainant

                                                                                                Vs

Joshi,

S/o.N.K.John, Proprietor,

M/s.Asia Tech Electrical Contractors &

Interior Designers,

Office at D.104, Town Bus Stand Complex,

T.B.Road, Palakkad – 1

(By Adv.P.Gopinath)                                                    -                       Opposite party

O R D E R 

By Sri. Vinay Menon V.,  President

1. Complainant is aggrieved by non-completion of works  and illegal retention of an amount of 15 lakhs by the opposite party.
2. The complainant averred that he entrusted the construction of his dream home’s frame which includes construction of foundation, walls, rooms, main slab construction, concreting, fixing of tiles, to a set of construction workers who had carried out the work to his satisfaction.  The remainder work of interior and exterior plastering, electrical works, plumbing works,  interior designing, fabrication works including fixation of  tiles inside the rooms so as to make the building habitable was handed over to the opposite party. Both of them entered into an agreement dated 19/11/2014 which formed the basis of the work to be carried out. No deviation  whatsoever was contemplated. But to the chagrin of the complainant, the opposite party failed to adhere to the terms and conditions and covenants of the aforesaid agreement and left the work after having carried out only half the work and after illegally retaining Rs.15 lakhs . The complainant had to carry  out rest of the works himself expending enormous amounts. The complainant claimed an amount of Rs.22 lakhs but limited his claim to  Rs.20 lakhs, together with interest till date of payment and attenuating reliefs.
3. The opposite party filed version contesting the complaint allegations. He admitted having received Rs.27 lakhs out of Rs.37 lakhs.  He had carried out works for Rs.26,73,892/-. The complainant had varied the terms and conditions of the agreement by failing to effect payment in accordance with the terms and conditions of the agreement.  The delay occurred on account of non payment of amounts by the complainant. There was no negligence whatsoever on the part of this opposite party. This complaint is an attempt to escape the complainant’s omission in performing his part of the contract and  is an attempt to pre-empt  any action by the opposite party against the complainant and sought for dismissal of the complaint. 
4. On a reading of the pleadings and counter pleadings the following issues are to be answered to arrive at a conclusion.

1. Whether the complainant has proved that the opposite party is retaining Rs.15 lakhs ?
2. Whether there is any deficiency in service on the part of the opposite party ?
3. Whether the  complainant is entitled to any of the reliefs sought for ?
4. Reliefs  if any ?

5. Evidence comprised of deposition of PW1 to PW3 on the part of the complainant and marking of Exhibits A1 to A80 and evidence of opposite party comprised of his proof affidavit.

Issue No.1

6. The unequivocal case of the complainant is that the opposite party failed to carry out the works in accordance with the terms, conditions and covenants of the agreement dated  19/11/2014, Ext.A1. He is aggrieved by the retention of Rs.15 lakhs by the opposite party out of Rs.27 lakhs paid and also sought for compensation for Rs.7lakhs (limited to Rs.5 lakhs) which he had to incur to carry out the balance of the work which was left undone by the opposite party.  At the time of filing of this complaint,  the complainant had already completed the construction of the building using other construction workers. The contentions of the complainant is totally contradicted by the opposite party. 
7. Evidence of complainant consists of oral evidence of PW1 to PW3. PW1 is the complainant. PW2 & PW3 are workers who had worked for him. The depositions of PW1, PW2 & PW3 are not at all helpful in assessing the cost of works carried out by the opposite party.

Same can be held of Ext.A4 to A66 bills, invoices, estimates etc.,   which    are

issued to the complainant by various dealers. Whatever might be their evidentiary value, they do not, in the facts and circumstances of the case, assist in coming to a conclusion that the opposite party is retaining Rs.15 lakhs with him.

            Ext.A69 to A80 are various e-mails addressed to the opposite party in his       e-mail ID

8. Payment and receipt of Rs.27 lakhs is admitted. But the manner in which and the extent to which the said amount was expended is not proved in any manner. The complainant has not taken out any expert commissioner so as to assess the extent of work carried out by the opposite party and its cost.  

Hence, complainant has failed to prove that the opposite party is  retaining  Rs.15 lakhs as alleged by him. 

