Kerala

StateCommission

CC/11/26

shahul hameed - Complainant(s)

Versus

M/S SOUTHERN TECHNO VETURES - Opp.Party(s)

V.S.VINEETH KUMAR

22 Dec 2016

ORDER

 

KERALA STATE CONSUMER DISPUTES REDRESSAL

COMMISSION  VAZHUTHACAUD, THIRUVANANTHAPURAM

    CC.26/11

JUDGMENT DATED:22.12.2016

 

PRESENT : 

JUSTICE SHRI. P.Q. BARKATHALI                        :  PRESIDENT

SHRI.V.V. JOSE                                                                   : MEMBER

Shahul Hameed,

S/o Mahamood, Sabir Manzil,

Pezhummood, Kuttichal P.O,

Thiruvananthapuram.                                                       : COMPLAINANT

 

Repd. By his Power of Attorney holder-

Mr. Surendran Nair.V,

S/o Viswambaran Pillai,

R/at Dwaraka, Ambalathuvila,

Kuttichal P.O, TVPM.

 

(By Adv: Sri. V.S. Vineeth Kumar & M. Anil Prasad)

Vs.

1. M/s Southern Techno Ventures,

“Majan:, T.C.15/1-1, Cotton Hill Road,

Vazhuthacadu, TVPM.

 

2. Prof. Jayakumar,

S/o K. Madhavan Nair (Late),

“Brindavan, B-7, Forest Office Lane,                            : OPPOSITE PARTIES

Vazhuthacud, TVPM.

 

3. Mrs. Preetha Sheru,

D/o Gopinathan Nair (Iate),

Murikku Moottil House, T.C.11/2088,

D-4 Kanaka Nagar, Kowdiyar P.O, TVPM.

 

(By Adv: Sri. K. Muraleedharan Nair)

 

JUDGMENT

HON.JUSTICE.P.Q.BARKATHALI : PRESIDENT

This is a complaint filed under sections 12 & 17 of the Consumer Protection Act, 1986 for refund of the excess amount received by the opposite parties for the construction of the building and also expense incurred for curing the defects in the building.  Complainant has also claimed Rs.80 lakhs towards compensation.

2.      The case of the complainant as detailed in the complaint in brief is this:-

Complainant is a non resident Indian employed in M/s Charles Taylor Consulting in Dubai, U.A.E.  Complainant entered into an agreement with the 1^st opposite party signed by opposite parties 2 and 3 on July 31, 2009 to construct a commercial building in his property bearing survey No.406/16, 406/17 in Thirumala village, Thiruvananthapuram district.  Out of the total agreed amount Rs.1,00,62,500/- which the complainant is paid Rs.61,31,250/-.  Opposite parties have agreed to complete the construction by March 05, 2010 but opposite parties have under one pretext or other did not complete the construction.  Subsequently they have agreed to complete the construction on March 30, 2011 which also they did not do.  Therefore the estimate of the work so far done was prepared by the expert appointed by the opposite parties and it is found that opposite parties have received excess amount of Rs.14,96,908/-.  The bank guarantee of the opposite parties to the tune of Rs.5,03,125/- was released to the complainant.  Therefore balance amount due to the complainant is Rs.10,46,908/-.  Hence complainant filed the complaint claiming the said excess amount received by the opposite parties ie Rs.10,46,908/- with interest.  He also claimed Rs.10,00,000/- for curing the defects in the building.  Rs.14,00,000/- is claimed towards the delay caused and Rs.40,00,000/-  spend by the complainant towards travelling expenses.

