By Sri. MOHANDASAN.K, PRESIDENT

The complaint U/s12 of the Consumer Protection Act 1986.

The complaint in short is as follows: -

1.         The complainant and opposite parties are familiar each other. The opposite party is a contractor. He is doing construction work using fly ash interlocking Bricks. The complainant after demolishing the existing house entrusted the land to the opposite party for constructing a house in low-cost method.  The opposite party agreed that he can finish the construction work on or before 30/03/2016 in accordance with his method of construction using cement and sand in a lesser quantity. The complainant and opposite party entered in to an agreement on 05/12/2015.  As per the agreement the opposite party was authorized to organize materials and to construct double storied building as per the approved plan. As per the terms 1,000/- rupees fixed for square feet to the ground floor and 800/- rupees for the first floor per square feet. The agreement also stipulated to complete the work in between 05/12/2015 and 30/03/2016.  On the date of agreement first complainant paid 25,000/- rupees to the opposite party. The agreement also specified details of works to be carried out by the opposite party. The first complainant entrusted 75,000/- rupees to the opposite party on account of labour cost.  The balance amount will be issued by instalments during the progress of the work and at the time of purchasing materials for the construction work.

2.         The complainant alleges that after receipt of advance amount by the opposite party, slow down the construction work and the opposite party received excess amount from the complainant against the terms of agreement. The complainant was compelled to advance excess amount since they were in cordial relationship. The complainant paid 25,000/- on 05/12/2015, 75,000/- on 10/12/2015, 1,50,000/- on 19/02/2016, 50,000/- on 23/06/2016 and 1,00,000/- on 05/04/2016. But the opposite party did not finish even the concreting of ground floor on 31/03/2016. On high pressure from the complainant the concreting of the first floor completed by the opposite party on 24/04/2016. The complainant paid 2,00,000/- rupees on 30/04/2016, 1,00,000/- on 12/05/2016. As per the agreement on completion of the entire work the complainant was liable to pay Rs. 15,07,400/-.  The complainant had paid 7,80,000/- rupees to the opposite party on 31/03/2016. Thereafter the opposite party insisted for cash and so the second complainant availed a personal loan of Rs.1,00,000/-from a person and thereby a total amount of Rs. 8,80,000/- was paid to the opposite party. Even then the opposite party did not care to complete the work and so complainant preferred a petition before Edakkara Police station.  There was a mediation talk and as per that the opposite party re started work in an inimical term. The opposite party used a lower quality cement, steel and sand.  There was no preparation or even sufficient number of workers, and sufficient construction materials and so work was stopped. There was leaking from the roof. The opposite party did not care to spray sufficient water on the concreted portion. Thereafter complainant approached directly the opposite party with the complaint but it was not a success. At that time the opposite party said that he was not ready to finish the balance work and he was prepared to give back the excess amount to the complainant and as per the version of the opposite party the remaining work was assessed and it was entrusted to one by Bijeev the new contractor.  The complainant entered into an agreement with Mr. Bijeev to complete the remaining work for Rs.8,77,250/-. According to the complainant the total amount as per the agreement the opposite party is entitled 15,07,400/- rupees. But the agreement between the complainant and Mr. Bijeev was to pay rupees 8,77,250 to finish the work. According to the complainant the work completed by the opposite party worth Rs.6,30,150/-only. But the opposite party had already received Rs.8,80,000/- from the complainant. So, the claim of the complainant is that the opposite party has to refund Rs.2,49,850/- to the complainant. The first complainant submit that he transferred the housing plot infavour of the second complainant due to old age of the first complainant and also considering the loan availability to the second complainant.

3.         Due to non-completion of the construction work the complainant suffered a lot of hardships and inconveniences.  The complainants were residing in a rented house and that was changed occasionally and also the first complainant being an astrologer his income also affected. The complainant assess loss of 1,00,000/- rupees on that account.

4.         The complainant alleges the opposite party used low quality materials and the materials being produced by the opposite party itself he willfully chooses low quality materials and thereby cheated the complainant. The opposite party did not complete the work as agreed and so there is deficiency in service and also unfair trade practice on the part of opposite party. Hence the prayer of the complainant is to give direction to the opposite party to refund Rs.2,49,850/- to the complainant and also direct to pay Rs.200,000/- as compensation on account of deficicneny in service and also cost as 30,000/- rupees.

