State Consumer Disputes Redressal Commission
Raj Dulari Garg & Ms Vineeta Garg vs Architect Collaborative on 16 August, 2010
IN THE STATE COMMISSION : DELHI IN THE STATE COMMISSION : DELHI (Constituted under Section 9 clause (b)of the Consumer Protection Act, 1986 ) Date of Decision: 16-08-2010 Case No. C-311/1999 MRS RAJ DULARI GARG & MS VINEETA GARG - COMPLAINANT 203, Skipper Corner, 88 Nehru Place, New Delhi 110019 Versus 1. ARCHITECT COLLABORATIVE - RESPONDENT-1 C-1/44, Safdarjung Development Area, New Delhi 110016 2. SAINI CONSTRUCTIONS - RESPONDENT-2 B- 73/ Sector 23, Noida 201 301 CORAM : JUSTICE BARKAT ALI ZAIDI - President SHRI M.L. SAHNI - Member 1. Whether reporters of local newspapers be allowed to see the judgment? 2. To be referred to the Reporter or not? SHRI M.L. SAHNI (ORAL) ORDER
1. Briefly stated, the facts of this case are, that the complainant engaged OP -1 the Architect for the construction of their house on plot No. A-23, Sector 23, Noida. The house was to be constructed like house No. A-123/27 Noida, subject to Vastu Shastra.
The total cost of construction was estimated to be Rs. Ten Lakhs, including Rs. Seven Lakh Fifty Thousand for construction of approximately 3000 sq. fts area consisting of basement, ground floor, garage, mezzanine, loft and servant quarter on the garage. In addition Rs. Two Lakhs Fifty Thousand were fixed for marble and bathroom/sanitary fittings.
Architects fee was fixed at Rs. 40,000/- and Rs. 5,000/- was for getting completion certification. The construction was to be completed by 30-09-1995. The payment to contractor OP No.2 was subject to verification of bills by the Architect.
Agreement with contractor was executed on 17-04-1995 by the complainants.
2. It is alleged by the complainants that both the OPs have blamed each other for delay in the completion of construction, which was to be completed by 30-09-1995, but it remained incomplete even till 31-03-1998, when the complainant informed the OP NO.1 of the defects and substandard construction work done by both the OPs, vide their communication handed-over to one Mr. Joshi the supervisor; and OP-1 admitted defects in the work carried out by the OP-2, further admitting that delay of three years was due to non availability of material on site. Whereas, OP No.2 shifted the blame on OP No.1 stating non availability of complete drawings, as the reason for delay, claiming that he carried-out the construction as per the instructions of OP -1 and that if there was any deficiency it could be attributed to OP-1 alone.
3. Complainant s contention is, that if the construction was not in consonance with the drawings supplied by OP-1 why he passed the bills of OP-2.
4. Following defects/deficiencies in service have been pointed out by the complainant:-
i) Construction is not in consonance with Vastu Shastra;
ii) Failure to submit revised drawing to authority for approval;
iii) Interior and exterior not according to agreed terms as agreed and promised;
iv) Failure to get completion certificate;
v) Failure to give bill of quantities resulting in delay in material and excess material;
vi) Bills passed contrary to agreed terms;
vii) Failure to provide total cost certificate as per Income Tax Rules.
viii) Wrong design and drawings reduced usable carpet area;
ix) Failure to provide all drawings and working drawings which hampered progress badly;
x) The complaints then claimed damages under the following heads:-
a. Penalty paid for delay Rs.
25,000/- and Rs. 17,505/- for wrong construction to Noida Authority.
b. Damages for poor construction Rs.1,00,000/-;
c. Damages for repairs Rs. 30,000/-;
d. Removal of material by contractor and put to his own use damages Rs. 2,10,000/-; and e. Damages for resetting kitchen, slabs, drainage etc Rs. 50,000/-.
