By Smt. Beena. M, Member:-

            This is a complaint filed under section 12 of the Consumer Protection Act 1986.

            2.  Facts of the case in brief:-        

The Opposite Party is a building contractor.  The Complainant had entrusted the work of constructing a house on the property bearing survey No. 709/6 of Complainant’s father situated in Padichira Village.  Thereafter, on 05.01.2016, the Complainant and the Opposite Party had entered into a house construction contract and The Opposite Party had agreed to complete the construction of the house according to the plan and design provided by the Complainant subject to the rates, terms and duration mentioned in the contract.  As per the contract, It was agreed that the Opposite Party would complete roofing, floor, belt concreting, plastering the wall of the house, roof, fixing beds, windows, doors, lock etc.,Interior works, electrical fittings, plumbing, painting etc. and other works like plastering, tiling work, paving roof tiles, fixing doors, locks, etc. and as a result, the Complainant would pay Rs. 72,00,000/- to the Opposite Party.  The statement of cost of construction containing the price and quality of all the materials, sanitary items, electric and plumbing items, etc. to be used for the same was prepared and given to the Complainant by the Opposite Party. Accordingly, the Complainant had paid Rs.1,00,000/- to the Opposite Party as advance on the contract and out of the remaining amount, Rs.5,00,000/- would be paid at the time of commencement of the construction works and the Complainant had agreed to pay the remaining amount to the Opposite Party on completion of the work at each stage of construction.  Accordingly, the Opposite Party started the construction work of the house and when the Opposite Party demanded the Complainant to pay the entire amount as per the contract to the Opposite Party.  The Opposite Party had borrowed a sum of Rs.33,00,000/- from the Complainant due to the disruption of other works undertaken by the Opposite Party due to the currency ban and due to financial stringency.  The Opposite Party had assured to the Complainant that all the materials like flooring tile, wall tile, stone etc. would be of the best quality which  believed by the Complainant. When the work of the house was completed, Rs.72,00,000/- and Rs.33,00,000/- had additionally recovered by the Opposite Party from the Complainant as debt by the Opposite Party.  The Opposite Party had made the Complainant believe that the floor tile, wall tile, roofing tile, plumbing & sanitary items, door, windows, etc. used for the construction would not suffer any damage or color difference and such quality materials within a period of 25 years.  But within a few days after the Complainant started living in the house, the color of the tiles used in the floor and bathroom faded very quickly and spots appeared and the tiles have started to peel.  Similarly, most of the water taps were damaged and became useless.  It was later that the Complainant came to know that the Opposite Party was deceiving the Complainant by buying duplicate goods of poor quality.  Also, the flooring of the Opposite Party’s house has been done without any finishing.  It was only after he started living in the house that the Complainant came to know this.  In the bathroom cheap duplicate Chinese tiles were used as floor tiles and the tiles are also cracked.  The taps, showers and other sanitary items were cheap and duplicate.  Instead of using Malaysian tiles for roof tiles cheap duplicate tiles are used.  Also the tiles and cladding tiles used for the steps are all very poor quality.  It has been understood from the experts that due to non-purchase of the materials mentioned in the agreement, Complainant has to further incur a cost of Rs.17,00,000/-.  The Complainant is extremely distressed and mentally disturbed as the Complainant has been cheated by the Opposite Party by using substandard and duplicate goods.  The Opposite Party has failed to provide the service to the Complainant and that the Opposite Party has committed Unfair Trade Practice by not using the goods as per the terms and conditions.   Hence, this Complaint.

