STATE CONSUMER DISPUTES REDRESSAL COMMISSION, UNION TERRITORY, CHANDIGARH First Appeal No. | 87 of 2012 | Date of Institution | 16.03.2012 | Date of Decision | 13.07.2012 |
Abdul Khan, Proprietor/Partner, M/s A. K. Builders, SCO No.2443-44, Cabin No.11 (1st Floor), Sector 22-C, Chandigarh. ...Appellant/Opposite Party Versus Sh. Swaranjit Singh Khurana son of Sh. Parduman Singh resident of House No.126, Type 4, GGSSTP, Nuhon Colony, District Roop Singh Nagar, Punjab. .. Respondent/Complainant APPEAL UNDER SECTION 15 OF THE CONSUMER PROTECTION ACT, 1986. BEFORE: HON’BLE MR. JUSTICE SHAM SUNDER, PRESIDENT MRS. NEENA SANDHU, MEMBER Argued by: Sh. Rajiv Joshi, Advocate for the appellant. Sh. Vivek Mohan Sharma, Advocate for the respondent. First Appeal No. | 95 of 2012 | Date of Institution | 22.03.2012 | Date of Decision | 13.07.2012 |
Sh. Swaranjit Singh Khurana son of Sh. Parduman Singh resident of House No.126, Type 4, GGSSTP, Nuhon Colony, District Roop Singh Nagar, Punjab. ...Appellant/Complainant Versus Abdul Khan, Proprietor/Partner, M/s A. K. Builders, SCO No.2443-44, Cabin No.11 (1st Floor), Sector 22-C, Chandigarh. IInd Address: Abdul Khan S/o Sh. Jhuni Khan R/o H.No.1100, Sector 52, Chandigarh. (Presently residing at H.No.1100, Sector 56, Chandigarh). .. Respondent/Opposite Party APPEAL UNDER SECTION 15 OF THE CONSUMER PROTECTION ACT, 1986. Argued by: Sh. Vivek Mohan Sharma, Advocate for the appellant. Sh. Rajiv Joshi, Advocate for the respondent. MRS. NEENA SANDHU, MEMBER 1. This order will dispose of the aforesaid two appeals, bearing F.A. No.87 of 2012 filed by the appellant/Opposite Party and bearing F.A. No.87 of 2012 filed by the appellant/complainant against the order dated 17.02.2012, rendered by the District Consumer Disputes Redressal Forum-II, UT, Chandigarh (hereinafter referred to as the District Forum) vide which it allowed the complaint filed by the complainant and directed the Opposite Party as under: - “13. We accordingly allow this complaint in favour of the Complainant and direct the Opposite Party to complete the work as per specifications in the agreement within 03 months from today. The defects pointed out by the Local Commissioner and already mentioned in Para 6 above, be specifically adhered to and rectified. The Complainant shall then pay the Contractor any amount due to him as per the agreed rates given in clause 10 beyond Rs.36.00 lacs already paid. In case he does not complete the construction and remove the defects, then no further amount shall be payable to him. The Complainant can then get the work completed at his own cost. However, the prayer of the Complainant for payment of Rs.1000/- per day as penalty beyond 08 months as per clause 8 of the Agreement is not tenable because the exact measurement of agreed area has not been mentioned in clause 3 of the Agreement. The Opposite Party will also pay a cost of Rs.50,000/- for deficiency in service, mental agony and harassment, besides litigation. This amount be adjusted in favour of the Complainant at the time of final bill. In case the Opposite Party fails to undertake the work as per the defects pointed out by the Local Commissioner, then he shall be liable to pay a further additional cost of Rs.50,000/- to the Complainant.” 2. The brief facts of the case, are that the Complainant entered into an agreement dated 12.03.2010 with the Opposite Party, for constructing his house on Plot No.1332, Sector 80, SAS Nagar, Mohali. All the parameters of construction along with specific material, to be used, were detailed in the said agreement. The cost of construction was fixed at Rs.850/- per sq. ft. for inside and Rs.425/- per sq. ft. for verandah area. The total amount agreed to be paid was Rs.25.00 lacs. At a later stage, extra work was also done by the Opposite Party, beyond the agreement, the complainant paid an additional amount of Rs.11.00 lacs to him. 3. It was stated that as per Clause 7 of the agreement, the work was to be completed within 08 months, failing which, as per Clause 8, the Opposite Party was to pay Rs.1000/- per day as damages. Since, the Opposite Party failed to complete the work within the stipulated period, so it was liable to pay the said damages to the complainant but he did not pay the same. It was further stated that the Opposite Party issued a bill of Rs.43,83,283/- dated 22.02.2011, which according to the complainant, showed the excessive amount. It was further stated that the delay in construction caused the complainant a huge financial loss as he was expecting to rent out the premises but could not do so. Even possession of the house was not delivered to the complainant by the opposite party. It was further stated that the aforesaid acts, on the part of the opposite party amount to deficiency in service and indulgence into unfair trade practice. When the grievance of the complainant was not redressed, he filed a complaint before the District Forum praying for directions to the Opposite Party, to pay the penalty of Rs.1,000/- per day, in accordance with Clause No. 8 of the agreement; hand over the possession of the completed house, and pay compensation for mental agony, harassment and inconvenience, besides cost of litigation. 