Tamil Nadu

Thiruvallur

CC/42/2008

Mr.Krishnan - Complainant(s)

Versus

K.Ravichandran & others - Opp.Party(s)

M/s .L.Thanigaivel

20 Aug 2015

ORDER

                                                                                  Filed On: 02.06.2008

                                                                             Disposed On:20.08.2015

THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM,  THIRUVALLUR

      PRESENT: THIRU. S. PANDIAN, B.Sc., L.L.M             : PRESIDENT

                          TMT.    S. SUJATHA, B.Sc.,                         : MEMBER-I       

 

Thursday, the Day of 20^th August-2015

C.C.No.42/2008

K. Krishnan

Plot No. 260

I.O.B. Nagar, Perumalpattu

Vepampattu, Thiruvallur District.                       …Complainant

 

 

       -Vs-

 

1. K.  Ravichandran,

    No. 19, Ambedkar Street,

    Teacher’s Colony,

    Ambattur,Chennai- 600 053.

 

                                                             

2. Mrs. Maragathamani Ravichandran,

    Proprietrix,

    M/s. M.R. Foundation,

    No. 19, Ambedkar Street, Teacher’s Colony,

    Ambattur,Chennai -600 053.                

 

3. M/s. Saravana Foundation

    By Proprietor Mr. Subashchandran

    No. 20, Mahalakshmi Nagar      

    Ramapuram, chennai - 600 89.                                     …Opposite Parties

 

 

Counsel For Complainant                          : Mr. L. Thanigaivel, Advocate

Counsel For Opposite Parties-1 & 2          : M/s. V. Murali,  Advocate

Counsel For Opposite party-3                             :  Set Exparte

 

 

          This Complaint is coming upon before us finally on 18.08.2015  in the presence  Mr. L. Thanigaivel, Advocate  on the side of the complainant and M/s. V. Murali,  Advocate   appeared on the side of the opposite parties-1 & 2, and opposite party-3 was Set Exparte and upon hearing arguments on the side of the both and perused the documents and evidence, this Forum delivered the following,

ORDER

PRONOUNCED BY THIRU. S. PANDIAN, PRESIDENT                                                     

              This complaint has been filed by the complainant u/s 12 of the Consumer Protection Act 1986, against the opposite parties to seek direction to return the excess amount of Rs.2,01,000/- collected by the opposite parties and to complete the incompletion work and repair in the alleged building construction, failing which to pay a sum of Rs.2,00,000/- and Rs.50,000/- towards  compensation  for causing mental agony and with the cost of Rs.10,000/- . 

The Brief Facts of the Complaint are as follows:          

1.       The complainant had approached the 1^st opposite party for construction of a house at Perumalpattu Village.  The 1^st opposite party opened a savings bank account in the name of complainant.  On 03.09.2003 the 1^st opposite party got a Sale Deed executed in favour of the complainant in respect of a land measuring 1,815 sq. ft at Perumalpattu Village.  The value of the land is only Rs.45,000/- but the Sale Deed is registered for Rs.1,63,000/-.  The 1^st opposite party had arranged the loan from the Indian Overseas Bank, for purchase of the house.  The 2^nd opposite party is none else than the wife of the 1^st opposite party.  The 2^nd and 3^rd  opposite parties began to put up construction, but found that the construction was not as per the plan.  The 2^nd and 3^rd opposite parties have not completed the construction.  They have not provided the open Terrace, Dummy column erected without Pillar, teak wood door not provided in the main door and the plywood door was not fixed  properly,  Safety grill not provided at the entrance and also on the rear side, compound wall with gate not constructed, platform for well not provided, electric motor not provided and installed grill doors not provided at front and bank entrance of the premises, three phase connection was not given pipes were not provided to drain out rain water, inferior electrical wiring, white washing not finished and etc.  The 1^st and 2^nd opposite parties have misappropriated a sum of Rs.2,01,000/- in the construction of the building.  On taking from D.O.B. without the knowledge of the complainant.  The opposite parties failed to attend to the repairs and rectify the defects.  The complainant issued a notice to the opposite parties to attend to the repairs and defects found in the construction of the building and also settle the dues to the bank.  But the opposite parties neither rectify the defects nor paid the money to the bank.  Hence, the complainant had filed the complaint.

 

Written Version filed by the opposite parties 1&2 is as follows;

2.       It is true that the 2^nd opposite party offered to built up the independent Houses to complainant and various persons.  The 2^nd opposite party is the proprietary M/s. M.R. Foundation.  The opposite parties did not open the account in the name of complainant.  It is true that the sale deed is registered in the name of complainant for a sum of Rs.1,63,000/.  But the allegations that the land value is Rs.45,000/- is not true and correct.  After registration the 2^nd opposite party handed over the original Sale Deed to complainant. 

