State Consumer Disputes Redressal Commission
Sai- Sugandh Chs Ltd vs M/S Shiva Enterprises on 30 January, 2017
1
[A/13/333]
BEFORE STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
MAHARASHTRA, MUMBAI
FIRST APPEAL NO.FA/13/333
[Arisen out of Order dt.13/8/2013 passed by Ld. Mumbai Suburban District
Consumer Disputes Redressal Forum, Bandra in CC/08/305]
Sai-Sugandh CHS Ltd.
Vaishali Nagar, Dahisar (E),
S.P.Marg,
Mumbai 400068. Appellant(s)
versus
M/s. Shiva Enterprises
B/006, Sai Sungandh CHS Ltd.
Dahisar (E),
S.P.Marg,
Mumbai 400068. Respondent(s)
BEFORE:
Hon'ble Mr. Justice A.P. Bhangale, President
Hon'ble Mr. D.R.Shirasao, Judicial Member
PRESENT:
For the
Appellant:
Advocate Ms. Rashmi Manne
For the
Respondent:
Advocate Shri. S.B.Prabhavalkar
2
[A/13/333]
JUDGMENT
Per - Hon'ble Mr. D.R.Shirasao, Judicial Member
Being aggrieved by the Judgment and Order passed by the Mumbai Suburban District Consumer Disputes Redressal Forum on 13/8/2013 dismissing the complaint, complainant has preferred this Appeal. Brief facts of the case are as under-
[1] Complainant is a Co-operative Housing Society and Opposite Party is a Contractor, Complainant had given contract of repairs of roof of building to the Opposite party in the month of April 2006 for total amount of Rs.7,43,192/- Opposite Party had completed that work by August 2006. At that time M/s. Conpro Consultants was appointed to look after the work of Opposite Party. Complainant submitted that they had seen cracks to the Parapet wall of the building and there were also cracks to the roof of the building and there were also cracks in the china chips which were fixed on the roof of the building. Hence, complainant informed this fact to M/s. Conpro Consultant on 31/12/2007 and informed them to make repairs of the same. Accordingly, M/s. Conpro Consultant by giving letter dt.4/4/2008 directed the Opposite Party to make necessary repairs of the roof of the building. However, Opposite Party had not complied the same. Complainant submitted that Opposite Party had given guarantee of 10 yrs. of the work done by them. Complainant submitted that in that respect they had taken General Body Meeting of the Members of the society on 19/4/2008. Opposite Party was informed to attend that meeting by 3 [A/13/333] giving notice to him. Accordingly he attended that meeting. However, he refused to repair the roof of the building. Complainant submitted that in that meeting it was decided to give contract of repairs to another contractor M/s. Retro Balaji Consultants for total amount of Rs.2,25,000/-. Complainant submitted that in that meeting it was also resolved that the amount of Rs.2,25,000/- which is required for repairs of the roof of the building to be recovered from the Opposite Party. Hence, complainant had filed complaint for recovery of that amount from the Opposite Party.
[2] Opposite Party appeared and contested the complaint. Opposite Party admitted that he had taken contract of repairs of roof of building from complainant. He also admitted that complainant had appointed M/s. Conpro Consultant to supervise that work. However, he submitted that he had completed that work in all respect on 8/6/2006. He admitted that at that time water was kept accumulated on the roof of the building for considerable period to verify that there is no percolation of water from the top of the building. At that time the members who were residing at the top of the building had also given written undertaking that there is no leakage of water in their flats. He submitted that thereafter complainant had given contract of repairs of walls of the building to M/s. D.P. Construction. They had undertaken the work of repairs of plastering of building from outside and at that time they had fixed wooden bambooes in the parapet wall of the building and had also fixed pipes in 4 [A/13/333] parapet wall of the building. He submitted that at that time they may have caused crack to the parapet wall and roof of the building. Hence, he submitted that the same had not taken place because of his mistake and he is not required to make repairs of the same. Hence, he denied the claim of complainant. [3] Complainant and Opposite Party had submitted their affidavits of evidence and documents relied on by them. Complainant had filed report of Architect and Interior Consultant Shri. Shrikant Hadke along with his affidavit on record. Ld. District Forum while deciding the complaint on 13/8/2013 had come to conclusion that complainant failed to prove that the cracks to the parapet wall and roof of the building was due to the faulty work done by the Opposite Party and complainant further failed to prove that they had made expenses of Rs.2,25,000/- for repairs of the same through M/s. D.P. Construction. While deciding the complaint the Ld. District Forum had not considered the Report of Architect Shri. Shrikant Hadke and affidavit filed by him on the ground that the same appears to be falsely created by the complainant. Hence, Ld. District Forum had dismissed the complaint of complainant. Being aggrieved by the same, complainant has preferred this Appeal.