4. The opposite party, in its reply, took a specific preliminary objection that the complainant was not a Consumer as per the definition of the Consumer Protection Act, 1986, as the construction of the building, was got done for commercial purpose. However, on merits, it was admitted that an agreement (Annexure C-2) was executed between the complainant and the opposite party, for carrying out the construction work, and the approximate cost was Rs.25 Lacs. It was stated that the final amount was to be calculated as per measurements and rates mentioned in the agreement. It was further stated that as per the terms and conditions of the agreement, the complainant was still liable to make payment, as per the calculations, furnished to him. According to the opposite party, the work done, outside the purview of the agreement, was also not specifically calculated, and reflected in the bills supplied to the complainant. It was also stated that the work had been completed, within the stipulated period, by the opposite party, but the complainant withheld the payment. It was further stated that some work was executed, on the first and second floor of the building, at the behest of the complainant, in violation of the sanctioned plan. According to the opposite party, an amount of Rs.7,83,282/-, was still due against the complainant, on account of extra work, executed at the premises, as per the bill supplied to the complainant. It was further stated that the completion certificate, from the Govt. Authorities, had also been obtained, and handed over to the complainant. The Opposite Party denied all other allegations, made in the complaint, and prayed for dismissal of the complaint. 5. The parties led evidence in support of their case. 6. After hearing the Counsel for the parties, and, on going through the evidence and record, the District Forum allowed the complaint, as mentioned, in the opening para of this order. 7. Aggrieved against the order, passed by the District Forum, the instant appeals have been filed, one by the complainant, for the enhancement of compensation and payment of penalty as per the agreement, and the other by the opposite party, for setting aside the impugned order. 8. We have heard the learned Counsel for the parties and have gone through the evidence on record of the case carefully. 9. In the appeal bearing No.95 of 2012, filed by the appellant/ complainant, he has sought modification of the order, to the extent, that as per Clause No.8 of the agreement dated 12.3.2010 (Annexure C-2), he is entitled to Rs.1,000/- per day as penalty, as also enhancement of compensation to the tune of Rs.1 lac, besides payment of costs of litigation to the tune of Rs.11,000/-, plus the fee of Rs.10,000/- paid to the Local Commissioner, and an amount of Rs.20,000/- paid to Sh. R. S. Verma, Building Estimator, for getting the bills checked from him. He further submitted that as per Clause No.1 of the agreement dated 12.3.2010, the contract was fixed at Rs.25 Lacs approximately, and as per Clause No.7 of the agreement, the respondent/opposite party had to complete the work, within the period of 8 months, but despite receiving the entire payment of Rs.25 lacs plus an additional amount of Rs.11 Lacs, as per Clause No.3, in lieu of extra work done, the respondent/Opposite Party did not complete the construction work, as agreed. He further submitted that instead of completing the construction work, within the stipulated period, the respondent/Opposite Party started demanding more money and on refusal to pay the same by the appellant/complainant, as he had already paid the excess amount, the respondent/Opposite Party stopped the construction. The learned Counsel also submitted that the District Forum, by ignoring the affidavit of Sh. R. S. Verma, Building Estimator and the documents enclosed with the same (Ex.C-6 to C-10) especially Ex.C-10 i.e. the certificate dated 30.6.2011, issued by Sh. R. S. Verma, wherein he mentioned the total cost of construction after measuring the total covered as well as uncovered area, erred in rejecting the prayer for the payment of Rs.1,000/- per day as penalty, as per Clause 8 of the agreement (Annexure C-2), whereas, he is legally entitled to this amount. He further submitted that the District Forum also overlooked the fact that the respondent/opposite party had abandoned the Kothi/construction work, half way, leading to great mental agony and harassment to the complainant. The learned Counsel for the appellant/complainant, thus, prayed for allowing his appeal, and modification of the impugned order to this extent. 