Order-18.
Date-10/12/2015.
In this complaint ComplainantsRamyo Co-operative Housing Society Ltd. and Jagadish Narayan Mondal by filing this complaint have submitted that complainant is a Housing Society registered under the West Bengal Co-operative Societies Act 1983 having its registered office at AA-7 Salt Lake City, Kolkata-700064 and Administrative Office at Bagmari Road and at present complainant Society consist of 8 members and each member has been allotted one flat in the said building and most of the members are aged one and all the resident members are staying there at and without elevator/lift which is very difficult for the aged cardiac and asthmatic patients with ostrio arthritis to reside in 2nd , 3rd and 4th Floor of the said building and even some of the members are not in a position to stay in their own flats and are completed to hire accommodation on heavy monthly rent out side the said premises and reside there at.
Op no.1 is the renowned private limited company of M/s. Adams Elevator and Lift Private Ltd and ops are the service providers having Head Office at P-35, Kasba Industrial Estate, Kolkata-700107 and administrative office at Kasba Industrial Estate, Kolkata-700019 and ops are the manufacturers of lift.
The main contention of the complainants are that they were in dire need of installation of an elevator in the building constructed by complainant at 226/227 Bagmari Road and it is a 4 storyed building occupied by a majority of old senior citizen members who are the chronic patients of asthma, cardiac and ostrio-arthritis patients.Complainants approached the op no.2 with request to submit quotation for installation of Adams make passenger elevator at 226/227 Bagmari Road and ops submitted a proposal being No. ANP0114/06/07 dated containing the details of installation and time frame on 02/06.2006 to the complainant society and the then Board of Directors accepted the quotation.
The said proposal was accepted and a contract was executed in between the Society and the ops on 05.06.2006 on acceptance of quoted price of Rs. 2,75,000/- including VAT and duties and work order was placed with them to install the lift within a minimum span of time and executed the formalities for certain terms and conditions.
The terms of payment was agreed by both the parties as mentioned in the contract are 1) 30 percent of contract price has to be paid as interest free advance along with the order, 2) 30 percent of contract price has to be paid against Proforma Invoice on intimation of delivery of 1st phase full materials, 3) 30 percent of contract price has to be paid against Proforma Invoice on intimation of delivery of 2nd phase full materials and 4) 10 percent of contract price plus all applicable taxes has to be paid upon intimation that the installation is ready for handover and complainants complied with the payment schedule and made payments to the ops on regular basis and the last payment was made on 04.02.2012.
Further the Clause 6 of the said terms and conditions of contract provided that the supply of materials and installation at the site which will be completed within 30 weeks from the date of receipt of valued order or receipt of advance payment whichever is later and complainants made advance payment in due time as per payment schedule and ops started the work and initially ops supplied some materials vide Challan No. ADM/2756/N dated 01.09.2012 which were received by complainants.
Ops started executing the job thereafter but ops did not complete the job even after lapse of 9 years though the statutory period of completion as agreed was only 30 weeks as per contract and that is the installation was supposed to be completed by 16.04.2013 but ops failed and neglected to do the job within the schedule time which tantamounts to deficiency in service and unfair trade practice.
According to complainants ops left the work site without completing the job and without ventilating the reason to the complainants and as per payment schedule complainants paid balance sum of Rs.55,000/- on 04.02.2012 vide cheque Nos.513657, 498868, 033908 and 380664 which were duly acknowledged by the ops vide Money Receipt No.152117 and in such circumstances complainants faced irreparable loss and mental agony and also harassment.
Though ops have been paid the full amount and it was their duty to complete the job and handed over the possession of the flat within 30 weeks from the date of execution of the contract i.e. on 16.04.2013 but ops failed and neglected to perform the job within the stipulated time.For the deficiency of service of the ops, some of the complainants had to shift accommodation in a rented house and had to incur financial loss inspite of that they were possessing residential flats and suffered for the default of the ops.
On constant persuasion, ops issued a letter on 07.02.2014 admitting the delay and expressed that they were extremely sorry for the inconvenience and assured to make the lift as early as possible in the year 2014 but that has not been done.So finding no other alternative complainants requested the ops to undertake and completed the job vide Advocate’s letter dated 02.03.2015 to op no.1 and against that letter op replied through their Advocate’s letter stated that due to labour problem it was delayed and op no.2 promised to send the balance material.But more than one month passed, no steps have been taken by the ops to install the lift.
