Date of Filing:11/03/2011

        Date of Order:20/05/2011

BEFORE THE I ADDITIONAL DISTRICT CONSUMER DISPUTES REDRESSAL FORUM SESHADRIPURAM BANGALORE -  20

Dated:  20^th DAY OF MAY 2011

PRESENT

SRI.H.V.RAMACHANDRA RAO,B.SC.,B.L., PRESIDENT

SRI.KESHAV RAO PATIL, B.COM., M.A., LL.B., PGDPR, MEMBER

SMT.NIVEDITHA .J, B.SC.,LLB., MEMBER

COMPLAINT NO. 496 OF 2011

Sameer Panjwani,

Maximizer e-Services Pvt. Ltd.,

# 60, 2^nd Floor, Banaswadi Road,

Above Reliance Fresh, Jai Bharath

Nagar, Bangalore-560 033.                                                 ….  Complainant.

V/s

Arvind Jain,

Arvind Jain Architects,

No.28/1, 1^st Cross,

C.S.I. Compound,

Bangalore-27.                                                                    …. Opposite Party.

BY SRI. H.V.RAMACHANDRA RAO, PRESIDENT

-: ORDER:-

The brief antecedents that lead to the filing of the complainant U/s 12 of the Consumer Protection Act seeking direction to the Opposite Party to pay a sum of Rs.10,00,000/-, are necessary:-

          For the interior works of the new office of the complainant located at No.60, 2^nd Floor, Banaswadi Road, Above Reliance Fresh, Jai Bharath Nagar, Bangalore-33 a verbal discussion took place between the complainant and the opposite party who is an architect, wherein the opposite party assured that he will do the work at competitive market rates; the rates will be whatever the market cost of materials and workmanship was + 10% profit margin.  The complainant made known of his budget of Rs.12,00,000/- and of the complainant going to get all the work station furniture from someone else.  It was agreed that a design fee component valued at 4.5% of his total billing was given to the opposite party.  As per the instructions of the opposite party, the complainant gave two cheques one in the name of S.A. Consultants dated: 16.11.2010 for Rs.5,00,000/- to the company the opposite party runs which would execute the actual interior work and other cheque for Rs.55,150/- in the name of the opposite party dated: 16.11.2010 as the advance towards the design fee.  The opposite party assured that by 15.01.2011 the interiors will be ready.  The scope of work involved setting up of wooden partitions with some finishing i.e., either by way of lamination or paint for the reception, conference, meeting and server room; gypsum partitions for the 4 cabins; storage cabinets for workstation area and cabins; full glass facade for front facing partitions of all cabins and conference and leisure room; false ceiling for the rooms mentioned; painting of entire office; paneling of pillars and painting/laminating them.  On 19.11.2010 the parties finalized the layout of the office and the opposite party said that he will send the Bill of Quantities in a day or two.  After billing, on 26.11.2010 the opposite party sent Bill of Quantities detailing a break up of Rs.16,00,000/- for interior work + Rs.5,00,000/- for electrical.  As the rates were unreasonable the complainant called the opposite party and said that the bill is unreasonable.  On 1^st or 2^nd December 2010 a discussion took place between the parties wherein the complainant showed the rates of the opposite party is being over the top and the opposite party stated that they look at rates later while he would start his work.  It was also agreed that the electrical work would be given to some other person, which the complainant did.  On 09.12.2010 the opposite party sent mail regarding certain concepts which was not clear to the complainant and it was ordinary.  On 13.12.2010 the complainant mailed his own conception.  Till date the opposite party though it had taken the advance had not started the work.  About a month after receiving the cheques the opposite party sent the first set of materials.  By this time the opposite party has not visited the complainant office except for three or four times that too when the complainant insisted.  By second week of January the work was moving at snail’s pace, because the opposite party was having problems in obtaining the materials.  The workers of the opposite party were sitting idle for most of the days because of no material.  The complainant was insisting the opposite party that the deadline of 15^th January was coming to an end.  Believing with the words of the opposite party that he will do the work the complainant had issued two cheques dated: 11.01.2011 for Rs.4,00,000/- and another cheque dated: 18.01.2011 for Rs.1,75,000/-.  Even on 20.01.2011 the work was not completed and it was going in a snail’s pace.  Even 50% of the work has not been done, but the opposite party was demanding more money.  The complainant had paid almost the entire amount.  But the opposite party sent the pre-final bill for Rs.19.8 lakhs, this is against the promise that has been made by the opposite party.  Even the revised deadline of 24.01.2011 for completing the work was not adhered to.  Even on 25.01.2011 the work was not completed and the opposite party could not keep the material like glass, wood and paint which are easy to obtain.  Even between 26^th and 29^th January 2011 the work was not completed, in spite of repeated calls made by the complainant.  The complainant was helpless, he has to outsource more of his work to others as a consequence of which he has to pay extra cost with a new contractors to complete the work faster.  On 30.01.2011 the workers of the opposite party disappeared from the site as the opposite party was unresponsive.  The opposite party has done work up to Rs.6,00,000/- and had caused plenty of delay and stress.  As a result the complainant has to postpone the opening of the office.  As the complainant has to extend the lease of old office had to pay extra rent.  The complainant has to complete everything on his own.  The complainant had gone to the Frazer Town police station.  The Frazer Town Police station have stated that it is the civil matter therefore this complaint.