            3.  On receipt of complaint, notice was issued to the Opposite Party and Opposite Party appeared before the Commission and filed version.  According to him, he is a building designer and construction supervisor.  The Opposite Party stated that he had undertaken the construction of the house at the property of the Complainant’s father and an agreement was entered with him.   The Opposite Party further stated that no construction work was entrusted to him by the Complainant and also that the Complainant has not provided the plan and design as claimed by him and no time stipulation was given to him.  There is no privity of contract between the Complainant and Opposite Party.  The Opposite Party stated that the Complainant was present during construction work on behalf of his father, who is aged and ailing and the Opposite Party has never worked as the instruction of the Complainant.  The Opposite Party denied the allegation of the Complainant that he had borrowed an amount of Rs.33 lakhs from the Complainant and he had never given a guarantee for 25 years.  He also denied that the materials like tiles started to fade and became damaged and unusable and that the Opposite Party used materials of cheap quality, used Chinese tiles, used duplicate items, used less quality tiles for steps and it requires a minimum Rs.17 lakhs to rectify the defects etc.  The Opposite Party stated that the real facts are that the Complainant approached the Opposite Party on behalf of his father, for drawing the plan/design and to undertake the contract work of the house, his father intent to construct.  The Opposite Party had given a quotation of 75 lakhs and finally agreed for 72 lakhs.  But during the process of the construction, the Complainant on behalf of his father, insisted for more costly materials and agreed that the excess amount would be paid to the Opposite Party. Moreover, the father of the Complainant requested the Opposite Party to construct a compound wall with automatic gate and an outhouse with three rooms, water tank stand, installation of garden and gate lights and the Opposite Party conceded for that believing their words.  So, the Complainant’s father bound to give huge amount to the Opposite Party.  Thus, the Opposite Party is entitled to get Rs.8,32,000/-( in addition to the agreed amount of Rs.72,00,000/-) from the father of the Complainant.  The Opposite Party had received Rs.5 lakhs out of Rs.8,32,000/-.  The opposite Party stated that all the materials for the construction were purchased by the Complainant on behalf of his father. Most of the items were bought directly by the Complainant from Julphar Exim Private Ltd Calicut.  It is informed that there were disputes between Complainant and Julphar Exim Pvt. Ltd regarding the quality of the materials, its improper and delayed distribution of materials etc.  It is informed that the Complainant caused to issue a registered lawyer notice demanding replacement, compensation etc to the Julphar Exim Private Ltd.  It is further informed that this issue was settled between the Complainant and Julphar Exim Pvt Ltd and the Complainant’s demands were conceded by them, after receiving the lawyer notice.  It is to be noted that the Complainant himself had initiated legal proceedings regarding the quality of the materials and deficiency in services for the materials he had purchased.  Unfortunately, forgetting that aspect the Complainant herein has initiated unwanted proceedings against the Opposite Party.  The materials for the construction were purchased by the owner of the house on their selection only.  According to the Opposite Party, the owner of the house wants to escape from the liability of giving the balance amounts to the Opposite Party.  So, the Opposite Party prays to dismiss the Complaint. 

            4.  The Complainant was examined as PW1.  The documents produced were marked as Ext.A1 and Ext.A2 and Commission Reports were marked as Ext.C1 and Ext.C2.  The Expert Commissioner, Assistant Executive Engineer examined as PW2.  The Opposite Party was examined as OPW1.  Documents were marked as Ext.B1 to B11.  Attesting witness of the agreement examined as OPW2.

            5.  On the basis of the pleadings the following issues were framed for consideration:-

1. Whether there is any deficiency in service on the part of Opposite Party?
2. Whether the Complainant is entitled to get any relief?

6.  Here the main dispute is about the Ext.A1 agreement.  The agreement was alleged to be signed by the Opposite Party.  At the time of taking evidence of OPW1, he denied his signature in the agreement, but it is  seen recorded that “the signature compared with Vakalath and version and found correct”.  Since Commission do not have the expertise to ascertain or confirm the authenticity of the signature, the said verification is void and hence not taken into account.  Since the Signatures of the opposite Party on the agreement is denied, it is necessary to prove the signature of the Opposite Party by an Expert.  When the Opposite Party denied the signature on the document Ext.A1, then the burden to prove the signature on Ext.A1 shifted on the Complainant.  The Complainant have to prove that the signature on Ext.A1 is that of Opposite Party.  When the Complainant have not filed an application to prove the signature of the Opposite Party on Ext.A1, the Opposite Party has no obligation to prove that it is not his signature. 

