Orissa

Rayagada

CC/248/2016

Sri M.Rama Rao - Complainant(s)

Versus

EO - Opp.Party(s)

Self

15 Mar 2018

ORDER

DISTRICT   CONSUMER  DISPUTES REDRESSAL    FORUM, RAYAGADA,

STATE:  ODISHA.

C.C. Case  No. 248/ 2016.                                        Date.      15 .    03    . 2018.

P R E S E N T .

Dr. Aswini  Kumar Mohapatra,                                                   President

Sri GadadharaSahu,                                                                        Member.

Smt.PadmalayaMishra,.                                                                                Member

 

Sri M.Rama Rao,  S/O:  Sri M.Bhiranna,  At:Goutam Nagar,   Po/ Dist:Rayagada, State:  Odisha.             Cell No. 9777248989.                                                                      …….Complainant

Vrs.

1.The Executive Officer, Rayagada Muncipality,  Rayagada.

2.The  Junior  Engineer,  No.I., Rayagada Muncipality, Rayagada…Opposite party.

For the Complainant:- Self.

For the O.Ps :- Sri Braja Sundar Nayak, Advocate, Rayagada..

                                                          JUDGMENT

       The  curx of the case is that  the above named complainant alleging deficiency in service  against  afore mentioned O.Ps for  non refund of (E.M.D) Earnest Money deposit a sum of Rs. 10,000/- towards  contract  work done by him   for which  the complainant  sought for redressal of the grievances raised by the complainant.

 

On being noticed the O.P. No.1   filed  written version through their learned counsel  and refuting the allegation levelled against  them. The O.Ps taking one and other pleas in the written version   sought to dismiss the complaint as it is not maintainable  under the C.P. Act, 1986. The facts which are not specifically admitted may be treated  as denial of the O.Ps. Hence the O.P No. 1    prays the forum to dismiss the case against  them  to meet the ends of justice.

On being noticed  the O.P No.2  neither entering in to appear before the forum nor filed their  written version inspite of more than  18 adjournments has been given  to them. Complainant consequently filed his memo and prayer to set exparte of the O.Ps.  Observing lapses of around 3 years  for which the objectives  of the legislature of the C.P. Act going to be destroyed to the prejudice of the interest of the complainant.  Hence after hearing  the  counsel for the complainant set the case  exparte against the O.Ps. The action of the O.Ps is against the principles of  natural justice as envisaged  under section  13(2) (b)(ii) of the Act. Hence the O.P. set exparte  as the statutory period  for filing of  written version was over to close the case with in the time frame permitted by the C.P. Act.

The O.Ps appeared and filed their written version.  Heard arguments from the    O.Ps and from the complainant.    Perused the record, documents, written version  filed by the parties. 

The  parties advanced arguments vehemently opposed the complaint touching the points both on the facts  as well as on  law.

                                                         FINDINGS.

          On perusal  of the  written version filed by the O.Ps it is revealed that  undisputedly  the O.P. had  entrusted  work  in favour of  the  complainant  “Provision for development Smashan Ghat at Koturu was sanctioned under  Biju KBK Scheme with an estimated  amount Rs. 10 lakhs and the same was tendered vide tender call Notice No. 6373/10 Dt. 30.10.2010, where  in  3 Nos. of bidder participated out of which the complainant  stood Ist. Lowest  @ 10% less.  Accordingly he was submitted the  EMD  amount of Rs.10,000/-.

          Thereafter an agreement have been made with the complainant vide  agreement No. 114/11-12 Dt. 3.5.2011 for an amounting to Rs. 8,00,919/- and awarded the work to him vide this  office  order No. 1605/ Dt. 3.5.2011. As per agreement the work scheduled to be completed within 3 months but  4 years lapsed the complainant  did not complete the work within stipulated time.   Issue of several notices, the complainant did not complete the work, then finally  the work  has been finalized and settled out the bill for amount of  Rs.4,93,700/-  vide Voucher No. 05/23.5.2016.  The above work had not  completed by the complainant and forced to cancellation of the work.  As per the OPWD code the EMD was forfeited and will not be released. In the written version the O.P. contended that  the complainant  petition is not maintainable  before the forum and may be rejected.

          This forum observed in the instant case is neither a case of sale of goods nor of hiring of service as contemplated by the C.P. Act.  So the complainant  in the present case can not be regarded as “Consumer” falling within the scope of Section 2(i)(d)(ii) of the Act.

                Prior  to delve in to the merit  of the case on outset  we have to  consider whether the complaint petition  is maintainable   under C.P. Act ?  While answering  the issue  we would like to refer the citation. It is held and reported in   1992 (1) CPR page  No.10  in the case of  Vinodini Bajpai  Vrs. Rajya  Krishi  Utpadan Mandi Parishad  where in the hon’ble  National Commission observed “That  the acceptance of a tender  undoubtedly  creates  a contractual  relationship, but  the contractor who has undertaken to perform a work of construction can not, by any stretch  of reasoning, be regarded as a person who has entered in to an arrangement of hiring of service with  other party merely on the ground   that under the contract there is an obligation on the part of the  said  party to supply certain materials such as cement etc., and also to ultimately  pay the charges found due for the execution of the work. Therefore, the  complainant does not fall within  any part of the definition of “Consumer” contained  in Section 2(1)(d)(ii)  of the  C.P.Act.”

 

                In the present case in hand as per the complainant’s own averments  and  allegations, it is manifest that  the complainant has availed the services of   the O.Ps  can not be regarded as “Consumer” falling within the scope of Section 2(i)(d)(ii) of the Act and,   therefore, they do not fall  within the definition of consumer, therefore  not entitled  to invoke the  jurisdiction  of this  forum  for the redressal of their  grievance.  It appears to us that present complaint  is nothing but an attempt  to mis use the process of this forum  with the sole object of saving  court fee payable in a civil suit.   

This forum agree with the views taken by the O.P. in their written version  that the complainant is not a consumer and the complaint filed by it is not maintainable.

            This forum has lack of jurisdiction to entertain the  above dispute  and adjudicate  the same under the provisions  of the C.P. Act, 1986.  The case is not maintainable in view of the above discussion.

The grievance of the complainant can be raised  before the appropriate court of law and not before this forum. We  do not  think  proper to go  into merit of this case.

Hence, the claim of the   complainant can not be accepted under the provisions of the C.P. Act. It is open to  complainant   ordinary remedy to approach proper forum.       

So  to meet the  ends of justice    the following order is passed.

                                                            ORDER.

            In  resultant this forum stands dismissed the present complaint petition as not maintainable, however  with liberty to the complainant to pursue their remedy before competent  court having jurisdiction in the matter.   Parties are left to bear their own cost.  Accordingly the case  is closed.

            The time spent before consumer forum shall be set-off  by  the  authority, where the proceedings are taken up, as per provision of Section-14 of Limitation Act, as per the law laid   down by  the Hon’ble  Supreme Court in the case of Laxmi Engineering works Vrs. P.S.G.Industrial Institute 1995 (3) SCC  583.

Dictated and corrected by me.                    Pronounced on this      15   ^th.    Day of   March,  2018.

 

Member.                                                             Member.                                                              President