In such circumstances, for the above reason, complainants finding no other alternative filed a complaint against the ops for proper redressal and also for compensation etc.
On the other hand by filing written objection ops submitted that this complaint is not maintainable and it is a false, frivolous and baseless complaint against the ops.
Ops submitted that complainants being a Housing Co-operative Society under West Bengal Co-operative Society Act entered into an agreement for installation of a lift at their building at 226/227, Bagmari Road, Kolkata-700054 with a proposal being No.ANPO114/06/07 dated 02.06.2015 along with quotation to the directors and the said proposal was accepted by the both parties and an agreement was executed on 05.06.2006 at the agreed price of Rs. 2,75,000/- including VAT and complainants paid certain amount as advnce in terms of the agreement and the said contract is valid for 26 weeks.
Ops further submitted that after current management of the company took charge of the company from 2011, they informed the complainants about the lift price and ops partly received the payment of Rs. 55,000/- in the year 2012 and ops sent all materials as per payment, next complainants again paid of Rs. 55,000/- when ops informed the complainants to pay some extra amount as the material point of time their site is not ready and subject agreement is lapsed.So, complainants agreed to pay extra amount on the basis of such assurances and ops received the same and sent materials.
Subsequently in course of reply of the letter dated 16.04.2015 of the Chairman of the Society, ops through their Ld. Advocate informed by a letter to the complainants that there will be increase cost of elevator due to lapse of time and at present the said price will be Rs. 5,00,000/- + taxes and ops wanted to know if they were ready to install the lift on the said payment and the said letter dated 04.05.2015 was returned back to op with postal remark ‘left’. The ops are always ready to install the lift if the complainants paid the increased amount.
Further the answering ops stated that at present the office of op no.1 is shifted to P-35, Kasba Industrial Estate, Phase-II, Kolkata-700107 and op has no office at 12, Netaji Subhas Road, 1st floor, room no.13, Kolkata-700001.Furthermore as per Section 102(4) of the West Bengal Co-operative Society Act, 2006 that any Civil Court and Forum has no jurisdiction to decide this disputes.So, as per provision of the said Act, the instant case is not maintainable before the Ld. Forum and the Ld. Forum may be pleased to dismiss the complaint case.
Decision with reasons
On proper consideration of the complaint and written version and after hearing the argument as advanced by the Ld. Lawyers of both the parties, we have taken up at first jurisdictional point because op submitted that at present the office of op no.1 is shifted to P-35, Kasba Industrial Estate, Phase-II, Kolkata-700107 and op has no office at 12, Netaji Subhas Road, 1st floor, room no.13, Kolkata-700001.
Considering that point we find that when the case was filed, the documents were issued from 12, Netaji Subhas Road, 1st floor, room no.13, Kolkata-700001 and it was within the jurisdiction of this Forum at the relevant time.Subsequently the Kasba P.S. area is under the jurisdiction of this Forum.So in both ways this Forum has jurisdiction and so such a challenge on the part of the op is not at all entertainable and this Forum has jurisdiction to decide the same and Kasba P.S. is under the jurisdiction and for which the defence of the op is found baseless.
After considering the argument advanced by the Ld. Lawyer by the op and also the written version, it is found that it is admitted position that complainant is a Housing Co-operative Society under West Bengal Co-operative Society Act and that complainant entered into an agreement for installation of a lift at the building at 226/227, Bagmari Road, Kolkata-700054 with a proposal being No.ANPO114/06/07 dated 02.06.2015 along with quotation to the directors and the said proposal was accepted by the both parties and an agreement was executed on 05.06.2006 at the agreed price of Rs. 2,75,000/- including VAT and it is admitted by the op that complainant paid certain amount and the said contract was valid for 26 weeks and ops received part payment of Rs. 55,000/- in the year 2012 and again ops received Rs. 55,000/- when ops claimed an extra amount for payment by the complainant.
As per op, complainant paid part amount, so, some materials were sent.Ultimately ops through their Ld. Advocate informed by a letter to the complainants that there was increase of cost of elevator due to lapse of time and at present the said price will be Rs. 5,00,000/- + taxes and ops wanted to know if they were ready to install the lift on enhance rate and the said letter dated 04.05.2015 was returned back to op with postal remark ‘left’. The ops are always ready to install the lift if the complainants pay the increased amount.
