DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, PALAKKAD
Dated this the 10th day of June, 2024
Present : Sri. Vinay Menon V., President
: Smt. Vidya A., Member
: Sri. Krishnankutty N.K., Member Date of Filing: 27/05/2020
CC/52/2020
Manoj,
S/o. Sankaran, Puthen Veedu,
Illathukulambu, Karippode,
Chittur, Palakkad – 678 503
Rep. by his wife Archana. - Complainant
(By Adv. K.R. Savitha)
Vs
Vijay Mohan,
Contractor,
S/o. Krishnan, Saikrishna House,
Vilakanamkode, Pattancherry,
Chittur, Palakkad. - Opposite party
(By Adv. P. Sreeprakash)
O R D E R
By Sri. Vinay Menon V., President
- Gist of the complainant pleading is that pursuant to an agreement dated 22/8/2018 entered into between the complainant and the OP, a building contractor, the residential building was to be completed within 5 months from 17/7/2019 in terms of the agreement. Rs.8,20,000/- exceeding the contractual amounts, were paid. But the opposite party has failed to complete the construction. An additional of Rs.9 lakhs is required to complete the balance construction. This complaint is filed seeking return of an amount of Rs. 8,20,000/- and for compensation and incidental expenses.
- OP filed version repudiating the complaint contentions. He denied the complaint pleadings generically. As per the OP there was fraudulent and concocted entries in the agreement with regard to the payments effected. The complainant had not effected payments as alleged. There is no deficiency in service on the part of OP. Amounts are due from the complainant to the OP.
- The following issues were framed for consideration:
- Whether there is a valid, binding agreement between the complainant and OP?
- If so, whether the complainant has proved that the OP has violated the terms and conditions of the agreement?
- Whether there is deficiency in service on the part of OP?
- Whether the complainant is entitled to any of the reliefs sought for?
- Any other reliefs?
4. (i) Documentary evidence of complainant comprised of proof affidavit and Exhibits A1 to A20.
Marking of Ext. A20 was objected to on the ground is an estimate and not an invoice. Validity of the objection can be considered as and when the need, if at all, arises.
(ii) Complainant was examined as PW1.
(iii) O.P. filed proof affidavit but there was no documentary evidence.
(iv) OP was examined as DW1.
(v) Reports filed by the Expert Commissioner were marked as Exts.C1 to C3. Report filed by the Advocate Commissioner was marked as Ext.C4.
Issue No.1
5. This issue was framed in view of the generic denial of the complaint pleadings by the OP. The agreement in question was marked as Ext.A1. This is an agreement entered into between the complainant and the O.P. with regard to construction of a residential building. Amounts allegedly received by the OP as consideration for construction is shown on the rear side of two non-judicial stamp papers. The OP claimed that there is no period of completion as per Ext.A1. Further he also denies having received any amounts as per the entries on the said stamp papers.
6. In order to disprove the reliability and evidentiary value of Ext.A1, the opposite party cross examined the wife of the complainant, who is his power of attorney. There were a number of questions pertaining to placements and size of the digits (zeroes in the unit place of the amounts) so as to disprove the entries and contents of Ext.A1. The witness has also admitted that there was space and size variation in the zeros. But such admissions would not in any way lead us to an automatic conclusion that the entries are forged. Even though several questions were asked to the witness for complainant, PW1, nothing fruitful could be brought out, in our opinion, that would render the entries in Ext.A1 inadmissible in law.
7. In the complaint there was a pleading with regard to a police complaint filed by the complainant against the OP seeking speedy completion of the residential building as per agreement. OP has admitted this fact. But, even though the OP has raised very serious allegations of forging of evidence by the complainant, he has not taken any steps whatsoever like filing of a police complaint or seeking an order of forensic examination of the entries on the rear side of the stamp papers of Ext.A1. The OP has thus failed to disprove the legal sanctity of Ext.A1.
