State Consumer Disputes Redressal Commission
Shamala Ranjit Reddy vs Nalluri Rajendra Prasad on 7 December, 2023
1
BEFORE THE TELANGANA STATE CONSUMER DISPUTES
REDRESSAL COMMISSION : HYDERABAD.
F.A.No.560 OF 2019
AGAINST ORDERS IN C.C.22 OF 2012,
DISTRICT CONSUMER COMMISSION, NIZAMABAD
Between:
Shamala Ranjit Reddy, S/o Shamala Raja Reddy,
Age : 46 years, Occ.: Business, R/o Gangasthan Phase-III,
Gupanpally (V) Post, Mubarak Nagar Mandal,
Nizamabad District.
......Appellant/Opposite Party
And:
Nalluri Rajendra Prasad, S/o Vittala Chary,
Age about 51 years, Occ.: Govt. Teacher, R/o H.No.6-58,
Gangasthan Phase-III, Gupanpally (v)
Post Mubarak Nagar Mandal, Nizamabad District.
........Respondent/Complainant
Counsel for the Appellant/Opposite Party : M/s. G.Rajeshwar Rao
Counsel for the Respondent/Complainant : Mr. Suri Sravan Kumar
QUORUM :
HON'BLE SMT. MEENA RAMANATHAN, I/c PRESIDENT
&
HON'BLE SRI. K. RANGA RAO, MEMBER - (JUDICIAL)
THURSDAY, THE 07th DAY OF DECEMBER
TWO THOUSAND TWENTY THREE
**********
Order : (HON'BLE SMT. MEENA RAMANATHAN, I/c PRESIDENT)
1.This appeal is filed by the Appellant/Opposite Party U/s. 15 of the Consumer Protection Act, 1986, praying this State Commission to dismiss the complaint as prayed in the main written version and to pass orders in favour of the appellant and against the Respondent; by setting aside the order in CC No.22/2012, dated 31.07.2019, passed by the District Consumer Commission, Nizamabad; for costs throughout and pass such other orders as this Commission deems fit and proper in the interest of justice and circumstances of the appeal.
22. For the sake of convenience, the parties are referred to as arrayed in the complaint. The Appellant is the Opposite Party and Respondent is the complainant in the C.C.
3. The complainant submits that he is a Government Teacher by Profession and the Opposite Party is a builder by Profession. The complainant had purchased an open plot bearing No.352, Sy.No.49/AA admeasuring 266.66 sq. yards situated at Gangasthan Phase-II, Gupanapally Village from the opposite party, vide registered Sale Deed No.9669/2002 dated 30.10.2002. When he intended to undertake construction of a residential house in the said plot, he was shocked to know that his plot was being included within the boundaries of Gangasthan Phase-III venture. The same was informed to the opposite party, they apologized to him and promised the complainant that they will construct and handover a dream house to the complainant.
Lured by the words of the opposite party, he once again approached opposite parties with his friend. The opposite party made a promise that they will construct an independent house in the plot of the complainant i.e. Plot No.352, Survey No.49/AA, sq. ft.266 sq. yards for a total cost of Rs.13.00 lakhs and if he fails to construct the best house, he will purchase the same from the complainant and return the total construction amount to the complainant along with the plot cost as per the market price prevailing at that time. Hence, they have entered into an oral agreement on 04.12.2008 to complete the house construction for Rs.13.00 lakhs and the complainant shall pay the agreed payment in installments as per the convenience according to the progress of work. It is also mutually agreed that the complainant shall buy the required wood, hardware items, painting or polishing of doors, windows etc. and that the basic amenities like bore well, submersible pump set and electricity connection shall be arranged by the complainant from his own costs. Accordingly, the complainant paid an amount of Rs.2,50,000/- towards part 3 payment for the construction of independent house and the opposite party issued a receipt for the same.
Thereafter, the construction started and the complainant has paid the following amounts :-
Rs.75,000/- on 12.01.2009;
Rs.1,00,000/- on 24.01.2009;
Rs.2,00,000/- on 05.02.2009 and Rs.3,75,000/- on 15.03.2009 to the opposite party.
In the month of June 2009, the opposite party has again asked the complainant to pay the balance amount for construction of Rs.3,00,000/- assuring that he would complete the construction and handover the house before the end of the year 2009. Accordingly, the complainant has paid Rs.3,00,000/- to the opposite party on 09.06.2009 and received an acknowledgment, but the opposite party did not keep up their promise and requested the complainant to bear with him for further three months stating that he has work force problems.
