Date of Filing: 14/10/2011

        Date of Order: 01/12/2011

BEFORE THE I ADDITIONAL DISTRICT CONSUMER DISPUTES REDRESSAL FORUM SESHADRIPURAM BANGALORE -  20

Dated:  1^st DAY OF DECEMBER 2011

PRESENT

SRI.H.V.RAMACHANDRA RAO,B.SC.,B.L., PRESIDENT

SRI.KESHAV RAO PATIL, B.COM., M.A., LL.B., PGDPR, MEMBER

SMT.NIVEDITHA .J, B.SC.,LLB., MEMBER

COMPLAINT NO.1880 OF 2011

Smt. Nazma Begum,

W/o. Mr.Syed Asghar,

Aged About 36 years,

R/at: No.13/2, 1^st Cross,

Venkatappa Block, Munireddy Palya,

J.C.Nagar, Bangalaore.

(Rep. by Sri.C.R.Raghavendra Reddy, Advocate)                   ….  Complainant.

V/s

Mr. Syed Aleem,

S/o. Mr.Syed Ahamed,

Aged About 42 years,

Proprietor of Batul Builders,

R/at: No.13, 5^th Main, Davis Road,

Sagayapuram, Bangalore-560 084.

(Rep. by Sri.H.V.Shyame Gowda, Advocate)                           …. Opposite Party.

BY SRI. H.V.RAMACHANDRA RAO, PRESIDENT

-: ORDER:-

The brief antecedents that led to the filing of the complainant U/s 12 of the Consumer Protection Act seeking direction to the Opposite Party to complete the pending work in the building by not demanding/extracting any additional amount from the complainant or to pay interest at the rate of 18% per annum on Rs.13,80,000/- for 20 months as compensation, are necessary:-

The complainant is the absolute owner of the residential site No.13/2, 1^st Cross, Venkatappa Block, Munireddy Palya, J.C. Nagar, Bangalore, measuring 15 x 45 feet.  The complainant and her husband intended to construct the residential building therein comprising of ground, first and second floor on the said site.  The husband of the complainant has entered in to an agreement to construct the building with the opposite party on 14.12.2009.  As the husband of the complainant has gone to Dubai for earning the complainant has filed this complaint.  The consideration was Rs.13,00,000/-.  An advance of Rs.1,00,000/- was paid on 21.12.2009.  Even after six months the building is not completed.  The complainant has lodged a complaint with the police on 31.11.2011 who refused to interfere on the ground that it is a civil in nature.  The opposite party has requested the complainant who stated that they will complete the construction within 25 days and made an endorsement on 07.08.2011.  As the opposite party did not do the complete construction the complainant went to the police again and in presence of the jurisdictional police the opposite party agreed and claimed extra amount of Rs.80,000/- to complete the pending works.  The opposite party has agreed that in case he doesn’t complete the work within 10 days from 05.09.2011 the complainant is at liberty to claim interest on the entire amount of Rs.13,80,000/- for a period of one year and eight months worth Rs.2,00,000/- is pending.  The complainant demanded the opposite party to take the balance as agreed and completed the construction he has not done so.  Hence a notice was issued to him on 29.01.2011.  In spite of that he has not completed the construction work.  Hence the complaint.

2.       In brief the version of the opposite party are:-

          There is no contract exists between the complainant and the opposite party in this case.  The contract was entered in to between one Syed Asgar S/o. Syed Ismail and the opposite party.  Hence the complaint is not maintainable and is liable to be dismissed.  The opposite party has completed all the pending works.  The opposite party never agreed to receive Rs.13,80,000/-.  The complainant had tampered the amounts in the agreement dated: 14.12.2009.  The opposite party has received Rs.5,000/-, but it has been altered by the concerned as Rs.1,05,000/- at serial No.17 in the agreement.  The opposite party has not received the amounts mentioned at serial No.12, 13, 17, 22 as mentioned in the payment column 4 and 5 and 6 of the alleged agreement.  The complainant herself has written the shara at page No.6 without the knowledge of the complainant.  The opposite party has received only Rs.11,55,000/- from Syed Asgar; the husband of the complainant is still due Rs.5,15,000/-.  The opposite party has completed the work long back and nothing is due.  The complainant with her family member are residing in the 3^rd floor of the same premises since eight months.  The complainant is not a consumer.  All the allegations to the contrary are denied.

