SMT. RAVI SUSHA : PRESIDENT
Complainant has filed this complaint U/S 12 of Consumer Protection Act 1986 ,seeking to get an order, directing the opposite party to Rs.9,00,000/- for the wood he has illegally retained, to pay Rs.3,00,000/- for non completion of the plastering work, to pay Rs.3,60,000/- being the 3 years rent paid by the complainant together with Rs.3,00,000/- as compensation for mental agony caused to the complainant and cost of the proceedings.
The facts of the complaint is that the OP is a building contractor , commenced the construction work of complainant’s residential building in May 2013 itself. But the OP did not finish the work as promised. The OP was unable to complete the construction work within 3 years as promised. Since more than 50% of the work was completed it was mutually agreed that the work would be completed within May 2018. But to the utter surprise of the complainant, the OP did not complete the work as agreed. The OP had collected Rs.69 lakhs from the complainant for the work undertaken. The OP stopped the work in September 2018. The rate agreed for the contract work was Rs.750/- per sq.feet. But since the work was not completed within the stipulated period due to the fault of the OP, the OP increased the rate unilaterally stating that the labour cost and other expenses have increased. The bills for purchase of materials for construction are not properly given by the OP. Wood worth more than Rs.14,00,000/- were purchased by the OP with the funds provided by the complainant. But the OP has retained wood worth more than Rs.9,00,000/- with him. The complainant further submits that he has paid Rs.3,00,000/- for the plastering work to the OP, but the OP has not done the plastering work. The complainant is repaying the said loan in EMI of Rs.45,000/- each. The complainant does not owe any amount to the OP, whereas the OP owes huge amount to the complainant for the non-completion of the contract work. The complainant has suffered much loss , pain and mental agony due to the irresponsible attitude and deficiency in service on the part of OP. Hence this complaint.
After receiving notice, OP filed his written version admitting the construction work of residential building owned by the complainant and started work of the building as instructed by the complainant. In fact ,as per the agreement between OP and complainant, the complainant is failed to provide money and materials in time as agreed and the OP was forced to stop work as an excess amount more than Rs.12,00,000/- is spent by him for the construction work. Further submitted that as per the complaint filed by the complainant to the police, an agreement arrived at by the parties that the complainant agreed to pay Rs.12,00,000/- spent by OP in excess than paid, to the OP and the OP agreed to return the wood logs worth around Rs.6,00,000/- to the complainant. OP claimed that as per the above agreement OP had returned the wood logs and the complainant gave 3 post dated cheques of Rs.4,00,000/- each. But the cheques were dishonoured and hence the OP filed case against complainant under NI Act, on receipt the notice, the complainant caused to issue notice and filed this case , as a retaliatory measure and to defend the criminal complaints. There is no deficiency in service on the part of OP , hence prayed for the dismissal of the complaint.
At the evidence time, complainant has filed his proof affidavit and examined as PW1. Exts.A1 to A10 were marked. On the side of OP, the chief affidavit of OP filed. He was examined as DW1. PW1 and DW1 were cross examined by the rival party. On the side of OP one document was produced, marked as Ext.B1. After that the learned counsel of complainant filed written argument note.
The allegation of the complainant is that the OP did not complete the work in time and misused the material and caused financial and mental agony to the complainant. According to complainant though he had paid more than Rs.14,00,000/- to the OP for wood, OP has retained wood worth more than Rs.9,00,000/-. Further he has paid Rs.3,00,000/- for the plastering work to the OP, but the OP had not done the plastering work.
On the other hand OP’s contention is that the complainant has failed to provide money and materials in time as agreed and OP was forced to stop work as an excess amount more than Rs.12,00,000/- is spent by him for the construction work. Further submitted as per the complaint filed by the complainant to the police, an agreement arrived at by the parties, that the complainant agreed to pay Rs.12,00,000/- spent by OP in excess than paid, to the OP and the OP agreed to return the wood logs worth around Rs.6,00,000/- to the complainant. OP claimed that as per the above agreement OP had returned the wood logs and the complainant gave 3 post dated cheques of Rs.4,00,000/- each. But the cheques were dishonoured and hence he filed case against complainant under NI Act.
In the complaint, the complainant claimed that OP has to return wood logs worth Rs.9,00,000/-. But in the Advocate notice Ext.A9 it is stated that the value of wood in the possession of OP is more than Rs.6,00,000/. During cross-examination complainant though admitted such a statement in Ext.A9, he claimed that actually wood logs worth Rs.9,00,000/- is in the OP’s custody. For both statement, no concrete evidence is available before us. In Ext.A5 the agreement the worth a wood logs are not mentioned. From Ext.A5 it is revealed that before 30/4/2019, the execution date of Ext.A5, complainant had handed over the 3 cheques for Rs.12,00,000/- to OP and the OP has to return wood items to complainant. There is no evidence whether it was returned or not. From the evidence it is also evident that complainant has not paid the cheque amount to the OP, by giving stop memo before bank. From this we can presume that the OP had not return the wood items to the complainant as agreed in Ext.A5. From Ext.A5, we could realize that there is no defect in the construction work done by the OP, except non completion of wood work. Moreover, there is no expert commissioner’s evidence available before us to assess the work done, ie whether plastering work was not done by OP as alleged by the complainant. Onus of proof lies upon the complainant to prove his case by adducing substantial evidence through expert commissioner’s report. Without any material evidence, mere averment in the complaint and oral evidence is not sufficient. Ext.B1 shows the occupancy certificate issued by concerned municipality to the complainant Mr.Dayal Singh, in which it is specifically stated that the date of completion of the residential building is on 9/5/2016, occupancy date as 16/7/2016.
In the complaint, though many allegations raised by the complainant against OPs, no expert evidence is available before us. Complainant has not taken steps to appoint commissioner, to note done the points raised by the complainant, since no other evidence is available, Hence we cannot come to a conclusion that there is deficiency in service on the part of OP. Hence from the available evidence, complainant is not entitled to get any relief from the OP.
In the result, complainant fails to prove his case and hence the same is dismissed. No order of cost.
Exts:
A1-Copy of lawyer notice dtd.27/8/19
A2- Reply notice dtd.9/10/19
A3-Building permit
A4 –police complaint
A5-Settlement arrived at police station
A6- transaction details
A7-Bank account statement
A8(series)-138 complaint(3 in Nos.)
A9-lawyer notice dtd.13/11/19
A10-reply notice
B1-Occupency certificate
PW1-Dayal Singh-complainant
DW1-V.Sasidharan-OP
Sd/ Sd/ Sd/
PRESIDENT MEMBER MEMBER
Ravi Susha Molykutty Mathew Sajeesh K.P
eva
/Forwarded by Order/
ASSISTANT REGISTRAR
