BEFORE THE DISTRICT CONSUMER DISPUTES

REDRESSAL COMMISSION, JALANDHAR.

                                                                   Complaint No.88 of 2021

                                                               New CC No.474 of 2022

                                                               (Remanded Back) 17.11.2022

                                                                   Date of Inst. 22.12.2022

                                                                   Date of Decision: 03.05.2023

Gurdev Singh Sahota, age about 75 years son of late Sh. Puran Singh son of Nand Singh, resident of 426, West Elgin Mills Road, Richmond Hill, Toronto (Ontario), Canada at present resident of Village Sherpur, Tehsil Phillaur, District Jalandhar.

..........Complainant

Versus

1.       M/s Gurdip Singh & Sons, Contractors and Builders, Village Samrai, Tehsil Phillaur, District Jalandhar, through Sukhbir Singh Partner.

2.       Sukhbir Singh son of Gurdip Singh, Partner M/s Gurdip Singh & Sons, Village Samrai, Tehsil Phillaur, District Jalandhar.

3.       Sukhwinder Singh son of Gurdip Singh, Partner M/s Gurdip Singh & Sons, Village Samrai, Tehsil Phillaur, District Jalandhar.

….….. Opposite Parties

Complaint Under the Consumer Protection Act.

Before:        Dr. Harveen Bhardwaj             (President)

                   Smt. Jyotsna                            (Member)

                   Sh. Jaswant Singh Dhillon       (Member)                                

Present:       Sh. Ram Pal, Adv. Counsel for the Complainant.

                   Sh. Umesh Dhingra, Adv. Counsel for the OPs No.1 to 3.

Order

Dr. Harveen Bhardwaj (President)

1.                    The instant complaint has been remanded back by the Hon’ble State Commission, vide order dated 17.11.2022, whereby the order of this Commission dated 28.09.2021 had been set-aside and further, a direction was given to this Commission to decide the case afresh by giving the proper opportunity to the parties and by getting the proper evidence from the parties on the issue involved in the present case.

2.                Brief facts of the complaint are that the complainant being NRI. He gave contract for building his residential house in village Sherpur Tehsil Phillaur District Jalandhar to M/s Gurdip Singh and Sons Contractors and Builders through Gurdip Singh (Partner) as per agreement dated 03.10.2016. He obtained the services of the OPs and Gurdip Singh against payment. The complainant is non-resident Indian and mostly stays in Canada. A sum of Rs.43,23,000/- was paid to Gurdip Singh, Sukhbir Singh and Sukhwider Singh by cheque and cash against receipts signed by them.  Besides this Ops used old bricks and recovered by demolishing the old house costing Rs.3 lakh. Thus, total sum of Rs.46,23,000/- has been paid to OPs. Gurdev Singh since expired and firm has been taken over by remaining two partners who are also legal heirs of Gurdev Singh. As per terms of the agreement dated 03.10.2016 the OPs agreed to construct  the residential house @ Rs.1200/- per square ft with first class material as mentioned in agreement up to 20.03.2017 but it was not completed within time. It was agreed that first quality bricks, ACC Cemet, Kamdhenu Saria, Chougath for doors and windows, pallas would be of sagwan wood. Iron Grills would be fixed, one submersible pump of Jindal, lubi of kalsi make up to 250 ft. bore would be provided. Steel railing for the staircase and black colour glass on the window vitrous make sanitary fitting of the first quality for the bathroom, water tank of 1000 liters capacity POP in all the rooms.  First Class tiles in all the bathrooms and kitchen upto the roof level, wooden cabin in the kitchen, cupboards in the bed rooms. First class tile floors in all rooms and verandah. The electricity fittings, good quality wires of libra quality would be used. OPs agreed to construct the building and provide complete ready to use house along with marble pavement in the court yard. OPs did not use the first class material as mentioned in the agreement. Tiles used of inferior quality and fixed in an uneven manner. The wood work of windows and doors is also defective, instead of teak wood. The sanitary wares of very poor quality and not of the agreed approved make. Due to act and conduct of OPs, he has filed the present complaint and prayed that OPs be directed to pay 10,00,000/- as damages for sub-standard and faulty construction against agreed terms, besides Rs.50,000/- as litigation expenses.

3.                Notice of the complaint sent to OPs No.1 to 3 on 09.03.2021 received un-served with postal remarks “Refused”. OPs refused to accept the notice, as such they are declared to have been duly served but neither OPs nor anybody else appeared on their behalf, as such, OPs are proceeded against exparte, vide order dated 20.04.2021 passed by this Commission.

4.                In order to prove their respective versions, both the parties have produced on the file their respective evidence alongwith affidavit.

5.                We have heard the arguments from learned counsel for the respective parties and have also gone through the case file very minutely.

6.                Perusal of the record shows that the OPs did not appear in the Commission and was proceeded against exparte, vide order dated 20.04.2021 and the order was passed by the Commission on 28.09.2021. Now the case has been remanded back by the Hon’ble State Commission setting-aside the judgment dated 28.09.2021 by giving the proper opportunity to the parties and by getting the proper evidence from the parties on the issue. Since, the order dated 20.04.2021 has never been set-aside vide which the OP was proceeded against exparte, therefore, as per the order passed by the Hon’ble State Commission, the parties were given the opportunity to lead the evidence. The complainant has given the statement that he does not want to lead any evidence, whereas the OP No.1 to 3 have tendered into evidence the photographs, affidavit Ex.OP-A alongwith documents and photographs.

