KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION

VAZHUTHACAUD, THIRUVANANTHAPURAM

APPEAL No.108/2015

JUDGEMENT DATED: 13.12.2023

(Against the Order in C.C.No.411/2014 of CDRF, Kozhikode)

PRESENT:

APPELLANT:

(by Adv. B.A. Krishnakumar)

Vs.

RESPONDENTS:

(by Adv. S. Reghukumar)

JUDGEMENT

SRI. AJITH KUMAR D. : JUDICIAL MEMBER

The appellant is the complainant in C.C.No.411/2014 on the file of the Consumer Disputes Redressal Commission, Kozhikode (the District Forum for short).  The District Forum has dismissed the complaint as per the order dated 17.12.2014.  Being aggrieved by the aforesaid order the appeal has been filed.

2.       The appellant had originally filed a complaint before the District Forum Malappuram as C.C.No.148/2012.  Later, as per the order of the State Commission dated 10.06.2014, in transfer application No.01/2014 the case was transferred from the District Forum, Malappuram which was taken on file as C.C.No.411/2014 of the District Forum, Kozhikode.  The pleadings contained in the complaint in brief are as follows:

 3.      The opposite parties were conducting the business of construction Villas in the name and style as Alloos Builders. The opposite parties had contacted the complainant and they had entered into an agreement to construct a residential building of 1082sq.ft. with a compound wall, gate and bore well.  The opposite parties assured that the construction would be completed and possession of the premises would be given before 23.12.2012.  A written agreement was also executed between the daughter of the complainant and the opposite party on 23.02.2011.  As per the agreement, the total amount to be paid to the opposite party was fixed as Rs.19,90,820/-(Rupees Nineteen Lakhs Ninety Thousand Eight Hundred and Twenty only).  The complainant had paid Rs.16,42,000/-(Rupees Sixteen Lakhs Forty Two Thousand only) to the opposite parties by way of cheque and direct payment.  So far, the construction of the residential building was not completed by the opposite parties.  According to the complainant, the opposite parties had effected construction worth for a total amount of Rs.5,30,000/-(Rupees Five Lakhs Thirty Thousand only).  The cost of the construction put up by the opposite party was assessed by a licensed building supervisor.  Though the complainant had contacted the opposite party to complete the construction, they asked further money from the complainant.  Complainant had raised funds by availing loans from several individuals and the bank.  Even after spending a huge amount, the complainant was constrained to stay in a rented house.  The complainant had initiated criminal prosecution against the opposite parties with the Perinthalmanna Police as crime no.591/2012.  The complainant had incorporated the details pertaining to the entire remittance made as endorsed in the karar.  She would seek for a direction to the opposite parties to return Rs.16,42,000/-(Rupees Sixteen Lakhs Forty Two Thousand) being the amount received by the opposite parties along with interest and costs.