2.       In brief the version of the opposite party are:-

The complaint filed by individual Director is not maintainable, it should have been filed by a Company viz., M/s. Maximiser-E-Services Private Limited.   This is a contractual dispute hence this forum has no jurisdiction to entertain the complaint.  The matter requires detailed trial which cannot be decided in a summery way.  M/s. S.A. Consultant is owned by its proprietrix Mrs. Seema Jain who has to perform a contract is not a party to the proceedings.  The complainant is not a consumer as he is running the business of commercial establishment in the field of software and promotion of individual companies and advertisements on internet.  The complainant and the opposite party entered in to a contract for carrying out certain interior works for the business establishment of the complainant.  The opposite party is an Architect and Interior designer.  M/s. S.A. Consultant was the executor of the interior work had tendered estimation to the complainant on 26.11.2010 for a total sum of Rs.16,28,696/- which was revised and reduced to Rs.15,33,916/- by mutual consent.  Subsequently the scope of interior work increased and thereby the complainant and M/s. S.A. Consultant have to revised the work at Rs.20,14,041/- as per the pre-final bill dated: 20.01.2011.  Similarly, the opposite party for the services rendered for designing the interior work has quoted his charges at 7% of overall cost of project + service tax by his letter addressed to the complainant which is accepted by the complainant.  During the work in progress the complainant started interfering with the designing and execution of work time and again on frivolous grounds and thereby started pressurizing the opposite party and M/s. S.A. Consultant to reduce the prices on certain invented grounds.  The main intention of the complainant is to get the reduction in the prices as much as possible at the cost of opposite party and the M/s. S.A. Consultant.  The complainant started changing the designs every quite often and the area of work spot and thereby delayed the approval of the working design and stalled the progress in the interior work.  Time is not the essence of the contract.  The opposite party and M/s. S.A. Consultant have carried out all the interior work and no work left unattended.  The complainant is the husband of the proprietrix of M/s. S.A. Consultant.  The work was started on 15.12.2010 and the work was going on smoothly as per the schedule.  The complainant is not so generous in paying the legal fees and other charges and is trying to went to the extent of evading tax to the Government as he intended to hire the services of a local non-registered electrician instead of a qualified electrical contractor, much against the will of the opposite party.  The complainant has so far has paid Rs.10,75,000/- to S.A. Consultant for the execution of work and Rs.55,150/- towards the service charges rendered by the opposite party.  Still he is due Rs.1,76,480/- to the opposite party and Rs.1,16,608/- to the S.A. Consultant.  At the time of finishing and at the time of finalization of the work the complainant picked up quarrel with the workmen of the opposite party and threatened them for carrying out further work at the spot and made them to run away from the premises in order to create a ground of non-execution of work by the opposite party at the fag end and when the opposite party and its sister concern forwarded the bills for payment the complainant stoutly refused to accept and failed to pay the bill amount and on the other hand trying to shift the blame on opposite party on the ground of alleged delay which is totally untrue.   As a result, both the parties approached the Frazer Town police.  The Police Inspector of Frazer Town Police Station after holding discussion with both the parties suggested to appoint a valuator to value the work so for done by the opposite party and M/s. S.A. Consultant and accordingly the complainant agreed to it.  Later he evaded to co-operate with the opposite party in as much as the complainant did not allow one Mr. K.V. Venugopal who is a Government approved property valuer when he visited the premises on 03.03.2011 to value the works.  The complainant created a scene and obstructed the valuator from taking measurements and also to verify the work done by the opposite party and the pictures taken out by him through his mobile camera were got deleted by him under threat.  This was informed to the Police Inspector, Frazer Town Police Station.  The complainant purposefully did so with an intention to evade the balance payment payable to the opposite party.  In view of the constant refusal by the complainant to accept the final bills, the opposite party could not deliver the same to the custody of the complainant and ultimately he received the same after mutual discussion before police authorities.  The complainant is guilty of suppression of various facts.  All the allegations to the contrary are denied.  All the statements of the complainant are unreliable.

