State Consumer Disputes Redressal Commission
Smt. Raminder Kaur vs Sandeep Khullar on 29 August, 2013
FIRST ADDITIONAL BENCH
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB,
DAKSHIN MARG, SECTOR 37-A, CHANDIGARH.
Consumer Complaint No.42 of 2008.
Date of Institution: 04.09.2008.
Date of Decision : 29.08.2013.
Smt. Raminder Kaur wife of Sh. Harminder Singh, R/o House No.1539-
1540, Sector-69, SAS Nagar, Mohali (Punjab), through her Special
Attorney Joginder Pal Singh S/o late Sh. Gian Singh, R/o House
No.3333, Sector-71, SAS Nagar, Mohali.
.....Complainant.
Versus
1. Sandeep Khullar S/o Sh. Des Raj Khullar, R/o House No.1662,
Sector 33-D, Chandigarh (Presently residing at No.1367-1368,
Sector 33-C, Chandigarh).
2. Sh. Des Raj Raj Khullar, R/o House No.1662, Sector 33-D,
Chandigarh (Presently residing at No.1367-1368, Sector 33-C,
Chandigarh).
3. Khullar Builders, Phase-7, Mohali, SCF 125, Phase VII, SAS
Nagar, Mohali, through its Proprietor Sh. Des Raj Khullar.
....Opposite Parties.
Consumer Complaint U/s 17 of the
Consumer Protection Act, 1986.
Before:-
Shri Inderjit Kaushik, Presiding Judicial Member.
Shri Vinod Kumar Gupta, Member.
.................................................... Present:- Sh. Kamal Satija, Advocate for Sh. A.K. Jain, Advocate, counsel for the complainant.
Sh. Sunil Narang, Advocate, counsel for the opposite parties.
........................................................................... Consumer Complaint No.42 of 2008 2 INDERJIT KAUSHIK, PRESIDING JUDICIAL MEMBER Smt. Raminder Kaur, complainant (hereinafter called "the complainant") has filed this complaint U/ 17 of the Consumer Protection Act, 1986, for recovery of compensation of Rs.69,24,929/- from the opposite parties.
2. As per the complainant, the residential Plot no.1539/1540, Sector-69, SAS Nagar, Mohali, measuring one (1) Kanal (1000 sq.yds.) is owned by her. She wanted to raise construction and for that purpose, approached the opposite parties and entered into an agreement on 12.01.2004 with the opposite parties and as per the agreement, the construction was to be raised as per the structural drawings provided by Architect Sh. Harpreet Singh and Sh. Ashutosh Honda. The house was to be constructed on Turnkey Basis. The terms and conditions were agreed between the parties. The site plan was submitted to the contractor, who started the construction on the site and as per the agreement, the complainant released the amount of Rs.8.00 lacs vide cheque no.614360 dated 22.01.2004 and Rs.12.00 lacs vide cheque no.614361 dated 22.01.2004 to the opposite parties and the opposite parties started raising the construction. The complainant released the payment of Rs.91.00 lacs as agreed within the stipulated period, but the opposite parties demanded more money due to financial constraints, resulting in delay in completion of the house. The complainant released another amount of Rs.24.00 lacs, as such, the complainant has paid Rs.1,15,00,000/-.
3. During the period the opposite parties were raising construction, Architect Sh. Ashutosh Handa, who was visiting and watching the construction, was not satisfied and requested opposite party no.1 after inspection of the site, to complete the repairs at the Consumer Complaint No.42 of 2008 3 earliest. The opposite parties are already paid the excessive amount and there was no need to further release the amount.
