Date of filing : 19-12-2008
Date of order : 12-05-2011
IN THE CONSUMER DISPUTES REDRESSAL FORUM, KASARAGOD
CC.295/2008
Dated this, the 12th day of May 2011
PRESENT
SRI.K.T.SIDHIQ : PRESIDENT
SMT.P.RAMADEVI : MEMBER
K.Sudhakaran Nair,
S/o.Late Kunhambu Nair, } Complainant
R/at Karipoth House,
Padinhattam Kozhuval, Po.Nileshwar,
Hosdurg Taluk.
(Adv. K.V.Rajendran & K.Ganaraja Hosdurg)
1. K. Surendran, } Opposite parties
S/o.K.P.V. Kannan,
M.M.Constructions, Kizhakkumkara,
Hosdurg Taluk.
(Adv. K.Rajeevan, Hosdurg)
2. M.M.Gangadharan,
S/o.M.Narayanan,
Emmem Constructions,
Highway Junction, Nileshwar,
Nileshwar Village, Kasaragod
(Adv. Rajitha.P, Hosdurg)
O R D E R
SMT.P.RAMADEVI, MEMBER
The facts or the complaint in brief are as follows:
That the complainant with an intention to construct a residential building approached the opposite parties, the proprietor of M.M. Construction and entered into an agreement with them on 31-01-2007. The complainant paid 25% of the total amount of construction as advance to opposite parties. As per the terms of the agreement the opposite parties must complete the construction work of the RCC building providing all essential amenities to it within 31-12-2007. But the opposite parties failed to complete the work within the time stipulated in the agreement. The complainant sent a registered lawyer notice dated 15-11-2008 to 1st opposite party demanding to fulfill the conditions laid down in the agreement within 15 days. But even after receiving the lawyer notice he did not complete the work of the residential building. The complainant further submitted that the complainant intended to construct the house only to let it out for a monthly rent of `25,00/-. Due to the non-performance of the contract by the opposite parties the complainant would not let the house and thereby he sustained a loss of `30,000/- which he would have gained if the opposite parties completed the work in time. Hence this complaint is filed for necessary relief.
2. In this case at the time of filing of the complaint the Manager of M.M. Constructions alone made as opposite party. But after completing the evidence the proprietor of M.M. Construction is impleaded as 2nd opposite party. Both the opposite parties appeared and filed their versions.
3. As per the version filed by the opposite parties the consent letter issued by the opposite parties to complaint dt.31-1-2007 to construct the RCC building is admitted. According to opposite parties eventhough as per the agreement (consent letter) the estimate for construction is fixed as `18,80,000/- it is reduced to `16,12,102/- since the complainant supply wood and wooden materials costing `2,67,898/-. But the complainant has paid only `10,70,000/-.instead of `16,12,102/-. Therefore the balance amount due to opposite parties is ` 542102/-. The opposite parties further submits that the construction work was completed as per the terms of the agreement and the opposite party is entitled to get the balance amount of `5,42,102/-. Hence the complaint is liable to be dismissed and allowing their counter claim of `5,42,102/-.
4. The evidence in this case consists of the evidence of PW1 the complainant and Exts A1 to A22 documents on the side of complainant and evidence of DW1 to DW3 and Exts B1 to B2 series documents on the side of opposite parties. After considering the evidence and perusal of documents the following issues were raised for consideration.
1) Whether there is any deficiency in service on the part of opposite parties?
2) If so what is the relief as to costs and compensation?
3) Whether the opposite parties are entitled to get counter claim?
