P.Q. Barkathali: President
This is an appeal filed by the complainant in CC.641/11 on the file of CDRF, Ernakulam under section 15 of the Consumer Protection Act challenging the order of the Forum dated, March 29, 2012 closing the complaint.
2. The case of the complainant as testified by him as PW1 and as detailed in the complaint before the Forum in brief is this:-
The appellants/opposite parties are husband and wife. They sold 1.31 Ares of land belonging to the 2nd opposite party to the complainant for Rs.7 lakhs on conditions that the complainant assigns the contract for constructing the house in the property of the opposite parties for Rs.28.lakhs. Ext.A1 is the said agreement dated, May 12, 2011 executed between the complainant and the opposite parties. On that day itself PW1 paid Rs.10 lakhs to the opposite parties. PW1 paid Rs.8 lakhs on June 08, 2011. The sale deed was executed on August 23, 2011. On July 16, 2011 the first opposite party requested to release Rs.2 lakhs, but the complainant paid only Rs.20,000/-. Thereafter opposite parties stopped the work. On the mediation of Sub Inspector of Police, Ernakulam North Police Station, the matter was settled, the work done by the opposite parties is quantified as Rs.94,420/- and the opposite parties have agreed to refund Rs.10,25,580/-, the excess amount collected by the opposite parties which the opposite parties did not do. Therefore complainant filed the complaint claiming refund of the said excess amount, Rs.2,80,000/- towards increase in cost of construction, Rs.49,000/- towards rent, compensation of Rs.1 lakh and Rs.25,525/- as the cost of the proceedings.
3. The opposite parties in their version contended thus before the Forum. The opposite parties sold the property for Rs.18 lakhs but the complainant showed the value only as Rs.7 lakhs in the sale deed for evading stamp duty. First opposite party was not able to complete the construction work as complainant did not pay the amount agreed upon. The Civil Engineer at the instance of police authorities assessed the work done by the opposite parties as Rs.1,04,420/- for which first opposite party paid only Rs.20,000/-. Therefore complainant has to pay Rs.84,420/- to the opposite parties. That being so the complaint has to be dismissed.
4. Complainant was examined as PW1 and Exts.A1 to A13 were marked by the complainant. First opposite party was examined as DW1 and Exts.B1 was produced by the opposite parties before the Forum. On an appreciation of evidence the Forum accepted the case of the opposite parties and closed the complaint. Complainant has come up in appeal challenging the said order of the Forum.
5. Heard both the counsels.
6. The following points arise for consideration:
1. Whether the complainant is entitled to refund of Rs.10,25,580/- from the opposite parties?
2. Whether the impugned order of the Forum can be sustained?
7. It is admitted that the 2nd opposite party sold her 1.31 Ares of property in Cheranallur Village to the complainant by sale deed Ext.A5, dated, June 23, 2011. It is also not disputed that total consideration was Rs.35 lakhs which includes the price of the property as well as cost of the construction of residential building therein, Ext.A2 is the said agreement dated, May 12, 2011. Complainant paid Rs.10 lakhs on the date of agreement and Rs.8 lakhs on June 08, 2011 and Rs.20,000/- on July 16, 2011 which is also evidenced by Ext.A2. The opposite party has completed only foundation and basement of the building by spending Rs.94,420/-.
8. The case of the complainant is that the price of the land was Rs.7 lakhs as shown in Ext.A5 sale deed, that he paid a total sum of Rs.18,20,000/- that the cost of the work done by the complainant was Rs.94,420/- and therefore he is entitled to Rs.10,25,680/- . The opposite parties on the other hand contended that price of the land was Rs.18 lakhs that complainant showed the value as Rs.7 lakhs in Ext.A5 sale deed for awarding stamp duty, that they have completed the basement of the building by spending Rs.1,04,420/- out of which complainant paid only Rs.20,000/- and they have entitled to get Rs.84,420/- of the complainant.
9. Forum found that the price of the land was Rs.18 lakhs mainly on the basis of Ext.A1 agreement but on going through Ext.A1 agreement it is seen that it is not stated therein that the price of the land was Rs.18 lakhs. What is stated therein is on payment of Rs.18 lakhs sale deed will be executed. Therefore the finding of the Forum that price of the land was Rs.18 lakhs cannot be accepted. That apart after showing in Ext.A5 sale deed the consideration as Rs.7 lakhs opposite parties are estoped from contending that price of the property is Rs.18 lakhs. Section-92 of Indian Evidence Act prohibits a person from adducing evidence varying the terms of a written document. As such there is no evidence except in the interested version of DW1 to show that price of the lond was Rs.18 lakhs. Under these circumstances the finding of the Forum that price of the land was Rs.18 lakhs is set aside. Accepting the evidence of the complainant I hold that price of the land was Rs.7 lakhs. That being so, the complainant is entitled to refund of Rs.10,25,680/- as claimed by him which is after deducting Rs.94,420/- being the cost of the work done by the opposite parties.
10. He is also entitled to interest at the rate of 12% per annum from the date of complaint till realization and a cost of Rs.5000/-.
In the result appeal is allowed. The impugned order of the Forum closing the complaint is set aside. Opposite parties are directed to pay to the complainant Rs.10,25,680/- with interest at the rate of 12% per annum from the date of complaint till realization and cost of Rs.5000/-. No compensation is awarded as I have awarded interest at the rate of 12% per annum.