4. The opposite parties failed to provide the service as per the agreement between the parties and the complainant through her attorney approached the opposite parties, but they refused to affect the repairs and provide finishing touches. The complainant sought the expert advice of M/s Verma & Associates with regard to the quality of the work provided by the opposite parties and various defects and cracks and faults as against the structural drawings were found. The said Architect prepared the report dated 12.08.2007. As per the report, there was overcharging against the actual cost, delayed charges, cost of the items purchased by the complainant etc. The cost of the items purchased by the complainant was to be reimbursed at the time of final settlement of the account. The opposite parties also did not provide the agreed facilities as per clause-10 Para-8 i.e. two bathrooms were to be equipped with Jacquard Crystal-cum-gold fittings. Bathroom accessories are not provided in any of the nine bathrooms. Provisions of exhaust fans were also not provided in bathrooms and kitchens which is the basic requirement of any house. Fresh water to any of the nine bathrooms was not provided. The opposite parties did not pay the water bills and electricity bills as agreed vide clause-8. The opposite parties were deficient in service in raising defective construction. The Architect and Valuer prepared a detailed report in regard to the said defective construction at various places of building along with its photographs and a sum of Rs.53,273/- is recoverable from the opposite parties. The said Architect determined the amount of Rs.44,24,929/- after detailed investigation with regard to various defects Consumer Complaint No.42 of 2008 4 and the goods purchased and delay in handing over the possession, as against the agreement.
5. The complainant also suffered as the possession of the building in question was handed over after the agreed period which caused loss to the complainant to the tune of Rs.5.00 lacs. The construction was not raised as per the drawings and to the satisfaction and to the good taste of the complainant, due to various defects and violations caused in the structural designs. The complainant purchased general hardware for the doors, windows, cupboard, dressing tables which were to be provided by the opposite parties. The cost of pre- fabricated kitchen was also paid by the complainant and in this way, the complainant paid the excess amount. The house is still not habitable. The mental torture and harassment was caused to the complainant and still the complainant is not occupying the house, although the complainant spent Rs.2.00 Crores and in this way, the complainant is entitled to Rs.25.00 lacs. Earlier also, the opposite parties raised the construction of one Smt. Savita Dudhpuri and behaved in a similar manner.
6. It was prayed that the complaint may be allowed and the compensation amounting to Rs.69,24,929/- for the deficiency in service arising out of the contract dated 12.01.2004 with regard to the construction over the residential plot in question be awarded to the complainant.
7. In the written version filed on behalf of opposite party no.1, preliminary objections were taken that the complaint cannot be filed through power of attorney and is not maintainable in the present form. The agreement in question was with the answering opposite party and opposite parties no.2 & 3 have been falsely implicated. The Consumer Complaint No.42 of 2008 5 complainant has manipulated the drawings and plans and increased some area and decreased some area. The actual area at construction site is different from that shown in the complaint. The assessment/final bill and report dated 08.08.2006 after completion of job by Sh. R.D. Sharma, Approved Chartered Engineer is attached with the reply. The actual contract was on different terms. The actual agreement contains clauses regarding the cost, escalation, interest on late payments, plans shall be changed later on, penalty for halting the construction and other clauses. The plans which were provided with the agreement were approved by PUDA (now GMADA), but when the construction was started, then the different plans were given, except basement. The plans were of more covered area as well as more projected area.
8. When the construction was in full swing, the complainant informed the answering opposite party that she will supply marble of her own choice. After three months of starting the construction, the answering opposite party requested her to supply the marble, but the same was supplied after another nine months in January, 2005. The fixing of marble needs time and thereafter, only the house can be painted. It was not possible for completing the house within the remaining three months. On the instructions of the complainant, the work was stopped in the month of September, 2005, as she requested that she will not be able to pay further installments for a while and the work was stopped for more than 33 weeks and it was again started in the month of May, 2006.
9. On 01.08.2006, on the completion of the house, the answering opposite party approached the architects of the complainant M/s Designer Inc. for completion certificate after inspection as per payment schedule annexed with the contract. Sh. Ashutosh Handa Consumer Complaint No.42 of 2008 6 refused to give any completion certificate, stating that M/s Designer Inc. is not authorized to issue any such certificate.
10. An amount of Rs.25,27,914/- was due from the complainant after completion of the construction on 01.08.2006, but the general power of attorney of the complainant disputed this amount. It was alleged that more amount has been paid and there is delay. After the efforts of Sh. Ashutosh Handa, Architect of the complainant, it was agreed that the complainant shall pay Rs.15.00 lacs only and Rs.5.00 lacs were paid to Sh. Handa on 29.08.2006 vide cheque no.823210 dated 21.08.2006. The general power of attorney holder of complainant retained Rs.10.00 lacs instead of 2% as per the payment schedule against defect liability for one year. Thereafter, instead of honouring that compromise and paying Rs.10.00 lacs retained by him, the complainant has filed this frivolous complaint, to hush up the said amount. The opposite parties reserve right to file the amended reply.
