DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, PALAKKAD

Dated this the 15^th day of June 2009.

Present : Smt. H. Seena, President

: Smt. Preetha.G. Nair (Member)

: Smt. Bhanumathi.A.K. (Member)

C.C.No.122/2007

P. Sivadasan

S/o. Sankara Menon

residing at Sujith

Bhav Nagar

Kunnathurmedu

Palakkad - Complainant

(Adv .P.M. Ramesan)

V/s

P. Murali

Proprietor

M/s. EL-TECH EST.,

S/o. P. Velayudhan Nair

Palakkal House

Pirayiri

Palakkad.

Doing business at EL-TECH EST.,

R V Buildings

College Road

Tharekkad

Palakkad. - Opposite Parties

(Adv.N. Rajesh)

O R D E R

By Smt. H. Seena, President

The case of the complainant in brief is as follows

The complainant entrusted the opposite party with the task of constructing a house of 400 square feet at the rate of Rs.450/- per square feet. The agreement was entered into by both parties narrating the conditions on 16/02/2007. Complainant made a total payment of Rs.1,60,000/- on different dates. Complainant submits that the opposite party has not done works as per the agreement. The works to be completed as per the agreement are

1. Plastering and finishing work of the building.

2. Roof plastering

3. Parapet wall not completed

4. Sunshade and window shade and frontage shade not plastered

5. Kitchen slab not constructed

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6. Grills and doors not fitted

7. Electrical work partially completed

8. Plumbing and sanitary work not done

9. Kitchen doors and windows not fitted

10. Tiles on the floor partially paved and

11. Closet and kitchen sink not fitted.

Opposite party has used old wood and old bricks in place of new ones as agreed in the agreement. Complainant submits that the total cost of work done by the opposite party at the site is only Rs.90,000/- and hence opposite party has received an excess amount of Rs.70,000/-. The act of opposite party in not completing the work as per the agreement and receiving excess payment amounts to deficiency in service. Complainant has caused a lawyer notice dated 16.08.2007 to the opposite party stating the facts for which opposite party has replied stating false allegations. Hence complaint filed. Complainant claims an amount of Rs.1,00,000/- as compensation and Rs.5,000/- as cost of the proceedings.

Opposite party filed version with the following contentions. Opposite party denies the agreement dated 16.02.2007. According to the opposite party, no agreement was entered into by the complainant and the opposite party. The whole submissions of the complainant are foisted story for the purpose of unnecessary litigation. Complainant has not entrusted any work to the opposite party and hence there is no question of receiving any excess amount. Complaint is liable to be dismissed.

The evidence adduced consists of affidavit and Exhibit A1 to A3 marked on the side of the complainant. Opposite party has not filed any affidavit. Commissioner inspected the site and report marked as Exhibit C1.

Now the issues for consideration are:

1. Whether there is any deficiency of service on the part of opposite party?

2. If so, what is the relief and cost?

Points 1 & 2

The definite case of the complainant is that opposite party has not done the house construction of the complainant as per the agreement and has collected excess amount of Rs.70,000/-. As

narrated in the complaint, major portion of the work are left unfinished. In support of his case

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complainant has produced Exhibits A1 to A3 documents. There is no contra evidence to that one tendered by the complainant.

We have carefully gone through the evidence on record. Exhibit A1 is the agreement submitted to be signed by the complainant and opposite party. On verification it can be seen that the document does not contain any formalities of an agreement. It is not on any stamp paper. Further no time is seen to be fixed for the completion of the work . Works to be completed and the corresponding payments also not stated in the agreement. There is no witness to the agreement. The agreement in toto is a vague. One without complying any formalities. In addition to all these defects, agreement is seen to be signed by one P. Sivadas where as the name of the complainant is Sivadasan. P as per the complaint. No address or father's name of the complainant is mentioned in the agreement so as to ensure whether both are one and the same person. Going through Exhibit C1, it can be seen that , contrary to the allegations of the complainant, major portion of the work has been completed. The portion left unfinished whether forms part of the agreement or not is not clear from records. Regarding payments acknowledged on the backside of the agreement, it can be seen that an amount of Rs.30,000/- is seen to be paid. Regarding balance payment complainant has produced Exhibit A3 document which in the book maintained by the complainant. The payments noted in Exhibit A3 is not noted in the backside of the agreement.

In view of the above discussions we are of the view that, complainant has miserably failed to prove a case in his favour.

Hence complaint dismissed.

Pronounced in the open court on this the 15^th day of June 2009

PRESIDENT (SD)

MEMBER (SD)

MEMBER (SD)

APPENDIX

Witness examined on the side of Complainant

Nil

Witness examined on the side of Opposite party

Nil

Exhibits marked on the side of the complainant

1. Ext. A1 – Agreement dated 16.02.2007

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   2. Ext. A2 series- Letter from Adv. P.M. Ramesan to P. Murali dated 16.08.2007

3. Ext. A3 – Photocopy of payment made to Murali

Exhibits marked on the side of the Opposite Party

Nil

Forums Exhibits

C1 – Commission report of Sujatha Vijayan

Forwarded/By Order

Senior Superintendent