In this regard Ld. Lawyer for the complainant submitted that there was an agreement and it was the duty of the ops to comply the terms and conditions of the agreement and as per terms and conditions of the agreement, it is clear that complainant on 2 occasions paid demand of the op and paid Rs. 55,000/- each that is Rs. 1,10,000/-.But op did not start the work till now.
Peculiar factor is that the completion of work must be made within 30 weeks from the date of first payment and practically from the letter of op dated 07.10.2014 it is found that op has admitted that there has been a delay for delivery of product and in some cases due to modernization process in their factories to satisfy the requirements of ops international collaborations and certain other issuesand ops are extremely sorry for the inconvenience caused by this inadvertent delay and ops assured the complainant that everything is being done by ops technical team to expediate deliveries and ops hope to bring their time-tested elevators to complainants’ premises at the earliest in the year 2014 and they have also stated that Moloy Dutta and few other employees and their establishment are responsible for many irregularities causing inconvenience to many customers and have taken drastic action in this regard and if this letter is considered, in that case the laches, negligence and deficiency was on the part of the op.They failed to complete and to install the said lift within time and they assured that the lift shall be installed in the complainants’ premises in the year 2014.
But fact remains that the proposal was accepted on 02.06.2006.So, considering that fact, it is clear that with intention op delayed the matter and harassed the entire Co-operative Society and their inhabitants and no doubt complainant has been suffering for the laches and negligence on the part of the ops.Question of increase of price of the materials does not arise at this stage because ops admitted that for their fault they failed to install the same in time.So, there is no question of paying any extra amount in respect of installation of the said lift.When in the year 2006 Rs. 1,10,000/- was received and that has been invested to the business of the ops and ops enjoyed the profit of that money and in lieu of that complainant is being harassed by the ops and it is no doubt negligent and deficient manner of service on the part of the ops and violation of the terms and conditions of the agreement for installation of the lift for which complainant paid huge amount but has not got the service.
After proper consideration of the written version and the evidence of the op, we find that now ops want to get more amount than that of the agreed amount of Rs. 2,75,000/- and they are now claiming Rs. 5,00,000/- but for what reason they claimed that amount extra amount against agreement.So, it is the laches and negligence on the part of the op and ops have admitted that for their fault that has not been installed at the relevant time for which they assured that it shall be completed in the year-2014, but in the year 2014 that was not completed not even when the complainant filed this complaint in the year-2015.But payment was made in the year 2006.It indicates that this op company has adopted unfair trade practice by killing time, they are trying to impose increased rate to the customer and for that they are running their business in a deceitful manner of nature and for which invariably the very conduct of the op is found against the agreement and they have violated the terms and conditions of the agreement for installation of lift which was made on 02.06.2006.
Most interesting factor is that ops’ Ld. Lawyer has submitted that Section 102 of West Bengal Co-operative Societies Act 2006 is applicable in the present case and provision of Section 102(4) is applicable and Forum has no jurisdiction to try this case.But considering that provision of the present case, it is found that the said provision is not applicable in this case in view of the fact that the dispute must be in between or amongst the members, past members and persons claiming through members and deceased members or their sureties and between the Co-operative societies or any board or any past board or any liquidator etc. and as per provision of 102(2)any dispute mentioned in sub-section(1) other than a dispute relating to recovery of money shall be filed before the Registrar within three months from the date on which the cause of action arises and in the present case this dispute does not come under the purview of 102(1).So, the provision of Section 102(4) of the West Bengal Co-operative Societies Act, 2006 is not at all applicable.
But in some case this chapter is not properly interpreted and wrongly entertained by many Fora which is ultimately against the provision of law because the dispute in the case of West Bengal Co-operative Societies Act, 2006 must be a dispute as mentioned in Sub-Section 102(1) butthere is no dispute and the present dispute does not come under the purview of the Section 102(1) of West Bengal Co-operative Societies Act, 2006 and in this regard Section 102(2) has confirmed that the present dispute does not come under the purview of West Bengal Co-operative Societies Act, 2006 for which we are convinced to hold that this Consumer Forum has jurisdiction to entertain this case because this dispute is related to negligent and deficient manner of service and also for violating the terms and conditions of the agreement and also for unfair trade practice. The dispute as mentioned in the C.P. Act, 1986 cannot be decided by the West Bengal Co-operative Societies Act, 2006 and moreover the present dispute come under the purview of the C.P. Act, 1986.
