DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, PALAKKAD
Dated this the 30th day of October 2012
Present: Smt.Seena.H, President
: Smt.Preetha.G.Nair, Member
: Smt.Bhanumathi.A.K, Member Date of Filing : 08/02/2012
CC No.34/2012
Sowmya Anoop,
W/o.Anoop Sivadasan,
Preethi Nivas,
Keralassery (PO),
Palakkad. - Complainant
(By Adv.A.V.Ravi)
Vs
P.K.Shailakanth,
S/o.KC Krishnan,
Managing Director,
Silver Line Villas,
And Apartments Pvt. Ltd.,
Century Plaza,
VH Road, Palakkad. - Opposite parties
(By Adv.P.R.Hariharan)
O R D E R
By Smt.SEENA.H. PRESIDENT
Complaint in brief :
Complainant entrusted the work of construction of her house with the opposite party vide agreement dated 10/6/2010. The total consideration arrived at for the construction of the house having plinth area 1418 Sq.feet was Rs.14,18,000/-. Opposite party agreed to complete the work within 9 months from the date of initial payment. As per the payment schedule initial payment fixed was Rs.2,50,000/-, but complainant paid Rs.6,00,000/- to opposite party considering his promise that the work will be completed before the stipulated time. Further an amount of Rs.50,000/- was paid on 12/3/11. Thus complainant paid a total amount of Rs.6,50,000/- to opposite party. The grievance of the complainant is that opposite party has done the work very slowly to a very limited extent in total disregard of the agreement and further work is not in conformity with the standards and quality as provided in the agreement and also the materials used were of inferior quality. Opposite party did not complete the work within the stipulated time. The cost of the completed work will come to Rs.4,00,000/- only and hence excess amount of Rs.2,50,000/- is with the opposite party. The act of opposite party in leaving the work without completion has resulted in huge loss and damage to complainant. Hence the complaint. Complainant prays for refund of Rs.2,50,000/- with interest, Rs.50,000/- as compensation, Rs.50,000/- as cost. Further prayer is to permit the work to be completed by other contractors and refrain the opposite party from interfering the work.
Opposite party resisted the complaint with the following contentions. The foremost contention of the opposite party is that the complainant has not approached the Forum with clean hands. Complainant willfully suppressed with respect to the subsequent agreement dated 10/7/2010 entered into between the complainant and opposite party. As per the agreement the plinth area was increased from 1418 Sq.ft. to 1595 Sq.feet. Total consideration was fixed as Rs.19,14,000/- Payment schedule was also attached with the agreement. Complainant always failed to make payments as per the schedule. Opposite party completed the work upto 1st floor lintel level. Complainant ought to have paid Rs.11,75,000/- upto this stage, but complainant has only paid Rs.6,50,000/-. Hence an amount of Rs.5,25,000/- is due to opposite party. Complainant in order to avoid the said payment has filed this complaint. Hence there is no deficiency in service on the part of opposite party. Opposite party prays for dismissal of complaint with cost to opposite party.
The evidence adduced by the parties consists of their respective chief affidavits, Ext.A1 to A5, Ext.B1 to B5, Ext.C1 and the oral testimony of DW1.
Issues for consideration
1. Whether there is any deficiency in service on the part of opposite party ?
2. If so, what is the relief and cost complainant is entitled to ?
Issues 1 & 2
In order to determine whether there is any deficiency in service on the part of opposite party, it has to be decided which agreement is binding upon the parties. Complainant rely on Ext.A1 agreement dated 11/4/2010 executed on 10/6/2010 where as opposite party relies on Ext.B5 agreement dated 10/7/2010 executed on 24/7/2010. As per Ext.A1, the plinth area is 1418 Sq.ft. and total consideration is Rs.14,18,000/- whereas as per Ext.B5, plinth area is 1595 Sq.ft. and the total consideration is Rs.19,14,000/-. Complainant has been availed loan from SBI, Keralassery Bank. Documents called for from the Bank which includes the approved plan and estimate is marked as Ext.B1 & B2. As per Ext.B1 Rs.21,00,000/- is the estimate amount arrived at by the parties. DW1, the Bank Manager has deposed that the total plinth area is 148.28 Sq.m. The expert commissioner has filed report wherein the total plinth area measured is noted as 1585 Sq.ft. (147.30 Sq.m).
