IN THE CONSUMER DISPUTES REDRESSAL FORUM, ALAPPUZHA
Thursday the 04th day of April, 2019.
Filed on 28-09-2017
Present
1. Sri.E.M. Muhammed Ibrahim,B.A,LLM (President)
2. Smt.N.Shajitha Beevi, B.A,LLB (Member)
In
CC No.265/2017
between
Complainant:- Opposite parties:-
Sri.Vimal Kumar.A.S, 1. M/s Simplex Builders Pvt. Ltd.,
S/o Sukumaran Nair, Mullakkappally Building,
Asha Nilayam, Padamugal, Kakkanad P.O.,
Kurupankulangara P.O. Ernakulam.
Cherthala, Alappuzha. Rep. By its Managing Partner,
(By Adv.K.George) Mr.Vishnu M.P
2. Mr.Vishnu.M.P
S/o Preman.M.K
Aachingal, Ashtamichira,
Mrekkad, Vadakam Bhagom,
Trichur – 680731
(By Adv.Padminidevi.C for O.P. No.2)
O R D E R
SRI.E.M. MUHAMMED IBRAHIM (PRESIDENT-IN-CHARGE)
This case is based on a complaint filed under section 12 of the Consumer Protection Act, 1986.
2. The averments in the complaint in short, are as follows:-
The opposite parties are building construction contractors. On 10.04.2017 the second opposite party on behalf of 1st opposite party, (which is a Private Limited Company) entered into an agreement with the complainant for the construction of a building for the complainant consisting of 1298 sq.ft. for Rs.1507874. The validity of contract is for 6 months. The above amount includes cost of materials and labour charges. As on the date of execution of agreement itself the opposite parties received Rs.2,00,000/- as advance and started the construction work as per the terms of the agreement. Thereafter on various occasions the complainant paid to the opposite party altogether Rs.6,70,000/- towards the above agreed amount. But the opposite parties have completed only the foundation work. The complainant has availed a housing loan from HDFC Ravipuram Branch and has started to pay EMI also. Though the complainant approaches the opposite party and demanded to complete the construction work without any delay. The opposite parties had not paid any heed to the request through they are liable to complete the work within 6 months from the date of entering into the contract. As the opposite parties miserably fails to proceed with the construction work the complainants is highly agreed and demanded the opposite parties to complete the work within a further period of 3 months or to return the amount which was accepted by the opposite parties after deducting the actual expenses for the construction of the foundation. However the opposite parties were neither ready to proceed with the construction work nor to return the excess amount received. An amount of Rs.3,00,000/- is estimated to be due from the opposite parties as the cost of work done by the opposite parties would come only Rs.3,70,000/- hence the complainant is entitled to recover Rs.3,00,000/- from the opposite party with interest. In view of the lagness of the construction work caused by the opposite parties the complainant suffered a huge monitory loss and mental agony. Even though the agreement date for the construction of the building as per the agreement is over, the opposite parties had not completed the work. Hence there is gross derliction of duty and deficiency in service and the complainant is entitled to get back the excess amount obtained from him by the opposite parties and also entitled to get compensation on account of the metal agony caused to the complainant. Hence the complaint.