Issue No.2

9.         The opposite party has admitted receipt of Rs.27 lakhs. He also claims to have carried out works for Rs.26,73,892/- . One material aspect that is to be kept in mind is that this is a complaint alleging deficiency in service on the part of  opposite party and seeking for return of Rs.15 lakhs  that is  allegedly illegally retained  by the opposite party.  In such a dispute  it is incumbent upon the opposite party to prove that he has expended an amount as claimed by him by adducing cogent evidence for the sole reason that the parties are in a fiduciary relationship.

10.       When two parties are in fiduciary relationship to each other, there exists an under- current of trust and duty whereby each party is bound to protect the financial interests of each other.  Eventhough  the complainant had sought for the statement of accounts the opposite party has washed his hands off any liability or responsibility to convince the complainant by producing the documents that would prove that he has expended amounts as claimed by him.

11.       During the conduct of this dispute, the opposite party alleged that he had not received any of the e-mails issued to him by the complainant seeking for settlement of accounts. We do not find such a contention raised by the opposite party trustworthy in  the absence of any claims  made by him stating that there was any mistake in the e-mail ID used by the complainant.  Ext.A69 & A80 were issued by the complainant to the opposite party in the e-mail ID seen in Ext.A3 which is issued by the opposite party.  Hence, it can be safely presumed that the opposite party has received the e-mail issued by the complainant and any pleading to the contrary is an attempt to sabotage this dispute.

12.       The opposite party had enough opportunity to produce the statement of accounts before the complainant in this court as well. The opposite party has also not produced any ledgers to prove that the work was being carried out in tune with the amounts that was received by him.  It is true that the complainant has produced Ext.A3 which is issued by the opposite party to show that he had expended Rs.26,73,892/-. But Ext.A3 is only a summation prepared by the opposite party of various expenditures allegedly incurred by him for which supporting invoices, bills etc., are available.  Veracity of Ext.A3 can be arrived at only  by verifying such independent and supporting invoices, bills etc. of which Ext.A3 is a summary.   In the absence of such supporting documents, one can only presume that the production of such documents would be adverse to and detrimental to the interests of the opposite party, which would be fatal to his case.

Hence, we hold that there is deficiency in service and unfair trade practice on the part of the opposite party.

13.       At this juncture one cannot stop wonder what was the profit or remuneration  made by the opposite party. Admittedly the opposite party received Rs.27 lakhs of which only Rs.36,108/- is retained by the opposite party.  We do not believe that the complainant would be satisfied by this amount, had  he carried out work for Rs.27 lakhs. There  is no pleadings to the effect that he has not received any amounts by way of his remuneration  or that he was not paid for his efforts. There is no counter claim as can normally be expected in a case of this nature.  Such a lack of enthusiasm in claiming for the opposite party’s remuneration  will make one  wonder whether he is not interested in his remuneration or whether he is satisfied with the Rs.36,108/- in his custody. This observation is made merely by way of an off hand musing, though it may not hold any value. 

            Issue No.3

14.       As stated supra the complainant has failed to adduce any evidence to prove that the opposite party is retaining  Rs.15 lakhs. Hence, in the facts and circumstances of the case, we are unable to grant any reliefs as sought for by the complainant.

            Issue No.4

15.       We have already come to the conclusion that there is deficiency in service on the part of opposite party.  The conduct of the opposite party is such that he has availed huge amounts from the complainant and has failed to account for the same with impunity   and has caused  violation of  trust reposed upon the opposite party.  

16.       Eventhough we are not able to reach a figure as to the amounts retained by the opposite party, the opposite party is bound to compensate the complainant for violation of trust.  Resultantly, we order the following compensation and cost be paid  by the opposite party to the complainant.

            Compensation – Rs.5,00,000/- (Rupees Five lakhs only)

            Cost                 - Rs.1,00,000/- (Rupees One lakh only)

The Order shall be complied within 45 days from receipt of this Order.

            Pronounced in the open court on this the 21^st  day of February, 2022.

Sd/-

                                                                              Vinay Menon V.

                                                 President

    Sd/-

 Vidya A.

