State Consumer Disputes Redressal Commission
B.N.Venkalakshmi vs M/S Nisco Ventures (P) Ltd., on 29 July, 2022
Daily Order BEFORE THE KARNATAKA STATE CONSUMER DISPUTES REDRESSAL COMMISSION, BANGALORE DATED THIS THE 29TH DAY OF JULY 2022 PRESENT SRI. RAVISHANKAR : JUDICIAL MEMBER SMT. SUNITA C. BAGEWADI : MEMBER Consumer Complaint No. 294/2010 Mrs. B.N. Venkatalakshmi W/o. C.L.N. Murthy R/at No.5AC, II Block, HRBR Layout Near Banaswadi, Bangalore 560043 Rep. by her power of attorney holder Santhosh Kumar C.L. Mr. Santhosh Kumar C.L. S/o. C.L.N. Murthy Proprietor of M/s. United Estates With its office in No.16 Railway Parallel Road Park East, Bangalore 560001 (By Sri. B.M. Shyam Prasad) V/s ....Complainants M/s. Nisco Ventures (P) Ltd. (Formerly known as M/s. Nitesh Constructions Pvt. Ltd.) Registered Office in No.201, 2nd Floor Haudin House, NO. 13, Haudin Road 560 042 (By Sri. Ravi B. Naik) .....Opposite Party O R D E R
BY SRI RAVISHANKAR, JUDICIAL MEMBER This is a complaint filed under Section 17 of the Consumer Protection Act alleging unfair trade practice/ deficiency in service on the part of OP in not completing construction work and also a poor construction. Hence, prays for a compensation to the tune of Rs.99,95,000/- with future interest at 12% p.a. and other reliefs.
The brief facts of the complaint is that first complainant is the owner of property bearing survey No. 184 (New No.202 & 203) of Hunsemaranahalli, Bellary Road, Jala Hobli, Bangalore District and she wanted to develop the schedule property into a world class Convention Centre with all state of the art facilities keeping in view the strategic location of the Schedule Property given its proximity to Bangalore International Airport and other High-Tech industries and institutions of good repute and also construct a residential bungalow in the said schedule property for her use and occupation. Accordingly, she executed power of attorney in favour of her son C.L.Santhosh Kumar (Complainant No.2) to draw up a scheme for afore mentioned development and to promote the project. Second complainant / son of first complainant was carrying on business under the name and style of M/s. United Estates drew up a master plan/ scheme to promote and develop the Schedule Property in to acclaimed Convention Centre with facilities of international standards by finalizing the drawings, appointing Architects, Engineers and other modalities for a successful execution of the project. The second complainant has consulted M/s. Jurong Consultants from Singapore, world renowned Architects to plan and design for Convention Centre and appointed Lighting consultants and Landscape Consultants from Italy and Lebonon.
The second complainant called a tender for construction work in India and abroad for appointment of Builders/ Developers to put up civil construction for the convention centre and Residential Bungalow. The OP was successful bidder and agreed to construct as per the instruction of the second complainant. Second complainant also accepted and negotiated and after the bill of quantities were mutually accepted, the work order was issued to OP on 16.05.2007 as per the final bill of quantities. The entire construction value is Rs.3,99,61,745/-. It was specifically mandated time agreed for completion of civil construction which was 120 days from 18.05.2007. The second complainant has furnished architectural drawings, structural drawings, construction drawings, technical data drawing and other details of the construction to the OP as part of the tender papers and the OP commenced the construction work on 18.05.2007. The project should be completed within 120 days from the commencement of the said construction.
