National Consumer Disputes Redressal
Shashi Malhotra vs Ashok Kumar on 18 June, 2020
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI CONSUMER CASE NO. 2237 OF 2016 1. SHASHI MALHOTRA R/o. Flat No. J-16, First Floor, Paryavaran Complex, IGNOU Road, NEB Sarai, New Delhi - 110 068. ...........Complainant(s) Versus 1. ASHOK KUMAR D-74, East of Kailash New Delhi - 110 065. ...........Opp.Party(s) BEFORE: HON'BLE MR. PREM NARAIN,PRESIDING MEMBER For the Complainant : Mr. Madhav Khurana , Advocate Mr. Varun Singh Thapa, Advocate For the Opp.Party : Mr. Haneef Mohmmad , Advocate Mr. Anil Vyas, Advocate for Mr. Ali Z. Ahmed, Advocate Dated : 18 Jun 2020 ORDER This complaint has been filed by the complainant Shashi Malhotra against opposite party Ashok Kumar.
2. Brief facts of the case are that the complainant entered into a collaboration agreement dated 05.04.2011 for the purpose of constructing/developing her property. As per the agreement, the land was to be provided by the complainant and the complete cost of constructing the property was to be borne by opposite party. In due course of time, the complainant observed major structural flaws with the construction of the premises which were duly pointed out to the opposite party on various occasions. Later on, the complainant shifted into the premises, however, the premises was completely unfit for habitation owing to the gross negligence and hazardous construction methods adopted by the opposite party. Complainant engaged structural consultant who in his report dated 02.06.2011 stated that the slab had been deflected beyond the allowable limit of 20mm and suggested certain alternatives to correct the roof slab. In September, 2011, opposite party constructed the ground floor, upper ground floor and first floor without any rectification to the premises structure as per the agreement. In October, 2011, opposite party rescinded the agreement by abandoning the construction of the premises. On 05.10.2011 complainant completed the ground floor and upper ground floor using her life savings in order to make the premises worth living and incurred an expense of Rs.13,05,712/-. In 2014, the complainant repaired the construction of first floor for an additional amount of Rs.5,50,000/-. The circumstances created by opposite party caused inconvenience to the complainant as she along with her family had to obtain temporary accommodation for a period of one year during the duration of the construction of the premises. Opposite party left the entrance to the elevator shaft on the terrace covered with only a thin iron sheet, as a result of this negligent conduct, the complainant's daughter-in-law died by falling through the iron sheet on 30.01.2013. After the death, inquest proceedings were conducted u/s 176 Cr.P.C. however, the case was closed on 06.05.2014 as no foul play suspected. An architect in his report dated 20.09.2014 confirmed that numerous cracks appeared in the walls of the premises as opposite party failed to sufficiently waterproof plaster of the walls. Another architect report dated 14.11.2016 stated that the premises is unfit for cohabitation.
3. The complaint has been opposed by the opposite party by filing the written statement. It has been stated by the opposite party that as per clause 28 of the agreement, disputes or any differences shall be referred to an arbitrator if the matter is not resolved mutually between the parties. Thus the State Commission does not have jurisdiction.
4. It has been stated by the opposite party that the collaboration agreement is of 05.04.2011 and the opposite party abandoned the work in September-October, 2011, therefore limitation for filing the complaint was upto October, 2013. Hence, the complaint was time barred.
5. It has been alleged by the opposite party that complainant forced opposite party to stop the work and did not settle the account or the actual expenses incurred by opposite party.
6. It has been stated that the complaint is not maintainable because as per the case of complainant, opposite party breached the stipulations of collaboration agreement which is a contract between the parties and therefore, the only remedy with the complainant is to approach the civil court. It has also been alleged by the opposite party that no relationship of consumer and service provider existed for the subject matter of the complaint. It has been further stated by the opposite party that after October, 2011, how many persons constructed the property is not within the knowledge of opposite party. Complainant got remaining work done in part and as such levelling false allegation after 5 years that opposite party was negligent in construction is baseless and false. It has been requested to dismiss the complaint.
7. Both the parties filed their evidence by way of affidavits which have been taken on record.
8. Heard the learned counsel for the parties and examined the record. Learned counsel for the complainant stated that the complainant gave her land for development to the opposite party and the opposite party was to build a building on that land. The agreement was signed on 05.04.2011 and the building was to be completed within a period of six months. However, by September, 2011 only the ground floor was completed and also upper ground floor was under construction. Opposite party left the work unfinished. The complainant got the building examined by a Structural Engineer who submitted his report to the complainant. The complainant came to know that the slab was defective. The complainant persuaded the opposite party to rectify the defect and complete the building, however, the opposite party left the work without any notice. In October, 2011, the complainant then occupied the premises though the building was not complete. The complainant had to spent Rs.13,05,712/- in order to make the premises worth living. In 2014, the complainant repaired the construction of the first floor for an additional amount of Rs.5,50,000/-. Later on, cracks developed on the wall and therefore, the report of the Structural Engineer was sought by the complainant. Architect/Structural Engineer confirmed in its report dated 20.09.2014 the cracks on the wall and other defects. In fact, the lift was not properly installed by the opposite party in the premises and the daughter-in-law of the complainant fell down inside the lift shaft as no proper door was installed on the opening of the lift and it was only covered by the iron sheet. In Architect's report dated 14.11.2016, it has been stated that the premises is unfit for habitation. It has been pointed out by the learned counsel for the complainant that the building is to be demolished as the same is not liveable and the complainant has to spent money for demolishing the building. The complainant is thus, entitled to Rs.13,05,712/- and Rs.5,50,000/- from the opposite party as this amount has been spent due to wrong and improper construction by the opposite party. Moreover, the compensation be also awarded to the complainant for demolishing the building.
