Karnataka

Kolar

CC/44/2018

Sri.B.Kempa Reddy - Complainant(s)

Versus

M/s.Sathya Sai Develpers - Opp.Party(s)

S.R.Srinivas Murthy

27 Nov 2018

ORDER

Date of Filing: 28/05/2018

Date of Order: 27/11/2018

BEFORE THE KOLAR DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, D.C. OFFICE PREMISES, KOLAR.

 

Dated: 27^th DAY OF NOVEMBER 2018

PRESENT

SRI. K.N. LAKSHMINARAYANA, B.Sc., LLB., PRESIDENT

SMT. A.C. LALITHA, BAL, LLB.,  ……  LADY MEMBER

 

CONSUMER COMPLAINT NO. 44 OF 2018

Sri. B. Kempa Reddy,

S/o. Badigappa,

Aged About 65 Years,

R/at: Kumbarpet,

Sidlaghatta, Chikkaballapur

District-562 105.

(Rep. by Sri. S.R. Srinivasa Murthy &

S.R. Srinath, Advocate)                                                         ….  COMPLAINANT.

 

- V/s –

M/s. Sathayasai Developers,

Rep. by its Proprietor Sri.B.Gopal,

R/at. Kadiripalya, Ullurpet Main

Road, Sidlaghatta,

Chikkaballapur District.

(Rep. by Sri. D.L.Prasad, Advocate)                                    …. OPPOSITE PARTY.

 

-: ORDER:-

BY SRI. K.N. LAKSHMINARAYANA, PRESIDENT,

01.   The complainant has filed this complaint against the opposite party and prays to award a sum of Rs.5,00,000/- for deficiency of service, financial damages and for mental agony caused by the OP in the ends of justice.

 

02.   The brief facts of the complainant’s case is that his wife by name N. Aswathamma is the owner of the vacant site situated at Kumbapet, Sidlaghatta, and they approached Canara Bank, Sidlaghatta, for housing purpose.  The Bank has sanctioned the loan in the name of the complainant on 30.03.2017 of Rs.13,00,000/-.  The complainant entered in to a written understanding for construction of a house with the OP vide letter dated: 05.10.2016.  As per the said letter the OP has specified the quality of construction to be made by him.  The payment schedule was also annexed to the said letter.  As per the payment schedule the complainant has paid a sum of Rs.21,00,000/-.  The total cost of construction as per the estimate shall be Rs.23,00,000/- and add.  The said letter dated: 05.10.2016 was duly signed and endorsed by the parties.  Apart from the said loan a sum of Rs.10,00,000/- was kept ready with the complainant and his wife.  Before sanctioning of the loan with a meager investment of Rs.10,00,000/- by the complainant who is acting on behalf of his wife entered in to a contractual understanding for construction of the house with the OP.  The OP has agreed to complete the construction within a span of 16 months and though there is no mention in the said undertaking.  The OP has not completed the construction and left the balance work.  The complainant himself has provided the granite for the house to be completed in addition to pending work that is wood work, grill work, electrification, plumbing work and colour wash to the building.  The OP has received a sum of Rs.21,00,000/- as per undertaking letter and has not completed the above said pending works.  Thereafter they arranged conciliation and OP has agreed to complete the pending work by receiving the balance amount of Rs.2,00,000/- in a phase manner, but the OP has not come forward to complete the pending work.  The agreed period of completion of the construction work was lost but the OP has not completed the structural work for no fault of the complainant.  The complainant is paying interest to the loan borrowed by him to the Bank and complainant is put to financial and mental torture and they suffered nearly Rs.5,00,000/- and odd as loss.  The complainant also issued legal notice dated: 03.03.2018 demanding the OP to complete the pending work.  The OP has acknowledged the receipt of the said notice and the same was replied on 19.03.2018 with untenable defence.  Hence the complainant has filed this complaint against the OP seeking the above set-out reliefs.

 

03.   Along with the complaint the complainant has submitted following Xerox copies of the documents:-

(i) Annexure ‘A’ : Bank letter for sanctioning the loan along with bank transaction mentioned in the pass sheet.

(ii) Annexure ‘B’ : Letter of Arrangement / Understanding executed by OP.

(iii) Annexure ‘C’ : Legal notice

(iv) Annexure ‘D’ : Reply Notice

 