3. In response to the notice the second opposite party entered appearance and resisted the complaint. But the 2nd opposite party would not represent the 1st opposite party on behalf of it the 2nd opposite party entered in to the agreement of construction work. The main contentions in the written objections filed by 2nd O.P. are as follows. He has no connection with the 1st O.P. and that he is/was not a competent authority to enter into a contract on behalf of the 1st O.P. No contract have been entered into by the 2nd O.P. on behalf of the 1st O.P. as claimed in the complaint and the 2nd O.P. is not bound by any of the terms of the alleged contract dated 10-4-2017. However the 2nd O.P. would admit that he is the M.D. of the construction company by name Zymplex Builders Pvt.Ltd. and the opposite party had entered into an agreement for a construction of a house but that is not an agreement to produce by the complainant since there was quick shifting of setup the agreement was misplaced and hence the opposite party could not produce the original document which ought have been kept with him. But the original agreement was submitted before the HDFC Bank for availing housing loan by the complainant. The terms of which can be ascertained by summoning the document from the custody of the bank the agreement amount was above 25 lakhs the time for performing the agreement was 3 months. The first payment of Rs.4,00,000/- was made by the complainant only on 18-7-2017 that is after the expiry of 3 months and on 13-9-2017 an additional amount of Rs.70,000/- was received from the complainant. It is further contended that the complainant never approached the 2nd O.P. and demand to complete the construction work without delay after paying the amount that the allegation in the complaint that the opposite parties have completed only foundation work is false. The construction of wall arount 6 feet height is completed. The O.P. has completed more work than the amount of Rs.4,70,000/- obtained from the complainant. The opposite party never accepted Rs.6,70,000/- from the complainant. The complainant never approached the 2nd O.P. and demanded to complete the construction work within one month or to return the excess amount and the allegation that opposite parties are not willing to complete the work or to return the excess amount is false. The cost of work done by the 2nd O.P. is higher than the amount received by the complainant. The complainant had or has any reason to suffer any mental agony and monitory loss due to any illegal act of the opposite party. It is also contended that as per the agreement the wall work was suppose to done with a FRBL slabs and due to the strike in the company from 22-4-2017 to 28-5-2017 and on 22-6-2017 to 22-7-2017 there was scarcity for that product at last as demanded by the complainant wall work was started with wire cut bricks and completed about 4 ft height. Though complainant have availed around Rs.9,00,000/- from the bank as first instalment he paid only Rs.4,70,000/- to the 2nd O.P. the only reason for the delay in construction was due to inadequacy of funds paid by the complainant. According to the 2nd O.P. he is ready to complete the work if provided with adequate funds as stipulated in the agreement. There is no deficiency in service or dereliction of duty towards the complainant and the complainant is not entitled to get any reliefs prayed for in the complainant. The complainant has been trying to reap unjustifiable gain from the opposite party by fabricating a false document. The second opposite party further prays to dismiss the compliant with his costs.
4. In view of the above pleadings the points that arise for consideration are:-
1) Whether there is any deficiency in service on the part of the opposite parties in respect of the house building construction as alleged?
2) Whether the complainant is entitled to get the reliefs sought for in the complainant?
3) Reliefs and costs.
5. When the case was taken up trial the complainant was present and filed proof affidavit. Though the copy of the proof affidavit was already served and notice was issued from the court to appear and content the case the 2nd O.P. has not turned up nor participated in the trial. The 1st O.P. has not appeared at all. Hence O.P. 1 and 2 were set exparte. The complainant filed proof affidavit and got marked Ext.A1series Ext.A2 series and Ext.A3 Series and Ext.X1 series documents.
6. Heard the learned counsel for the complainant.
7. Point No. 1 & 2
The specific case of the complainant is that the 2nd O.P. entered into an agreement with the complainant for constructing a house building for himself having an area of 1298 sq.ft and toward construction costs the 2nd O.P. has obtained from the complainant Rs.6,70,000/- on three occasions but only completed the basement work and has not been completing the work. In short the opposite party has obtained more amount than actual than the work done at the work site. According to the complainant the opposite party failed to perform the terms of the contract regarding the construction of the house building and obtained more amount than the work done and in spite of his request the 2nd opposite party was not ready to proceed with the work as per the terms of the agreement and therefore the complainant is entitled to get back the excess amount obtained from him by the 2nd O.P. and also entitled to get compensation for the mental agony and hardship caused to the complainant in this regard and also entitled to get the cost of the proceedings from the opposite party. Though the opposite party has initially denied having entered in to Ext.A1 agreement in the written version, but in paragraph 10 of the said version itself he would admit that he entered into a contract for the construction of house building for the complainant. However the 2nd O.P. has not participated in the trial and remained exparte. The unchallenged averments in the proof affidavit and Ext.A1 Ext.A2 series A3 series and Ext.X1 series expert report would substantiate the case of the complainant. Though Ext.A1 agreement is denied and the name of the company according to the 2nd opposite party is not Symplex but Zymplex constructions Pvt.Ltd. He would admit that he is the M.D of the said Pvt. Ltd. Constructing company. On perusal of Ext.A1 agreement it is crystal clear that the 2nd opposite party by name Vishnu Kumar who is the Managing Director of the company is the contractor and he entered into Ext.A1 agreement by which he undertaken to construct a house building for the complainant having an approximate area of 1298 sq.ft. for two stores at the rate of Rs.15,07,774/-. Ext.A2 series are the invoice dated 10-4-2017 receiving Rs.2,00,000/- and invoice dated 4-7-2017 receiving Rs. 4,00,000/- from the complainant. In view of the pleadings and Ext.A2 series invoice bearing No.27 and 42 issued on behalf of Zymplex builders Pvt. Ltd. it is clear that Ext.A1 agreement has been entered into by the 2nd O.P on behalf of his private Ltd. Company and the 2nd O.P. has received Rs.60,00,000/- on two instlaments. Ext.A3 series is the statement of account maintained by the complainant with SBI Cherthala Branch. The 2nd page of the said statement of account would indicate on 13-9-2017 an amount of Rs.70,002.36/- has been transferred towards the account of the opposite party by transfer NEFT. In view of the above materials on record it is clear that the 2nd O.P. has received Rs.6,70,000/- from the complainant by cash and by bank transfer. The contention of the opposite party that he has received only Rs.4,70,000/- from the complainant is incorrect in view of the above materials on record.