3.       To substantiate their respective cases the parties have filed their affidavits and documents.  The arguments were heard.

4.       The points that arise for our consideration are:-

:- POINTS:-

1. Whether the complainant is a Consumer?
2. Whether the complaint is bad for non-joinder of necessary parties?
3. Whether the complaint is not maintainable as contended in Para-2 of the version?
4. Whether there is any deficiency in service on the part of the opposite party?
5. What Order?

5.       Our findings are:-

Point (A) to (E)        :           As per the final Order

                                      for the following:- 

-:REASONS:-

Point A to E:-

6.       Reading the pleadings in conjunction with the affidavits and documents produced by both the parties it is needless to say that M/s. Maximiser-E-Services Private Limited is a commercial establishment in the field of software and promotion of individual companies and advertisements on internet.  The Managing Director of the company has filed this complaint on behalf of the Company.  It is also an undisputed fact that the opposite party is an Architect and in the name of his wife it is he who is running M/s. S.A. Consultants which carries out the interior work and other works which has been designed by the opposite party.

7.       It is also an admitted fact that the new office of the complainant’s company is made at No.60, 2^nd Floor, Banaswadi Road, Above Reliance Fresh, Jai Bharth Nagar, Bangalore-560 033; regarding that new office, the interior work was to be made, in that regard the complainant approached the opposite party and on 16.11.2010, a discussion took place between the complainant and the opposite party and the complainant has sent an e-mail to the opposite party at 3.03 Pm wherein it is clearly stated that in between 44 to 46 smaller workstations  (appx. 3.5 ft X 2 ft ), 22 to 24 mid-size workstations (5ft X 5 ft) and 2 large work bays of 7 X 7 each has to be made out.  “future expansion” area has to be made out in the layout and the cabin of the managing director of the complainant’s company be around 150 to 160 sq. ft. instead of the 130 sq. ft. as designated and all other cabins can be the same size or maximum a foot bigger and it can be done in between 10 to 12 lacs, and 15 lacs to 20 lacs is the upper limit and the amount will be as per the actual of execution + 4.5% design fee based on the execution billing and design can be sent and they can finalise the thing.  That means no agreement took place on that day, everything is left in the air.  Hence the contention of the complainant that there is contract made on that day and there is delay in doing the work is not acceptable.

