cloisterThe20130215

C.C. No. 349 of 2012.

REPLY AFFIDAVIT

by the complainant 

GIST

         There is incontrovertible evidence to prove that the opposite party had agreed to make available, for a consideration, their consultancy services for constructing a residence for CHERIYATH JYOTHI; 

        the complainant may be allowed to get some clarifications from the opp. Party in person at the time of the hearing

 

 DETAILS

Dr. Cheriyath Jyothi

the Cloister, nr Rock Park                     : Complainant

Venkode P.O., Vattappara, 
 

Thiruvananthapuram – 695028

vs

The joint director
,

Centre of Science and Technology for 
 

Rural Development (COSTFORD),  
                                                                                   : Opposite party

District Extension centre, The Hamlet, 
 

Benedict Nagar, Nalanchira P.O., 
 

Thiruvananthapuram - 695015

REPLY AFFIDAVIT

by the complainant

In the context of the preliminary objection by the opposite party's counsel dated january 30, 2013 challenging the maintainability of the complaint and the written version of the opposite party dated december 29, 2012 handed over to the complainant in the Hon'ble forum on january 30, 2013 the complainant begs to submit the following to the Hon'ble forum

A. MAINTAINABILITY OF THE COMPLAINT

The learned counsel for the opposite party in the preliminary objection is challenging the maintainability of CC No.349 of 2012 in para 1 of his objection petition.

1. In his over enthusiasm, the learned lawyer alleges in para 2. that the complainant “had approached this Hon'ble forum suppressing real facts” that there is no written agreement. On the day his complaint came for admission in response to a direct question from the Hon'ble president of the forum the complainant had clearly stated that there is no written agreement on the matter of his complaint.

2. Also, there is no reason for the complainant to suppress the above fact as the latest judgment of the national consumer disputes redressal commission as quoted by the learned counsel in para 3. makes it obvious that a written agreement is not obligatory to qualify for a petition to be made under section 12 of the consumer protection act 1986 – corroborative and other supportive material to prove the point will do. In the above context the learned lawyer's allegation is misplaced and completely unwarranted.

B. “VEXATIOUS LITIGATION”

In the view of the term vexatious litigation appearing in the petition filed by the opposite party's counsel and the written version by the opposite party in an effort to brand the complainant's petition vexatious, the complainant submits as follows :

3. After after taking up the job of building a residence for cheriyath jyothi and carrying out the building of a part of the house viz. the foundation/ basement, in a sudden turn around in june 2012 the opposite party handed over a letter to the complainant saying that they are no more interested in proceeding with the building of the house and then cut him off completely.

4. There was absolutely no reason given for this drastic change of mind and the irresponsible action on the part of the opposite party. The opposite party in their written version repeats that they are not interested in going ahead with the construction. Again there is no reason why! It is just a whim – the great man does not feel like it.

5. The construction methodology followed by the costford is unique. For the basement they use what is called rubble masonry – no cement or mortar is used. The basement is custom made to support the Laurie baker mode walls made under the rat trap mode - the walls are not solid and have blank spaces inside and roofing does not use steel. The basement already built will not be able to support a normally constructed house and if the complainant has to go to another builder he will first have to demolish the structure and then start from scratch; the money and time spent on the construction till date will all go waste.

6. This house means a lot to the complainant - not as an end in itself, but as the means to an end. That way it is a matter of his very existence or, may be, even more than that. The complainant could not have afforded to shelve the project under any circumstances.

7. It was in an effort to wriggle out of this quagmire that the opposite party had created and to make an effort to see that the nefarious designs of the opposite party do not succeed that the petitioner filed the complaint in the Hon'ble forum; the complainant's intentions are not malafide as is being made out by the opposite party.

C. THE WRITTEN VERSION FILED BY THE OPPOSITE PARTY

8. In the written version filed by the opposite party the opposite party by declaring all the items in the false in four lots of about five items each is making an effort to wish away the complaint because it is not to their liking.

The allegations of the complainant being “very rude to the workers” and “changing the plan almost daily” are all blatant black lies invented by the opposite party in an effort to give a semblance of decency to their actions.

The complainant denies all that has been made out in the above version of the opposite party except what has been specifically accepted in what follows below.