5. The complainants have claimed in all Rs. Six lakhs from the Architect (OP-1) and Rs. Twelve Lakhs Ten Thousand from the contractor (OP-2) for the above stated defects and deficiency in service, with Rs. One lakh as damages from both the OPs for mental agony and harassment.
6. Both the OPs contested the complaint by filing their respective written versions/replies separately.
7. OP-1 by way of preliminary objections submitted that from the allegations made in the complaint and from the voluminous records of documents filed alongwith the complaint prima-facie, it is clear that the instant case is not a simple case of deficiency- in-service and involves determination of complex questions of facts and law, for the satisfactory determination thereof;
that adequate oral as well as documentary evidence is required to be led by the parties and the matter cannot be decided in summary proceedings within the time-frame provided under the Rules; that in view of the Arbitration Clause contained in the Contract Agreement dated 17-04-1995 by a Statutory Arbitration Forum, this Forum need not entertain and embark upon to decide the complex questions of facts and law without proper interpretation of the terms of appointment and role of the architect and the terms of agreement dated 17-04-1995 entered into between the complainant and OP-2.
8. On merits, OP-1 has admitted that the OP-1 was appointed vide letter dated 15-03-1995 of the complainants for construction of residential house bearing plot No. A-23, Sector-23, Noida and a consolidated fee of Rs. 40,000/- was agreed to be paid, spread over the period of construction and a cheque for Rs. 5000/- was given as advance payment. He further stated that the Memorandum of Understanding had been signed by the owner only and not by the Architect.
Therefore, the same is not binding on the Architect. In their letter dated March 27th 1995 the complainants further affirmed the appointment of OP-1 as their consulting engineer and Architect and the scope of consultancy services was mentioned as under:
you will prepare the sketch, design of the proposed work and on approval thereof prepare final drawings for submission to the Noida Authority for seeking its approval, assist in getting approval of such authority, prepare estimates and schedules of quantities prepare working/structural drawing required for execution of construction activity, assist in the selection of the contractors, if required, provide periodical supervision of the construction activity and attend to all matters incidental thereto. (stress supplied)
9. Para 3 of the said letter reads as under:
it is understood by us that constant supervision does not form part of your duties and necessary arrangement for day to day supervision of your construction activity, therefore, shall be made in consultation with you at my own costs.
10. That the complainant had also entered into an agreement dated 17-04-1995 with the OP No.2.
11. The complainant and the OP -2 in para 1 of the contract agreement dated 17-04-1995 agreed as under:-
that the contractor has agreed to execute upon the site works shown upon the said drawings and/as per the CPWD specifications of A class construction, unless otherwise specified by the architect and the said schedule of quantities at the rates mentioned hereinafter annexure A on item rate basis and payments to be made on completion of each item as per bills to be submitted by the contractor and passed by the architect.
12. OP-1 submitted that he had only to assist the owners in the selection of the contractor, if required by the owners, and, in the instant matter the contractor- OP-2 was the choice of the owners themselves. The architects had nothing to do with the selection of the contractor by the owners and the owners themselves settled the rates of each item as per annexure-A, annexed to the contract agreement dated 17-04-1995 entered into between the owners and the contractor. In view of this the architects had a very limited role to provide architectural consultancy services for the proposed building and as per letter dated 27-03-1995 of the complainants constant supervision was not the part of the duties of the OP-1 and necessary arrangements for day to day supervision of the construction activity were to be made in consultation with the architects by the owners at their own cost.
13. OP-1 alleged that the contractor had already been appointed before the appointment of the present architects; that OP-2 had already begun construction work based on the drawings prepared by another architect, though the formal appointment of the present architects was made prior to the execution of formal contract agreement dated 17-04-1995 between the owners and the contractor on the advise of the present architects, to safeguard complainants interest.
14. It is further alleged that day to day supervision of construction was the responsibility of clerk the Site Engineer to be appointed by the complainants at their costs, in consultation with OP-1 if required. Clerks of Works -Site Engineer- were appointed by the complainants, without consulting the architects, and they left at intervals on one point of time or the other. In fact, there was no regular Site Engineer; that at the time when finishing work was going-on, there was no site engineer at all.