4.       The opposite parties had entered appearance and filed a version by admitting the execution of the agreement for constructing a building with a built up area of 1082sq.ft. in five cents.  But there was no conditions in the agreement regarding the construction of a compound wall, gate and bore well.  The total consideration for the construction of the built up area of 1082sq.ft. was fixed as Rs.19,90,820/-(Rupees Nineteen Lakhs Ninety Thousand Eight Hundred and Twenty only).  The extra amount of Rs.40,820/-(Rupees Forty Thousand Eight Hundred and Twenty) is in respect of the extra work carried out for 26.39sq.ft. @Rs.1570/- per sq.ft.  The rate pertaining to the extra work was also stipulated in the karar.  The booking of the Villa by the complainant was made ten months back on 13.03.2012.  But the agreement was executed only on 21.03.2013.  In the agreement there was an offer for the completion of the construction within twelve months i.e. by 23.03.2012.  There was no purposeful delay on the part of the 1^st opposite party.  The structure was constructed on 10.10.2011.  Initially, the built up area of the house was fixed as 1082sq.ft.  But subsequently, an additional area of 26.39sq.ft. was also constructed for which an additional amount was added.  Later, the complainant wanted further addition of 90sq.ft.  So there is an additional amount of Rs.1,41,300/-(Rupees One Lakh Forty One Thousand Three Hundred) has to be paid by the complainant @Rs.1570/- per sq.ft.  The total extra cost for additional 90sq.ft. was not mentioned in the agreement as the said proposal came into existence subsequently.  The 1^st opposite party was provided with a cheque of the complainant with an account maintained with the Federal Bank as security.  Fifty percent of the additional construction cost was also agreed to be paid by the complainant after the construction of the structure.  The complainant had suppressed these facts in the complaint and she had set up a case that the opposite party was claiming more money instead of completing the house.  There was delay on the part of the complainant in effecting payment.  As per the specific clause contained in the complaint, if delay is caused due to delayed payment, the opposite party is not liable for the same.  Even after the registration of the land one third of the land cost was not paid.  Thereafter, the complainant was prolonging the matter by saying flimsy reasons.  She was seeking further time to arrange land cost.  As the complainant wanted further time for paying balance amount of land cost Rs.3,97,246/-(Rupees Three Lakhs Ninety Seven Thousand Two Hundred and Forty Six) it was decided to effect the payment in two equal instalments along with two stages of constructions.  The 1^st opposite party had completed the construction of the structure by 10.10.2011, though there was delay in effecting payments by the complainant.  An amount of Rs.1,00,000/-(Rupees One Lakh) remained unpaid towards the land cost.  The complainant was seeking further time to make payment of the land cost and the cost for extra built up area.  The complainant had issued a cheque for the extra amount towards the Perinthalmanna Branch of the Federal Bank and thereafter she filed a complaint before the Perinthalmanna Police by stating false allegations.  There was no intentional delay on the part of the 1^st opposite party in respect of the construction.  The cheque issued by the complainant was returned unpaid for want of sufficient funds.

5.       The 2^nd opposite party is not a party to the agreement.  Her involvement is that she had received Rs.1,00,000/-(Rupees One Lakh) and issued an acknowledgment of the same. The motive of the complainant is to make undue financial advantage.   The opposite party would seek for the dismissal of the complaint.

6.       The evidence consists of the testimony of the complainant as PW1 and Exhibits A1 to A7.  The 1^st opposite party had given evidence as DW1.  An Advocate Commissioner had inspected the property and filed a report which is marked as Exhibit C1.  The appellant had raised the following grounds in the appeal.

7.       The District Forum has failed to consider the evidence of the complainant in its proper perspective.  The District Commission ought to have believed Exhibit A2 which was issued by the licensed building supervisor as no serious challenge was raised against Exhibit A2 when the said document was marked.  The District Forum gave undue importance to Exhibit A1.  It did not consider the fact that the counsel for the complainant did not conduct the case properly which resulted in miscarriage of disputes.  The complainant misunderstood the questions put in the cross examination.