8. Consequently, Ext. A1 and entries made thereon are binding on the complainant and the O.P. One conclusion that flows as a concomitant of the finding that the entries in Ext. A1 is binding of the parties is that the complainant has paid an amount of Rs. 28,20,000/- to the O.P.
Issue No. 2
9. It is to be noted that the relief sought for by the complainant is only for return of the additional amounts, Rs. 8,20,000/-, which they state to be in the unjust and illegal possession of the O.P. Hence, appreciation of pleadings and evidence can be narrowed and directed to arrive at a studied conclusion as to whether any amounts are in the possession of the O.P. as alleged by the complainant.
10. In order to prove his contentions that the OP has violated the terms and conditions of the agreement with regard to period of completion and the amounts received, complainant took out an Advocate Commission assisted by an Expert Commissioner. Reports of the Expert Commissioner were marked as Exts.C1 to C3 and that of Advocate Commissioner as Ext. C4.
11. Ext.C1 is the first commission report filed by the Expert Commissioner, Sri. Johnson George, a chartered engineer.
Ext. C1 contained two sub-headings. One was the ‘Estimate of the Works Done’ which the expert assessed to be at Rs. 19, 75,310/-. The other, ‘Estimate of the Works to be Done’. Balance works would cost Rs.7,85,000/-.
One vital aspect of the complaint, as already stated in paragraph 9 herein, is that this is a complaint seeking return of the additional amounts in the hands of the O.P. and nothing more. Hence evidence of the O.P. ought to have been directed to prove that he had expended amounts to a tune of Rs. 28,20,000/-, and that the O.P. is not is possession of Rs. 8,20,000/- and that the said amount had been utilized. But once Ext. C1 was filed, defense of the O.P. skewed and the O.P. started assailing the part of Ext. C1 wherein the Expert has reported the “Estimate of the Works to be Done” instead of assailing “Estimate of Works Done”.
12. Being dissatisfied with Ext.C1 report, the OP filed an application as IA 107/2020 seeking an order remitting Ext. C1 report for consideration of 5 items of work, i.e.
- As per Ext.A1, the OP was bound to apply only one coat of white cement, putty and white primer each;
- Cost of painting mentioned in the report is not covered by the agreement and hence that amount cannot be calculated as the work to be done;
- The commissioner has not stated how he has arrived at the cost of electrification as Rs.1,25,000/-;
- Details of plumbing work to be done and cost of teak door shutters and country wood window shutters are exorbitant; and
- Cost of tiles was calculated taking into consideration purchasing and laying the tiles, when the tiles were already delivered to the site.
In page 2, 2nd paragraph, of memorandum of application of I.A. 107/2020, the O.P. contended that “The expense for the estimate of the work done is highly excessive and is without any data or details”. In our opinion this statement is self-defeating. The O.P. is, in effect, contending that he has used amounts even lesser than what was found to have been expended by him from out of Rs. 28,20,000/- received by him. Other that this statement, the O.P. has not raised any objection whatsoever.
The matters about which the O.P. has raised objection, which forms part of I.A. 107/202 are also regarding the matters that would reduce the estimate of the works to be carried out and not about enhancing the estimate of the works already carried out. Therefore, the unobjected part (“Estimate of Works Done”) remains admitted. Expert Commissioner was not cross examined either.
13. Therefore, this Commission is of the opinion that Exts.C1 to C4 are reliable documents so as to arrive at a conclusion regarding the extent of works carried out by OP, balance of work remaining, expenses incurred and the balance amount requisite for completion of construction.
14. Based on the findings in Ext.C1 to C4 we hold that the complainant has succeeded in proving that the OP has violated the terms and conditions of Ext.A1 agreement with regard to the works that are to be executed.
15. As already stated supra, complainant has raised a claim only for the amount in the possession of the complainant, i.e. Rs. 8,20,000. The actual amounts expended by the O.P. would be the difference of total amount paid (As could be ascertained from the endorsement in Ext. A1) and the estimate of the works already carried out(Based on Ext. C1).