4. The complainant once again requested the opposite party to complete the construction work atleast in the month of March' 2010, in view of auspicious days to move into the new house. The opposite party has handed over the house to the complainant on 07.04.2010 leaving some minor works promised to be completed by the ends of May 2010. In the month of June 2010 there appeared a deflection (big crack) of about 3" to 4" inches and deep fissures across the wall of the house elevation, the same was informed to the opposite party by the complainant and in turn they tried to do some patch work by applying luppam over the gigantic cracks in the elevation, but the cracks again re-appeared during the rainy season. When the complainant demanded to take back the house and to refund the amount as agreed, the opposite party has engaged labour and dismantled the defective elevation and reconstructed a new elevation in the month of November 2010 and the same was kept incomplete without second plastering till today.
4The cracks appeared in the compound wall, sinking of flooring in the courtyard below the ground level by 9" inches, water stagnation on the terrace and the rain water entering into the bed room and kitchen etc. The complainant has incurred expenditure of Rs.3,000/- on 10.05.2011 for engaging one painter to do the patch work with luppam. The same was informed to the opposite party but there was no response. Hence, the complainant estimated the repairing charges and reconstruction of damages, with a registered Chartered Engineer and he has estimated Rs.2,40,000/- on 24.10.2011. The complainant got issued a legal notice on 30.01.2012 to the opposite party, but there was no response from the opposite party. Hence, filed the complaint before the District Commission.
5. The opposite party filed its written version stating that the complainant is not at all a "Consumer" as defined under the law as there is no relationship of consumer and the trader or any concerned person between them. It is denied that the opposite party is a builder in the firm M/s Sri Ganga Developers. The business of said firm is to develop the lands as developers purchasing the agricultural lands and converting them in to the residential plots and sell the same to the prospective purchasers.
The firm is neither in the business to construct the building on the sold plots nor construct the building to the purchased plots owners. They admitted that the complainant had purchased open plot bearing No.352 admeasuring 266.66 sq. yards situated at Gangasthan Phase-II, Gupanapally Village out of plots converted by M/s Ganga Developers. The boundary of purchased plot is included in Gangasthan Phase III, is false and baseless and they apologized to the complainant offering to construct a dream house is utterly false and the same is concocted for this false complaint.
The complainant and the opposite party entered into an oral agreement on 04.12.2008 is false and incorrect. The complainant concocted a story of oral agreement by taking advantage of some cash receipts executed by the opposite party. In fact the 5 complainant has suppressed the real facts, reasons behind for those receipts. Actually, the complainant was impressed by the qualitative construction of the house of the opposite party and was insisting, requesting the opposite party to guide him for constructing a similar similar house in his purchased open plot and also requested the opposite party to assist him in purchasing construction material and procuring labour.
6. It is stated that on the several requests made by the complainant, the opposite party has agreed to assist and guide the complainant in construction of his house in the presence of Sanjeev Kumar, resident of a house in the neighbourhood (exactly in front of the plot) and also in the presence of Maqbool pasha, a building contractor and Vengal Reedy a Masonry contractor. The opposite party never assured or promised him to construct a house for Rs.13.00 lakhs, as alleged by him. The opposite party only assured the complainant that he will arrange to provide the services of the mason and other construction workers and also purchase the construction material from different vendors for him on costs to costs basis without any profit from him.
Accordingly the complainant paid Rs.2,50,000/- to the opposite party on 04.12.2008 for purchasing construction material and they immediately accounted for amount paid by the complainant and also for all the amounts paid by him subsequently from time to time. They have supervised and assisted the complainant till the completion of civil work of the building except the outer plastering, as they were busy in their business activity. This opposite party has nothing to do with the gigantic cracks, leakages of rain water and improper plastering etc. Therefore he cannot be held responsible for any such alleged defects in the building. The legal notice alleged to be issued by the complainant to the opposite party is false and not correct. It is therefore, prayed to dismiss the complaint with costs.
67. During the course of trial before the District Commission, the complainant filed his evidence affidavit as PW1 and got marked Ex.A1 to A27 and also filed third party evidence affidavits of Sri D.Venkateshwer Rao, Lecturer, as PW2 and Sri Phani Bhushan, Chartered Engineer, as PW3. The opposite party is examined as DW1 and they reported no documents and the evidence of opposite party is closed.
8. The District Commission after hearing and considering the material on record "allowed the complaint in part by directing the opposite party to pay an amount of Rs.2,40,000/- (Rupees two lakh and forty thousand only) towards repairs and reconstruction expenditure as per Ex.A24 with 9% interest per annum from the date of complaint i.e. from 03.04.2012 till realization to the complainant; to pay Rs.2,000/- (Rupees two thousand only) towards costs of the complaint to the complainant and also further directed to comply the above 1 & 2 directions within one month from the date of receipt of this order".