            7.   Ext.A1 does not contain the signature of the Complainant/ First Party at all.  Ext.A1 has been signed only by the second Party.  So it is not a mutual agreement or contract.  If there is no contract at all, then the question of deficiency in service does not arise.  Therefore, the Complainant is not entitled to obtain an order from the court for deficiency in service.   Hence the Complaint is to be dismissed on this ground alone.  At the time of Chief Examination of OPW2 he deposed that “Xe¨nd {]Imis\ F\n¡dnbmw.  apff³sImÃn ]©mb¯n AbmÄ hoSp]Wn GsäSp¯ Imcyw Adnbmw.  Nmt¡m \ocmäp]mdbn F¶bmÄ¡v th­nbmWv hoSv ]Wn GsäSp¯Xv”  Her further deposed that “Ext.A1 tcJbnse H¸v FtâXmWv F¶v ]dªm icnbÃ.  Nmt¡mbmWv IcmÀ FgpXnbsX¶pw ]cmXn¡mc\pambn IcmÀ FgpXnbn«nsöpw ]dbp¶Xv {]Imi\mb Fsâ Afnbs\ klmbn¡m\msW¶v ]dªm icnbÔ.   Moreover, to prove the contention of the Opposite Party that the materials purchased by the Complainant, he produced Ext.B1 to Ext.B5, which shows that the entire construction materials were purchased in the name of Complainant.  Here, the Complainant has failed to produce document to show that the Opposite Party purchased the materials for construction and also failed to examine any witness to prove the above fact.

            8.  The Complainant was examined as PW1 and also examined witnesses to prove the execution of the agreement of house construction as PW2 & 3.   The Opposite Party was examined as OPW1 and denied the execution of the agreement of house construction and also the signature on the said document.  In view of denial of execution of the agreement contending that it is a forged document, the burden is on the Complainant to prove that the agreement is genuine..  The Complainant and one of the attesting witnesses were examined. Here, the Complainant has failed to take steps to send signatures on the agreement to the handwriting expert to compare with undisputed signatures.   Moreover, on perusal of Ext.B8 Building permit issued by the Mullankolly Gramapanchayath, it is clear that Building permit was issued in the name of Chacko Neerattuparayil.  Ext.B8 to B11 shows that the Opposite Party constructed the house for the father of the Complainant.  According to the Complainant, the purchase of materials were done by the Opposite Party.  But the Opposite Party’s contention is that the materials were purchased and supplied by the Complainant for the construction of house for his father.  Ext. B4 series & B5 shows that all bills of the materials were issued in the name of the Complainant.    Ext.B3 reveals that the Complainant dad directly selected the materials.  So, we cannot find any deficiency in service on the part of the Opposite Party as alleged by the Complainant.  Therefore, we find that this Complaint is not allowable and is liable to be dismissed. 

            In the result, Complaint is dismissed. No cost.

Dictated to the Confidential Assistant, transcribed by him and corrected by me and pronounced in the Open Commission on this the 19^th day of January 2024.

Date of Filing:-05.03.2018.

PRESIDENT   : Sd/-

MEMBER       : Sd/-

APPENDIX.

Witness for the Complainant:-

PW1.              Cyriac Chacko.                                            Agriculture.

PW2.              Ravisankar. R. S.                                         PWD, Assistant Executive

                                                                                                Engineer.

Witness for the Opposite Party:-

OPW1.          Prakash. T. J.                                               Registered Engineer.

OPW2.          Joshy.                                                                        Agriculture.

Exhibits for the Complainant:-

A1.                  Agreement.                                                              Dt:05.01.2016.

A2.                  Copy of Residential Plan.

C1.                  Commission Report.                                              Dt:27.11.2019.

C2.                  Commission Report.                                              Dt:13.10.2021.

Exhibits for the Opposite Party:-

B1.                  Official Receipt.                                                      Dt:22.07.2016.

B2.                  Copy of Lawyer Notice.                                        Dt:10.12.2016.

B3.                  Copy of Reply Notice.                                           Dt:04.02.2017.      

B4 (Series).   Bills. (27 Numbers).

B5.                  Retail Invoice.                                                          Dt:09.09.2016.

B6.                  Order Form.                                                                        Dt:26.09.2016.

B7.                  Estimate for interior Works.

B8.                  Copy of Building Permit.                                      Dt:29.12.2015.

B9.                  Copy of Specification and Report.                    

B10.               Copy of Completion Certificate.                         Dt:05.10.2016.

B11.               Plan for a Proposed Residential Building.

PRESIDENT   :Sd/-

MEMBER       :Sd/-

/True Copy/

                                                                                                        Sd/-

                                                                                             ASSISTANT REGISTRAR

                                                                                                  CDRC, WAYANAD.

Kv/-