Complainants further allege that initially the work order issued to OP was basement, ground, first and second floors. In view of the revision of the drawing the order was issued was confined to basement and ground floor and civil work for first and second floors has been given up. Though the OP is well aware that time was essence of the contract and it had to complete the structures as per the modified plans for convention center and residential bungalow on or before revised date i.e., 28.02.2008, but, for the best reasons known to the OP failed to comply with the terms of the work order, due to which complainant could not carry out other works such as flooring, electrical, amenities, fixing of windows, grills and aesthetic finishes. The second complainant basing on the understanding made ad hoc payments to the OP on the running bills raised by the OP periodically. The complainant repeatedly met the personnel / staff of the OP to complete the works undertook, but, inspite of that has not completed the project work as on the revised date. Again the second complainant revised the date extended from time to time and it was extended to 15.04.2008 to complete the construction and structural work and further it was extended to 15.09.2008. Inspite of that OP has not completed the work. They are under the obligation to complete the work on or before 15.09.208, but, even after receipt of the entire amount towards construction failed to complete the work, due to which complainants have suffered financial loss. Ultimately they noticed that there was defective and incomplete work. Having no option complainants engaged services of Mr.Manjunath and Mr.Afsar Ahmed and also M/s. Civil Technologies (India) Pvt. Ltd. to assess the quality of construction and to suggest corrective measures. Accordingly, they noticed en-number of defects and estimated strengthening the RC requires amount to the tune of Rs.59,01,250/- and suggests that balance works to be completed requires a sum of Rs.80,12,235/-. Basing on the said reports complainants have engaged service of M/s.Kalparuksha Enterprises-Retrofitt engineers for completing the rectification, rehabilitation work. Hence, the OP is liable to pay penalty in delay in completing the structure at the rate of Rs.3.00 lakhs for every day of the delay and they are liable to pay Rs.1.00 crore for the purpose of completing the entire work. Due to delay and incomplete work the complainants are constrained to engage other construction company to complete the construction work and OPs are liable to pay said amount. Any how they restricted their claim amount to Rs.99,95,000/-.
Complainants further alleges that OP filed an Original Suit bearing No.3768/2009 before Civil Court for recovery of the amount to be payable by complainants in order to overcome and cover up the gross negligence rendered by them. Infact the complainants have made payments periodically as and when the OP raised bills. There is no any due on the part of complainants to be payable to OP. It is only to cover up their negligence have filed OS No.3768/2009 and they have suitably took defense in the suit. Hence, prays for allowing the complaint by directing OP to pay above said amount.
After service of notice OP appeared through counsel and contended that they filed recovery suit bearing No.OS.3768/2009 before City Civil Judge, Bangalore ( CCH-18). The subject matter involved in the said recovery suit is the same as the one involved in this complaint. Complainant has filed this complaint subsequent to the recovery suit filed by this OP with an intention to delay the OP from smoothly proceed in the civil suit and to harass unnecessarily. The complainants are liable to pay dues towards construction, in order to avoid such dues filed this complaint and prays for dismissal of the complaint.
OP further contended that they have under took to construct civil work and building for a considerable value of Rs.3,99,61,745/-. They commenced the work on 18.05.2007. Second complainant has issued a part of good for construction drawings on 19.05.2007 and thereafter this OP has been doing assigned work as and when second complainant gives drawings necessary for the work to be carried out. On 12.07.2007 they held one meeting at the project site wherein the change in the conceptual design was discussed and second complainant agreed to provide structural drawings for the changes and additional area. At that time this OP has completed ¼ of the actual works and because of the changing conceptual design, the scope of the work increased considerably. Again on 2nd meeting held on 02.08.2007 discussions were took place in respect of drawings of the conceptual design, but, complainant had not provided the drawings and they are yet to be issued. Again on 08.10.2007 a meeting was held between second complainant and OP with regard to the increase in the floor height, basement roof level due to change in shape. It is a laborious job and it has further increased the scope of the work. The drawings which are required to be supplied were not