15. The OP-1 further pleaded that complainants had seen house no.A-123,Sector27, Noida designed by OP-1 prior to their appointment as architects. It was purely for professional reasons that the drawings of this house was not shown to the complainants. As there were various differences between the two sites, the proposed house of the complainants, therefore, could not be the exact replica of house No. A-123, Sector-27 Noida; that deviation and changes in approved drawings and design were made on complainants own suggestions, who insisted upon from time to time after consulting some Vastu Shastri, for such alterations in the designs. The complainants on various occasions took upon themselves to issue instructions directly to the OP-2 and sometimes, even contrary to those of OP-1 which proved detrimental to the project.
16. It is also their case that OP-1, were never informed about the appointments of sub-contractors and their terms of payment either by the complainants or by the OP-2.
Since the item rates were already agreed between the complainants and OP-2 prior to the appointment of OP-1, and the OP-2 could not understand the drawings approved by the complainants who also issued arbitrary direct instructions to OP-2 hampered the progress adversely affecting the project that material like steel and stone used to be procured by the complainants themselves with considerable delay. The stone slabs were having number of cracks and potholes. Therefore, OP-1 could not have control on the time-schedule and cost of construction, for which complainants must blame themselves. It is further claimed by OP-1 that all the drawings necessary for the successful execution of this project were given to the complainants & OP-2 as soon as the project progressed. OP-1, strictly adhered to the preparation and issue of each phase of the project and the preparation and issue of drawings for the next phase was totally dependant on the approval of the same by the complainants. All the payments to OP-1 have been made as per the schedule of fee, except Rs. 5000/- to be paid on completion and are not paid so far. These payments clearly show that the complainants were fully satisfied with the service of OP-1 while making the payments to OP-1 from time to time.
17. Further the complainants took upon themselves to engage the draftsmen to prepare three-dimensional drawings of the interior and exterior views, which violated the designs prepared by OP-1 for every stage.
18. The grievance of the OP-1 is that total fee was for the project to be completed within six months. However, the project was delayed more than two years and OP-1 continued providing all their professional services without making any extra claims.
19. It is reiterated by the OP-1 that delay in completion of the project was on the part of the OP-2 or on the part of the complainants, between whom serious differences cropped up at the final stage of the completion.
20. OP-1, have further alleged that changes in the design made by the complainants during the course of construction resulted in the modification of the elevation, which they never anticipated or failed to understand; That the complainant never raised an eye-brow during construction regarding fault in the design. The alterations desired by the complainants led to the change in elevation. These changes are detailed in letter dated 13-04-1998 written by OP-1, a few of which are mentioned below:-
i) Additions in the front canopy: RCC slabs were added on the sides of the canopy;
ii) Addition of sunshade, servants block and mezzanine towards drive way; the sunshades for windows servants block and mezzanine were constructed on direct instructions of the complainants. Since the levels of these windows were different, the elevation was disfigured;
iii) Three windows on the drive wayside: The decorative fins around three windows were instructed by the complainants to be constructed in such a way that it reduced the size of the room;
iv) Addition of toilet behind kitchen: when Noida Authority permitted additional floor space, the complainants decided to add another toilet behind the kitchen. The resulted in the provision of additional doors and spoiled the circulation routes as planned by OP-1. The elevation of the building thereby underwent major changes.
21. It is then pleaded by OP-1 that conceptual drawings prepared by them and approved by the complainants, did not vary too-much from the sanctioned drawings and, therefore, the complainants did not deem it proper and necessary to go- through the process of fresh sanction already obtained from NOIDA Authority, prior to the appointment of OP-1; That application for completion certificate was duly filed by OP-1 in 1996 despite it was not their responsibility, because they had merely to assist the complainants in this regard.
