Date of Filing      : 27.09.2022

                                                                                                                 Date of Disposal: 28.04.2023

 

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION

THIRUVALLUR

 

 BEFORE  TMT. Dr.S.M. LATHA MAHESWARI, M.A.,M.L, Ph.D (Law)                  .…. PRESIDENT

                 THIRU.P.MURUGAN,.MCom., ICWA(Inter)., B.L.,                                    ....MEMBER-I

                 THIRU.P.VINODH KUMAR, B.Sc., B.L.,                                                      .....MEMBER -II

  

CC. No.172/2022

THIS FRIDAY, THE 28th DAY OF APRIL 2023

 

Mr.V.Nagarajan, S/o.Vaithilingam,

Rep. by Power Agent Mr.N.Silambuselvan, S/o.Nagarajan,

Dhanussan Shelter, Plot No.40, Door No.16,

4th Cross Vaishnavi Nagar,

Thirumulavaiyal, Chennai 600 062.                                          .........Complainant. 

                                                                          //Vs//

M/s.Samuthra Infrastructure India Private Limited,

Rep. by its Director,

No.228, Janaki Nagar,

6th Cross Street, Prakasam Salai,

Valsaravakkam, Chennai 600 087.                                                   ...Opposite party.

 

Counsel for the complainant                          :  Mr.S.Muthukumaravel, Advocate.

Counsel for the opposite party                      : Mr/s.S.Selvakumar. Advocate. 

                         

This complaint is coming before us on various dates and finally on 20.04.2023 in the presence of Mr.S.Muthukumaravel, Advocate counsel for the complainant and Mr/s.S.Selvakumar Advocate, counsel for the opposite and upon perusing the documents and evidences of both sides, this Commission delivered the following: 

ORDER

PRONOUNCED BY TMT. Dr.S.M. LATHA MAHESWARI,   PRESIDENT.

 

This complaint has been filed by the complainant u/s 35 of the Consumer Protection Act, 2019 alleging deficiency in service on the part of the opposite party along with a prayer to direct the opposite party to refund the amount of Rs.1,50,000/- with 18% interest per annum and to pay a sum of Rs.50,000/- towards compensation for the mental agony and hardship caused to the complainant and to pay a sum of Rs.10,000/- towards litigation expenses to the complainant. 

Summary of facts culminating into complaint:-

 

Being dissatisfied with the incomplete construction made by the opposite party, the present complaint was filed. It was the case of the complainant that an agreement was signed by the opposite party on 15.07.2021 and in the said agreement they agreed to put up construction in the ground floor with stair case totally measuring 1170 square feet and also agreed to arrange loan for the said construction. Construction period requires minimum 6 months to complete the project.  The complainant as transferred a sum of Rs.6,00,000/- through RTGS on various dates and the same was acknowledged by the opposite party. The construction work carried out by the opposite party was worth only Rs.4,50,000/- and the balance amount of Rs.1,50,000/- was lying with the opposite party. On enquiry the opposite party expressed his inability and fairly conceded that neither he can raise the funds nor complete the construction as promised.  The opposite party also fairly stated that being the owner of the land and also a resident of adjacent house the complainant himself could take over and complete the construction and he has no objection for the same. The complainant also undertook to return the unutilized balance amount of Rs.1,50,000/- on or before 15.06.2022 but till date he had not returned the amount as agreed.  A legal notice was to the opposite party on 18.06.2022.  Thus aggrieved by the act of the opposite party the present complaint was filed to direct the opposite party to refund the amount of Rs.1,50,000/- with 18% interest per annum and to pay a sum of Rs.50,000/- towards compensation for the mental agony and hardship caused to the complainant and to pay a sum of Rs.10,000/- towards litigation expenses to the complainant. 

Crux of the defence put forth by the opposite party:-

The opposite party filed version disputing the complaint allegations that contending interalia that they were engaged in construction of houses and other infrastructure facilities in different part of the state. It was disputed that there was no agreement entered betwen them and the complainant.  More over the opposite party staffs are searching the same.  There was no notice served to the opposite party. It was submitted that there is no deficiency in service on their part and the opposite party’s company is a well reputed private company. Thus stating that the averments set out in the complaint was baseless and the claim of the compensation of Rs.1,50,000/- also was baseless they sought for the dismissal of the complaint. 

The complainant had filed proof affidavit and documents Ex.A1 to Ex.5 were submitted on their side.  The opposite party had filed proof affidivat and documents Ex.B1 to Ex.B4 were submitted by them. 

 

Points for consideration:-

Whether the complaint allegations against the opposite party has been successfully proved by the complainant?

If so to what relief the complainant is entitled?