supplied in time and further request was made for all drawings by the OP within one week time so that they can achieve the target and also demanded for Rs.30.00 lakhs towards bill raised for the work already done, but, the second complainant failed to provide neither drawings nor made payment. Second complainant finally provided revised drawing only on 27.11.2007 by that time the actual 120 days stipulated for completion of the project had expired. Therefore, due to inordinate delay in furnishing drawings itself they could not complete the work well within time. On 04.02.2008 e-mail was sent to second complainant requesting for release of payments which were raised previously. Further on 27.03.2008 and 15.05.2008 this OP raised running account bills for Rs.43.47 lakhs and Rs.89.68 lakhs respectively. But, second complainant failed to make payment. There afterwards, this OP again on 20.08.2008 has raised another bill of Rs. 1,19,32,000/-, but, the complainant has not made any payments towards raised bills. The second complainant instead of providing drawings to the OP and making due payments started sending e-mail correspondences with no reasons to cover up lacuna on their part. On 08.10.2008 this OP raised another bill bearing No.9 for a sum of Rs.70,89,739/-, but, the complainant kept on avoiding payments to OP. This OP having no other option sent e-mail demanding to release the payment regarding works which were completed as per the drawings provided. Inspite of that OP failed to make payment. Subsequently, they have initiated recovery suit bearing OS No. 3768/2009 which is pending. Complainant has filed this false and frivolous complaint in order to avoid dues. There is no deficiency in service on their part. Hence, prays for dismissal of the complaint.
On behalf of complainants, complainant No.2 filed affidavit evidence and got marked Ex. C1 to C9. On behalf of OP, Mr.S.Nagabhushanam, Finance Controller and Mr.Hitesh Zaveri, Engineer of OP company filed affidavit evidence and got marked Ex.R1 to R14.
Heard from both parties.
On perusal, the following points will arise for our consideration:
Whether the complainant comes under the purview of 'Consumer' under Consumer Protection Act? What order?
The findings to the above points are:
Negative As per final order.
REASONS On going through the pleadings, affidavit evidence and documents produced by both complainants and OP we noticed here that the complainant Nos. 1 & 2 have proposed to construct huge building i.e., Convention Hall and residential building in the schedule property to the extent of 1,14,402 sq.ft., they called for tender to take the construction work and accordingly, on 16.05.2007 OP being successful bidder undertook to construct as per the instructions of second complainant and drawings/plan provided by them and the cost of the construction was Rs.3,99,61,745/-. There afterwards agreement was entered into between them and agreed to pay bills towards construction as and when OP raises bills. Commencement of work was started on 18.05.2007 and the said construction struck due to non-supply of drawings/plan by complainants. Subsequently, some alteration arrangements were done and again the construction was continued. The complainants allege that the OP had not constructed with quality materials and construction is very low quality. There is also a delay in construction as under taken by OP and alleges deficiency in service. Apart from that he made arrangements for construction by another agency called M/s.Kalparuksha Enterprises, due to delay in construction by the OP. Hence, prays for refund of the amount of Rs.99,95,000/-.
On the other hand OP in its version has contended that as per the plan tendered by Complainant No.2 they have carried out construction and they have tendered a bill which the complainants failed to pay amounts as agreed and they have constrained to file an original suit for recovery of the amount which was spent towards construction and denied all the allegations made by complainants.
On going through the above we noticed here that the entire transaction between complainants and OP does not fall within the meaning of 'Consumer' dispute. Here we noticed that complainant Nos. 1 & 2 have entrusted construction of convention hall and residential building to OP which appears to be a commercial in nature as per the Consumer Protection Act. The very intention of construction of the convention hall and residential building is to earn profit from the building. The transaction between parties, in our opinion is for commercial purpose. Hence, complainant does not fall within the meaning of 'Consumer' and here we noticed that OP also filed original suit No.3768/2009 before Civil Judge Court for recovery of construction bills. Complaint requires elaborate evidence and complicated question is involved to know in detail either payments were made or not. In all there is no consumer dispute as alleged by the complainants. Accordingly, complaint is dismissed without discussing merits in the matter.
MEMBER JUDICIAL MEMBER CV*