11. The Commission has no jurisdiction to entertain and try the complaint, as the present complaint is based on technicalities and only the civil court can decide after recording evidence, as the agreement is the outcome of fraud played upon the answering opposite party.
12. On merits, it was admitted that the complainant approached the answering opposite party to construct the house at plot no.1539-1549, Sector-69, Mohali. The actual contract was on different terms. First page of the actual contract and the rest of the pages are changed later on. The actual agreement contained clauses regarding escalation, interest, late payment etc. It was also admitted that Rs.1,15,00,000/- were received from the complainant and still Rs.10.00 lacs are due to be recovered from the total payment of Rs.20.27,914/-. The construction was completed on 01.08.2006. The complainant was Consumer Complaint No.42 of 2008 7 informed through her attorney that she can visit the house at any time. As the complainant was NRI, she never came to visit the spot. After one year on 17.07.2007, Sh. Ashutosh Handa told the answering opposite party that as per the verbal discussion with Sh. Harminder Singh, the house requires some finishing touches. Vide letter dated 31.07.2007, it was informed that everything has been done and request was made to kindly ask the owner to clear the dues of Rs.10.00 lacs, which were retained by the complainant against defect liability for one year, instead of 2% of the total cost as agreed in the contract. The construction is complete and is upto the mark. The actual position can be assessed by an independent engineer or some Govt. Agency. The assessment made by Verma & Associates is false and is at the instance of the complainant. He is not an independent valuer and some independent valuer from the Govt. Agency should be appointed, to find the value of cost of construction in the presence of both the parties.
13. It was further submitted that there is no deficiency in service. As per the client's requirement, there are 10 Jacuzzi and Steam Enclosures. Fresh water contains calcium and it blocks the nozzles and damages the pump. There was no separate bathing area where fresh water taps can be provided. There is a water softener plant fitted in the house where fresh water supply is connected and it supplies water after removal of harmful chemicals. Jaguar crystal fittings are provided in two master bathrooms and queens fitting were provided in the rest. The amount has already been deducted from the payment due and it is so mentioned in the report of Sh. R.D. Sharma. Chimney provision was done in the kitchen as per the working drawings and client's requirements. There is no mention of exhaust fan in working drawings. Hot water supply of all the bathrooms is attached Consumer Complaint No.42 of 2008 8 with the solar heater with inbuilt electric backup. In addition to the solar heater, 3 nos. Geyser provisions are given on top floor terrace under sloping roof projections. Water tank has been provided and everything was done as per the drawings. The whole house is air conditioned and additional false ceiling was done in the basement, ground floor. Proper anti-termite treatment was done and all other work was done as per the drawings and even certain things which were not in agreement. The construction was done as per the structural drawings and the cracks occurred due to construction of illegal servant room and bathroom at rear courtyard, adjoining rear staircase and common wall. The electric light points were properly fixed. Wooden work, flowing work was done as per the drawings.
14. The complaint is false. The house looks like a palace. There is a hydraulic lift, centrally air-conditioned, heat insulation underneath roof and above POP false ceiling 24 hour genset back-up with servo voltage stabilizer, 10 piece Jacuzzi and steam enclosure, provision for Sauna Bath, Solar Heater, Hydro Pressure Pump, Automatic Motorized Remote Control main iron gate, intruder alarm system and much more. Similar other pleas as taken in preliminary objections were repeated and denying all other allegations of the complaint, it was prayed that the complaint may be dismissed with costs.
15. In the written version filed on behalf of opposite parties no.2 & 3, preliminary objections were taken that the complaint is not maintainable and the answering opposite parties are not party to the contract.
16. On merits, allegations of the complaint were denied and it was further submitted that no firm ever existed in the name of opposite Consumer Complaint No.42 of 2008 9 party no.3 and opposite party no.2 has no concern with opposite party no.3 and the complaint deserves dismissal. No application for appointment of independent agency was filed by any party. It was prayed that the complaint may be dismissed with costs.
