BEFORE THE CONSUMER DISPUTES REDRESSAL FORUM, ERNAKULAM.

Date of filing : 06/06/2008

Date of Order : 29/10/2011

Present :-

Shri. A. Rajesh, President.

Shri. Paul Gomez, Member.

Smt. C.K. Lekhamma, Member.

C.C. No. 184/2008

Between

And

O R D E R

A. Rajesh, President.

1. The case of the complainant is as follows :-

On 06-05-2005, the complainant entered into a construction agreement with the opposite party. The opposite party promised to allot plot No. 9 in Relcon Mid town Villas admeasuring 6 cents of land for an amount of Rs. 10,30,400/- for land development charges and Rs. 19,05,600/- for construction charges for the C type villa totalling to Rs. 29,36,000/-. An amount of Rs. 5,50,000/- was received by the opposite party towards advance. The opposite party had collected an amount of Rs. 34,66,500/- instead of Rs. 29,36,000/- demanding additional expenses for interior works. The owner of the land executed the sale deed in favour of the complainant on 08-06-2006. The opposite party has handed over the sale deed only on 10-03-2007 making her sign in a paper that she has no further claim against the opposite party. The opposite party has made the complainant to sign the statement under coercion and duress. As per the sale deed, the land conveyed to the complainant was only 5 cents instead of 6 cents. On this count, the complainant has incurred a loss of Rs. 1,88,906/- as offered. By the time, several defects developed in the building. An amount of Rs. 1,10,000/- is required for rectification of the defects. In spite of repeated promises of the opposite party to cure the defects and to repay the difference in land development charges, they did not comply with their promise. The complainant is entitled to get a total sum of Rs. 3,98,906/- with 12% interest from the opposite party. This complaint hence.

2. Version of the opposite party :

The complainant is not a consumer and this Forum has no jurisdiction to entertain this complaint. All the claim between the complainant and the opposite party have been settled between the parties vide confirmation dated 10-03-2007. The land offered to the complainant was approximately 6 cents of land. The cost of land is Rs. 2,40,000/- and Rs. 10,30,400/- for the cost of land development for the project and Rs. 19,05,600/- received towards construction of the building. At the instance of the complainant, interior work was carried out and the agreed amount for the same was Rs. 3,82,000/-. So the total amount due to the opposite party was Rs. 35,58,598/-. The complainant paid only 34,66,500/- and an amount of Rs. 92,038/- is due to the opposite party. The opposite party agreed to forgo the amount as in settlement dated 10-03-2007. There is no deficiency in service on the part of the opposite party.

3. The power of attorney holder of the complainant was examined as PW1 and Exts. A1 to A6 were marked on the side of the complainant. The opposite party was examined as DW1. Exts. B1 to B6 were marked on their side. The expert commissioner's report was marked as Ext. C1. Heard the counsel for the parties.

4. The points that arose for consideration are :-

1. Whether the complainant is a consumer?

2. Whether this complaint is maintainable in this Forum

3. Whether the complainant is entitled to get a total compensation of Rs. 3,98,906/- from the opposite party?

5. Point Nos. i. and ii. :- At the outset, the opposite party challenged the maintainability of this complaint before this Forum. This Forum vide order in I.A. 310/2008 dated 31-03-2009 found that the complainant is a consumer and this complaint is maintainable. The said order has not been challenged by the opposite party. So the order sustains.

6. Point No. iii. :- The parties are in consensus on the following issues :

1. The complainant and the opposite party entered into Ext. A2 agreement for construction dated 06-05-2005.

2. The opposite party collected a sum of Rs. 31,76,000/- as per the payment schedule in Ext. A2.

3. The extend of property as per Ext. A2 is 6 cents approximately.

4. The extend of property as per Ext. A3 sale deed is 5 cents.

5. The extend of property as per Ext. A6 certificate issued from Poonithura Village is 4.9 cents.

6. The total amount for additional work was Rs. 3,82,598/- evidenced by Ext. B3 estimate.

7. Firstly, the complainant contends that the extend of property as offered in Ext. A2 agreement is 6 cents and she has got actual possession over 4.9 cents only. The opposite party maintains that they have offered 6 cents of land approximately. The Hon'ble Kerala State Consumer Disputes Redressal Commission in Relcon Properties Pvt. Ltd. Vs. Arjun and another (Appeal Nos. 380/2010, 388/20910, 140/2010 and 141/2010 dated 30-04-2011) held in para 11 as follows :

“The sale agreement and the agreement for construction of the villa would also make it clear that the extent of 4.5 cents of land was shown as approximate extent there is no agreement or other documents available on record to show that the opposite party had agreed to hand over absolute possession of a plot measuring 4.5 cents. On the other hand, in all documents, the extent of the plot is shown as 4.5 cents approximately. So there is no meaning or basis in demanding absolute possession of 4.5 cents of land. There was no such agreement to show that the opposite party had assured or offered absolute possession of a plot having an extent of 4.5 cents. But the facts and circumstances of the case would show that there was no such agreement entered into between the complainants and the opposite party, M/s. Relcon Properties Private Limited agreeing to hand over possession of a plot having an extent of 4.5 cents. So the alleged deficiency of service and unfair trade practice levelled against the opposite party, M/s. Relcon Properties Private Limited cannot be upheld as such.”

8. The Hon'ble Commission has rendered the above decision in an appeal filed by the opposite party in the instant case in an identical case which foreclose us in the same.

9. Secondly, according to the complainant, various defects had developed in the building and it was due to the low quality of construction by the opposite party. To prove the same at the instance of the complainant an expert commissioner was appointed by the Forum and the report was marked as Ext C1. The complainant contended that an amount of Rs. 1,10,000/- is required to rectify the defects. But neither did the complainant request the commissioner to assess the quantum of expenses nor the commissioner assess the same. The opposite party vehemently contended that the dispute between the complainant and the opposite party has been amicably settled between them by executing Ext. A4 agreement dated 10-03-2007 which reads as follows :

“On this day the 10^th of March 2007, final settlement of the accounts is made for villa No. 9 at Relcon Mid term villas at Karanakodam, with M/s. Relcon Properties (P) Ltd., Kochi. There shall not be any further claim on either side on A/c of the said transaction regarding land and construction.”

10. PW1, the husband of the complainant stated that the opposite party had obtained Ext. A4 under coercion and duress. It is pertinent to note that the complainant did not mount the box to substantiate the said contention. Especially, when the onus is hearly on the complainant to establish her contention in which she failed conspicuously. Moreover, according to the Hon'ble National Consumer Disputes Redressal Commission “It is the cardinal principle of law that one who makes an allegation is required to prove it beyond any doubt” (Rabindra Kumar Pal Vs. Standard Chartered Bank and Another 2011 CTJ 626 (CP) )

11. Having executed Ext. A4 settlement agreed to have settled disputes amicably in the first place and the subsequent unilateral rescindment or withdrawal without any reasons is bad at law. The complainant is not to approbate and reprobate at the same time. The complainant has failed to establish the unrepudiatable elements of the contract vice undue influence, fraud, coercion and misrepresentation vitiating Ext. A4. We are only to hold that the complainant has not establish her cause reasonably or undoubtedly. The complaint deserves only dismissal. Ordered accordingly.

Pronounced in open Forum on this the 29^th day of October 2011.

Sd/- A. Rajesh,President.

Sd/- Paul Gomez, Member.

Sd/- C.K. Lekhamma, Member.

Forwarded/By Order,

Senior Superintendent.

A P P E N D I X

Complainant's Exhibits :-

Opposite party's Exhibits :-

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