5. The specific case of the complainant is that the opposite parties delayed the construction work as stipulated in Ext.A1` agreement and thereby he sustained a loss of `30,000/- which he would have earn by letting the newly constructed house. According to complainant the opposite parties have not complied the Ext.A1 agreement. Eventhough Ext.A1 is a consent letter both parties term it as an agreement. As per this Ext.A1 agreement the total estimate amount for construction is `18,80,000/-. Then it is reduced to `16,12,102/- since the complainant supplied wood and wooden materials. The time fixed for completion of the building is 31-12-2007. Admittedly the building was not completed on that date. The contention of the opposite parties is that the opposite parties have not peformed their part of the agreement only because of the negligence on the part of the complainant i.e, the complainant has not paid the amount as agreed. Here the question is whether the contention of opposite parties will prevail or not? To prove this aspect opposite parties filed Exts B2 and Receipts and Expenditure statements along with the version. On perusal of Ext.A1 it is clear that the complainant has not paid 25% of the total amount as advance. Ext.A14 shows that the complainant has paid `50,000/- as advance instead of 25% of the total cost. The total amount required for construction is `18,80,000/- 25% of the above amount will be more than 4 lakhs. That itself reveals that the complainant has not acted upon the terms of the agreement. Another thing is that it is also stipulated in Ext.A1 that the opposite parties will issue proper receipts to the complainant while receiving the amount from the complainant. Exts A14 to A22 are the receipts issued by the opposite parties to the complainant acknowledging the receipts of payment made by the complainant. Moreover opposite parties filed statement of Receipts and Expenditure regarding the construction of the building. The income statement filed along with the written version are tallying with Exts A14 to A22. The total amount as per Exts A14 to A22 is `10,30,000/-. Opposite parties admits another payment of `40,000/- from the complainant. Then the total amount comes to `10,70,000/-. Here the complainant has no case that he has paid the entire amount to the opposite parties. The complainant has no case that the opposite parties are not issuing proper receipts to him while receiving the amount. Moreover, he has not denied the calculation statement filed by the opposite parties. To prove the statement of expenditure the opposite parties examined DW3. On going through the above facts there is no evidence before the Forum that the complainant has paid the entire amount as per the terms of the agreement.
6. Then we have to consider another fact whether there is any delay caused for completion of the building. Ext.A7 shows that the construction is not completed on 31-12-2007. While cross-examining DW2 by the complainant he admits that the complainant has not completed the construction on 31-12-2007. Whether it amounts to deficiency in service on the part of the opposite parties? The specific case of the complainant is that the delay is caused due to the negligence on the part of the complainant. It is true that most of the payments made by the complainant to opposite parties are after 31-12-2007, i.e. Exts. A15 to A22 shows that the payments are made in the year 2008. Without paying the entire amount how a builder can complete the construction work within the stipulated time? Hence there is no deficiency in service on the part of the opposite parties.
7. On going through the entire facts and perusal of documents it is clear that the complainant has not paid the entire amount to the opposite parties. The opposite parties in their version prayed for the counter claim of the balance amount which the complainant ought to pay to the opposite parties. But we are not in a position to allow the prayer of counter claim since as per Consumer Protection Act there is no provision to consider the counter claim. The opposite parties can realize the amount through appropriate legal process. If he wish to file a suit for the relief claimed in his counter claim, he can do so according to law and in such case, he can claim the benefits of Sec 14 of the Limitation Act to exclude the period spent in defending the proceedings under the Consumer Protection Act while computing the period of limitation prescribed for such a suit as per law.
8. Next question is whether the opposite parties are entitled to get any compensation or not?
The complainant filed this complaint suppressing the material fact that he has not paid the entire amount spend for construction by the opposite parties. In order to escape from the liabilities the complainant filed this vexatious complaint. Moreover, the complainant threatened the opposite parties that he will commit suicide if the opposite parties did not hand over the key to the complainant. Only because of the threat and with the instruction of mediators the opposite parties handed over the key to the complainant without receiving the entire amount. Hence we are of the opinion that this is a fit case to be considered as vexatious under Sec.26 of the Consumer Protection Act.
Therefore the complaint is dismissed and the complainant is directed to pay a cost of `10,000/- to the opposite parties as provided U/s 26 of CP Act. Time for compliance is 30 days from the date of receipt of copy of the order.
Sd/- Sd/-
MEMBER PRESIDENT
Exts.
A1. Agreement
A2. 15-11-2008 copy of lawyer notice.
A3. Postal acknowledgement card.
A4.Photocopy of receipt
A5.Photocopy of Building Permit
A6. Photocopy of Plan and details of proposed roof top rainwater Harvesting arrangements
In RS No. 50/1 of Nileshwar Village Hosdurg Taluk.
A7. 10-9-08 letter sent by M.M.Gangadharan to K.Sudhakaran Nair.
A8. 02-04-07 Retail Invoice of PMJ Wood Industries.
A9.24-05-07 Retail invoice of PMJ Wood Industries.
A10.23-03-08 Retail invoice of P.K. Traders.
A11to A13 Retail invoices of P.K. Traders..
A14.to A22. Cash receipts of Emmem Constructions
B1. Photocopy of Plan and details of completed House in RS No.50/1 Nileshwar Village.
B2.series in 76 Nos) Receipts.
PW1. Sudhakaran.K.
DW1. Surendran.K.
DW2.M.M.Gangadharan.
DW3.Rajan.
Sd/- Sd/-
MEMBER PRESIDENT
Pj/ Forwarded by Order
SENIOR SUPERINTENDENT