17. Rejoinders were filed in which the averments of the complaint were reiterated and that of the written versions were controverted.
18. The attorney of the complainant Sh. Joginder Pal Singh tendered in evidence his affidavit as Ex.C-1, Power of Attorney Ex.C-2, Agreement dated 12.01.2004 Ex.C-3 along with payment schedule, reply of the architect planners, Engineers and Valuers as Ex.C-4 together with Appendix-A to Appendix-J, including the Annexures from Page-35 to 239, including the photographs regarding defective work and the detail of the claim and letters. Affidavit of Sh. R.P. Verma, Valuer as Ex.C-5 was also tendered.
19. Learned counsel for the respondents tendered reply way of affidavit of Sh. Sandeep Khullar as Ex.RW-1/1, reply by way of affidavit of Sh. Desraj Khullar as Ex.RW-2/1, affidavit of Sh. R.D. Sharma as Ex.RW-3/1 along with documents Ex.R-1 to Ex.R-9.
20. We have perused the written arguments filed on behalf of the parties and have gone through the entire record carefully.
21. In the written arguments filed on behalf of the complainant, it was submitted that agreement Ex.C-3 was executed between the parties and all the terms and conditions were satisfied and the work was to be on turnkey basis. The complainant made the payment as per the payment schedule and in all, Rs.1,15,00,000/- were paid. The detail of the payment made is given, as part of the agreement. As per the agreement, the construction was to be completed within 15 months and Consumer Complaint No.42 of 2008 10 the project started on 12th January, 2004. The work was to be conducted as per the drawings. As per the contract, only an amount of Rs.91.00 lacs was to be paid, but due to escalation of prices, the complainant has to pay more. The opposite parties did not complete the construction in time and the construction was defective and Verma & Associates inspected the site and construction and provided the deficiencies in service, by pointing out various defects. The opposite parties did not carry out the construction as per the structural designs and as per the agreement and caused lot of mental tension and harassment and the complainant has to pay much more amount. Verma & Associates also pointed out the extract of cost, extra charges, delay charges and the photographs show that the construction was carried out against the structural designs and cracks and other defects appeared which were pointed out, but the same were not removed. The complainant was also not reimbursed the cost of items purchased by her as per the report of Verma & Associates dated 12.07.2008. It was contended that the opposite parties were to raise the construction strictly as per the contract and not of his own and he raised the construction of his own and the house as required was not constructed and as per the report of the expert, for various defects, she is entitled to recover Rs.69,24,929/-.
22. In the written arguments filed on behalf of the opposite parties, pleadings were repeated. It was further submitted that the facilities as mentioned above were provided and no complaint was made. The work was done with full dedication. The total cost of the construction as per agreed rates was near about Rs.1,28,10,798/- and the Commission has no pecuniary jurisdiction. The complainant made the payments on the satisfaction of the architects and with the work Consumer Complaint No.42 of 2008 11 done. No letter was written by the complainant for any delayed construction and there was actually no delay. It was the complainant who was delaying the project and Sh. Joginder Pal Singh, who is the attorney of the complainant, used to consult her daughter on each and every aspect, due to which delay was caused in the construction. The complainant had chosen to provide the marble of her choice, but the supply was delayed. The substantial work was done in the month of September, 2005, but the work was stopped due to non-payment of the installments and it started again in May, 2006 and was completed by 01.08.2006. Rs.25,27,914/- were to paid by the complainant and on the intervention of Sh. Ashutosh Handa, the complainant agreed to pay Rs.15.00 lacs out of which Rs.5.00 lacs were paid through cheque dated 21.08.2006 and the remaining amount has not been paid till date. The house constructed is like a palace and there is no defect or deficiency in construction. The complainant was to pay the charges of construction over the covered area. The complainant has not placed on record those drawings as per which the work was done. The cost of the material purchased by the complainant has been adjusted in the report of Sh. R.D. Sharma. The complainant has pointed out various defects and the same are replied in Para-12 of the written arguments from A to M and in Para-13 of the written arguments from Sr. No.1 to 32. The report of Verma & Associates is totally defective and the complainant has withheld the reports of her own Architects i.e. Sh. Harpreet Singh and Sh. Ashutosh Handa. The complainant has gone to another architect and got prepared the report falsely. The deficiencies pointed were minor and were normal wear and tear and the complaint deserves dismissal.