8.       We have carefully perused the records received from the District Forum. Heard. The learned counsel who appeared for the appellant would submit that originally the case was pending before the District Forum, Malappuram which was transferred to the District Forum, Kozhikode on a petition filed by the opposite parties.  After the transfer of the case, the complainant was not able to prosecute the matter in its proper perspective which resulted in the dismissal of the complaint.  According to the learned counsel, an order of remand is highly inevitable so that the complainant may be able to substantiate her contention.  Before considering the request for remand, it is the duty of the appellate forum to consider as to whether the complainant could make out a case of deficiency in service or unfair trade practice against the opposite parties.  The complainant had caused production of Exhibit A1 which is his Power of Attorney.  The competence of the complainant in filing the complaint was assailed for the reason that she is not the owner of the property.  But Exhibit A1 is a valid authority, the Power of Attorney executed by the daughter of the complainant who is the actual owner of the property.  So the District Forum has rightly repelled the contention raised by the opposite party regarding the lack of authority of the complainant to prosecute the matter.  The complainant would place reliance upon Exhibit A2 to prove the alleged deficiency in service on the part of the opposite parties.  Exhibit A2 is not a document prepared as per the direction of the District Forum.  It does not show on which date the maker of Exhibit A2 had inspected the property.  No steps were seen taken by the complainant to prove Exhibit A2.  Therefore, the District Forum was perfectly justified in not placing reliance upon Exhibit A2 to reach a conclusion that there was any deficiency in service or unfair trade practice on the part of the opposite party.  The complainant had caused production of Exhibit A6 which is not in respect of the house of the complainant.  In Exhibit A3, the agreement executed between the complainant and the 1^st opposite party, there is no stipulation regarding the construction of a compound wall, gate and bore well.  For raising such a claim, the complainant had caused production of Exhibit A6 in respect of different project and basing upon the said document, a contention was advanced that it was obligatory on the part of the opposite party to construct the compound wall, gate and bore well.  Admittedly, there was delay in effecting the payments as stipulated in the agreement.  There is also stipulation in the karar to pay a sum of Rs.15,70/- per sq.ft in respect of the extra area to be constructed.  There was an extra area constructed and an amount of Rs.1,41,300/-(Rupees One Lakh Forty One Thousand Three Hundred) has to be paid in addition to the rate shown in the karar. 

9.       The complainant had also suppressed certain vital facts in the complaint.  She had issued a cheque which was returned unpaid.  As per the terms of the agreement, if there is any delay in effecting the payments, the stipulation regarding the period for completion will vary.  Admittedly, the complainant was delaying the payment which made the completion of the work prolonged.  An Advocate Commissioner deputed by the District Forum had inspected the structure who filed a report which is marked as Exhibit C1.  The total plinth area was ascertained as 1185.97sq.ft.  The Advocate Commissioner had also verified the agreement, a copy of the plan and inspected the premises in the presence of both parties.  Normally it was the duty of the complainant to take out a Commission for establishing her contention that there was deficiency in service or unfair trade practice.  But it is curious that the complainant never resorted to such a procedure by filing a petition for appointment of an Expert Commissioner.  The opposite parties filed I.A.No.403/2012 and got the appointment of an Expert and obtained a consolidated report in rsspect of the structure put up.  As per the report it could be seen that the total built up area is 1185.97sq.ft.  So it is in excess than that of the area agreed to be put up as per Exhibit A3.  As per the recital in the agreement, the built up area was 1082sq.ft. But Exhibit C1 would show that the built up area is in excess of 150.14sq.ft.  So the stand taken by the opposite party that the complainant had deliberately suppressed material facts and filed the complaint. During the cross examination when a pertinent question was put to the complainant that she had filed the complaint to avoid payment of the additional construction put up, to which she answered in the affirmative.  The materials on record would show that the opposite parties had effected a construction of 90sq.ft than that of the claim raised in the complaint.  There is a clear admission on the part of the complainant that her attempt is to avoid payment for the additional construction put up by the opposite parties.  No effort is seen taken by the complainant to establish any deficiency in service or unfair trade practice attributed against the opposite parties.  Though the complainant was not ready to prove her case, the opposite party took pain and got sufficient evidence and established that a construction more than that of the built up area as agreed in the karar has been put up. 

10.     On an overall consideration of the entire evidence, it could be seen that the complainant had miserably failed in establishing her case of deficiency in service and unfair trade practice attributed against the opposite parties.  This being the real state of affairs ordering a remand would cause additional hardships to the parties to the list as no useful purpose would be served in doing so.  Hence, we find no reason to interfere with the order passed by the District Forum.  The District Forum had elaborately considered the evidence on record and reached a correct conclusion.   The appeal lacks merits and it is only to be dismissed. 

In the result, the appeal is dismissed.  Parties shall bear their respective costs.

SL