10. In the Cross Appeal bearing No.87 of 2012, filed by the Opposite Party, the learned Counsel for the appellant/opposite party has admitted, that appellant/opposite Party had been engaged by the respondent/complainant, to complete the construction of his house, as per the agreement. He further submitted that in view of the allegations of the appellant/complainant, that the work had not been completed in time, the District Forum appointed a Local Commissioner, who submitted his Report dated 02.07.2011, wherein, it was stated that few minor works remained to be done, which could be finished very quickly but had remained pending, only due to the stoppage of payment by the respondent/complainant. He further submitted that, as per this report, the appellant/opposite party was entitled to receive the balance amount, as per the final bill, calculated as per Clause No.10 of the agreement, after the removal of defects, specifically mentioned in the order dated 17.2.2012. He further submitted that the work could not be completed, due to non-payment by the complainant, and due to the extra work done, on the instructions of the complainant. He further submitted that there was no deficiency in rendering service, on the part of the appellant/opposite party, and he is not liable to pay Rs.50,000/- as compensation, on account of mental agony and physical harassment, as awarded by the District Forum vide the impugned order. He further submitted that the appeal be accepted, and the impugned order, passed by the District Forum, be set aside and the complaint be dismissed. 11. It is proved from the Report of the Local Commissioner dated 02.07.2011, that certainly there were minor works, which remained to be done by the opposite party. The District Forum rightly directed the opposite party, to complete those works including the one, as specified in the agreement (Annexure C-2). The District Forum was also right in holding that only after the rectification of defects, the complainant shall pay to the opposite party (Contractor), any amount due to him, as per the agreed rate mentioned in Clause No.10 of the agreement, beyond Rs.36 Lacs, already paid. The aforesaid findings, of the District Forum, being based on the correct appreciation of evidence, are affirmed.. 12. As regards the prayer, made by the complainant, regarding payment of Rs.1,000/- per day, as penalty beyond 8 months, as per Clause No.8 of the agreement, we do not find any merit in the same, because the exact measurements of the area, which was to be constructed, were not mentioned in Clause No.3 of the agreement. Not only this, it was also established that the extra work was done by the opposite party, on the asking of the complainant. It was, on account of this reason, that the construction could not be completed in time. 13. The major defects, which were pointed out, by Er. G. S. Roshan, Chief Engineer, who was appointed as Local Commissioner, are mentioned in Para No.2(1) to (vi) of the impugned order. On account of these defects, a lot of physical harassment and mental agony was caused to the complainant. The District Forum was, thus, right in awarding compensation, including costs, to the tune of Rs.50,000/-, to the complainant, which can be said to be fair, reasonable and adequate. The compensation awarded by the District Forum, is commensurate with the injury caused to the complainant. No ground is, therefore, made out, for enhancement of compensation. 14. The impugned order does not suffer from any illegality or perversity, warranting the interference of this Commission. 15. In view of the foregoing discussion, both the appeals bearing No.95 of 2012 filed by the appellant/complainant and No.87 of 2012 filed by the appellant/opposite party are dismissed being devoid of any merit, with no orders as to costs. The order of the District Forum is upheld. 16. Certified copies of the order be placed in First Appeal No.95 of 2012. 17. Copies of this order be sent to the parties, free of charge. Pronounced. 13th July, 2012. Sd/- [JUSTICE SHAM SUNDER] PRESIDENT Sd/- [NEENA SANDHU] MEMBER Ad
STATE COMMISSION (First Appeal No.87 of 2012) Argued by: Sh. Rajiv Joshi, Advocate for the appellant. Sh. Vivek Mohan Sharma, Advocate for the respondent. Dated the 13th day of July, 2012 ORDER Vide our detailed order of even date, recorded separately, this appeal alongwith FA No.95 of 2012 has been dismissed, with no orders as to costs, as per directions. (NEENA SANDHU) MEMBER | (JUSTICE SHAM SUNDER) PRESIDENT | |