9. The learned counsel for the complainant further argued that the objection taken by the opposite party that the complaint is time barred is not correct as the complaint has been filed within two years from the date of report of Architect/Structural Engineer i.e. 26.12.2016.
10. On the other hand, learned counsel for the opposite party stated that the complainant did not allow opposite party to complete the construction. The complainant had not paid any amount to the opposite party and whatever money has been spent on the construction is a loss only to the opposite party. In fact, the money spent by the opposite party should be refunded back to the opposite party as the contract was rescinded in the year 2011 itself. The complainant was constantly monitoring the quality of the construction and material used, therefore, it cannot be said that the quality of the construction was bad. The learned counsel stated that as admitted by the complainant, the complainant had got the construction completed herself and therefore, if the cracks have been noticed later on, the same may be due to construction done by the complainant.
11. It was further stated by the learned counsel for the opposite party that the death of daughter-in-law of the complainant has nothing to do with the construction. It was an accident for which the opposite party is not responsible in any way. The opposite party had left the building in October, 2011 and since then the complainant herself was maintaining the building, thus if there was any short-coming in the building, the complainant would be responsible for the same.
12. Leaned counsel for the opposite party also stated that the total claim of the complainant is only for refund of Rs.13,05,712/- and Rs.5,50,000/- though the complainant has also submitted claim of Rs.1 crore for the death of the daughter-in-law of the complainant along with Rs.50,00,000/- as damage for the hardship caused. As explained earlier, the learned counsel stated that the opposite party has nothing to do with death of the daughter-in-law, therefore, the claim in this regard and compensation for mental agony and harassment has nothing to do with the opposite party. Hence, the complaint is only for an amount which is less than Rs.20,00,000/-, therefore, this Commission does not have the pecuniary jurisdiction to decide the present complaint. It was further submitted by the learned counsel for the opposite party that the collaboration agreement is dated 05.04.2011 and the complaint has been filed on 26.12.2016, therefore, the complaint is highly time barred and no application has been filed for condonation of delay. Thus, the complaint is liable to be dismissed on the ground of limitation. Learned counsel for the opposite party further stated that the collaboration agreement is in the form of contract and the same can be cancelled only by a civil court. There is no relationship of consumer and service provider between the complainant and the opposite party. Hence, the consumer complaint is not maintainable before this Commission.
13. I have carefully considered the arguments advanced by both the learned counsel for the parties and have perused the record. As the issue of limitation has been raised by the opposite party, it is necessary to examine this issue first in the light of the judgment of the Hon'ble Supreme Court in State Bank of India Vs. M/s. B.S. Agricultural Industries (I) AIR 2009 SC 2210 wherein the following has been held:
"8. It would be seen from the aforesaid provision that it is peremptory in nature and requires consumer forum to see before it admits the complaint that it has been filed within two years from the date of accrual of cause of action. The consumer forum, however, for the reasons to be recorded in writing may condone the delay in filing the complaint if sufficient cause is shown. The expression, `shall not admit a complaint' occurring in Section 24A is sort of a legislative command to the consumer forum to examine on its own whether the complaint has been filed within limitation period prescribed thereunder. As a matter of law, the consumer forum must deal with the complaint on merits only if the complaint has been filed within two years from the date of accrual of cause of action and if beyond the said period, the sufficient cause has been shown and delay condoned for the reasons recorded in writing. In other words, it is the duty of the consumer forum to take notice of Section 24A and give effect to it. If the complaint is barred by time and yet, the consumer forum decides the complaint on merits, the forum would be committing an illegality and, therefore, the aggrieved party would be entitled to have such order set aside".
14. It is seen that the collaboration agreement was signed on 05.04.2011 and the opposite party left the work in October 2011, thus for shortcomings in the work, the cause of action arose in October 2011 and the complaint should have been filed before October 2013. The complainant has also included the compensation for death of her daughter-in-law in the present complaint. The death of daughter-in-law occurred on 30th January, 2013. For this part of the complaint, the cause of action arose on 30th January, 2013 and therefore the complaint could have been filed by the end of January 2015. Clearly the complaint has been filed on 26th December, 2016 and therefore considering any cause of action, the complaint is highly barred by limitation. There is no merit in the argument of the complainant that the cause of action arose from the last report of the architect dated14th November 2016 as this is in complainant's hand to get the report on any date. The complainant was aware about the shortcomings in the construction as she had already received two reports of the structural engineer and architect, one in 2011 and other on 20th September 2014. No action was taken by the complainant to file the complaint then.
15. Though there are other points on which clarity is not there such as when the complainant took the possession, the construction was only upto upper ground floor and she got completed the first floor in the year 2014, then it is not clear as to what was the need to install the lift and even if some provision was made for the lift, why did the complainant continue with that provision after taking the possession?, but these questions are not being examined as the complaint has been found to be highly barred by limitation. No application for condonation of delay has been filed by the complainant and therefore, the delay in filing the complaint cannot be condoned.
16. Based on the above discussion, I find that the complaint filed by the complainant is hopelessly barred by limitation and therefore, the Consumer Complaint No.2237 of 2016 is dismissed.
...................... PREM NARAIN PRESIDING MEMBER