Consumer Complaint No.42 of 2008 12
23. It was contended on behalf of the opposite parties that the complex question of facts and law as well as evidence are involved and the civil court is competent. Reliance has been placed on "Oriental Insurance Company Limited Vs Munimahesh Patel",2006 (4) Civil Court Cases-203(SC); "M/s Citimake Builders Pvt. Ltd. Vs Samata Sahakari Bank Limited", C.C. No.141 of 2009 decided on 16th October, 2012 (NC).
24. We have considered the respective written submissions submitted on behalf of the parties and thoroughly scrutinized the entire record and other material placed on the file.
25. From the pleadings of the parties as well as the arguments raised before us on behalf of the parties, it is clear that in the present complaint, complex questions regarding the site plans, structural designs and the quality of the construction as well the settlement of accounts, are involved. The parties are also disputing the terms and conditions of the agreement as well as the changes made in the agreement. Opposite party No.1 has pleaded that except the first page of the agreement, the other pages were changed. The drawings were also changed, whereas the complainant is disputing that the opposite parties have not raised the construction as per the drawings. The cost of the material and the defects in construction are also involved.
26. All these questions cannot be decided in summary manner, as the complex facts are involved which require detailed evidence, examination of the witnesses and cross-examination and the civil court is competent. Hon'ble Supreme Court in case "Oriental Insurance Company Limited Vs Munimahesh Patel" (supra) observed in Paras- 10 and 12 as follows:-
Consumer Complaint No.42 of 2008 13
"10. Proceedings before the Commission are essentially summary in nature and adjudication of issues which involve disputed factual questions should not be adjudicated. It is to be noted that Commission accepted that insured was not a teacher. Complainant raised dispute about genuineness of the documents (i.e. proposal forms) produced by the appellant."
"12. The nature of the proceedings before the Commission as noted above are essentially in summary nature. The factual position was required to be established by documents. Commission was required to examine whether in view of the disputed facts it would exercise the jurisdiction. The State Commission was right in its view that the complex factual position requires that the matter should be examined by an appropriate Court of Law and not by the Commission."
27. In case "M/s Citimake Builders Pvt. Ltd. Vs Samata Sahakari Bank Limited" (supra), the Hon'ble National Commission held in Para-10 as follows:-
"10. After going through the pleadings if complicated question of facts and law arise, complaint should be returned to the complainant to approach Civil Court or any other Forum. Perusal of pleadings clearly reveals that forgery/genuineness of 53 cheques is in issue which involves complicated question of facts and law and involves lot of evidence and detailed enquiry, which cannot be decided in a summary way and in such circumstances, application filed by the opposite party should be allowed and complaint should be returned to the complainant." Consumer Complaint No.42 of 2008 14
28. Similarly, the Hon'ble Punjab & Haryana High Court in a recent judgment in case "Ravinder Lal Chaudhri Vs Municipal Corporation, Chandigarh & Ors.", 2013 (3) CLT-272 observed in Para-13 (relevant portion) as follows:-
"it would be safer and qualitatively better that such controverted facts are left to be established through documentary and oral evidence, led through witnesses tested by cross-examination before the Civil Court. The quality of Civil Court determination based on evidence is far more wholesome than in affidavit writ jurisdiction.
29. In view of above discussion and the law laid down, this Commission has no jurisdiction to deal with the complaint in hand.
30. Accordingly, the complaint along with documents is ordered to be returned to the complainant, for presenting the same to the appropriate Court of Law, if the complainant is so advised.
31. The arguments in this complaint were heard on 23.08.2013 and the order was reserved. Now the order be communicated to the parties.
32. The complaint could not be decided within the stipulated timeframe due to heavy pendency of court cases.
(Inderjit Kaushik) Presiding Judicial Member (Vinod Kumar Gupta) Member August 29, 2013.
(Gurmeet S)