5.         On admission of the complaint notice was issued to the opposite party and the opposite party entered appearance and filed version denying the entire averments and allegation in the complaint.   The opposite party admitted that there was an agreement between first complainant and opposite party to construct the building. But it is not correct that the opposite party approached complainant for the contract but the complainant approached the opposite party during 2015 November. The complainant entrusted the construction work with the opposite party as per the agreement to construct a house in a low-cost budget, but the complainant was in need of all facilities in the house. The complainant did not issue construction cost to the opposite party as per terms of agreement. The complainant issued Rs.25,000/- to the opposite party on the day of agreement, 75,000/- rupees on 10/12/2015 and thus 3,80,000/- was paid to the opposite party by first complainant directly and 1,00,000/- rupees paid on 05/04/2016, 2,00,000/- paid on 30/04/2016 and 1,00,000/- rupees paid on 12/ 05/2016 through the bank account. The complainant had agreed to pay expenses as and when it was required. The submission of the opposite party is that the payment itself is evident for the non-compliance of terms of agreement by the complainant. The opposite party denied the allegation that the opposite party received excess amount   against terms of agreement and that he was not completed even half of the work on 30/03/2016, the date fixed for completion of work. The allegation that the opposite party received 60% of the agreement amount even without making wall and concrete is not correct. The statement that the second complainant   insisted for money and thereby the daughter of the complainant advanced 1,00,000/ rupees from a person is not correct. The averment of the opposite party is that he received only Rs.80,000/- from the complainant and not Rs.8,80,000 as stated in the complaint. The opposite party also denied that  he used materials for concreting a lesser quality, cement of low cost, the work was done without any preparation and without sufficient number of labors.   It is also denied that on completion of the concerting within one week there was leaking. The opposite party contended that he used quality materials for the construction works. The opposite party also denied that the entrustment of contract work to Mr. Bijeev was not with his consent. There is no basis for the claim that the complainant is entitled 2,49,850/- rupees from the opposite party. The opposite party is entitled total amount of rupees 12,62,250/- and the complainant issued only Rs. 7,80,000/- and the balance is 4,82,250/- rupees which the opposite party is entitled. The opposite party submit that he filed a suit O.S.338/2016 before the Munsiff Court Manjeri for the realization of the amount. The complainant filed this consumer complaint to escape from the liability.  There is no basis for the claim of compensation 1,00,000/- rupees from the opposite party. The allegation, the complainant used low class materials and thereby the opposite party cheated the complainant, even after the lapse of agreed time construction work of house not completed and so there is deficiency in service and also amounts the act of opposite party as unfair trade practice is baseless and so denied.  The opposite party carried out the work with quality materials and in a standard way of construction. The allegation that interlocks bricks were broken, trapping the people is the habit of the opposite party - all are baseless and denied by the opposite party. The opposite party also contended that the complaint is not a consumer dispute, time barred one, filed to defend the proceedings in O.S 338/2016 of Munsiff court, Manjeri.  The complaint is not legally sustainably absolutely baseless and so it is to be dismissed.

6.         The complainants and opposite party filed affidavit and documents.  Documents on the side of complainant marked as Ext. A1 to A3. Ext. A1 is an agreement between complainants and one Mr. Bijeev dated 11/08/2016. Ext. A2 is copy of complaint dated 08/07/2016 submitted by Ajeesh Edalath before sub-Inspector of Police Edakkara. Ext. A3 is copy of agreement between first complainant and the opposite party. Documents on the side of opposite party is marked as Ext. B1 to B3. Ext. B1 is copy of O.S.338/2016 of Munsiff court, Manjeri. Ext. B2 is copy of report of Adv. Commissioner Sanoop. P dated 03/10/2016. Ext. B3 is copy of report of engineer Jose Kuriakose submitted in O.S 338/2016 dated 30/12/2016. 

7.         Perused affidavit and documents and notes of arguments submitted on behalf of opposite party.  Now the following points arise for consideration.