3.      First opposite party is M/s Southern Techno Ventures, Vazhuthcaud, Thiruvananthapuram represented by its partners 2^nd and 3^rd opposite parties.  They in their version contended thus:-  Complainant is not a consumer as defined under the Consumer Protection Act.  Building was constructed for commercial purpose.  Complainant is engaged one Sri. Safar who is the brother of Sri. Sharafudeen who is the close companion of the complainant to construct the building.  He registered a partnership firm in the name and style ‘City Forms and Structures’.  Thus opposite parties only provided the technical aid for the said project.  The said Safar is a necessary party to these proceedings.  Initially the plan was submitted for the approval of the Corporation of Thiruvananthapuram for the plinth area of 19185 Sq.ft. for a cost of Rs.125 lakhs.  As the corporation sought for revision of the plan as contemplated under Kerala Municipal Building Rules 199 a new plan was submitted with the plinth area of 17840.Sq.ft. with an estimate of Rs.112/- lakhs.  After negotiation the estimated cost was reduced to Rs.1,00,80,000/-.  On July 31, 2009 the agreement was signed by the complainant and opposite parties for construction of a contractual building for an amount of Rs.1,00,62,500/-.  The delay was caused due to the escalation of costs, non-availability of labourers’ etc.  The opposite parties sought for revising the payment rates which was refused by the complainant.  Opposite parties had completed the work up to the 4^th stage as provided in the extension agreement dated July 19, 2010.  The amount of Rs.30,18,750/- was due to the opposite parties out of which only Rs.26,09,375/- was paid.  Due to hike in price of the materials opposite parties were not able to complete the construction.  Even now the amount is due to the opposite parties from the complainant.  Therefore complaint has to be dismissed.

4.      On the side of the complainant, complainant was examined as PW1 and Exts.A1 to A14 were marked.  Thereafter the opposite parties requested to decide the question of maintainability of the complaint.  Therefore both parties were heard on this point.

The only question which arises for consideration is, whether the complaint is maintainable?

5.      It is admitted by the complainant that the building was constructed for commercial purpose.  He has no case that it was constructed for the purpose of earning his livelihood.  Further he is gainfully employed also.  In a similar case in Jag Mohan Chhabra & Another Vs. DLF Universal Limited, IV (2007) CPJ 199 (NC) National Commission has held that in such a transaction which is relatable to commercial purpose complainants cannot be termed as consumers within the purview of Sec.2(1)(d) of the Consumer Protection Act.  In the light of the principles laid down in the above decision we are of the view that complaint is not maintainable and has to be dismissed.  As we found that complaint is not maintainable, we are not entering any finding regarding the merit of the case.

In the result complaint is dismissed.  Complainant is free to take recourse to such other remedy as may be available to him.  While doing so he may seek exclusion of time spend by him in prosecuting this case.  No costs.

 

 

JUSTICE P.Q. BARKATHALI      :  PRESIDENT

 

 

V.V. JOSE : MEMBER

APPENDIX

COMPLAINANT’S  WITNESS

 

PW1           : Sri. Shahul Hameed

 

COMPLAINANT’S EXHIBITS

 

Ext.A1        : Original Power of Attorney

 

Ext.A2        :Copy of the partnership deed.

 

Ext.A3        :Copy of the said agreement dt:31.07.2009.

 

Ext.A4        : Copy of the said agreement dt.30.04.2010.

 

Ext.A5        :Copy of the Bank guarantee.

 

Ext.A6        : Copy of the agreement dated:03.01.2011.

 

Ext.A7        :Copy of the said measurement sheet dt:30.03.2011.

 

Ext.A8        : Copy of the letter dt:31.03.2011.

 

Ext.A9        : Copy of the letter dt:1.4.2011.

 

Ext.A10      : Copy of the letter dt:11.4.2011.

 

Ext.A11      : Copy of the letter dt:21.4.2011.

 

Ext.A12      : Copy of lawyer’s notice.

 

Ext.A13      : Copy of the reply notice.

 

Ext.A14      : Original A/D card.

 

OPPOSITE PARTIES  WITNESS

NIL

OPPOSITE PARTIES EXHIBITS

NIL

 

 

JUSTICE P.Q. BARKATHALI      :  PRESIDENT

 

V.V. JOSE : MEMBER

 

VL.