DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II
Udyog Sadan, C-22 & 23, Qutub Institutional Area
(Behind Qutub Hotel), New Delhi-110016.
Case No.489/2006
M/s S. S. Enterprises
Through Sh. Ram Avtar Singh, Partner
RZ-17B, Gali No.34 Indira Park,
Palam Colony, New Delhi-110045 ….Complainant
Versus
M/s Eisa Lift Pvt. Ltd.
191, Shahpur Jat, New Delhi-110049 ……Opposite Party
Date of Institution : 11.08.2006 Date of Order : 06.06.2016
Coram:
Sh. N.K. Goel, President
Ms. Naina Bakshi, Member
Sh. S. S. Fonia, Member
O R D E R
Initially the complaint was filed before the State Commission and registered as complaint No.172/2005. Vide order dated 13.07.2006, the State Commission sent the matter to this Forum by observing that the compensation will not exceed Rs.20 lacs.
Briefly stated the case of the Complainant, it is carrying out the business of installation of lifts in the name and style of M/s S.S. Enterprises (in short, the Complainant). It had placed an order for the installation of the lifts at Military Hospital, Bhatinda and Ordinance Factory, Kanpur. It made the advance payment to the OP but the OP did not install the lifts and thus it suffered huge pecuniary losses. Complainant’s Advocate informed the OP that OP had been barred from participating in any future Military Engg. Service (in short, MES) of Bhatinda tenders and due to this Complainant had suffered huge financial losses. The MES of Bhatinda had rejected the material supplied by the OP as the same was not as per the contract specification. The OP did not make any attempt to get the material approved from the department and the OP also did not install the lift till date despite the lapse of 10 months of payment in advance to the OP. The OP had also taken away the supplied material such as VVVF drive without the knowledge of the MES Engineers “and the complaint from Military Hospital, Bhatinda”. As the OP had not supplied the material in time, the department imposed penalties due to inordinate delay in execution of the work. Complainant sent notice on 08.11.05 to ratify all the defects as pointed out by the Military Hospital, Bhatinda but the OP had not completed the pending work as per contract agreement. The work of Bhatinda had immense delay on account of supply of bad and rejected material by the OP. Military Engineers visited the premises of OP office at Noida on 12.07.05 and inter-alia found that the lift was still under fabrication stage, infrared curtain AL-20 produced was rejected, panels boards were not as per ISI specifications and other pieces of items of lifts were also down lying scattered in unorganized way. As per the Garrison Engineer (U) of Bhatinda report dated 24.09.2005, also pointed out about bad quality of the material and equipment and that the work was not completed. Complainant received a letter on 24.09.05 regarding very slow progress of work and accordingly enlisting authority imposed the ban. Complainant paid huge amount to the OP and it suffered a huge pecuniary loss of Rs.30 lacs. Hence there is a deficiency in service on the part of OP. The Complainant has prayed as under:-
- Direct the OP to refund the amount of Rs.13,97,839/- paid as advance, as mentioned in para No.12(a) to (h) of the complaint.
- Direct the OP to pay interest @ 24% per annum from the date of payment till the date of the realization of the amount.
- Direct the OP to pay an amount of Rs.30 lacs for causing pecuniary losses and damages to the Complainant.
- Direct the OP to pay the cost of the proceedings.