8. According to the complainant though a substantial portion of the construction cost of the entire building has been received by the opposite party he has not proceeded with the construction work except constructing basement for which the maximum cost would be Rs.4,00,000/- and opposite party has received Rs.3,00,000/- in excess of the amount from the complainant therefore he is entitled to get back the same. In view of the evidence discussed above it is clear that the amount received by the 2nd O.P. is not seven lakhs but Rs. 6,70,000/- only.
9. Ext.X1 series is the report of the expert commissioner which would indicate that detailed cost of construction of the work done by the 2nd opposite party. Accordingly half bricks wall also has been constructed apart from the construction of basement and there are certain materials kept at the work site which are bricks 21x 10x 7 cm having 3194, 20mm metal cubic feet, M sand 250 cubic feet, rubble 50 C.F. Apart from the above materials 2 more items which are 400 C.F. local sand G.I shed with half HP Motor and all those items worth Rs.47,000/- also found at the worksite. According to expert commissioner the cost of work till half bricks wall and material cost altogether would cost Rs.4,04,044/- including cost of materials stocked at the premises. In view of the materials available on record it is clear that the 2nd O.P. has altogether received Rs.6,70,000/- but completed only the foundation work and half portion of the bricks wall works. According to the expert commissioner the work completed plus the value of articles stocked at the site would worth Rs.4,04,044 + 47,000 = 4,51,044/-. Ext.X1series report is an elaborate report filed by the commissioner which remains undisputed. In view of the materials available on recorded it is clear that the complainant is entitled to get back Rs.6,70,000 – 4,51,044 = 2,18,956/- from the 2nd O.P.
10. It is also brought out in evidence that the complainant has sustained mental agony due to the non-completion of the work as stated in to the agreement after receiving a substantial amount from him. Hence the complainant is entitled to get compensation for the mental agony also. In view of the facts and circumstances of the case we are of the view that the complainant is entitled to get Rs.1,00,000/- as compensation for the mental agony and Rs.10,000/- as costs of the proceedings. These two points answered accordingly.
Point No.3
In the result the compliant stands allowed in the following terms :-
1) The opposite parties No. 1 & 2 are directed to return Rs.2,18,956/- (Rupees two lack eighteen thousand nine hundred and fifty-six only) to the complainant.
2) The opposite parties No.1 and 2 are also directed to pay Rs.1,00,000/- (Rupees one lakh only) as compensation and Rs.10,000/- (Rupees ten thousand only) as costs of the proceedings.
3) The opposite parties No. 1 and 2 are directed to comply with the above directions within 30 days from the date of receiving a copy of this order, failing which the complainant is at liberty to recover Rs.2,18,956 + 1,00,000 with interest at the rate of 9% per annum from the date of complaint till realization with cost Rs.10,000/- from opposite parties No.1 and 2 jointly and severally and from their assets.
Dictated to the Confidential Assistant, transcribed by her corrected by me and pronounced in open Forum on this the 04th day of April, 2019.
Sd/-Sri.E.M. Muhammed Ibrahim (President)
Sd/-Smt.N.Shajitha Beevi, (Member)
Appendix:-
Evidence of the complainant:-
PW1 - Vimal Kumar.A.S (Witness)
Ext.A1 Series - Agreement dtd.05.04.2017 and 5 documents
Ext.A2 Series - Invoice dtd.04.07.2017 and 10.04.2017
Ext.A3 Series - Account statement from 01.09.2017 to 30.09.2017 and 2
documents
Ext.X1 Series - Mahazor and Commission report
Evidence of the opposite parties:- Nil
// True Copy //
To
Complainant/Oppo. party/S.F.
By Order
Senior Superintendent
Typed by:- Sa/-
Compared by:-