Taking into consideration all these documentary evidence we find Ext.B5 is the agreement in force between the parties Section 62 of the Indian contract Act specifically, provides the effect of novation, rescission, and alteration of contract which read as follows:
Section 62. Effect of novation, rescission and alteration of contract :-
If the parties to a contract agree to substitute a new contract for it, or to rescind or alter it, the original contract need not be performed.
So in our view Ext.A1 agreement stands discharged. It is noteworthy that complaint has not made any whisper as to Ext.B5 agreement not even after the production of it by the opposite party. We also agree with the argument of opposite party that complaint has not approached the Forum with clean hands. It is the cardinal principle of law that one who seeks equity must do equity.
Regarding the demand of refund of excess payment, we find that admittedly complainant has paid total amount Rs.6,50,000/- only. As per Ext.C1 opposite party has done the following work. Foundation, basement, porch, walls, lintel, beam, main slab, staircase in ground floor and only wall upto lintel level in the first floor. As per Ext.B5, the amount agreed to be paid before 1st floor lintel level is Rs.11,75,000/-. Payment made as per the complainant is only Rs.6,50,000/-. Commissioner has made an approximate calculation and has arrived at an amount of Rs.6,28,582/- for the work already done, but since parties has entered into an agreement, they are bound by the terms and conditions mentioned in the agreement. So the complainant legally bound to pay the amounts mentioned in the agreement at different stages.
Regarding the allegation with respect to the quality of the work, the expert commissioner has specifically mentioned in the report that the work already done is in good quality.
In view of the above discussions we are of the view that complainant has approached the Forum with unclean hands and has unnecessarily dragged the opposite party before the Forum. Opposite party was made to incur expenses of the litigation. Consumer Protection Act has provided provisions to tackle these situations. As per Section 26 of Consumer Protection Act,
“Whether a complaint instituted before District Forum, the State Commission or as the case may be the National Commission is found to be frivolous or vexations, it shall for reasons to be recorded in writing, dismiss the complaint and make an order that the complainant shall pay to the opposite party, such cost, not exceeding ten thousand rupees as may be specified in the order”.
Hence we dismiss the complaint with an order to pay Rs.2,500/- (Rupees Two thousand five hundred only) to opposite party within one month from the date of receipt of order.
Pronounced in the open court on this the 30th day of October 2012.
Sd/-
Seena.H,
President
Sd/-
Preetha.G.Nair,
Member
Sd/-
Bhanumathi.A.K,
Member
APPENDIX
Exhibits marked on the side of the complainant
Ext.A1 – Photocopy of Building construction agreement dated 11/4/2010
Ext.A2 – Photocopy of Lawyer notice dated 24/11/11 sent by complainant to
opposite party
Ext.A3 – Postal receipt of lawyer notice dated 24/11/11
Ext.A4 –Postal acknowledgment card dated 25/11/11
Ext.A5 –Reply to lawyer notice dated 26/11/11
Exhibits marked on the side of the opposite party
Ext.B1 – Estimate submitted by the complainant to SBI, Keralassery.
Ext.B2 – Approved plan for constructing the building submitted by the
complainant to SBI, Keralassery
Ext.B3 – Certified true copy of stage certificate dated 13/8/10
Ext.B4 – Letter issued by Branch Manager, SBI to the complainant dated
13/8/10
Ext.B5 – Building construction agreement dated10/07/2010
Witness examined on the side of the complainant
Dw1 – Arun Madhava Menon
Commissioner Report
C1- Er.A.Ramachandran