Point No.1:-

On the side of the complainant the following documents were filed in support of the complaint allegations;

Copy of Power of Attorney was marked as Ex.A1;

Construction Agreement dated 15.07.2021 was marked as Ex.A2;

Photograph was marked as Ex.A3;

Legal notice issued by the complainant to the opposite party dated 18.06.2022 was marked as Ex.A4;

On the side of opposite party the following documents were filed for proof of their defence;

Construction Agreement dated 15.07.2021 was marked as Ex.B1;

Photograph was marked as Ex.B2

 Proforma Invoice letter issued by opposite party to the complainant dated 08.10.2021 was marked as Ex.B3;

Letter issued by the opposite party to the complainant dated 15.10.2021 was marked as Ex.B4;

 Heard the oral arguments of both sides and perused the pleadings and evidences submitted by them.

The case of the complainant is that an agreement dated 15.07.20221 for construction of 1170 square feet was entered between the parties and in pursuance of the same Rs.6,00,000/- was given to the opposite party.  However, the opposite party made construction only worth Rs.4,50,000/-.  The notice sent to the opposite party returned with endorsement INTIMATED which is to be construed as proper service. Thus the complainant sought for the balance amount of Rs.1,50,000/- along with compensation.

On the other hand, it is argued by the opposite party that admitting the agreement and receipt of Rs.6,00,000/- that they had constructed a wall worth of Rs.2,59,600/- which was not paid by the complainant.  A profoma invoice was also sent to the complainant. Thus they sought for the dismissal of the complaint and to direct the complainant to pay the balance amount of Rs.2,59,000/- to them.

On perusal of entire pleadings and evidences it is seen that Ex.A2 the construction agreement was entered between complainant and opposite party. The photograph of the unfinished construction was marked as Ex.A3.  The legal notice and the proof of delivery/returned cover was marked as Ex.A5. On the other hand, the opposite party  produced Ex.B3 & B4 in support of their defence that they had done an extra work worth Rs.2,59,600/-.  However, it is seen that the invoice for Rs.2,59,600/- was without any signature and also no proof was submitted by them to show that they were served on the complainant.  In the written version the opposite party had not stated any valid defence for the complaint allegations and it is stated by them that there is no agreement and their staffs are searching for it.   However, in their proof affidavit and arguments they admitted the agreement and came out with an entirely different version that they had done work for an extra amount of Rs.2,59,600/- though no proof was submitted by them.  Thus it is crystal clear that the opposite party in order to avoid the payment of Rs.1,50,000/- to the complainant has come out with a different version taking contrary stands which were made bald statements which the commission could not accept. If really they had done extra work work Rs.2,59,600/- they would have initiated stteps to claim the said amount from complainant.  But even in the written version there was no whispher about the same. Thus we hold that the complainant has successfully proved the complaint allegations.  The photograph submitted by the complainant clearly shows the incomplete construction.  In the absence of any contra evidence and substantial pleadings by the opposite party this commission holds that opposite party had committed deficiency in service in not refunding Rs.1,50,.000/- as agreed. Thus the point is answered accordingly.

Point No.2:-

As we have held above that the opposite party had committed deficiency in service in refunding the amount we direct the opposite party to refund Rs.1,50,000/- to the complainant within six weeks from the date of receipt of copy of this order.  Further we direct the opposite party to pay a sum of Rs.10,000/- towards compensation for the mental agony and hardship caused to the complainant. We also award Rs.5,000/- as litigation expenses to the complainant.

In the result, the complaint is partly allowed against the opposite party directing them

a) To refund a sum of Rs.1,50,000/- (Rupees one lakh fifty thousand only) to the complainant within six weeks from the date of receipt of copy of this order; 

b)  To pay a sum of Rs.10,000/- (Rupees ten thousand only) towards compensation for the mental agony and hardship caused to the complainant. 

c)  To pay a sum of Rs.5,000/- (Rupees five thousand only) towards litigation expenses to the complainant. 

d) Amount in clause (a) if not paid within six weeks from the date of receipt of copy of this order, interest at the rate of 6% will be levied on the said amount from the date of complaint till realization. 

 Dictated by the President to the steno-typist, transcribed and computerized by him, corrected by the President and pronounced by us in the open Commission on this the 28th day of April 2023.

 

  Sd/-                                                           Sd/-                                                 Sd/-

MEMBER-II                                            MEMBER-I                                     PRESIDENT

 

List of document filed by the complainant:-

 

     Ex.A1 18.08.2022 Power Deed.    Xerox

Ex.A2 15.07.2021 Construction Agreement. Xerox

Ex.A3 ................ Photograph. Xerox

Ex.A4 18.06.2022 Copy of legal notice issued by complainant to the opposite party. Xerox

Ex.A5 ................ Returned cover. Xerox

 

List of documents filed by the opposite party:-

 

Ex.B1 15.07.2021 Construction Agreement. Xerox

Ex.B2 ................ Photograph. Xerox

Ex.B3 08.10.2021 Proforma Invoice letter issued by opposite party to the complainant. Xerox

Ex.B4 15.10.2021 Letter issued by the opposite party to the complainant. Xerox

 

 

 

    Sd/-                                                              Sd/-                                             Sd/-

MEMBER-II                                               MEMBER-I                                  PRESIDENT