[4] Heard Ld. Advocate appearing for the Appellant(complainant) and Respondent (Opposite Party). Ld. Advocate appearing for the Appellant submitted that in respect of the cracks to the parapet wall and to the roof of the 5 [A/13/333] building, complainant had appointed Shri. Shrikant Hadke, Architect to verify the same. Accordingly, he had carried out the inspection and submitted his report along with affidavit. Ld. Advocate appearing for the Appellant submitted that Ld. District Forum should have taken the same into consideration. She submitted that merely the Report was produced at the time of argument the same cannot be disbelieved. She submitted that in respect of appointment of Shri. Shrikant Hadke, Resolution was passed by the complainant society and necessary documents in that respect are produced on record by the complainant. She submitted that those documents can be taken into consideration while deciding this Appeal. She submitted that Appeal and claim of the complainant be allowed. She submitted that if it appears to this Commission, while deciding the Appeal that, all these documents which are produced in Appeal, were not filed before the District Forum and they had not considered the same, then in that event the matter should be remanded back for trial to the District Forum for redeciding the complaint of complainant by setting aside the order passed by the District Forum rejecting the claim of complainant.
[5] Ld. Advocate appearing for the Opposite Party submitted that complainant failed to produce sufficient evidence on record that the cracks to the parapet wall and roof of building was due to the faulty work done by the Opposite Party. He submitted that Opposite Party had already completed the work of repairs in August 2006. Complainant had verified the same. At that 6 [A/13/333] time, water was also kept accumulated on the roof of the building and the flat owners who were residing on the top floor of the building have given written information that there is no leakage in their flat. He submitted that thereafter the society had taken work of plastering of walls of building from outside. That contract was given to M/s. D.P. Construction. They had fixed Bamboo sticks in the parapet wall of the building. He submitted that cracks to the parapet wall and roof of building might have caused because of the same. He submitted that hence the Ld. District Forum had considered the same and rejected the claim of complainant. He submitted that it is the case of complainant that they got repairs of parapet wall and roof of building through M/s. D.P. Constructions for total amount of Rs.2,25,000/-. He submitted that, however, in that respect no documents were produced before the Ld. District Forum and hence Ld. District Forum had not accepted the same. He submitted that there was no evidence before the Ld. District Forum that society had appointed Architect Shri. Shrikant Hadke for verifying damage caused to the parapet wall and roof of building. Hence, the Ld. District Forum had not considered the Report given by the Architect Shri. Shrikant Hadke and affidavit filed by him. He submitted that all those documents are subsequently created by the complainant and hence they had not filed the same at earlier stage before the Ld. District Forum and they had not made reference about the same in their complaint and affidavit of evidence. Hence, he submitted that the Ld. District Forum had rightly rejected the Report given by the Architect. He submitted that the documents in respect of 7 [A/13/333] the Resolution taken by the complainant for appointment of Architect now cannot be taken into consideration while deciding the Appeal, as all these documents were not before the Ld. District Forum while deciding the complaint. Hence he submitted that the Ld. District Forum had rightly dismissed the complaint of complainant. He submitted that the documents produced on record are subsequently created and for that purpose matter cannot be remanded back to the District Forum. Hence, he submitted that Appeal be dismissed.
[6] Perused record of the case and documents filed on record. On perusal of the same it appears that there were cracks to the parapet wall of building of complainant and also to the roof of the building. Hence, complainant had given contract of that work to the Opposite Party in the month of April 2006 for total cost of Rs.7,43,192/-. At that time, complainant had also engaged M/s. Canpro Consultant who supervised that work. It appears that the work was completed by August 2006. At that time the work done by the Opposite Party was verified by M/s. Canpro Consultant. It appears that at that time water was also accumulated on the roof of building for considerable period and all the flat owners of top floor had given in writing that there is no leakage of water from the roof of the flats. Hence, at that time Opposite Party had completed his work in all respect.
8
[A/13/333] [7] On perusal of record it appears that thereafter in the year 2007 complainant had taken the work of plastering of walls of building from outside. Complainant had given contract of that work to M/s. D.P. Construction. It appears that while performing that work M/s. D.P. Construction had fixed PVC Pipes of different dimension in parapet wall of the building. On perusal of record it appears that in the year 2008 complainant had seen cracks to the parapet wall and roof of the building. Hence, they had informed about the same to M/s. Canpro Consultant who had supervised the work of repairs of parapet wall and roof of building. Accordingly, Canpro Consultant had informed this fact to the Opposite Party who had performed that work. On perusal of record it appears that Opposite Party had given guarantee of 10 yrs of that work. It appears that on 19/4/2008 complainant had taken General Body Meeting of the society and in that meeting they had also called opposite party. However, in that meeting Opposite Party had flatly denied to further repair the parapet wall and roof of the building.