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STATE CONSUMER DISPUTES REDRESSAL COMMISSION, U.T., CHANDIGARH First Appeal No. | 95 of 2012 | Date of Institution | 22.03.2012 | Date of Decision | 13.07.2012 |
Sh. Swaranjit Singh Khurana son of Sh. Parduman Singh resident of House No.126, Type 4, GGSSTP, Nuhon Colony, District Roop Singh Nagar, Punjab. ...Appellant/Complainant Versus Abdul Khan, Proprietor/Partner, M/s A. K. Builders, SCO No.2443-44, Cabin No.11 (1st Floor), Sector 22-C, Chandigarh. IInd Address: Abdul Khan S/o Sh. Jhuni Khan R/o H.No.1100, Sector 52, Chandigarh. (Presently residing at H.No.1100, Sector 56, Chandigarh). .. Respondent/Opposite Party APPEAL UNDER SECTION 15 OF THE CONSUMER PROTECTION ACT, 1986. BEFORE: HON’BLE MR. JUSTICE SHAM SUNDER, PRESIDENT MRS. NEENA SANDHU, MEMBER Argued by: Sh. Vivek Mohan Sharma, Advocate for the appellant. Sh. Rajiv Joshi, Advocate for the respondent. MRS. NEENA SANDHU, MEMBER 1. For orders, see the orders passed in First Appeal No.87 of 2012 titled “Abdul Khan Vs. Sh. Swaranjit Singh Khurana”, vide which this appeal has also been dismissed. 2. Copies of this order be sent to the parties free of charge. Pronounced. 13th July, 2012. Sd/- [JUSTICE SHAM SUNDER] PRESIDENT Sd/- [NEENA SANDHU] Ad MEMBER
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, U.T., CHANDIGARH (Miscellaneous Application in First Appeal No.95 of 2012) Date of Institution | 21.05.2012 | Date of Decision | 13.07.2012 |
Sh. Swaranjit Singh Khurana son of Sh. Parduman Singh resident of House No.126, Type 4, GGSSTP, Nuhon Colony, District Roop Singh Nagar, Punjab. ...Applicant/Appellant Versus Abdul Khan, Proprietor/Partner, M/s A. K. Builders, SCO No.2443-44, Cabin No.11 (1st Floor), Sector 22-C, Chandigarh. IInd Address: Abdul Khan S/o Sh. Jhuni Khan R/o H.No.1100, Sector 52, Chandigarh. (Presently residing at H.No.1100, Sector 56, Chandigarh). .. Respondent/Opposite Party Application for appointment of Local Commissioner/Building Estimator for submitting the detailed status report of the construction work along with the total cost of construction as per the greement dated 12.03.2012 entered into between the applicant/appellant and the respondent/opposite party in respect of House No.1332, Sector 80, S.A.S. Nagar, Mohali. BEFORE: HON’BLE MR. JUSTICE SHAM SUNDER, PRESIDENT MRS. NEENA SANDHU, MEMBER Argued by: Sh. Vivek Mohan Sharma, Advocate for the applicant/appellant. Sh. Rajiv Joshi, Advocate for the respondent/opposite party. MRS. NEENA SANDHU, MEMBER 1. The applicant/appellant/complainant has filed an application for appointment of a Local Commissioner, to find out, as to whether the work has been completed, as the respondent/opposite party has submitted a report of Randhir Garg and Associates, during the pendency of appeal that the work has been completed. It was stated that the report of Randhir Garg and Associates is incorrect. It was further stated that the bill, submitted by the opposite party, is contradictory to the bill dated 05.03.2011. It was further stated that the appointment of a local commissioner, is essential for the just decision of the dispute. 2. In reply, it was stated by the respondent/opposite party that the work has already been completed. He further stated that an Architect visited the spot, and found, that the work had been completed. Thereafter, he furnished the certificate (Annexure P-5) regarding the completion of work. It was further stated that the final bill (Annexure P-6) was submitted after taking into account the final measurement and the same is correct. It was further stated that no ground was made out for the appointment of local commissioner. 3. After perusing the averments made in the application and reply, as also the record, we are of the considered opinion, that no ground is made out for appointment of a local commissioner. Whether the impugned order passed by the District Forum has been fully complied with or not, is required to be determined by the Executing Tribunal/Forum, as and when an application for execution is made. In this view of the matter, the application being misconceived is dismissed. 4. Copies of this order be sent to the parties free of charge. Pronounced. 13th July, 2012. Sd/- [JUSTICE SHAM SUNDER] PRESIDENT Sd/- [NEENA SANDHU] MEMBER Ad
STATE COMMISSION (First Appeal No.95 of 2012) Argued by: Sh.Vivek Mohan Sharma, Advocate for the applicant/appellant. Sh. Rajiv Joshi, Advocate for the respondent. Dated the 13th day of July, 2012 ORDER Vide our detailed order of even date, recorded separately, the application for appointment of local commissioner, and this appeal have been dismissed, with no order as to costs. (NEENA SANDHU) MEMBER | (JUSTICE SHAM SUNDER) PRESIDENT | |
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| | HON'BLE MRS. NEENA SANDHU, MEMBER | HON'BLE MR. JUSTICE SHAM SUNDER, PRESIDENT | , | |
