DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, PALAKKAD
Dated this the 2nd day of August, 2024
Present : Sri. Vinay Menon V., President
: Smt. Vidya A., Member
: Sri. Krishnankutty N.K., Member Date of Filing: 24/07/2020
CC/74/2020
- Harinarayan Das Naduvath,
S/o. Late Ramakrishnan Nair,
Naduvath House,
Kadamboor Post, Ambalappara,
Palakkad – 679 515
- Sheeja Haridas,
W/o. Harinarayan Das Naduvath,
Naduvath House,
Kadamboor Post, Ambalappara,
Palakkad – 679 515 - Complainants
(By Adv.M/s. K. Dhananjayan & K. Suraj Krishna)
Vs
Rajesh P.P.
Proprietor,
ENG Group,
Builders & Contractors,
Door No.43, NP Tower,
West Fort, Thrissur – 680 004 - Opposite party
(By Adv. P.K. Hassankutty)
O R D E R
By Sri. Vinay Menon V., President
- Essential pleadings necessary for judicial appreciation of facts and evidence are that the complainants, husband and wife, engaged the opposite party for construction of a residential building. After carrying out part of the work, the OP abandoned construction and refused to carry out the balance work. Towards the works already carried out the complainant had paid Rs.13 lakhs. Later it transpired that the OP had over charged Rs.2 lakhs. When the complainants resumed construction using other persons, the OP issued a notice claiming Rs.6,20,025/- for which the OPs had no rights whatsoever. This complaint is filed seeking return of the aforesaid amount of Rs.2 lakhs together with interest and Rs.5 lakhs as compensation and for incidental reliefs.
- OP filed version refuting complaint pleadings stating that he had not abandoned the work and that it was the complainants who had failed to effect payment of amounts due. Complainants had also conveniently failed to disclose that period of construction was 7 months with one month grace period. It was during this period that the Covid-19 lock down came into effect. The OP had already filed a suit before the Munsiff’s Court, Thrissur for recovery of balance amount due from the complainant. This complaint is only an attempt to wriggle out of the liability to pay the amounts legally due from the complainants to the O.P. He sought for dismissal of the complaint.
- The following issues were framed for consideration:
- Whether the discontinuation of the complainant’s house construction work was due to reasons beyond the control of OP?
- Whether there is any failure on the part of the complainant in performing his part of the contract as alleged by the OP?
- Whether any amounts are due to the OP as claimed by him as balance amount as per the agreement on 22/10/2019?
- Whether there is any deficiency in service on the part of OP?
- Whether the complainant is entitled to any of the reliefs sought for?
- Any other reliefs?
5. (i) Documentary evidence of complainant comprised of proof affidavit and Exhibits
A1 to A4.
Marking of Ext.A1 was objected to on the ground that they are photocopies.
(ii) Complainant was examined as PW1.
(iii) OP marked Ext.B1 to B12. Marking of Exts.B1, B2, B4, B5 & B11 were objected to on the ground they were photocopies.
(iv) Witness for OP and OP were examined as DW1 & DW2 respectively.
(v) Objection to marking of Exhibits by both the parties are rejected since both the parties have no case that the documents, marking of which are objected, are either forged, concocted or fabricated.
Issue No.1
6. It was the complainants’ case the OP had, after completion of part of the work, abandoned the work. Thereafter he was forced to complete construction by themselves. Those who were appointed with the work informed him that the OPs had charged Rs.2 lakhs over and above what had actually been the cost of construction. It is for recovering this Rs.2 lakhs, allegedly over-charged that the complainant has filed this complaint. OP has outrightly rejected the allegations and stated that the complaint is nothing short of a counter-blast for claiming Rs. 6 lakhs from the complainants for works that were carried out, but payment not effected.
7. In order to prove the case, the complainant had got an expert appointed. But there was inordinate delay on the part of the expert in filing the report. The expert commissioner had failed to carry out inspection. On all the days posted for commission report i.e. 8/11/2022, 16/12/2022, 19/1/2023, 13/2/2023 and 22/3/2023 counsel for complainant made submissions before this Commission that the expert commission was abroad. Since there was inordinate delay, this Commission issued a show-cause notice to the expert commissioner on 22/3/2023. On 27/4/2023, the expert commissioner filed reply to the show-cause notice stating that it was the counsel for complainant who sought adjournment when the expert has issued notice for inspection.
