IN THE CONSUMER DISPUTES REDRESSAL FORUM, ALAPPUZHA
Thursday the 29th day of September, 2016
Filed on 21.01.2014
Present
1.Smt. Elizabeth George (President)
2.Sri. Antony Xavier (Member)
3.Smt.Jasmine.D. (Member)
in
C.C.No.24/2014
between
Complainant:- Opposite Party:-
Sri. Shamsudeen. A. Sri. Shajahan
Muttaikal House Shah & Shaj Constructions
Kottukulangara Krishnapuram P.O.
Kayamkulam Kayamkulam
(By Adv. P.T. Hakkim) (By Adv. C. Muraleedharan)
O R D E R
SMT. ELIZABETH GEORGE (PRESIDENT)
The case of the complainant is as follows:-
On 26.09.2011 complainant entered into an agreement with the opposite party for the construction of his house and on 9.12.2012 the key of the house was handed over to the complainant. There are so many defects in the construction of the house, opposite party demanded Rs.28 lakhs and complainant paid Rs.24 lakhs. Thereafter both parties entered into an agreement for doing repairing works and accordingly the complainant gave a cheque of his wife for Rs.4 lakhs. But the opposite party failed to complete the maintenance works and some more defects are seen and the complainant contacted the opposite party and requested not to present the cheque for payment. But the opposite party presented the cheque and it was dishonoured. The act on the part of the opposite party caused much mental agony, hence the complaint is filed claiming Rs.10 lakhs towards compensation from the opposite party.
2. The version of the opposite party is as follows:-
The opposite party entered into an agreement with the complainant for constructing a house of 1441 sq. ft. amounting to Rs.20 lakhs. The opposite party constructed the house by complying the conditions in the agreement and after completing the construction the key of the house was handed over to the complainant. But the complainant did not pay the full amount as per the conditions in the agreement. By the involvement of the mediators, the complainant agreed to pay the balance amount of Rs.4 lakhs and accordingly he issued a cheque of his wife dated 15.1.2014 for Rs.4 lakhs on 29.10.2013. The opposite party agreed to do the maintenance works of the Aluminum factory shed of the complainant after encashing the cheque. But the cheque was dishonoured due to the insufficient fund in the account. Thereafter the opposite party issued notice against the wife of the complainant as per Section 138 of the Negotiable Instrument Act. The building constructed has no defects as alleged by the complainant. Since the cheque was dishonoured the opposite party has no intention to do the new work of the complainant. There was no deficiency in service on the part of the opposite party.
3. The complainant was examined as PW1. The documents produced were marked as Exts.A1 to A6. Exts. A5 and A6 marked subject to objection. Complainant’s witnesses were examined as PW2 and PW3. Opposite party examined as RW1. One witness was examined as RW2. Documents produced were marked as Exts.B1 to B13. The expert commissioners are appointed by the complainant and opposite party examined as CW1 and CW2. The commission reports marked as Ext.C1 and C2 respectively.
5. The points that arose for consideration are as follows:-
1) Whether there is any deficiency in service on the side of the opposite party?
2) If so the reliefs and costs?