[8] It is the case of complainant that to verify the defects of the work of Opposite Party they had engaged Architect Shri. Shrikant Hadke by taking Resolution of General Body Meeting. Accordingly Shri. Shrikant Hadke had given his Report on 28/8/2008. It is the contention of the complainant that as Opposite Party had not performed that work they got the work of repairs of 9 [A/13/333] parapet wall and of terrace done from M/s. D.P. Construction and for that they had paid Rs.2,25,000/- to them.
[9] On perusal of the order passed by the Ld. District Forum it appears that complainant had produced the Report given by Architect Shri. Hadke on record at the time of final argument on 15/12/2012. The Ld. District Forum also observed that in that respect there was no averment in the complaint or rejoinder to the written statement given by the complainant or in their affidavit of evidence. Hence, Ld. District Forum had come to conclusion that, that report produced on record appears to be prepared subsequently and hence disbelieved the same. On perusal of order of Ld. District Forum it appears that in respect of giving work of repairs of parapet wall and roof of building to M/s. D.P. Construction and documents in respect of payment of Rs.2,25,000/- to M/s. D.P. Construction were not produced before the District Forum and hence the Ld. District Forum had come to conclusion that complainant has failed to prove that they got this work done from M/s. D.P. Construction and paid amount of Rs.2,25,000/- to them. Hence, it appears that for all these reasons Ld. District Forum had dismissed the claim of complainant.
[10] On perusal of record it appears that the Appellant along with Appeal memo had given list of documents including copy of bill of Rs.2,30,175/- given by M/s.D.P. Construction and also produced copy of letter given to Architect Shri. Shrikant Hadke for verifying the work of Opposite 10 [A/13/333] Party dt.28/8/2008. During pendency of Appeal, Appellant/complainant filed an application for granting permission to produce documents on record. By this application, Appellant/Complainant filed an application for granting permission to produce documents on record. By this application Appellant/Complainant wanted to produce copy of Resolution taken by the Managing Committee of Complainant on 22/8/2008 in respect of appointment of Architect Shri. Hadke to verify the work done by the Opposite Party. Ld. Advocate appearing for Respondent/Opposite Party has taken objection for the same. Hence, it has become clear that all these documents were not present before the Ld. District Forum at the time of deciding the complaint and these documents are produced for the first time in Appeal. Hence, Ld. Advocate appearing for the Appellant/Complainant had also made an alternative prayer that as these documents are produced during pendency of Appeal and were not present before the Ld. District Forum while deciding the complaint, to remand the matter to the Ld. District Forum to decide the complaint afresh. Ld. Advocate appearing for the Opposite Party opposed for the same. He submitted that in respect of all these documents there was no averment in the complaint, rejoinder given by the complainant to the written statement of Opposite Party and even in the affidavit of evidence of complainant. Hence, he submitted that there is reason to believe that all these documents are subsequently prepared. Hence he submitted that all these documents cannot be taken into consideration and for that purpose matter cannot be remanded back to the Ld. District Forum. We are 11 [A/13/333] of the opinion that there appears substance in the submissions of Ld. Advocate appearing for Respondent/Opposite Party. All these documents cannot be taken on record during the pendency of Appeal particularly when in respect of these documents there is no averment made by the complainant in his complaint and also in the Rejoinder given by him to the written statement of Opposite Party and in affidavit of evidence. Hence, we are of the opinion that as complainant had not produced any document on record to show that they got the work of repairs to parapet wall and roof of building done from M/s.D.P. Construction and had given Rs.2,25,000/- to them, Ld. District Forum had rightly dismissed the claim of complainant. We are also of the opinion that as documents about the Report given by Architect Shri. Hadke and other relevant documents in that respect are produced at belated stage, they cannot be taken into consideration. Hence, we are of the opinion that the Order passed by the Ld. District Forum dismissing the complaint of complainant, is legal and correct. Hence, Appeal deserves to be dismissed. Hence, we proceed to pass the following order-
ORDER
1] Appeal is hereby dismissed.
2] Impugned Order passed by the Ld. District Forum stands
confirmed.
12
[A/13/333]
3] Appellant is directed to give costs of this appeal of
Rs.5,000/- [Rupees Five Thousand only] to the Respondent. 4] One set of Appeal compilation be retained and rest be returned to the Appellant.
Certified copy of order be supplied to both the parties free of cost. Pronounced on 30th January, 2017.
[JUSTICE A.P.BHANGALE] PRESIDENT [D.R.SHIRASAO] JUDICIAL MEMBER rsc