22. Regarding verification of payment to OP-2, it is stated by OP-1 that till date six running bills have been scrutinized and authorized by them for payment and in the first, second and third running bills security of 10% was retained in order to safeguard the interest of the complainants. Since the agreement between the complainants and OP-2 did not have any provision for retention money, the fourth, fifth and sixth bills were cleared without any retention. While clearing the sixth running bill OP No.1 had commented that deduction due to poor workmanship and extra expenses made by the complainants on behalf of OP-2 should be deducted; that by the time of presentation of the final bill, serious differences had arisen between the complainants and OP-2 and since none of the pending issues were resolved, the OP-1 did not deem it appropriate to clear the final bill, to safeguard the interest of the complainants.
23. It is also alleged by the OP-1 that sanitary and water supply drawings were furnished by a relative of the complainants on the basis of which that work was carried out. Lighting, telephone and cable, location of points and outlets were defined by OP No.1 but the circuit diagrams for the same were to be obtained by the complainants from respective consultants as these were not within the scope of work of the OP-1; that all the drawings were given to OP-2 well in time with the progress of construction in order to enable him to mobilize all the necessary resources with copies to the complainants for information. Whenever the drawings were issued, proper notes thereof were also made in the Register kept at the site of the construction; that drainage lines as planned by OP-1 and executed accordingly by the OP-2 were not acceptable to the complainants. They insisted that new lines be laid over the ground floor slabs, which automatically resulted in the higher floor finish in the toilets.
24. OP-2 in its reply also raised various preliminary objections against the maintainability of the complaint, inter alia, that the present case cannot be adjudicated in a summary manner, in as much as a large number of issues both of law and facts are involved after appreciating the evidence of both the parties in a full-fledged legal proceedings; that Memorandum of Understanding is between the complainants and the OP-1 to which the OP-2 is neither a party nor signatory, whereby it was specifically agreed that the entire responsibility of the construction and its supervision would be of OP-1 right from preparing of the building plans to the furnishing of the house for making it habitable; the disputes arose only between the complainants and the OP-1 while the OP-2 had been un-necessarily dragged in it.
25. It is alleged by OP-2 that complainants still owe Rs.4,75,000/- and the present proceedings have been filed to deny the said amount to the OP-2; that this Commission has no territorial jurisdiction as the relief which the complainants seek in the present case, can not be given by this Commission, that even otherwise, no relief has been claimed against OP-2 and as such the complaint be dismissed with special costs qua OP No.2; that there is no cause of action in favour of the complainants against OP-2 as has been specifically stated by the complainants in their reply filed to the application dated 03-02-2000 by the OP-2 disputing the territorial jurisdiction of this Commission to entertain the present case. In the said reply the complainant have specifically stated that, there is no claim against the OP-2 as the first party, is only responsible for the deficiency under whose supervision, guidance and instructions, the OP-2 carried out the construction; in view of these facts coming directly form the mouth of the complainants themselves, there is no reason as to why the complaint be not dismissed qua OP-2 who was admittedly bound to do the construction as per the dictates of OP-1 and all the running bills were paid by the complainants after the work of construction was approved by the OP-1; that complainants had never complained about the workmanship to the OP-2 and whenever there was any grievance, the complainants took up the matter with the OP-1.
26. OP-2 has stated on merits, that he carried out the construction as per instructions given to him by OP-1 duly appointed by the complainants.
27. To establish their case, the complainants have filed affidavit of Ms Raj Dulari one of the complainants only on 18-09-2008 i.e. after almost nine years of filing the complaint in October 1999. She has reiterated verbatim what has been alleged in the complaint without proving any of documents on oath, making reference to the index of documents attached with the complaint. This index lists following documents:
1A. Copy of complainants letter of intent dated 15-03-95 dated 15-03-95 to OP-1 with an advance payment of Rs. 5,000/- and MOU as per discussions.
2A. Copy of complainants letter dated 27-03-95 appointing the OP-1 with subsequent conditions and variations and mode of payment of fees.
3C. Copy of agreement with OP-2 dated 17-04-95.
4C. Photocopy of the quotation of the OP-2.