3.       To substantiate their respective cases the complainant has filed her affidavit and documents.  The counsel for the opposite party has submitted that the version and documents may be read as their evidence.  The arguments were heard.

4.       The points that arise for our consideration are:-

:- POINTS:-

1. Whether there exists jural relationship of consumer and trader and there exists a consumer dispute between the parties in this complaint?
2. Whether there is any deficiency in service?
3. What Order?

5.       Our findings are:-

Point (A) & (C):        As per the final Order

                             for the following:- 

-:REASONS:-

Point A to C:-

6.       Reading the pleadings in conjunction with the affidavit and documents on record, it is an admitted fact that “Agreement for Construction of Building” was entered in to between Mr. Syed Asgar S/o. Syed Ismail and the opposite party on 14.12.2009.  The complainant at Para-5 of the complaint has stated thus:-

“The complainant further submits that the husband of the complainant had entrusted the construction work to the opposite party since he is a contractor, he came forward to construct the building.  The opposite party and husband of the complainant had entered in to an agreement to construct the building on 14.12.2009.”

That means the agreement is entered in to between the Syed Asgar on one side and the opposite party on the other side.  Nowhere in the agreement it is stated that this agreement has been entered in to by Syed Asgar on behalf of the complainant.  In this case there is no such endorsement.  Even otherwise even to file this complaint the Syed Asgar has not executed any power of attorney in favour of the complainant nor the complainant has filed this complaint as the power of attorney holder of Syed Asgar.  Hence there is no jural relationship between the parties that exists.  When the complainant has not purchased any services from the opposite party, as the alleged service that has been purchased is by Syed Asgar, she cannot be a consumer and the opposite party cannot be a trader and there cannot be a consumer dispute that exists between the parties. 

7.       Further in the agreement there are some corrections alterations, interpolations have been made, this has been not admitted by the opposite party as made by him.  For example at page-3 at specification of works point No.20 the amount has been altered in the sense Rs.13,10,000/- only was there in words and 10,000/- only has been strike and only is written in the words and in figures Rs.13,10,000/- was there in that Rs.13,00,000/- has been made.  Regarding these corrections there is no attestation by anybody, if it were to be made at the time of the agreement naturally both the parties would have attended it, but it has not done so.  Further it is seen there is certain alterations were made on several dates in that at serial No.12 09.08.2010 was there it was changed as 30.08.2010 and some interpolation were there after 06.09.2010 and there is no attestation for that so also at serial No.14, 21 both serial no.21 one is strike and there is certain alterations in serial No.22 there is no attestation for it.  These cannot be decided in a summery way.  This is germax to the case.

8.       Both the parties have filed certain photographs.  The complainant had produced 28 photographs and the opposite party has filed three photographs.  None of these photographs say on which date it was taken when it was taken who took it, there is no negatives that has been produced.  These will not prove anything.

9.       Whether there are works pending or not is the matter which it requires an expert to visit the building and say whether the building is in accordance with the sanctioned plan or not.  There is no such material that has been produced.  There is oath against oath.  Hence we cannot say there is deficiency in service.  Further the complainant at one breath as stated she has gone to the police and the police have stated that it is a civil dispute and they will not interfere but in the same breath in another place she has stated that she went to the police and in presence of the police the opposite party has agreed to complete the construction by receiving Rs.80,000/-.  That means regarding a civil dispute she has brought pleasure from the police.  Anyway be that as it may.  The opposite party has contends that they had completed the building and the complainant is residing in 3^rd floor of the premises has not been disputed.  Anyway all these things has to be decided in a civil court which requires detailed pleadings with respect to the allegations and also detailed cross-examination of the parties, that cannot be done in this forum.  If the parties are aggrieved they can go to the civil court for which this order will not come in that way.  Hence for the reasons stated above we hold the above points accordingly and proceed to pass the following:-

ORDER

1.       The complaint is Dismissed.  No order as to costs. 

2.       Return the extra sets filed by the parties to the concerned as under Regulation 20(3) of the Consumer’s Protection Regulation 2005.

3.       Send a copy of this order to both the parties free of costs, immediately.

(Dictated to the Stenographer, transcribed and typed by him, corrected and then pronounced by us in the Open Forum on this the 1^st Day of December 2011)

MEMBER                                           MEMBER                                             PRESIDENT