                    Member      

APPENDIX

Exhibits marked on the side of the complainant

Ext.A1 – Original agreement dated 19/11/2014 executed between Mohanan V. & Joshi N.J.  

Ext.A2 –  Copy of abstract estimate of works to be carried out 

Ext.A3 –   Copy of Invoice bearing No.53 dated 21/4/15 issued by opposite party

Ext.A4 – Original Invoice bearing No.B0785 dated 6/6/2015 for Rs.2285.49

Ext.A5 – Original of Invoice No.267 dt.27/7/2015 issued by Ajmal Ceramics

Ext.A6 – Original estimate dated 27/7/15 for Rs.5590/-

Ext.A7 – Original Invoice (top portion torn off) issued by Nandanam Sanitaries for Rs.12700/-

Ext.A8 – Original quotation dated 6/4/2015 for Rs.1,04,043/-

Ext.A9 – Original Voucher No.1764 dt.22/4/15 for Rs.3000/- by Nandanam Sanitaries

Ext.A10 – Original Sales order bearing invoice No.22437 dt.22/4/2015 for Rs.13200/- issued

                   by Nandanam Sanitaries.

Ext.A11 – Original Invoice No.3992 dt.15/10/15 for Rs.3390/- issued by Perumalil Trading

                    Co.

Ext.A12 – Original Invoice No.7316 dt.22/8/15 for Rs.8350/- issued by Rakesh Marbles &

                   Granites

Ext.A13 –  Original Invoice  bearing No.401 dt.1/6/15 for Rs.5603/- issued by TML Traders

Ext.A14 –  Original Invoice  bearing No.410  dt.2/6/15 for Rs.27,221/- issued by TML Traders

Ext.A15 – Original Invoice  bearing No.435  dt.6/6/15 for Rs.164/- issued by TML Traders

Ext.A16– Original Invoice  bearing No.434  dt.6/6/15 for Rs.26323/- issued by TML Traders

Ext.A17 – Original Invoice no.3188 dt.14/7/15 for Rs.1072/- issued by Anjitha Traders

Ext.A18 – Original Invoice no.2831 dt.30/6/15 for Rs.1072/- issued by Anjitha Traders

Ext.A19 – Original Invoice no.3078 dt.10/7/15 for Rs.1072/- issued by Anjitha Traders

Ext.A20 – Original Invoice no.3579 dt.5/8/15 for Rs.271/- issued by Anjitha Traders

Ext.A21 – Original Invoice No.789 dt.28/7/15 for Rs.2610/- issued by TML Traders

Ext.A22 – Original Invoice no.2635 dt.19/6/15 for Rs.40/- issued by Anjitha Traders

Ext.A23 – Original Invoice no.2610 dt.18/6/15 for Rs.580/- issued by Anjitha Traders

Ext.A24 – Original Invoice no.2531 dt.15/6/15 for Rs.2779/- issued by Anjitha Traders

Ext.A25 – Original Invoice no.2531 dt.15/6/15 for Rs.2107/- issued by Anjitha Traders

Ext.A26 – Original Invoice no.2634 dt.19/6/15 for Rs.780/- issued by Anjitha Traders

Ext.A27 – Original bill no.Nil dt.19/6/15 for Rs.100/-

Ext.A28 – Original Invoice No.3296 dt.19/6/15 for Rs.2125/- issued by Anjitha Traders

Ext.A29 – Original Invoice no.2491 dt.13/6/15 for Rs.3740/- issued by Anjitha Traders

Ext.A30 – Original estimate no.807 dt.13/6/15 for Rs.80/-

Ext.A31 – Original Invoice no.2449 dt.12/6/15 for Rs.567/- issued by Anjitha Traders

Ext.A32 – Original Invoice no.2648 dt.20/6/15 for Rs.5232/- issued by Anjitha Traders

Ext.A33 – Original estimate No.852 dt.20/6/15 for Rs.400/-

Ext.A34 – Original Invoice no.2420 dt.11/6/15 for Rs.310/- issued by Anjitha Traders

Ext.A35– Original Invoice no.3145 dt.13/7/15 for Rs.200/- issued by Anjitha Traders