8.       The opposite party on 17.11.2010 at 9.04 AM has sent an e-mail stating that cost would be as per actual of execution + 4.5% of the design fee based on the execution billing + taxes as applicable.  Hence the contention of the complainant that claiming by the opposite party of the service tax is untenable and it cannot be accepted.

9.       Further it is seen from the e-mail dated: 26.11.2010 at 9.21 PM, dated: 29.11.2010 at 1.15 PM, dated: 01.12.2010 at 1.05 PM, dated: 03.12.2010 at 8.27 PM, dated: 04.12.2010 at 11.32 AM, dated: 04.12.2010 at 12.44 PM, dated: 13.12.2010 at 3.29 PM, dated: 04.01.2011 at 7.07 PM, dated: 25.01.2011 at 9.45 AM, that time is not essence of the contract.  There were discussions between the parties and nothing was finalized, only the sketch is finalized.  The complainant wanted the money to be reduced on every item for which the opposite party was not agreeable.  That means everything was in fluid state and only discussions, alterations, additions were made some work was attended too.  There is no concluded contract.

10.     The complainant wanted local electrician could do the job which the opposite party did not agree.  The complainant gave the work to the local electrician of his choice and thus avoided payment to the opposite party.  It is a business dealing, the complainant has to save as much as money he could hence he did it.  There were changes in the sketch offered between the parties.

11.     Ultimately the opposite party had given a pre final bill to the complainant amounting to Rs.19,87,206/- that was not paid by the complainant.  Anyway the complainant has paid only Rs.10,75,000/- to the opposite party and thereby certain work was completed and certain work was not completed.

12.     The complainant has alleged that he had to arrange for other contractor and get the work finished and thus there is loss.  The opposite party has stated that he has completed all the work and it is the complainant who has forced him to go out of the work place and the complainant himself is due to him.  Anyway what is the exact work done by the opposite party?  What is the work it has not been done?  How much the amount spent by the opposite party?  And how much the amount paid by the complainant? Is to be decided in a Civil Court which requires detailed pleadings, detailed cross-examinations and also appointment of a Commissioner to take measurement of the work done by the opposite party and the amount to be paid and not to be paid.  This cannot be done by this consumer forum, which is having a summery jurisdiction only.

13.     Further in this case the complainant is doing the business and it is for its business expansion the complainant has sought assistance of the opposite party for interior decoration, that means to earn more money for a private limited company of the complainant.  In a case between Birla Technologies Limited –V/s- Neutral Glass and Allied Industries Limited reported in 2011 CTJ 121 (SC)(CP) it has been ruled thus:-

If the goods are purchased for the commercial purpose of earning more profits then there can be no dispute that even the services offered alongwith them have to be for the same purpose.

Further in a case between Techno Mukund Constructions –V/s- Mercedes Benz India Limited and Another reported in 2011 CTJ 387 (CP)(NCDRC) the Hon’ble National Commission has ruled thus:-

The intention of Parliament in excluding persons purchasing goods for commercial purpose from the definition of the expression ‘Consumer’ is to impose a restriction that the special remedy before the Consumer Forums can be invoked only by ordinary consumers buying goods for their private and personal use and consumption and not business organizations buying goods for commercial purpose.

That means to say if a commercial establishment has assigned a work to another for its commercial purpose to earn more money, the said person is not a consumer and that complainant has to approach the Civil court for relief and not before the Consumer Forum.  These in all applies to the facts and circumstances of the case.  Hence the complainant cannot be a consumer.

14.     Further under the circumstances as discussed supra who committed default?  who committed breach of contract? whether time was the essence of the contract? whether there is any delay on the part of the opposite party? what is the work done by the opposite party? who had delayed? what is the damage caused? cannot be decided in a summery way.  The complainant says because of the delay of the opposite party he has been put to loss.  The opposite party per contra says it is the complainant who is the cause for delay and the complainant has not paid the amount in full and the opposite party is entitled to certain amount from the complainant.  These are all matters which requires elaborate pleadings and evidence, cross-examination which cannot be decided in a summery manner.  The parties have to approach the Civil Court.