04.   The OP has appeared through the counsel and filed written version.  The OP has contended that, the complaint is not maintainable either in law or on facts and the Hon’ble Forum has no jurisdiction to entertain the complaint as the matter referred to is not a “consumer dispute” within the meaning of the Act.  The OP is not aware of the allegation made in Para-2 of the complaint except that the complainant’s wife is the owner of the house in dispute and put to strict proof of the other allegations.  The complainant’s wife and complainant negotiated with OP to demolish their old house and put up a construction as per mutual agreed plan.  The rough estimate was prepared which was mutually agreed and signed and the original of the same is with the complainant’s wife.  The OP has denied that, he has agreed to construct the house at Rs.23,00,000/- and add.  Annexure-B is not a memorandum of understanding and it was a rough estimate and not the final estimate.  There was an understanding that approximate cost to be scaled at Rs.1,40,000/- per square excluding other charges and so also denied that the complainant has paid Rs.21,00,000/- and that the OP has agreed to complete the construction within 16 months and also denied that, the complainant has provided granite slabs to the building at complainant cost and so also denied about the pending work as stated by the complainant and so also denied about the conciliation and the OP has agreed to complete the balance work by receiving Rs.2,00,000/- in a phase manner and denied that the OP has not come forward to complete the pending work and so also denied about the compensation of Rs.5,00,000/- as prayed by the complainant.  The OP has specifically contended that, the estimate dated: 05.10.2016 was a rough estimate and the measurement of the building is to be taken from roof to roof.  The measurement was taken when the first floor roofing was put and it was found that 10x10 feet was additionally included.  The complainant and his wife agreed to make payment of Rs.1,40,000/- to the said extra work.  The building was also partly white washed and lateron the complainant and his wife refused to co-operate with the OP to finish by raising some silly dispute about the colour of the granite flooring and they took the key and took delivery of possession of the house and locked the premises on 24.11.2017.  The complainant and his wife are due of Rs.4,00,000/- to the OP and still the said account is not settled.  The last Panchayath took place about four months prior to reply notice, the complainant and his wife agreed to make initial payment of Rs.3,00,000/- to enable OP to restart the work so that it could be finished within one month.  The OP in spite of several requests, the complainant and his wife did not keep up the promises made before the panchayathdars.  The OP has received only Rs.19,00,000/- and not Rs.21,00,000/- as alleged by the complainant.  OP has contended that 95% of the work was completed and admittedly the wife of the complainant is the owner of the premises and the complainant has no locus standi to initiate the proceedings and prays to dismiss the complaint.

 

05.   The complainant has filed affidavit evidence by way of examination-in-chief and so also the OP has also filed his affidavit evidence by way of examination-in-chief.  The OP during his examination-in-chief as DW.1 has got marked original bills (ten in numbers) as Exhibit-D.1 to D.10 and Payment Book as Exhibit-D.11.  The OP has also examined one witness by name Sri. B. Narayana Swamy, S/o. P.M. Chikka Byrappa, and he has also filed affidavit evidence by way of examination-in-chief.  The counsel for both parties have filed their respective written arguments along with citations.

 

06.   Now the points that do arise for our consideration are that:-

POINT No.1:-    Whether the complaint filed by the complainant is maintainable?

 

POINT No.2:-    Whether the complainant proves the deficiency in service on the part of the OP?

 

POINT No.3:-    Whether the complainant is entitled for the relief as prayed in the complaint?

 

POINT No.4:-    What order?

 

07.   Our findings on the above points are that:-

POINT No.1:-   In the Negative

POINT Nos.2 & 3:-   Are in the Negative

POINT No.4:-   As per the final order

                                        for the following:-

 

REASONS

08.   POINT No.1:-   We have perused the complaint, version, affidavit evidence filed by both the parties along with documents and so also the written arguments filed by both the parties and the citations.  The complainant has filed this complaint against the OP and prays for award of Rs.5,00,000/- for deficiency in service, financial damages and mental agony caused by the OP.

 

09.   The OP has taken up the specific contention that, the complaint is not maintainable either in law or on facts and admittedly the wife of the complainant is the owner of the premises and the complainant has no locus standi to initiate this proceeding.  In this regard the learned counsel for the complainant has vehemently addressed his arguments that, the complainant can file complaint on behalf of his wife as joint loan was taken for construction of the house and to that effect the complainant has produced Xerox copy of the sanction memorandum, dated: 30.03.2017, of Canara Bank, and it refers as joint applicant, but the said document was not signed by the complainant’s wife Smt. N. Ashwathamma i.e., the wife of complainant Sri.B. Kempa Reddy.  The complainant and the Senior Manager of the bank has put their signature to the said document.  The complainant has also produced Xerox copy of the application form i.e., first page of the application form showing the name of N. Ashwathamma wife of B. Kempareddy with respect to loan application and question of joint application for sanction of loan does not arise.  Further the complainant has also produced Xerox copy of the statement of account extract, which stands in the name of the complainant only and it is not a joint account.  The complainant has also produced Xerox copy of the alleged construction of building agreement letter i.e., Annexure-B between the complainant and the OP only.  In Annexure-B the complainant is shown as the owner and there is no signature of the owner of the said site in the said document. 