This calculation is as follows:
A. Total consideration paid :: Rs. 28,20,000 – 00 (Per Ext. A1)
B. Estimate of works done :: Rs. 19,75,310 – 00(As per Ext. C1)
E. Total amount unused by O.P. (A- B) :: Rs. 8,44,690 – 00
16. Complainant is entitled to receive this amount. Even though complainant has produced Ext.A2 to A20 to prove that the said purchases were effected by the complainant, the said documents are not sufficient to prove or assist us to come to a conclusion that the said purchases effected were for the construction of the complainant’s residence.
Issue No. 3
17. Apropos the discussions above, we hold that there is deficiency in service on the part of OP in not completing the work for which additional amounts were received by him.
Issue No. 4
18. Complainant has sought for Rs.8,20,000/- and other incidental and ancillary reliefs. But having come to a conclusion that the O.P. is in possession of additional amounts. We feel that limiting of the relief to what the complainant has claimed alone would be injustice. O.P. should not be permitted to hold on to amounts for which he has not carried out any work. Complainant is entitled to refund of the entire amount unjustly held by the O.P. Complainant is also entitled to compensation, cost and interest.
Issue No. 5
19. In the result, based on the findings as noted supra, we hold as below:
1. Complainant is entitled to Rs. 8,44,690/- along with interest @10% from 27/05/2020 (date of filing of this complaint) till the date of repayment.
2. The O.P. is directed to pay an amount of Rs.75,000/- as compensation for deficiency in service.
3. Complainant is entitled to a cost of Rs. 25,000/- payable by the O.P.
4. The above directives shall be complied within a period of 45 days from the date of receipt of a copy of this order, failing which the O.P. shall pay an amount of Rs.500/ per month or part thereof from the date of this Order till the date of compliance of the directives herein as solatium.
20 . Accordingly, this complaint stands allowed.
Pronounced in open court on this the 10th day of June, 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 - Original of agreement dated 22/8/2018
Ext.A2 – Original invoice dated 5/10/2020 for Rs.13,040/-
Ext.A3 - Original invoice dated 19/04/2021 for Rs.8500/-
Ext.A4 - Original invoice dated 30/09/2020 for Rs.1660/-
Ext.A5 – Original invoice dated 30/01/2020 for Rs.1,68,000/-
Ext.A6 – Original invoice dated 08/10/2020 for Rs.4600/-
Ext.A7 – Original invoice dated 08/10/2020 for Rs.770/-
Ext.A8 – Original invoice dated 7/10/2020 for Rs.300/-
Ext.A9 – Original invoice dated 08/10/2020 for Rs.920/-
Ext.A10 – Original invoice dated 08/10/2020 for Rs.1500/-
Ext.A11 – Original invoice dated 20/04/2021 for Rs.8500/-
Ext.A12 – Original invoice dated 30/01/2020 for Rs.1,35,671.85/-
Ext.A13 – Original invoice dated 05/10/2020 for Rs.13,040/-
Ext.A14 – Original invoice dated 06/10/2020 for Rs.600/-
Ext.A15 – Original invoice dated 26/03/2021 for Rs. 39,001/-
Ext.A16 – Original invoice dated 26/09/2020 for Rs.5,991/-
Ext.A17 – Original invoice dated Nil for Rs.8954/-
Ext.A18 – Original invoice dated 15/07/2020 for Rs.7,752/-
Ext.A19 – Original invoice dated 26/09/2020 for Rs.791/-
Ext.A20 – Original Estimate dated 04/12/2020
Exhibits marked on the side of the opposite party: Nil
Court Exhibit:
C1 – Expert Commissioner’s report dated 6/7/2020
C2 - Expert Commissioner’s report dated 21/8/2020
C3 - Expert Commissioner’s report dated 17/9/2020
C4 – Advocate Commissioner’s report
Third party documents: Nil
Witness examined on the side of the complainant:
Witness examined on the side of the opposite party: Nil
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.