Sri. P. Satheesh Chandran Nair (President):
The complainant filed this petition u/s.12 of the C.P. Act 1986 for getting reliefs from the opposite party.
2. The case of the complainant is as follows: The complainant is a non resident Indian, she who entered an agreement with the opposite party on 14.09.2013 for the construction of a Villa at Eraviperoor for a total construction cost of Rs.85,25,250/-. The opposite party had agreed to finish the construction work within 360 working days from 15.10.2013. According to the complainant, the opposite party has not prompt in carrying out the construction even at the beginning time of this construction and failed to complete the work within the stipulated time. When the opposite party failed to finish the work within the stipulated time, both the parties again arrived in terms to complete the work within 31.07.2015. It is contended that even within the extended period of time the opposite party failed to complete the work as per the terms of the agreement between the parties. The opposite party has completed only the skeleton work of the building and the major finishing work like wiring, plumbing, flooring, roofing windows, window shutters, doors and other wooden fittings, painting etc. are pending. It is further stated that the opposite party received Rs. 82 lakhs from the complainant but he has carried out the works to a maximum amount of Rs.50 lakhs only and accordingly he has excessively collected Rs.32 lakhs from the complainant. It is stated that the construction work was delayed only due to the wilful latches from the part of the opposite party alone and the opposite party is duty bound to comply the provisions of the agreement dated 14.09.2013. The non completion of the building within the , caused much mental agony, distress and suffering etc. to the complainant. According to the complainant, the latches on the part of the complainant affected the complainant and she has to spent more money for the remaining work of the building especially the cost of the materials and labour highly increasing day by day. The complainant also stated that she limited her claim up to Rs.20 lakhs considering the pecuniary jurisdiction of this Forum by reserving her right to enhance the same into the actual amount when situation warrants the same. Therefore, the complainant filed this complaint before this Forum for giving direction to the opposite party to return the excessive collected amount Rs.20 lakhs and for some other reliefs.
3. This Forum entertained this complaint and issue notice to the opposite party for appearance. The opposite party entered appearance and filed their version as follows: According to the opposite party, the complaint is not maintainable either in law or on facts. It is admitted that the complainant and the opposite party entered into an agreement as stated by the complainant for an amount of Rs.85,25,250/-. It is further stated that as per the said agreement the total built up area is about 3789 sq.ft. and the sq.ft. rate for construction was fixed as Rs.2,250/-. It is contended, on many occasion the complainant compelled the opposite party, to made alteration and changes in the construction work against the approved plan and agreement. According to him, due to the interference of an agent of the complainant the opposite party compelled to make unnecessary changes and alteration which was totally different from the approved plan. For these alteration and additional work he spent Rs.9 lakhs and the complainant was reluctant to pay the said amount also. He further contended that the allegation that the opposite party has collected an excessive amount of Rs.32 lakhs was utter false and baseless. It is stated that the scarcity of the material due to the beyond control of the opposite party has in any way affected deficiency on his part. It is again stated that the complainant and her agents were not allowed the opposite party’s workers to continue their work in the site it also resulted the loss of materials and machineries that caused a loss of Rs. 10 lakhs to the opposite party. He further contended that even though the agreement is for Rs.88,25,250/- for the completion of the building an amount of Rs.1,00,10,000/- is required. The opposite party further stated that there is no deficiency on his part as alleged by the complainant and the complaint has to be dismissed with cost to this opposite party.
4. We peruse the complaint, version and records before us and framed the following issues.
- Whether the case is maintainable?
- Whether the opposite parties committed any deficiency in service as alleged?
- Regarding relief and cost?