9. Aggrieved by the above order of the District Commission, the appellant/opposite party filed the appeal FA No.560/2019, with the following grounds:-
That the order of the District Commission is not only contrary to law but also to the material evidence on record, probabilities of the case and the written arguments submitted on behalf to the opposite party. That the complaint filed by the complainant is not maintainable under the Consumer Protection Act and hence, liable to be dismissed.
That the District Commission has erroneously concluded that the Appellant/Opposite Party is not correct and further complainant paid Rs.2,50,000/- to the appellant on 04.12.2008 only for construction material.
That the District Commission below failed to appreciate the fact that there is no deficiency or negligence of service on the part of the Appellant/Opposite party Company. That the alleged receipts filed by the complainant clearly establish that the complainant himself constructed his 7 dream house and the receipt dated 14.04.2009 shows that complainant himself paid watchman salary.
That the Ex.A23 filed by the complainant is created for the purpose of filing of the complaint against the appellant/opposite party.
10. Heard the arguments on both sides.
11. The point that arises for consideration is whether the impugned order passed by the District Forum suffers from any error or irregularity or whether it is liable to be set aside, modified or interfered with in any manner? To what relief?
12. Having perused the material placed on record and heard the submissions of the counsel on both sides., the facts that emerge from the pleadings are as follows:-
The Respondent/complainant is a Govt. Teacher and he bought an open plot bearing No.352, Sy.No.49/AA, admeasuring 266.66 sq. yards situated at Gangasthan Phase-II, Gupanapally Village. It is the contention that the appellant/opposite party and his partner started a Real Estate firm under the name & style of "Sree Ganga Developers".
The complainant further claims that opposite party is a builder by profession and he promised to construct a dream house for the complainant. In support of his claim, he has filed the registered sale deed vide Ex.A1. The sale deed was executed on the 30th day of October 2002 and the said document states that there is, "no base or structure is constructed or existing in the open plot mentioned in the schedule of property".
13. The total sale consideration paid by the purchaser/complainant to the vendor/opposite party was Rs.26,700/- only. Besides this sale deed, he has filed receipts for a total sum of Rs.13,00,000/-, Ex.A2 to A7 evidencing payments made to the appellant/opposite party.
These payments were made from 04.12.2008 to 09.06.2009 and he claims that these amounts were paid to him to construct 8 his "Dream House" and which has now developed huge cracks and other defects.
14. As per the pleadings of the complainant, both the parties entered in to an oral agreement on 04.12.2008 wherein the appellant/opposite party assured him that he would complete the construction of the house for Rs.13.00 lakhs and it was further agreed that the Respondent/Complainant shall buy the required wood, hardware, door and window frames etc. The appellant has deposed as DW1 stating that the business of his firm M/s Sri Ganga Developers" is only to develop the lands and sell residential plots. He only offered to arrange for the service of the mason and other construction workers and assisted the Respondent/complainant till the completion of the civil works of the house. He further deposes that there is no breach of contract and he only rendered his services by guiding and assisting the Respondent/complainant in securing the construction material and construction workers. Therefore, he cannot be held responsible for the alleged defects in the building.
15. The Forum below gravely erred in not taking into consideration that there was no contract or agreement between both the parties. Having verified the entire case record, we find that the Commission below failed to consider that no documents are filed to support the contention of the Respondent/complainant that the Appellant/opposite party agreed to construct his house and therefore received the said amounts as evidenced vide Ex.A2 to A7.
There are no categorical findings in this regard and the Respondent/complainant has been very casual in his approach and the Forum below failed to consider the grievance of the appellant/opposite party objectively and without application gave an unjustified decision which is not sustainable.
916. In the absence of a valid agreement, the Respondent/Complainant cannot claim breach of an oral understanding and claim that the amounts were paid to the appellant/opposite party to construct his house and then further claim that the building suffers from defects.
The grounds urged by the appellant/opposite party are considered when there is no contract legally binding between the two parties. Only when such a contractual agreement is signed, it creates an obligation that certain rights need to be fulfilled by each party. In the glaring absence of such an agreement, taking an oral promise and thus passing an unreasoned order is a grave error on the part of the Commission below and therefore in view of our detailed observation the impugned order is set aside and the appeal is allowed.
17. In the result, the appeal is allowed and the impugned order dated 31.07.2019 on the file of the District Commission, Nizamabad, in CC 22/2012 is set aside.
The appellant/opposite party is permitted to withdraw the statutory deposit if any, made to the credit of this appeal together with accrued interest thereon.
Sd/- Sd/-
I/c PRESIDENT MEMBER-JUDICIAL
Dated : 07.12.2023