D. THE FACTS

9. The opposite party essentially is a construction company. The guidelines of their functioning is as elaborated in EXHIBIT C1. The petitioner is a registered client of the opposite party. The registration was done after the preliminaries as per the guidelines in EXHIBIT C1 were completed and on paying the requisite fee, EXHIBIT C10. According to the oxford learners dictionary of current english here

client means a person who uses the services or advice of a professional person or organization:

10. There is incontrovertible evidence to prove that the opposite party had agreed to make available, for a consideration, their consultancy services for constructing a residence for CHERIYATH JYOTHI; and CHERIYATH JYOTHI is this complainant. Also it is the whole house and not the base/foundation alone that the opposite party had agreed to construct. The matter can be elaborated upon if need be at the hearing.

The opposite party cannot afford to drop the project and walk out on the complainant just like that.

11. There is deficiency in the services provided:

a. in abruptly terminating the services provided

b. in siting of the building

12. The increase in the size of the rear yard was made with a purpose. The complainant's plan was to back up his maruti 800 into the slot where it can be easily protected from the ravages of the elements now that the porch has been taken off as an economy measure.

13. There still is a problem with the building rules irrespective of what the panchayath secretary had said. They had bungled on the matter and the complainant had exposed them. Even on december 29, 2012 the opposite party in person was still harping on the municipalities building act of the nineties. However the complainant would want to let this matter rest, now that once the rear yard is restored to the size in the approved plan the problem with the building rules will also be solved..

14. It is a fact that the complainant had withheld the second installment as mentioned in para 3. of the written version by the opposite party. This was in view of the deficiencies in the service provided. All the same this fact cannot be held out as a reason for shirking the responsibilities of the service provider.

Any person who hires or avails of any services for a consideration which has only been promised could be the consumer ( No. 2. (d) ( ii ) of CPA 1986.)

15. "complaint" under the cpa 1986 could be, amongst others, any allegation in writing made by a complain­ant that the services hired or availed of or agreed to be hired or availed of by him suffer from deficiency in any respect ( no 2. ( c ) (iii) of CPA 1986 ).

"deficiency" could be in pursuance of a contract or otherwise in relation to any service ( No. 2. (g) of CPA 1986.)

There is no written agreement but there is an implicit agreement for otherwise the work could not have gone on till the opposite party probably heard a “voice” telling them to stop the construction.

E. CHRONOLOGY : CC No.349 of 2012

i) October 10, 2012: CC No.349 of 2012 filed by the complainant came for admission before the Hon'ble district consumer disputes redressal forum, Thiruvananthapuram. The Hon'ble forum was kind enough to admit the complaint and issued notice to the opposite party.

ii) November 12, 2012: the opposite party failed to file a reply and at their request was granted more than a month for filing the reply; that was over and above the mandatory one month.

iii) December 15, 2012: for the second time no reply was forth coming from the opposite party. The opposite party was granted another fifteen days over and above the days already elapsed.

Also, on December 15, 2012, the opposite party in person informed the Hon'ble forum that they were ready to make an

out of court settlement.

The complainant took the words of the opposite party at its face value and duly made a detailed proposal for out of court settlement vide his letter no.clo2012.bld/12-0 dt. December 17, 2012 copy of which is produced herewith and marked EXHIBIT C 11. The above letter was sent by speed post to the opposite party on 17.12.2012 and a copy was delivered in person to the office of the opposite party's counsel at Vanchiyoor on the same day.

In the above letter in his desperation to see that the project is not stalled the complainant had offered to meet the opposite party half way and made concessions. There was no response whatsoever from the opposite party.

The complainant is afraid that the offer of settling out of court was just another of the trickeries of the opposite party – it could be that this was in view of the fact that according to the information available to the petitioner the maximum period allowed for filing the reply after the mandatory one month is just another fifteen days. The complainant swallowed the bait and showed all his cards to the opposite party.

iv)December 29, 2012: no hearing

v)January 30, 2013: after more than a quarter of an year the opposite party comes up with a statement denying every word of the complaint in four installments. The opposite party's counsel also files a petition challenging the maintainability of the complaint.

The offer for out of the court settlement probably has already served its purpose and no more finds any mention anywhere.

F. CONCLUSION

In conclusion, the complainant vouches for the truth, relevance and legality of every single word he had put in his original complaint and begs that he may be granted all the reliefs prayed for in his original complaint

it is also prayed that the complainant may be allowed to get some clarifications from the opp. Party in person at the time of the hearing

sd. 

 

( C. Jyothi )

Complainant

Verification

I, Dr.Cheriyath Jyothi, the complainant above mentioned, verify and declare that the facts stated above are true to the best of my knowledge and belief.

Verified this the 15^th day of February 2013.

sd.

( c. jyothi )

Complainant