1. Whether there is deficicneny in service or defective service on the part of the opposite party?
2. Relief and cost?

8.         Point No.1 & 2

The case of complainant is that they entrusted construction of residential building to the opposite party vide agreement Ext. A3. The opposite party did not comply the terms of agreement and also used low-cost materials for the construction work. The allegation is that the opposite party received money in advance which is disproportionate as per the terms of agreement.  Due to non-completion of work by the opposite party the complainant compelled to entrust another contractor for the completion of remaining work. Considering the cost of the remaining work, the opposite party has to refund Rs.2,49,850/- to the complainant. So, the prayer is to refund the amount of Rs.2,49,850/- along with compensation of Rs. 2,00,000/- on account of mental and financial hardship and inconveniences caused to the complainants along with cost of Rs. 30,000/-.

9.         The opposite party though admitted the agreement denied the entire averments and allegations contained in the complaint and produced Ext.B1 to B3 to prove the case of the opposite party. The averment of opposite party is that the claim in the complaint is to refund an amount which is received by the opposite party in excess against terms of agreement and so the complaint cannot be treated as a consumer dispute.  The opposite party also contended that the cause of action aroused on 30/03/2015 and the complaint seen filed only on 21/08/2018. So, there is bar of limitation. The opposite party contended that there is a civil suit pending as O.S.338/2016 before the Munssiff court Manjeri filed on 09/09/2016. That is prior to 2 years of this consumer complaint.  The suit is filed for realization of amount from the complainant.

10        It can be seen that all the reasons enlisted by the opposite party through the affidavit and documents challenges the veracity of complainant. The consumer complaint is filed without any bonofides, suppressing the material truth from the Commission. The complainant here in is very well aware of the pending of civil suit on the basis of Ext. A3 document. This complaint is filed after two years of the civil suit. The complainant even at the time of filing this complaint could have pleaded the pendency of civil suit. The complainant could have filed explanation while filing affidavit in this complaint after receipt of the copy of version from the opposite party. So, there is will full suppression of material facts from the side of complainant.

11        The question of limitation hit the claim of complainant. The complainant submitted that    the cause of action aroused on 30/03/2016 the date of completion of construction work as per agreement and even if it is treated as continuing cause of action considering the last payment of construction was on 12/05/2016. Then also the complaint is time barred one.

12.       The commission also perused pleadings in the B1 document   and also report of Adv. Commissioner B2 document as well as report of civil Engineer Jose Kuriakose. It appears there is no reliability for the contention of the complainant in this complaint. It appears this complaint is filed to resist the claim of the opposite party raised in the civil suit pending before Munsiff court, Manjeri .

13.       The facts are being as stated we find there is no bonofides on the part of complainant in filing this complaint before the commission. The complainants are expected to approach before the Commission with clean hands and true facts. Complaint is time barred and without any merit also. This complaint is counter proceedings to the civil suit. Hence, we find the complainant is not entitled any relief as prayed in this complaint and so we dismiss the complaint.

Dated this 18^th day of March, 2022.

MOHANDASAN.K, PRESIDENT

PREETHI SIVARAMAN.C, MEMBER

APPENDIX

Witness examined on the side of the complainant:  Nil

Documents marked on the side of the complainant: Ext.A1 to A3

Ext.A1:  Agreement between complainants and one Mr. Bijeev dated 11/08/2016.

Ext.A2: Copy of complaint dated 08/07/2016 submitted by Ajeesh Edalath before sub

  Inspector of Police Edakkara.

Ext A3: Copy of agreement between first complainant and the opposite party.

Witness examined on the side of the opposite party: Nil

Documents marked on the side of the opposite party: Ext. B1 to B3

Ext.B1: Copy of O.S.338/2016 of Munsiff court, Manjeri

Ext.B2: Copy of report of Adv. Commissioner Sanoop .P dated 03/10/2016.

Ext.B3: Copy of report of engineer Jose Kuriakose submitted in O.S 338/2016 dated

  30/12/2016.

MOHANDASAN.K, PRESIDENT

PREETHI SIVARAMAN.C, MEMBER