5. In order to prove the case of the complainant, complainant himself filed a proof affidavit in place of chief examination and marked Exts.A1 to A8. Ext.A1 is the copy of agreement for construction dated 14.09.2013. Ext.A2 is the copy of the plan of the building. Ext.A3 is the copy of statement of account for the period from 16.09.2013 to 17.06.2015. Ext.A4 is the copy of receipt dated 06.01.2015 for Rs.2 lakhs issued by the complainant to opposite party. Ext.A5 series are the photographs (27 in number) dated 27.10.2015. Ext.A6 series are the photographs (7 in number) dated 22.10.2015. Ext.A7 is the photographs of the CD. Ext.A8 is the cash bill dated 22.10.2015 for Rs.4,500/- issued by Raj Studio & Video, Kozhencherry. In order to substantiate the case of the complainant, the complainant applied for an expert commission application by I.A.No.72/15 at the time of filing of this case and after serving notice to the opposite party the said I.A.72/15 was allowed since the opposite party has not raised any objection against the said I.A. The said commission report is marked as Ext.C1. The complainant as PW1 deposed more or less as per the tune of his complaint. According to her testimony, she entered into an agreement on 14.09.2013 for the construction of her Villa at Eraviperoor for a total construction cost of Rs.85,25,250/- with the opposite party. It is further deposed that the total building up area of the villa is about 3789 sq.ft. and the sq.ft. rate for construction was fixed as Rs.2,250/-. As per the agreement the opposite party was ought to complete the building construction within 360 days from 15.10.2013 onwards. The opposite party failed to act as per the agreement and delayed the work due to the wilful latches and negligence on the part of the opposite party. She further deposed that Rs.82 lakhs were received by the opposite party as per the Ext.C1 report an amount of Rs.32 lakhs was excessively collected by the opposite party and the building was only build for a cost of Rs. 50 lakhs only. It is further deposed that the opposite party has completed only the skeleton work of the building and the major finishing work like wiring, plumbing, flooring, roofing windows, window shutters, doors and other wooden fittings, painting etc. are pending. In order to substantiate her case, he produced and marked all the exhibits which are explained above. Even though the opposite party appeared and filed version before this Forum but did not turn up for cross-examining PW1. Hence the evidence adduced by the complainant as PW1 before this Forum is unchallengeable as far as the opposite party is concerned. This Forum issued notice to the opposite party on 01.06.2016 and the said notice is served to the opposite party. But even after the receipt of the notice of this Forum either the opposite party or his counsel appear before the Forum or adduce any evidence on their part. After the completion of the complainant’s evidence we heard the learned counsel appearing for the complainant. Even at the hearing date of this case either the opposite party or his counsel did not appear before the Forum.
6. Point No.1:- When we go through the version of the opposite party, it is to see that the main contention of the opposite party is that the case is not maintainable either in law or on facts and the complainant does not comes under the purview of C.P. Act. When we examine the available evidence before us, it is clear that the complainant and the opposite parties are entered in to the agreement on 04.09.2013 as per Ext.A1. The complainant paid consideration to the said agreement and the opposite party admitted the agreement and commenced the construction work in question. Hence we can conclude that the complainant is a consumer of the opposite party and this case is maintainable before this Forum. Hence Point No.1 found in favour of the complainant.
7. Point No.2 & 3:- For the sake of convenience and considering the nature and circumstances of this case we would like to consider Point No.2 and 3 together. In this case, it is admitted that there is an agreement dated 14.09.2013 between PW1 and the opposite party was executed and the said agreement is in force. The opposite party also admitted that he has commenced the work but the work was not completed as per the terms of the Ext.A1 agreement. The next question to be considered is who is responsible for the non completion of the villa project within the stipulated time. It is to be considered that with regard to the receipt of Rs.82 lakhs by the opposite party for the construction of building for which the opposite party has not raised any serious objection. In order to prove the payment the PW1 relying Ext.A3 series. Ext.A3 series is the statement of account of the complainant (PW1) in South Indian Bank Ltd., Eraviperoor Branch for a period of 16.09.2013 to 17.06.2015. On the basis of this Ext.A3 series, the payment of amount to the opposite party can be easily proved. The payment from 01.10.2013 to 16.09.2014 was clearly shown in Ext.A3 series and all the above payments are clearly