15.     The opposite party has contended that the complainant has filed his complaint as the Managing Director as such it is not maintainable.  It is an untenable contention.  The complainant in the cause-title has clearly stated he is representing M/s. Maximizer e-Services Private Limited and filed the complaint that means the complaint is filed for on behalf of the Company and not in the individual capacity of Sameer Panjwani.  Hence this contention is an untenable contention.

16.     Further it was contended that the M/s. S.A. Consultants is the executor of the work and opposite party is the architect who is doing the consultation and as such M/s. S.A. Consultants should be a party to this proceedings.  This is an untenable contention.  It is admitted that the proprietorix of M/s. S.A. Consultants is none other than the wife of the opposite party, but all the documents of the S.A. Consultants were signed by the opposite party.  Hence how can the complainant could know that S.A. Consultant is owned by somebody other then the opposite party.  The opposite party never stated that his wife is doing the work to which he gives the architectural advice.  It means it is the opposite party who is doing both businesses.  Hence the said consultant need not be a party to the said proceedings.  No proof to show that wife of opposite party is in fact the proprietorix of M/s. S.A. Consultant. 

17.     Further it is an undisputed fact that both the parties have gone to the Frazer Town Police Station before filing this case.  The opposite party in Para-6 sub-clause (V) has stated thus:-

The Police Inspector of Frazer Town Police Station after holding discussion with both parties suggested them to appoint a valuator to value the work so for done by the opposite party and M/s. S.A. Consultant and accordingly to abide by the report.  The complainant who initially agreed for appointment of valuator later evaded to co-operate with the opposite party in as much as the complainant did not allow one Mr. K.V. Venugopal who is a Government approved property valuer when he visited the premises on 03.03.2011 to value the works undertook by the opposite party.  In fact the complainant created a scene and obstructed the said Government valuer from taking measurements and also to verify the work done by the opposite party and the pictures taken out by him through his mobile camera were got deleted by him under threat.  Later the opposite party informed the inspector of Police, Frazer Town Police Station about the rude behavior of the complainant with the said valuer and the obstructions caused by him with report of valuer.  The complainant purposefully did so with an intention to evade the balance payment payable to the opposite party.  The copy of the complaint with report of valuer is produced herewith.

This is fully corroborated by the copy of the complaint and the report of the valuer.  This has been suppressed by the complainant.  Hence its suggestion vary and hence the complaint is not maintainable.  When the complainant and the opposite party have gone to the police for redress and the police inspector rightly stated to get a valuator assessed and to be abode by the report of the valuator the complainant though agreed but backed out because of his natural stringiness as rightly contended.  Even before this Forum the same valuator could have been taken to spot and his report could have been obtained and produced to know how much work that has been done and valued the amount for that work and who is due that has not been done.  Hence this complaint is not maintainable.

18.     The opposite party cited II (1993) CPJ 679, III (2000) CPJ 332, I (1991) CPJ 145, I (1991) CPJ 169, II (1993) CPJ 777.  There is no dispute between above proposition of law.  The principals which are applicable are applies to the facts and circumstances of this case.  Discussing and distinguishing or explaining will only bulk the record and bulge the record which is prohibited under Regulation 18(5) of the Consumer Protection Regulation 2005.  Hence we hold the above points accordingly and proceed to pass the following:-

-: ORDER:-

1. The Complaint is Dismissed.
2. Return the extra sets filed by the parties to the concerned as under Regulation 20(3) of the Consumer’s Protection Regulation 2005.
3. Send a copy of this order to both parties free of costs, immediately.

(Dictated to the Stenographer, transcribed and typed by him, corrected and then pronounced by us in the Open Forum on this the 20^th Day of May 2011)

MEMBER                                     MEMBER                                PRESIDENT