Ext.A36– Original Invoice no.(indecipherable)  dt.13/7/15 for Rs.276/- issued by Anjitha

                  Traders

Ext.A37– Original Invoice no.2761 dt.26/6/15 for Rs.820- issued by Anjitha Traders

Ext.A38– Original Bill No.721 dt.5/6/15 for Rs.525/-

Ext.A39– Original Invoice no.2674 dt.22/6/15 for Rs.4114/- issued by Anjitha Traders

Ext.A40– Original Invoice no.2710 dt.24/6/15 for Rs.21444/- issued by Anjitha Traders

Ext.A41 - Original Bill No.97 dt.13/7/15 for Rs.18429/-

Ext.A42 – Original Invoice No.11719 dt.13/7/15 for Rs.1699.99/- issued by Baby Electricals.

Ext.A43 – Original Invoice No.2259 dt.30/7/15 for Rs.6037/- issued by Srikrishna Traders

Ext.A44 –Original estimate No.1077 dt.25/5/15 for Rs.120/-

Ext.A45 – Original Invoice No.B002085 dt.3/8/15 for Rs.5580/- issued by M/s.K.A.V.Shaik

                  Rawther.

Ext.A46 – Original Estimate dt.14/7/15 for Rs.5939/-

Ext.A47– Original estimate dt.3/8/15 for Rs.1100/-

Ext.A48 – Original handwritten  price details dt.15/6/15 for Rs.1330/-

Ext.A49 - Original Invoice No.4499 dt.4/12/14 for Rs.13273/- issued by Srikrishna Traders

Ext.A50 – Original estimate No.1726 dt.25/6/15 for Rs840/-

Ext.A51 – Original estimate dt.2/7/15 for Rs.690/-

Ext.A52 – Original estimate dt.16/5/15 for Rs.337/-

Ext.A53 – Original handwritten   price details dt.Nil for Rs.352/-

Ext.A54 – Original handwritten price details dated 1/6/15 for Rs.540/-

Ext.A55 – Original handwritten price details dt.1/6/15 for Rs.1280/-

Ext.A56 – Original estimate dt.4/12/14 for Rs.190/-

Ext.A57 – Original estimate dt.21/5/15 for Rs.263/-

Ext.A58 – Original estimate dt.21/5/15 for Rs.1032/-

Ext.A59 – Original Invoice No.1351 dt.6/6/15 for Rs.6930/- issued by G.Bhaskaran  & Bror

Ext.A60 – Original handwritten price details dt.6/6/15 for Rs.7780/-

Ext.A61 –Original quotation dated 21/8/15 for Rs.5600/-

Ext.A62 – Original quotation dated 22/8/15 for Rs.8350/-

Ext.A63 – Original handwritten price details for Rs.3537/-

Ext.A64 – Original handwritten estimate dt.6/6/15 for Rs.13320/-

Ext.A65 –Original handwritten estimate dt.6/6/15 for Rs.6270/-

Ext.A66 – Original handwritten estimate dt.3/6/15 for Rs.745/-

Ext.A67 – Original technical service call record dt.21/10/15

Ext.A68 series  – 16 Nos. of Photographs with CD

Ext.A69 – Copy of email dt.14/12/2014

Ext.A70 – Copy of email dt.20/12/14

Ext.A71 - Copy of email dt.11/3/15

Ext.A72 – Copy of email dt.16/3/15

Ext.A73 – Copy of reminder email dt.16/3/15

Ext.A74 – Copy of email dt.24/3/15

Ext.A75 – Copy of email dt.27/3/15

Ext.A76 – Copy of email dt.28/3/2015

Ext.A77 – Copy of email dt.3/4/2015

Ext.A78 – Copy of email dt.5/4/2015

Ext.A79 – Copy of email dt.7/4/2015

Ext.A80 – Copy of email dt.8/4/2015

Exhibits marked on the side of the opposite party

 Nil

Witness examined on the side of the complainant

PW1 – Mohanan V

PW2 – Deepak

PW3 – Ramesh

Witness examined on the side of the opposite party

NIL

Cost :  Rs. 1,00,000/- allowed as costs.

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.