10.   To support the above said contention the learned counsel for the complainant has relied judgment of Hon’ble National Commission in First Appeal No.07/1991, between Punjab National Bank V/s K.B. Shetty and addressed his arguments that, the complainant can file complaint on behalf of his wife.  We have perused the said judgment and in the said judgment their lordship has observed at Para-2 that, “the locker was hired (leased) to both Mrs. V.B. Shetty and Mr. K.V. Shetty.  So, as a joint lessee, Mr. K.V. Shetty has locus standi and so also held that, In Indian conditions women may be illiterate, educated women may be unaware of their legal rights and to insist that the husbands cannot file and prosecute complaints under the Consumer Protection Act, 1986 on behalf of their spouses will deprive millions of consumers of the benefits of this legislation.”  But here in this case there is no any agreement of contract between the wife of the complainant and the OP and how the husband can act on behalf of his wife without there being any agreement between the wife of the complainant and the OP.  The learned counsel for the complainant has not understood the principles of the said judgment, when it is to be applicable though the said judgment revealed about the said fact.  Further the wife of the complainant has also not given any power of attorney to her husband to file complaint on her behalf and the complainant has also not at all stated in the complaint that, his wife is an illiterate or educated women and she is unaware of her legal rights.  Further the complainant is also not a joint owner of the alleged house property and the wife of the complainant is also not a party to the alleged agreement of contract of building i.e., Annexure-B.  Hence as discussed above, the said judgment referred by the counsel for the complainant is not attracted to the facts and circumstances of the case on hand.  Hence as discussed above on looking to any angle the complainant has no locus standi to file this complaint on behalf of his wife.  As admittedly the wife of the complainant is the owner of the alleged house and hence as discussed above the complainant is also not a consumer as contemplated Under Section 2(1)(d) of the Consumer Protection Act, 1986.  Hence as discussed above the complaint filed by the complainant is liable to be dismissed as not maintainable and accordingly we answer point No.1 is in the Negative.

 

11.   POINT Nos.2 & 3:-   These points are taken up together for discussion to avoid repetition of facts and reasonings.  The OP has taken up contention that, the matter referred to is not a consumer dispute within the meaning of the act.  In this regard we have perused the contents of the complaint and the version, it establish about consumer dispute for not completing the building construction work of the alleged house and so also establishes about deficiency of service on the part of the OP and OP has disputed the allegation made by the complainant and hence it refers about the consumer dispute as contemplated Under Section 2(1)(e) of the Consumer Protection Act 1986.  Hence the said contention of the OP is goes in vain.

 

12.   The complainant has specifically contended that, the OP has not completed the building work in spite of repeated requests in spite of paying Rs.21,00,000/- and caused deficiency of service and mental agony.  As the complainant approached the forum for the relief he has to prove his case.  At the outset it is relevant to state here that, the complainant is not at all the owner of the alleged construction of the building house property and admittedly the wife of the complainant by name Smt. N.Ashwathamma is the owner of the alleged house property and to that effect the complainant has produced the Xerox copy of the sale deed and Form No.3 and form No.2 for the year 2016-2017.  But Annexure-B alleged to be an agreement of construction letter is between the complainant and the OP and it is not between the owner of the alleged house and the OP, such being the case, the said document cannot be looked in to and it has no sanctity in the eye of law as the owner of the alleged building is not a party or signatory to the said Annexure-B.

 

13.   The OP has contended that, after the first floor roofing was put-up it found extra construction of 10x10 square feet.  The complainant and his wife agreed to make extra payment of Rs.1,40,000/- per square, but the complainant and his wife not responded in spite of repeated request though the OP has completed all the work and partly white-washed and the disputed regarding colour of granite flooring and the complainant and his wife took the key and took delivery of possession of the house and locked the premises on 24.11.2017.  The complainant and his wife is due of Rs.4,00,000/- to the OP and the said amount has not settled.  The last panchayath took place about 04 months prior to reply notice and the complainant and his wife agreed to make initial payment of Rs.3,00,000/- to resume the work and to finish it within one month and in spite of several request the complainant and his wife did not permit the OP to do the work.  The above said material facts are suppressed by the complainant in his complaint and the complainant has not at all stated about the said fact of panchayath.  To support the said fact, the OP has examined one of the panchayathdhar by name Sri. B. Narayanaswamy and he has filed his affidavit evidence by way of examination-in-chief and the said affidavit evidence of Sri. B.Narayanaswamy is unchallenged and his evidence is to be taken in to consideration in toto.  Wherein in his affidavit evidence has fully supported the case of the OP as contended by him with respect to conducting panchayath and the complainant and his wife took the key and took delivery of the possession of the house and locked the premises on 24.11.2017 and the dispute was amicably settled that, the complainant has to pay Rs.3,00,000/- to the OP to complete the pending work within one month and the complainant did not do so and he initiated the proceedings.  Hence the above said fact clearly discloses that, there is no any deficiency of service on the part of the OP.  Hence the complainant is not entitled for any relief as prayed by him.  As there is no any contract agreement of construction of the house between the wife of the complainant and the OP, it is not just and necessary to go through further detail in the mater and so also with respect to the citation relied by the OP.  Hence under these circumstances as discussed above the complainant has failed to prove the deficiency of service on the part of the OP and accordingly we answer point Nos. 2 & 3 are in the Negative.

 

14.   POINT No.3:-   In view of our findings on Point Nos. 1 to 3 and the discussions made thereon we proceed to pass the following:-

ORDER

01.   The complaint filed by the complainant is dismissed as not maintainable.  No order as to costs.

02.   Send a copy of this order to both parties free of cost.

(Dictated to the Stenographer, transcribed by him, corrected and then pronounced by us on this 27^th DAY OF NOVEMBER 2018)

 

 

 

LADY MEMBER                                PRESIDENT