So, this Forum has jurisdiction to decide this complaint and complainant has proved this fact beyond any manner of doubt for which this complaint is maintainable and this Forum has jurisdiction to decide the same and it is not barred u/s 102(4) of the West Bengal Co-operative Societies Act, 2006.
Most interesting factor is that ops’ Ld. Lawyer at the time of hearing submitted that the site of the complainant is not ready inspite of the best endeavor of the op so the op cannot proceed with the installation job. But this is false and fabricated plea at this stage because by ops letter dated 20.03.2015 op has admitted that due to some precarious condition and supply of labour problem cease work was effective from 15.06.2015 and for such delay installation work could not be done but this plea has been taken by the op is invariably after thought because they admitted that their some employees did not do that though they shall have to complete it by 2014, but the year 2014 as already expired and thereafter 2015 entered and also the year 2015 is going to be completed and even now they have not completed it. It is no doubt negligent and deficient manner of service violating the terms and conditions of the agreement and they have adopted such procedure by adopting unfair trade practice only for deceiving the complainant only to get more money for installation of lift they took such plea for which we are convinced to hold that there was no laches on the part of the complainant and in this regard all laches and negligence on the part of the op is proved beyond any manner of doubt and they are claiming more money and it is clear that according to agreement in the year 2006 they received Rs. 1,10,000/- but they are sitting idle till now and one after another plea is being taken. But it must be kept in our mind that Co-operative Society made agreement for installation of lift since 2006 but ops are taking one after another plea not to install the same but complainant paid Rs. 1,10,000/- to the ops, in that case ops are legally bound to do it but in the above circumstances we are convinced to hold that the plea of the op is that the complainant has not taken any initiative on the part of complainant is completely false and fabricated and after thought and the claim of the op for payment of extra charges is not also at all entertainable and for which the complainants has proved the case beyond any manner of doubt.
In the result, this complaint succeeds.
Hence, it is
ORDERED
That the complaint be and the same is allowed on contest with cost of Rs. 10,000/- against the ops.
Ops shall have to comply the order by installing the lift in the premises of the complainant within two months from the date of this order and to handover all certificates issued by the Government for running the lift and to receive the balance amount out of agreement amount of RS. 2,75,000/- because already ops received a sume of Rs. 1,10,000/-.
So, complainant shall have to deposit of Rs. 1,65,000/- to this Forum within one month from the date of this order and in the meantime op shall have to complete the lift in the premises within 2 months from the date of this order and after receipt of satisfactory certificate of the complainant about installation of lift deposited amount shall be released in favour of the op but op must have to comply the order within two months from the date of this order failing which ops shall have to pay compensation of Rs. 5,00,000/- to the complainant as compensation including the amount of Rs. 1,10,000/- which has already been received by the ops that is total Rs. 6,75,000/- within 15 days from the date of expiry of two months as specified for completion of the work.
For adopting unfair trade practice and for adopting deceitful manner of service and to protect the customers from the hands of such ops who are dealing deceitful manner of trade, ops shall have to pay penal damages of Rs. 50,000/- which shall be deposited to this Forum after expiry of the stipulated period of two month for completion of installation of lift and if lift work is completed, in that case this penal damages shall not be paid by the ops.
Ops are directed to comply the order within the stipulated time failing which penal action shall be started u/s 25 read with Section 27 of C.P. Act, 1986 for which further penalty and fine shall be imposed upon ops.
Order No. 19 / Dated 22/01/2016.
Record is put up to-day on prayer of the Complainants- Ramyo Cooperative Housing Society Ltd. & Anr. The Complainants intended to deposit Rs.1,65,000/- (Rupees One Lac Sixtyfive Thousand) Only through Demand Draft bearing no.072791 dated 21.01.2016 drawn on Punjab National Bank, Kalighat in favour of Consumer Legal Aid Account Unit-II in terms of Judgement dated 10.12.2015 passed by this Forum. In the said judgement it was ordered inter alia that O.Ps shall have to comply the order by installing the lift in the premises of the Complainant. So, Complainant shall have to deposit of Rs.1,65,000/- to this Forum.
Let the said DD be accepted and deposited to the bank account of this Forum. The said deposit is REFUNDABLE one. Note in the relevant register accordingly.
