KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

VAZHUTHACAUD, THIRUVANANTHAPURAM

APPEAL No.517/2016

JUDGEMENT DATED: 13.12.2022

(Against the Order in C.C.No.287/2014 of CDRF, Malappuram)

PRESENT:

APPELLANTS:

(by Adv. Saji S.L.)

Vs.

RESPONDENT:

(by Adv. R. Chandrapraveen)

JUDGEMENT

SRI. T.S.P. MOOSATH : JUDICIAL MEMBER

          The opposite parties in C.C.No.287/2014 of the Consumer Disputes Redressal Forum, Malappuram (in short the District Forum) have filed the appeal against the order passed by the District Forum by which they were directed to pay an amount of Rs.7,90,000/-(Rupees Seven Lakhs Ninety Thousand) along with compensation of Rs.25,000/-(Rupees Twenty Five Thousand) and costs of Rs.5,000/-(Rupees Five Thousand) to the complainant within one month from the date of receipt of a copy of the order, failing which to pay interest @12% per annum on the above amount, from the date of the order.

          2.       The case of the complainant is that on 07.10.2013 he has entered into an agreement with the opposite parties regarding the construction of the house building for his son.  As per the agreement the work has to be completed by the opposite party and key had to be given to the complainant before 30.04.2014.  By way of different occasions, the opposite parties received Rs.50,00,000/-(Rupees Fifty Lakhs) from the complainant.  But they did not complete the construction works and thereby cheated the complainant.  Several works remain to be completed.  Alleging deficiency in service on the part of the opposite parties the complainant has filed the complaint.

          3.       The opposite parties filed a detailed version denying the allegations of the complainant.  It is stated by them that the payments made by the complainant were acknowledged on the reverse side of the original agreement.  As instructed by the complainant opposite parties had to do several works deviating from the original agreement.  They have done those works on the bonafide belief that the complainant would pay the same.  The construction works were delayed only due to delay in payments of the amounts made by the complainant.  More than Rs.10,00,000/-(Rupees Ten Lakhs) is due to the opposite parties from the complainant for the works done by them.  There is no deficiency in service on the part of the opposite parties.

          4.       Complainant filed proof affidavit and Exhibits A1 to A4 were marked on his side.  The report of the Expert Commissioner was marked as Exhibit C1.  the opposite parties have not filed affidavit or adduced any evidence.  Counsel for the opposite parties submitted that no instruction from the opposite parties.  Considering the evidence adduced by the complainant and Exhibit C1 report the District Forum has passed the impugned order.

          5.       Aggrieved by the order passed by the District Forum the opposite parties have filed the appeal.

          6.       Heard both sides.  Perused the records.

          7.       Parties are referred to according to their status/rank in the complaint.

          8.       In the order of the District Forum it is stated that since “opposite parties have not filed any counter affidavit and their counsel reported no instruction, we are discarding the contentions of the opposite parties”.  In the order it is also stated that “since there was no contra evidence we are allowing the complaint in part and passing the following orders”.  From the records it is seen that the opposite parties had filed a detailed version and it was received by the District Forum.  Thereafter the complaint was posted for evidence of the complainant to 14.12.2015.  On that day the complainant filed proof affidavit and documents produced by them were marked as Exhibits A1 to A4.  Evidence of the complainant was closed and it was adjourned for the evidence of the opposite parties to 14.01.2016.  On 14.01.2016 the counsel for the opposite parties prayed for time for adducing evidence and it was adjourned to 30.01.2016.  On 30.01.2016 the counsel for the opposite parties submitted ‘no instruction’ and hence it was adjourned for hearing of the complainant to 15.02.2016.  On 15.02.2016 the complaint was heard and it was taken for orders and finally on 30.04.2016 the District Forum has passed the impugned order.

          9.       The counsel for the appellants submitted that even though the opposite parties filed a detailed version raising contentions, those were not considered by the District Forum.  He submitted that due to the lack of communication between the opposite parties and their counsel, the counsel happened to submit ‘no instruction’ from the parties before the District Forum and there is no wilful default or laches on the part of the opposite parties.  He prayed that the opposite parties may be given an opportunity to adduce evidence in support of their contention, so as to have a decision on merits of the claim of the complainant by the District Forum.  For that purpose, the order passed by the District Forum may be set aside and the matter may be remanded to the District Forum.  The counsel for the respondent/complainant opposed the prayer of the appellants.  She submitted that if the appeal is allowed and the matter is remanded, it will cause prejudice to the respondent/complainant.  She pointed out that the complaint was filed in the year 2014. 

          10.     Perusing the records we do not find any merit in the submission of the counsel for the appellants regarding the default committed by the appellants/ opposite parties in appearing before the District Forum or contacting theircounsel in proper time, which prompted him to submit “no instruction” before the District Forum.  However, after perusing records and the order passed by the District Forum, we consider that an opportunity has to be given to the appellants/opposite parties to adduce evidence in support of the contentions raised by them in the version filed by them, so as to have a decision on the claim of the complainant, on merits.  For that purpose the order passed by the District Forum is to be set aside and the matter has to be remanded to the District Forum for fresh disposal.

          11.     Remission of the case, setting aside the order of the District Forum can be ordered only on terms directing the appellants to compensate the injury likely to be caused by the delay in culmination of proceedings, to the respondent/complainant.  It is to be noted that the complaint was filed in the year 2014 and the order was passed by the District Forum on 30.04.2016.  Considering all these facts the appeal is allowed on condition that the appellants have to pay a sum of Rs.25,000/-(Rupees Twenty Five Thousand) as costs to the respondent/complainant.

          12.     At the time of filing of the appeal the appellants have deposited Rs.25,000/-(Rupees Twenty Five Thousand).  The respondent/complainant is permitted to obtain release of the said amount on filing proper application to be adjusted/credited towards the costs ordered.

          13.     In the result, the appeal is allowed and the order passed by the District Forum is set aside.  The matter is remanded to the District Forum for the fresh disposal, after considering the contentions of the opposite parties and giving an opportunity to both parties to adduce evidence if any.  The District Forum shall dispose of the complaint as early as possible.

          Send back the records forthwith.

SL