5A. Copy of complainants letter dated 24-05-95 to OP-1 reminding him of delays and negligence.
6ACO. Copy of minutes of meeting held on 01-07-95 circulated on 06-07-95.
7A. Complainants letter dated 20-07-95 to OP-1 giving details of defects in working drawings as pointed out by OP-2.
8CA. Copy of letter dated 26-08-95 from OP-2 to OP-1 with copy to complainant.
9A. Complainants letter dated 31-08-95 to OP-1, explaining that the working drawings given to OP-2 are according to him impractical and uneconomical, already wasting about Rs. 7,000/- in column foundations.
10ACO. Notes dated 01-04-96 on meeting of complainant, OP-1 and OP-2.
11CA. List of drawings and other requirements dated 21-05-96 given by OP-2 pending from OP-1.
12A. List of drawings dated 31-05-96 as given by OP-1 to complainant.
13ACO. Minutes of meeting dated 01-08-96 circulated on 03-08-96.
14AC. Note no. 5 dated 09-12-96 from regarding defective electrical work given to OP-2 signed by OP-1 and complainant.
15AC. Letter dated 10-12-96 from complainant to both OP-1 and OP-2.
16AC. Letter dated 17-12-96 from complainant to OP-1.
17AC. Complainants Letter dated 19-12-96 to both OP-1 and OP-2.
18AC. Complainants Letter dated 18-01-97 to OP-1.
19AC. Complainants Letter dated 20-01-97 to OP-1.
20C. Checking report dated 23-01-97 regarding damage to marble.
21AC. Complainants Letter dated 10-02-97 to OP-1.
22A. Complainants Letter dated 07-06-97 to OP-1.
23CA. Complainants Letter dated 09-06-97 to OP-2 with copy to OP-1 with evidence of UPC.
24CA. Complainants Letter dated 02-07-97 to OP-2 with copy of letter dated 09-06-97 and copy to OP-1.
25CA. Complainants Letter dated 04-09-97 to OP-2 with copy to OP-1.
26AC. Letter of distress dated 31-03-98 from complainant to OP-1 and OP-2 giving details of defects and making arrangement for removal of defects with a copy of defects listed by Mr. Joshi, Supervisor.
27AC. Letter dated 13-04-98 from OP-1 to complainant in response to complainants letter dated 31-03-98.
28AC. Letter dated 23-04-98 from complainant to OP-1 and OP-2 informing them of dismantling and relaying of kitchen slabs, since they failed to respond to the request of the complainant to remove the defects.
29AC. Letter No. AC/294/02 dated 04-08-95 from OP-1 to complainant recommending payment of running bills 1,2 and 3, clearly stating that though the rates and specification are not approved by the complainant, but to pay the same for adjustment on finalization.
30AC Letter dated 21-11-98 from complainant to OP-1 and OP-2 in response to OP-1s letter dated 13-04-98 informing both, of their negligency and that the complainant is now left with no alternative but to refer the matter to Arbitration by PHD Chamber of Commerce and Industry as provided in the agreement with OP-2.
28. Most of these documents are communications written by the complainant to either of the OPs from time to time. Only few of these documents are purported to have been written either by OP NO.1 or by Op No.2, which can be used against them respectively by the complainant, and need some consideration.
29. Conversely, the OP-1 have relied upon the affidavit of Shri Naveen Saxena filed by way of evidence on 13-03-2009 denying all the allegations made in the complaint and rejoinder. He also proved certain documents, by referring the same in his affidavits. These are, Ex- RW1/B copy of letter dated 27-03-1995, vide which the OP-1 were appointed as the Architects; Ex-RW 1/C- copy of letter dated 04-09-1997 written by the Attorney of complainant to OP-2 the contractor requesting him to co-ordinate with the architect and finalize the matter which was overdue, Ex-RW 1/D, copy of letter dated 13-04-1998 written by the Architects to the Attorney of the complainants expressing their displeasure for indulging in unnecessary correspondence instead of solving the problems sitting across the tables. This affidavit was to supplement what the OP-1 had stated in their reply/written version to the complaint.