6. It is an admitted fact that complainant and opposite party entered into an agreement on 26.9.2011 for the construction of the house of the complainant. Ext.B1 is the said agreement produced by the opposite party. On perusing the said agreement, it is seen that the opposite party agreed to construct the house for Rs.20 lakhs. According to the complainant the key of the house was handed over to him on 9.12.2012. He had paid Rs.24 lakhs to the opposite party. But the opposite party strongly denied this and stated that he had received only 16 lakhs and complainant is liable to pay Rs.4 lakhs while handed over the key of the newly constructed building. The allegation of the complainant is that the building constructed has so many defects. In order to substantiate this allegation, an expert commissioner was appointed and the expert report produced is marked as Ext.C1. The expert commissioner stated in the Ext.C1 report that the building constructed by the opposite party has so many defects. While cross examining the CW1 he admitted that the complainant is his friend. Moreover he also admitted that he had not seen the conditions in the agreement executed by the complainant and opposite party. So it is clear from the deposition of the CW1 that he was an interest person of the complainant and also that he prepared the report without verifying the agreement Ext.B1. Apart from that Ext C1 report contains excess items that what is pleaded in the complaint and it does not contain an estimated amount for completing the maintenance work also. In the facts and circumstances of the case the complaint has miserably failed to enumerates in meticulous terms the exact defect in the work done and the works left behind undone. So the report filed by the CW1 is not reliable. Ext.C2 is the report filed by another expert commissioner the CW2. In Ext.C2 it is stated that there was cracks on the sun shade, rust on the ventilator. While cross examining CW2 he admitted that he inspected the building in the presence of the complainant and the opposite party. According to the opposite party he has to get Rs.4 lakhs from the complainant while hand over the key of the house to the complainant. But complainant stated that he had paid Rs.24 lakhs to the opposite party and he gave the cheque for Rs.4 lakhs for completing the maintenance works of the factory. In this case it is pertinent to see that both parties failed to produce the detailed statement of the cash transaction for the construction of the building. The Ext A3 is an agreement executed by the opposite party to the complaint at the time of handing over the cheque for Rs. 4 lakhs wherein it is stated that upon encashment of the cheque the alleged maintenance will be done. Admittedly the cheque was not encashed. Hence as per the terms of the agreement, which the compliant also approve the opposite party is not obliged to do maintenance work as stated in the agreement. Ext.A5 is a book containing certain entries regarding money which is according to the PW1 maintained by his wife and the entries therein are written by her with respect to the money received by the opposite party during the time of the construction work. But the wife of the complainant was not examined for proving the entries therein. More over no relevant entry is shown to prove the cause of compliant also. The opposite party did not accept the entries in the book and the entries were not counter signed by the opposite party also. In this circumstances Ext. A5 is only the discarded.
In the light of the above discussion this Forum is of considered opinion that the complainant has miserably failed to prove the allegations in the complaint. Hence the compliant is dismissed.
Dictated to the Confidential Assistant transcribed by her corrected by me and pronounced in open Forum on this the day 29th day of September, 2016.
Sd/- Smt.Elizabeth George (President) :
Sd/- Sri. Antony Xavier (Member) :
Sd/- Smt.Jasmine.D. (Member) :
Appendix:-
Evidence of the complainant:-
PW1 - Shamsudeen. A. (Witness)
PW2 - Abbas (Witness)
PW3 - H. Haris (Witness)
Ext.A1 - Copy of the schedule of payments
Ext.A2 - Copy of the plan of building
Ext.A3 - Agreement
Ext.A4 - Copy of the estimation of the work of renovation and correction of
Construction (Subject to objection)
Ext.A5 - True copy of the receipt with book (Subject to objection)
Ext.A6 - Copy of the FIR
CW1 - S. Mohammed Rasheed – Expert Commissioner (Court Witness)
CW2 - Sini. P. – Expert Commissioner (Court Witness)
Ext.C1 - Commission report
Ext.C2 - Commission report
Evidence of the opposite party:-
RW1 - Shajahan E.K. (Witness)
RW2 - M. Rajan (Witness)
Ext.B1 - Copy of the agreement
Ext.B2 - Copy of the specifications dated 26.9.2011
Ext.B3 - Copy of the plan
Ext.B4 - Copy of the schedule of payments
Ext.B5 - Copy of the regularization plan of building
Ext.B6 - Photo of the building (Photo copy)
Ext.B7 - Copy of the Advocate notice
Ext.B8 - Cover
Ext.B9 - Copy of the receipt
Ext.B10 - Copy of the memorandum
Ext.B11 - Copy of the agreement
Ext.B12 - Copy of the regularization plan of building
Ext.B13 - Copy of the FIR
// True Copy //
By Order
Senior Superintendent
To
Complainant/Opposite party/S.F.
Typed by:- pr/-
Compared by:-