pointed out by a mixed green and yellow colour highlighting. Apart from that payment as per Ext.A4, it reveals that the opposite party paid Rs.2 lakhs in favour of the opposite party. Ext.A4 and A5 are the photographs of the different area of PW1’s house and it also reveals the present position of the villa before us. Ext. A7 is the CD in connection with Ext.A6 and Ext.A7. As per Ext.C1, it reveals that, “ \ne-hn FXr-I£n \S-¯n-bn-«pÅ \nÀ½m-W-¯nsâ BsI XpI 46,92,066/þ Bbn Xn«-s¸-Sp-¯n-bn-«p-Å-Xm-Wv. ]Wn-bpsS hni-Z-hn-h-chpw Bb-Xnsâ C¶s¯ \ne-bn-epÅ XpIbpw tNÀ¯mWv Sn XpI IW-¡m-¡n-bn-«p-Å-Xv. ]Wn-Isf kw_-Ôn-¨pw, XpIsb kw_-Ôn-¨p-apÅ hnh-c-§Ä hni-Z-ambn Cu dnt¸mÀ«n-t\m-sSm¸w lmP-cm-¡n-bn-«p-Å-Xm-Ip¶p”. This C1 commission report was prepared by a competent person who is a Asst. Engineer, PWD Section, Pathanamthitta. Either the opposite party or his counsel challenged the finding of the commissioner in this case. As stated earlier it reveals that the opposite party received Rs.82 lakhs from the complainant for the completion of her villa. Anyway, when we relying this Ext.C1 report, it is clear that though the opposite party received a huge amount from the complainant he did not spent the whole amount for this villa construction. When we refer the Ext.C1 report, it also reveals that only the skeleton work of the building was completed at the time of his inspection and the present position of the building is clearly narrated in page 2 Para 2 to 5 of his report. As per the version of the opposite party, it is contended that due to the alteration of the work and the intervention of complainant’s agent in the work site caused certain delay in his part for which the opposite party was no way responsible. Except the statement in the version no material evidence adduced by the opposite party to substantiate this contention. It is true that by version the opposite party stated that he demanded the extra amount of alteration work from the complainant and the complainant failed to pay the amount to the opposite party. With regard to this contention also the opposite party miserably failed to produce any piece of evidence to convince this Forum. The opposite party contended that due to the irresponsibility of the complainant he had lost Rs.10,000,00/- (10 lakh) as materials and machinery for this construction work. The learned counsel appear for the complainant argued that even though so many contentions are raised by the opposite party through his version the opposite party failed to substantiate his contention before this Forum at the time of the trial of this case. According to him, even though the opposite party raised certain contention in his version, ‘that contentions are also seen as not specific or not supported by any convincing evidence’. In the light of the evidence discussed above, it is to see that the complainant has proved her case with cogent and conclusive evidence and the evidence before this Forum also can be seen as unchallengeable. Hence we find that the complaint is allowable. Hence Point No.2 and 3 are also found in favour of the complainant.
8. In the result, we pass the following orders:
- The opposite party is directed to return the excess collected amount of Rs.20,00,000/- (Rupees Twenty Lakhs only) to the complainant with 10% interest from the date of this order onwards.
- The opposite party is also directed to pay a compensation for Rs.20,000/- (Rupees Twenty Thousand only) to the complainant with 10% interest from date of this order onwards.
- A cost of Rs.3,000/-(Rupees Three Thousand only) is also allowed to the complainant with 10% interest from the opposite party from date of this order onwards.
Dictated to the Confidential Assistant, transcribed and typed by her, corrected by me and pronounced in the Open Forum on this the 30th day of June, 2016.
(Sd/-)
P. Satheesh Chandran Nair,
(President)
Smt. K.P. Padmasree (Member – I) : (Sd/-)
Smt. Sheela Jacob (Member- II) : (Sd/-)
Appendix:
Witness examined on the side of the complainant:
PW1 : Sheela Mathew Joseph
Exhibits marked on the side of the complainant:
A1 : Copy of agreement for construction dated 14.09.2013.
A2 : Copy of the plan of the building.
A3 : Copy of statement of account for the period from 16.09.2013 to 17.06.2015. A4 : Copy of receipt dated 06.01.2015 for Rs.2 lakhs issued by the complainant
to opposite party.
A5 series : Photographs (27 in number) dated 27.10.2015.
A6 series : photographs (7 in number) dated 22.10.2015.
A7 : Photographs of the CD.
A8 : Cash bill dated 22.10.2015 for Rs.4,500/- issued by Raj Studio & Video,
Kozhencherry.
Witness examined on the side of the opposite party: Nil
Exhibits marked on the side of the opposite party: Nil
Court Witness: Nil
Court Exhibits:
C1 : Commission Report.
(By Order)
Copy to:- (1) Sheela Mathew Joseph, W/o. Mathew Joseph,
Mattathu Malayil House, Eraviperoor. P.O.,
Pin – 689 542, Pathanamthitta Dist.
(2) Devadethan, Director, M/s. TERRA Housing, Ground Floor,
Door No.27/2650.H, Thaliyil Building, Opp. Mather Orchard
Appartments, Vidya Nagar, Panampally Nagar, Cochin-20.
(3) The Stock File.