30. OP-2 did not file any evidence, who before filing the reply had moved an application for dismissal of the complaint on the grounds of preliminary objection.
However, this Commission vide its order dated 09-09-2004 directed OP-2 to file proper reply and if needed might raise preliminary objections for decision at the final stage.
Accordingly, the OP-2 filed their reply to which complaint also filed rejoinder. None appeared on their behalf today.
31. We have heard the Ld. Counsel for the complainants and the Ld. Counsel for OP-1 quite at length. The Architect also accompanied their counsel. We have carefully gone through the material on record.
32. It is pertinent to note here that an effort was also made to resolve the dispute amicably by referring the matter to the Mediation but it failed and consequently the case is received back for adjudication on merit.
33. Firstly, we take up the preliminary issues raised by the OPs in this case.
34. OP-2 has raised the issue of territorial jurisdiction of this Commission to entertain the present complaint. Their contention is that, OP-2 neither resides, nor carries on business, nor has a branch office within the territory of NCT of Delhi; also the cause of action with regard to property situated in Noida cannot be said to have arisen here.
35. Section 11 (2) read with section 17 (2) of CP Act provides for territorial jurisdiction, according to which the State Commission can have jurisdiction if (a) The opposite party or each of the opposite parties, where there are more than one, at the time of the institution of the complaint, actually and voluntarily resides or carries on business or has a branch office or personally works for gain; or (b) any of the opposite parties, where there are more than one, at the time of the institution of the complaint, actually and voluntarily resides, or carries on business or has a branch office or personally works for gain, provided that in such case either the permission of the State Commission is given or the opposite parties who do not reside or carry on business or have a branch office or personally work for gain, as the case may be, acquiesce in such institution; or (c) the cause of action, wholly or in part, arises
36. Since the word or is used in clauses (a) and
(b), it is clear that State Commission will have jurisdiction if any one of the conditions namely (a), (b) or (c) is satisfied.
Broadly, Sate Commission will have jurisdiction when at least part of cause of action arises or even when one of opposite parties has a branch office in the State.
37. In this case OP-1 has its office in Delhi and this Commission while admitted complaint against OP-2 implied by permitted the complaint to prosecute the complaint in Delhi, therefore, by virtue of clause (b) section 11 (2) r/w Sec.17 (2) of the Act the complaint as against OP-2 is maintainable.
38. Next objection raised by OP-1, is that there being an arbitration clause in the Agreement between complainant and OP-2 the complaint could have invoked that clause instead of filing the present complaint.
39. It has been held by Honble Supreme Court in Skypack Couriers Ltd vs Tata Chemicals Ltd. (AIR 2000 SC 2008) that even if there is arbitration clause contained in agreement a Consumer Forum can entertain consumer complaint, because remedy provided under the Act is in addition to provisions of any Law for the time being in force, by virtue of Section 3 of the Act.
40. In view of this case Law on the point, we, find no force in the contention of the OPs.
41. However, we feel satisfied with the submissions of the OPs that the Consumer Forums should not entertain complex and intricate matters like involved in the present dispute.
42. It was held in Synco Industries vs State Bank of Bikaner (2002 AIR SCW
151) that where detailed evidence would have to be led to prove the claim and thereafter prove the damages, Consumer Forum is not appropriate forum. The case cannot be disposed of in a summary fashion and Civil Court is appropriate Forum. It was held that civil suit was not filed to save court fees. It was observed that it is an abuse of process of consumer forum.
43. In the following cases, also it was observed that since proceedings before Consumer Fora are summary in nature, a Consumer Forum can dismiss a complaint if it involves elaborate and complicated facts which would require elaborate and voluminous evidence. In such circumstances proper remedy is civil suit.
(1) Supreme Chemical Industries vs Rajasthan Sate Indl. Dev Corpn .