 

3.       The 2^nd opposite party arranged the loan through Indian Overseas Bank.  But it is not true that we obtained two blank Cheque and signatures in the stamp papers are not true and correct.  The allegation that the opposite party gave a sum of Rs.5,000/- and Rs.25,000/- by Cheque and cash is not true and correct.  The complainant received the said amount for the purpose of doing some work in the kitchen at his wish.  The 3^rd opposite party agreed to construct the house for complainant.  Hence, the construction of the building and alleged amount of construction cost and defects are matters between the complainant and 3^rd opposite party.  The 1^st and 2^nd opposite party have no connection with complainant in respect of the construction.  

 

4.       The opposite parties did not commit any deficiency in service in constructing the House.  The opposite parties have no liability to pay any compensation to complainant or any amount.  The complaint is false and frivolous.  The complaint got intention to grab the amount from the opposite party.  The 1^st opposite party has no connection with complainant.  Hence, this complaint is liable to be dismissed.    

 

5.       On the side of the complainant, a proof affidavit submitted by the complainant as his evidence and Ex.A1 to A8 are marked.  Whileso, the opposite parties -1&2 also filed the proof affidavit but no document marked.  Opposite Party-3 remained Exparte inspite of all effective steps taken by the complainant for his appearance. 

6.       At this juncture, the main point for determination before this Forum is,

1. Whether there is any deficiency of service on the part of the Opposite Parties-1 & 2 as alleged in the complaint?
2.  To what other relief the complainant is entitled?

 

 

 

 

7.     Written Arguments submitted by both sides and the copy of the same is furnished to either side.  In addition to that oral arguments adduced on both sides.  

 

 

8. Point No. 1:-      According to the case of the complainant that the oppositeparty-1 had arranged the loan from the IOB for the purchase of the house and the opposite party-2 who is the wife of the opposite party-1 began to put up the construction agreement along with opposite party 3 but the construction was not according to the plan and also not provided many features like weathering course in the open terrace, dummy column erected without pillar, Teak wood door, safety grill etc., and also they have misappropriated a sum of Rs.2,01,000/-.  It is further stated that they have taken money from the bank without the knowledge of the complainant and not completing the construction and thereby they have committed deficiency in service and caused mental agony and not rectified even issue of legal notice to the opposite parties.  Whileso, it is contended by the opposite parties-1&2 that through it is true that opposite party-1 had arranged for loan for the purchase of plot and construction of house to the complainant but it is not true that opposite parties-1&2 misappropriated the amount of Rs.2,01,000/- and they did not enter any construction with the complainant and infact  opposite party-3 has only undertaken to construct the building and therefore the opposite parties-1&2 not related to the defects alleged in the construction of building and even  for argument sake, if it is taken as some defects in the construction and the same to be proved, the complainant did not comeforward to arrange the appointment of  Advocate Commission along with the qualified surveyor and therefore it is liable to be dismissed.

9.         At this juncture, on careful perusal of the rival submissions putforth on either side with due care and caution, it is learnt from the evidence of the complainant, that on the arrangement of the loan in the IOB Bank by the opposite party-1, the Sale Deed was executed in favour of the complainant for purchase of the plot which is marked as Ex.A1 and in continuation the Ex.A2 agreement for construction with the opposite parties.  It is further stated in the proof affidavit, that the opposite party-3 has not completed the construction as per the Ex.A2, Ex.A3 legal notice has been issued to the opposite party-3 and the same was returned the said returned covers are marked as Ex.A4 to A6 and the photographs which shown the defects in the construction of the building is marked as Ex.A7.   Ex.A8 is the Engineer’s report to reveals the fact of work not provided by the opposite party-3 during construction and the same was completed subsequently by the Sun Shine Construction to the complainant herein.   On the other hand though the allegations made by the complaint are denied by the opposite parties-1&2 in their evidence, but no documents are produced to that effect.

 

10.     At the outset, the first point to be decided is, whether it is proved the allegation of the complainant against the opposite parties-1&2 for misappropriation of excess money of Rs.2,01,000/-without the knowledge of the complainant.  First of all, on going through the evidence and the averments of the complaint, it is sated that though the cost of the land is only Rs.45,000/- but the Sale Deed Ex.A1 executed for Rs.1,63,000/- and belief over the opposite party-1 and taking advantage of the signatures obtained from the complainant on blank paper, opposite party-1 received the loan amount from the bank behind the back of complainant and thereby misappropriated a sum of Rs.2,01,000/-.  It is an admitted fact that the opposite party-1 had arranged the loan for the purchase of the plot and construction of house through the Indian Overseas Bank which is the Nationalized Bank to the complainant.  Being the Nationalized Bank, the complainant ought to have executed the necessary documents for the sanction of the above said loan as per the prescribed norms and all the formalities have been done only before the concerned Branch Manager.  It is further learnt that it is a well known fact that the release of loan to the complainant directly as per the stage of the development that too by way of installments not as a whole.  Such being a position, it is the bounden duty of the complainant to prove the above said allegation of the misappropriation of excess amount by misusing of the blank signed paper obtained by the opposite party-1 from the complainant.