7.                In the affidavits of Sukhbir Singh and Sukhwinder Singh filed by the OPs No.1 to 3, they had denied the execution of the agreement between complainant and Gurdeep Singh for the construction work. He has alleged that the new complaint is not maintainable after the alleged compromise between the parties as the photographs depict the rectification work and construction completed as per the requirement of the complainant. He has alleged that new cause of action has arisen and no permission was granted by the Commission to file the complaint after the withdrawal of the previous complaint. This contention of the OPs No.1 to 3 is self contradictory. In Para No.1 of the affidavit, the OP has denied the execution of the agreement for the construction work between the complainant and the OPs and on the other hand in para No.2, he has alleged that as per agreement dated 27.02.2020, the rectification and completion of the work was done by the OPs. So, this clearly proves that the defence of the OPs is self contradictory. In Para No.4 of the affidavit, the OP has alleged the bonafide on the part of the OPs when on 27.02.2020, the parties i.e. complainant and OPs entered into compromise for removal of the alleged discrepancies in construction and agreed to carry on further construction and repairing the alterations in the presence of the complainant. Thus, from the contention and defence taken by the OPs No.1 to 3, it is proved that the agreement dated 03.10.2016 was executed between the complainant and the OPs reducing the terms and conditions of the construction work at the residence of the complainant. The complainant has proved on record the agreement dated 03.10.2016, which bears the signatures of Gurdeep Singh and the complainant and it is signed by the witnesses also. Ex.C-2 is the receipt of the payment by Gurdeep Singh on 30.10.2017. The complainant has proved on record the photographs Ex.C-3, Ex.C-4 and Ex.C-6 to Ex.C52 showing that there were many defects in the construction, wood work of windows, doors, the cracks are also visible in the panels of the doors, chogathan (u'rkmK) and windows. Even the visible wide cracks in the stairs also. So, the detail of the defects has been mentioned by the complainant in para No.8 of the complaint. On the other hand, the OP has admitted the agreement dated 27.02.2020. Perusal of the agreement dated 27.02.2020 Ex.C-53 shows that the OP has agreed to rectify and replace the material by adding the clauses from (T s'A B sZe) i.e. about 10 points have been mentioned which have been agreed to be rectified by the OPs. Now the OP has produced on record the photographs to show that the repair work has been done by the OPs. These photographs have been shown as Ex.OP-2 to Ex.OP-18. The OPs have also relied upon the agreement, which earlier was denied by the OPs and the same has been proved by the OPs Ex.OP-1, on the back of the agreement, the OPs have agreed to do the work agreed to construct the work as per Ex.OP-1. Perusal of the photographs produced by the OPs shows that no date has been mentioned on these photographs to show that the repair work was completed and done by the OPs to the satisfaction of the complainant. The photographs nowhere show that the door net (ikbh) as agreed vide Ex.C-53 was affixed in the ventilators and the cracks are still visible on the roof of the house and the walls. Even the wood work allegedly done by the OPs nowhere shows that it was done by the OPs in a polished way. Though, some of the patches are shown to have been fixed on the wall of the roof, but the photographs nowhere shows that the conditions mentioned in Ex.C-53 have been complied with completely. There is no photograph of the chimney or cup boards in the kitchen or the partitions as agreed between the parties. So, there are many conditions which have not been complied with by the OPs. The complainant has alleged that sub-standard material has been used by the OPs and has not fixed the tiles of good quality, even after the withdrawal of the complaint, but the complainant has not produced on record the opinion of any expert to show that the material used was of sub-standard quality or the tiles used were of not of good quality as agreed between the parties. Even in the agreement Ex.C-53, there is no reference of the fact that the tiles will be replaced or sub-standard tiles have been used by the OPs, therefore this contention of the complainant is not tenable.

8.                It is admitted that earlier the complaint was filed which was later on withdrawal as the compromise was effected between the parties. The compromise was effected on 20.07.2020 and new cause of action arose to the complainant when as per allegations of the complainant, the defects were not removed by the OPs as were agreed, vide Ex.C-53. So, it cannot be said that the complaint is not maintainable, the same is maintainable. The complainant has proved on record the report of Sroay & Associates, who is the government contractor, which show that the material used by the OP was not upto the mark, but after the execution of the agreement dated 24.07.2020, the complainant has not filed on record any expert opinion, therefore it cannot be said that this part i.e. material part and replacement of tile has not been rectified.

9.                The OP has not proved on record the report or opinion of any expert to prove all the defects mentioned in the Ex.C-53 have been removed and rectified to the satisfaction of the complainant and the better services were provided by the OPs after entering into the agreement dated 20.07.2020.

10.              In view of the above detailed discussion, the complaint of the complainant is partly allowed and OPs are directed to complete the remaining work left as per agreement dated 24.07.2020 within two months from the date of receipt of the copy of order. Further, OPs are directed to pay a compensation of Rs.20,000/- to the complainant for causing mental tension and harassment and Rs.5000/- as litigation expenses. The entire compliance be made within 45 days from the date of receipt of the copy of order. This complaint could not be decided within stipulated time frame due to rush of work.

11.              Copies of the order be supplied to the parties free of cost, as per Rules. File be indexed and consigned to the record room.

Dated          Jaswant Singh Dhillon    Jyotsna               Dr. Harveen Bhardwaj     

03.05.2023         Member                          Member             President