OP in the written statement has stated that the complaint is in the nature of the civil suit for recovery of money which is not maintainable against the OP. Complainant should have file the civil suit before the competent jurisdiction and not before this Forum as he was deliberately avoiding the payment of court fees and thus intentionally causing loss of revenue to the Govt. There are issues of fact and law involved and other related questions which cannot be determined without taking elaborate oral evidence and adducing documentary evidence including the summoning of the witness and record. Hence, the Complainant is not cover under the Consumer Protection Act. The Complainant approached in the month June/July 2004 to the OP and informed that he has to participate in tender floated by MES Kanpur and Bhatinda for the installation of the lift. He asked the OP for quote their rate. They offered standard specification of the lift manufactured by them and terms and conditions as per general practice. They give their quotation/offer on 11.08.04 wherein the mode of payment was specifically given. The Complainant accepted the offer and after receiving the orders from MES he had placed order with OP for installation of lift at Kanpur. They informed the Complainant the entire cost of installation of lift at Kanpur would be Rs.10.5 lacs plus taxes as applicable. The Complainant agreed for the same and paid Rs.50,000/- as token advance on 07.01.2005 in the name of the OP. The Complainant assured them that the payment would be of Rs.10.5 lacs. Their representative visited the site at Kanpur in the month of January, 2005 and found that the site was not ready for the purpose of installation of the lift. The Complainant paid Rs. 2 lacs to the OP in the month of February, 2005. The Complainant insisted the OP to send the material at Kanpur site. The material was sent in the month of May 2005 and the Complainant informed them that the MES will realize the payment in favour of the Complainant once the material will be reached at the site. The Complainant paid Rs.5 lacs in June, 2005 for the material and assured them that the balance will be paid shortly. He informed them that the site was not ready whereas he has got the lift installed from someone else and did a fraud with OP as well as MES. They wrote a letter to the MES Kanpur. MES informed that the Complainant had already taken 30.5 lacs from the department. In the meantime, he had informed in the month of March, 205 that he got another tender of MES Bhatinda for installation of two lifts at the hospital. They informed the Complainant that the total cost of the installments would be Rs.24 lacs pus taxes applicable. He agreed for the price quoted by them for the Bhatinda work. He also paid Rs.2 lacs to them for installation of the lift as per the standard specification. They informed the Complainant that the payment was not in accordance with the ELPL/693/01 and they asked the Complainant to pay more amount towards installation of the lift at Bhatinda as the amount of Rs.2 lacs was very less. The Complainant assured them that the payment would be made after material was inspected at the factory. The inspection was carried out on 12.07.05. After the material reached the Bhatinda site the Chief Engineer, MES Bhatinda was transferred and new Chief was appointed. The Chief engineer took some objection that the material was not as per the specification given to the Complainant but he had never informed about his specification asked/given by MES. He had always given his own specification for the installation of the lift at Bhatinda. Otherwise, there was no need for the change of the material. They had informed the Complainant that if the material will be changed and he had to pay Rs.10 lacs a difference of the cost. The Complainant failed to pay the amount. He had to pay Rs.13 lacs to them with regard to the material supplied at Bhatinda and Kanpur including the installation of the lift. The OP has informed that the Complainant directly contacted the contractor for work. OP has stated that the Complainant had not paid the payment, they reserve their right to recover the said amount alongwith interest and cost by filing a suit for recovery. OP has stated the Complainant has .. that he was authorized dealer of OP and he has given false information as he was not authorized dealer of OP at any point of time since its working. OP has prayed for dismissal of the complaint.
Complainant has filed rejoinder to the written statement of OP and reiterated the averments made in the complaint.
Complainant has filed his own affidavit in evidence while affidavit of Sh. Tarun Gupta, Director has been filed in evidence on behalf of the OP.
Written arguments have been filed on behalf of the parties.
We have gone through the file very carefully.
From the perusal of the prayer made in the prayer clause of the complaint itself it become abundantly clear that the matter in question requires summoning of record pertaining to the payments and correspondence between the Complainant and the OP. Hence, to give opportunities to the parties to adduce their respective evidence and to cross-examine each other witness. Therefore, in our considered opinion the matter in question cannot be decided in summary manner. We hold that the appropriate and efficacious remedy for the Complainant was/is to file a civil suit for getting the issue determined. Therefore, we hold that this Forum has no jurisdiction to entertain the present complaint. The complaint is accordingly dismissed on this ground alone.
Let a copy of this order be sent to the parties as per regulation 21 of the Consumer Protection Regulations. Thereafter file be consigned to record room.
(S. S. Fonia) (Naina Bakshi) (N. K. Goel)
Member Member President
Announced on 06.06.16.
Case No. 489/06
06.06.2016
Present – None
Vide our separate order of even date pronounced, the complaint is dismissed. Let the file be consigned to record room.
(S. S. Fonia) (Naina Bakshi) (N. K. Goel)
Member Member President