 

11.     Regarding this, on going through the proof affidavit and evidence, it is crystal clear that the complainant did not produce any document before this forum.  It is pertinent to say, that in respect of said allegation that there is certainly some relevant document about the disbursement of loan to the complainant by the Bank then and there.   Whileso, the complainant has not comeforward to take any steps to file any documents, viz statement of Bank Account, Bank receipts etc. obtained from the bank or to call for the said necessary documents and marked on the side of the complainant.   Not only that, the complainant did not produce any officials of the Bank as his witness in order to prove the disbursement, of any loan amount directly to the opposite party-1 towards the construction of the buildings without the consent of the complainant.  Therefore, it can be easily come to conclusion that the complainant has not at all proved the allegation of misappropriation of loan amount against the opposite parties-1&2 beyond any doubt.

12.     Next thing to be decided is whether the deficiency in service against the opposite party – 1 to 3 regarding the construction of house have been proved or not through proper evidence.  It is learnt from the evidence of the complainant, that it is crystal clear that the construction agreement was made in between the complainant and Opposite Party-3 only, which clearly reveals from Ex.A2 and not with the opposite party-1.  The said fact is also admitted by the opposite parties-1&2 in their written version as well as in the proof affidavit.  Furthermore, it is categorically stated in the written version the opposite party-1&2, that the opposite party-3 has only undertaken to construct the building of the complainant.  So there is no dispute at all regarding the said fact.  At this juncture, it is further learnt from the evidence of the complainant that as per Ex.A2 the opposite party-3 has not completed the construction work as per plan and estimation and also not provided many features on the complaint and in this regard the Ex.A3 legal notice has been issued to the opposite party-3 but the same was returned as an endorsement as unclaimed and the returned cover to Ex.A6.   More so, it is learnt further that subsequently to this complaint, the incompletion work left by the opposite party-3 have been done through other construction company named Sun Shine Construction.   In such a way, the complainant has proved the deficiency in service on the part of opposite party-2 by means of oral as well as documentary evidence which are consistent and cogent. 

13.     In the light of the above facts and circumstances, this forum without any hesitation to hold that the allegations of misappropriation made against opposite party-1&2 have not been proved but at the same time, the deficiency in service on the part of opposite party-3 is proved beyond all doubts.  Thus the point no. 1 is answered accordingly. 

14. Point No. 2:-       In view of the  decision arrived in the point no. 1, and  Ex.A8, the complainant has spent subsequently the sum of Rs.1,46,500/- to complete the construction of the house which are not completed by the construction of the house which are not completed by the opposite party-3 as per the Ex.A2, the Agreement of construction and therefore the complainant is entitled to get the said amount from opposite party-3 and also with reasonable compensation for the deficiency in service and caused mental agony.  Thus this point no. 2 is answered accordingly. 

                In the Result, this complaint is allowed in part.  Accordingly, the Opposite party-3 is directed to pay a sum of Rs.1,46,750/- (Rupees One Lakh Forty Six Thousand  Seven Hundred and Fifty Only) to the Complainant with interest of 6% P.A. from 25.03.2008 till the date of this order towards the expenses incurred for carrying out the incomplete construction work and repairs and to pay a sum of  Rs.10,000/- (Rupees Ten Thousand only) towards Compensation for mental agony and Rs.5000/- (Rupees Five Thousand only) towards cost.   Regarding the claim against Opposite Party-1 and Opposite party-2 is Dismissed.     

          The above amount shall be payable within one month from the date of receipt of the copy of the order, failing which the said amount shall carry interest at the rate of 9% P.A, till the date of payment.

Dictated by the president to the steno-typist, transcribed and computerized by her, correctly by the President and pronounced by us in the open Forum on this 20^th August- 2015.

Sd/-                                                                                            Sd/-

MEMBER-I                                                                                      PRESIDENT

         

List of Complainant Documents:

Ex A1  -  03.09.2003       Xerox Copy of Sale Deed executed in favour of

                                         complainant

Ex.A2 – 18.09.2003      Xerox copy of Building Construction  Agreement by 3^rd

                                         Opposite Party in  favour of the complainant

Ex.A3 – 10.09.2005         Xerox Copy of Legal Notice by complainant to opposite

                                          Parties

Ex.A4 - 28.09.2005      Xerox Copy of returned cover from 3^rd opposite party

Ex.A5 - 07.10.2005      Xerox Copy of returned cover from the 1^st opposite party

Ex.A6 - 07.10.2005      Xerox Copy of returned cover from 2^nd opposite party

Ex.A7 -       -                  Xerox Copy of Photographs-1

Ex.A8 -       -                  Xerox Copy of Engineer Report

 

List of Opposite Parties Documents:             -Nil-

 

 

Sd/-                                                                                            Sd/-

MEMBER-I                                                                                      PRESIDENT