Therefore, the order of appointing the expert commissioner was rescinded since the counsel for complainant had resorted to unfair and dishonest means to mislead this Commission.
Thereafter, at the time of marking of the documents, counsel for complainant got the expert to complete the inspection on his own volition and filed the report. He had also filed 93 documents to prove that the complainant had to incur expenses for construction of the residential building. Both the report of the expert commissioner and the bunch of 93 documents were rejected by Order dated 17/11/2023 in IA/624/2023.
8. The documentary evidence adduced by the complainant were the agreement between the parties, settlement bill issued by the O.P. claiming over Rs. 6 lakhs and legal notices issued by parties. But none of the documents proves the present condition of the building or the extend upto which the opposite party had constructed or the balance construction that had to be carried out by the complainant. Even though OP and witness for OP were examined DW1 & DW2. Their evidence does not adduce any iota of proof to show that the OP had availed excess amounts from complainants.
9. Therefore, we hold that the complainant has failed to prove the extend of amount that the O.P. had allegedly over-charged.
Issue Nos.2 & 3
10. It is the O.P.’s case that the complainant is yet to pay an amount of Rs.6,20,025/- to the O.P. Since this amount stood unpaid, the O.P. had to file a suit as OS/1913/2020 before the Hon’ble Munsiff’s Court, Thrissur for recovery of money. In order to substantiate his contention with regard to filing of the suit for money the OP marked Ext.B11. Ext.B11 is an affidavit and claim in OS/1913/2020 on the file of the Munsiff’s Court, Thrissur. Complainant has no objection whatsoever regarding the veracity of this contention or the documents marked.
11. Since the OP has already filed a suit before the appropriate authority competent to adjudicate on this issue, we refrain from making any observations lest it would lead to judicial absurdity.
Issue Nos. 4, 5 and 6
12. Apropos the decision in issue no. 1, we hold that the complainants have failed to prove any deficiency in service on the part of O.P.
13. Complainants are not entitled to any of the reliefs sought for.
14. Accordingly, we dismiss the complaint.
15. In the facts and circumstances of the case, parties are directed to suffer their respective costs.
Pronounced in open court on this the 2nd day of August, 2024.
Sd/-
Vinay Menon V
President
Sd/-
Vidya.A
Member
Sd/-
Krishnankutty N.K.
Member
APPENDIX
Exhibits marked on the side of the complainant
Ext.A1 - Copy of agreement dated 22/10/2019
Ext.A2 – Copy of settlement bill
Ext.A3 - Copy of lawyers notice dated 30/6/2020
Ext.A4 - Copy of reply notice dated 10/7/2020
Exhibits marked on the side of the opposite party:
Ext.B1 – Same as Ext.A1
Ext.B2 – Same as Ext.A2
Ext.B3 – Same as Ext.A3
Ext.B4 – Copy of postal notices
Ext.B5 – Copy of acknowledgment cards
Ext.B6 - Same as Ext.A4.
Ext.B7 -Series of 3 photographs
Ext.B8- Series of 2 photographs
Ext.B9- Series of 3 photographs
Ext.B10- CD containing photographs
Ext.B11- Copy of plaint & affidavit in OS 1913/2020
Ext.B12- Certified copy of Order dated 30/1/2024 in IA 5/2021 in OS 1913/2020
Court Exhibit: Nil
Third party documents: Nil
Witness examined on the side of the complainant:
PW1 - Harinarayan Das Naduvath (1st complainant)
Witness examined on the side of the opposite party:
DW1 – Radakrishnan (employee of OP)
DW2 – Rajesh (OP)
Court Witness: Nil
NB : Parties are directed to take back all extra set of documents submitted in the proceedings in accordance with Regulation 20(5) of the Consumer Protection (Consumer Commission Procedure) Regulations, 2020 failing which they will be weeded out.