(2) Bharthi Knitting Co.vs DHL Worldwide Express Courier and Patel Roadways Ltd. vs Birla Yamaha Ltd.
( 3) In Indian Medical Association vs V.P. Shnatha (1995) 3 CPJ 1 Supreme Court has observed that in complicated matters involving recording of evidence by experts, complainant may be asked to approach Civil Court.
(4)In view of these observations, and the recent decisions of Honble National Commission; it stands well settled that where complicated questions of disputed facts are involved which could be decided only after elaborate trial and evidence, the matter should be agitated in a regular civil suit and should not be entertained by Consumer Fora.
(5)In Amit Gems vs Oriental Insurance Co. Ltd., 1998 (6) SCALE 287 , the Apex Court observed
- We will not interfere ordinarily in a matter where the Consumer Court feels that the dispute should be resolved by a civil suit having regard to the elaborate evidence that will be necessary.
44. The case of the complainants rests on allegations made orally in the complaint. Though one of them testified also on solemn affirmation, yet have been refuted/rebutted by sworn testimony in the affidavit of OP No.1. The voluminous record produced by the complainant makes their case more complex and intricate.
45. To prove defects in construction, technical report of an expert Civil Engineer is also required, but the complainants have not taken the trouble either to produce such expert evidence, or to request this Commission for the appointment of an expert body to examine the alleged defects in the work of construction carried-out by OP No.2 under the supervision of OP NO.1.
46. We, therefore, agree with the OPs that for the determination of such complex questions of facts and law satisfactory and adequately, appropriate Forum is a Civil Court and not the Consumer Forums like this Commission.
47. In view of the law discussed above, we are of the considered view, that the present complaint was not maintainable before this Commission, but the proceedings lingered on un-necessarily for quite a long time awaiting for final verdict on preliminary issues, which resulted in barring the remedy of the complainant to approach the Civil Court now at this late stage.
48. It has been held by Honble Supreme Court in Laxmi Engineering Works vs P.S.G. Industrial Institute (AIR 1995 S.C. 1428) that in such circumstances, consumer still can approach the Civil Court by invoking the provision of Section 14 of the Limitation Act, which provides that period spent in prosecuting remedy under any other law can be excluded, if his complaint is dismissed.
49. On merits, we find that though the allegations regarding defects in the construction carried out can not be determined without elaborate evidence of expert witnesses to be adduced by the parties, yet, regarding deficiency-in-service still the complainant can have a good case for adjudication by the consumer Forums.
50. It is admitted by both the OPs that the construction could not be completed within the stipulated agreed time frame though they have blamed each other for the delay. The Project was to be completed by 30-09-1995 but as admitted by OP-1 it was delayed for more than two years. For this delay on the part of both the OPs, they can be safely held liable for deficiency-in- service. Hence, the complaint can be allowed with regard to deficiency-in-service, which relief could be beyond the scope of a Civil Court.
51. Hence, partly allowing the complaint, we direct that OP No.1 shall refund the professional fee charged by him from the complainants which as per the case of the parties is only Rs. 35,000/- because balance of Rs. 5,000/- out of agreed amount of Rs. 40,000/- are yet to be paid by the complainants. Hence OP No.1 shall return Rs. 35,000/- to the complainants, while OP No.2, who has claimed balance to be recovered from the complainants towards construction, shall have to forego the said amount in order to indemnify the complainants as damages.
52. While partly allowing the complaint in above terms, we hold that since the dispute regarding defects involves complicated, intricate and complex/technical issues complainants can approach a Civil Court of competent jurisdiction for determination and are granted liberty to do the needful if so advised for which limitation for the period of time spent during pendency of complaint before this Commission shall be excluded.
53. Complaint is disposed off accordingly with above observations. No orders as to costs.
54. A copy of this order as per the statutory requirements be forwarded to the parties free of charge and thereafter the file be consigned to Record Room.
55. Announced on 16th August 2010.
(JUSTICE BARKAT ALI ZAIDI) PRESIDENT (M.L. SAHNI) MEMBER AV