BEFORE THE DISTRICT CONSUMER DISPUTES
REDRESSAL COMMISSION, JALANDHAR.
Complaint No.293 of 2022
Date of Instt. 22.08.2022
Date of Decision: 24.01.2024
Manwinder Singh aged about 40 years S/o Balwinder Singh R/o Village Raowali, Sarup Nagar, Near H. P. Factory, Pathankot Road, Jalandhar.
..........Complainant
Versus
Harjinder Singh Panesar C/o H. P. Construction, Construction/Interior Designer, 809, Bhagat Singh Nagar, Model House, Jalandhar.
….….. Opposite Party
Complaint Under the Consumer Protection Act.
Before: Dr. Harveen Bhardwaj (President)
Smt. Jyotsna (Member) Sh. Jaswant Singh Dhillon (Member)
Present: Sh. Darshan Singh, Adv. Counsel for Complainant.
Sh. Rakesh Sharma, Adv. Counsel for OP.
Order
Dr. Harveen Bhardwaj (President)
1. The instant complaint has been filed by the complainant, wherein it is alleged that the complainant is the owner of land measuring 4 marlas situated at Venus Valley, Salempur Musalmana Road, Verka Bye Pass Road, Jalandhar and complainant had made an agreement with OP for construction of plot No.199, Venus Valley, Jalandhar with material construction with and total was material cost fixed of as 10,50,000/- and an agreement was reduced into writing on 17.10.2021. The brief facts of the agreement are as under:-
(a) That as per the agreement between the complainant and OP, wood work, Sanitary, Electricity, Bar Binding work are to be provided by OP.
(b) That as per agreement wooden door & windows will be fitted and Bath Aluminum Door will be fitted.
(c) That OP assured complainant that Lanter will be completed till Diwali 2021 and possession will be given on 31.12.2021.
(d) That complainant given advance of Rs.2,000/- as advance and after that he paid Rs.90,000/- on 25.07.2021, 1,00,000/- on 7.8.2021, 50,000/- on 20.08.2021, 50,000 on 30.08.2021, 38,000/- on 08.09.2021, 20,000/- on 9.10.2021 and Rs. 50,000/- vide cheque No.312514 dated 21.10.2021. In this way complainant have paid Rs. 4,00,000/-. The OP has constructed the site only up to walls and has not completed the construction up till now as per the agreement and has started harassing complainant by demanding more money and has stopped construction. It is clarified that the detail of material and value of material is hereby given under the guidance of expert Meson which is as under:-
Bricks 30,000/- (5500) =1,45,000/-
Cement 70 Bags Rs. 400 per bag =28,000/-
Sand and Bajri = 30,000/-
Labour =30,000/-
Iron 8 Quintal (5000) = 40,000/-
Misc. Expenses =10,000/-
Total =2,83,000/-
The complainant had already paid Rs.4,00,000/- to the OP and his expenses are Rs.2,83,000/- in this way the complainant had already paid excess amount of Rs.1,17,000/- to the OP. At the time of execution of agreement, OP assured complainant that he i.e. Harjinder Singh Panesar will ask for balance amount after completing the whole construction but now OP is asking additional money from complainant and starting harassing the complainant. Therefore OP has no legal authority for demanding the unlawful money and in this way, he is violating the terms and conditions of the agreement. After waiting for a long period complainant asked OP either to complete the construction or refund the balance which is excessively charged by the complainant. But OP did not pay any heed to the request of the complainant. It is clarified that the cost of construction is multifariously increased by OP and compelled complainant to hire another contractor for which the complainant has to pay very heavy amount. Under mentioned as the major reasons for which complainant has to face very strong hardships financially and socially:-
. Very precious time was spent to arrange and implement another contractor. A lot of time was spent to find a new contractor for the construction of house.
. It is established fact that contractors are not coming forward to take the contract which was already left by the contractor.
. Cost of raw material has multifariously increased in all aspects as compare to as the time of agreement.
The OPs have violated the terms and construction, of the agreement and also got excess amount as per the construction done by him. Complainant has to face very hardships financially and socially due to the nonperformance of OP. It is established law that no party cannot go beyond the terms and conditions of the agreement. But the price index on 17.10.2021 agreement has i.e. date of highly increased. Above mentioned facts in para No.8 also reflects that there is a gross negligence, deficiency in service and unfair trade practice. A legal notice dated 13.07.2022 through registered post was also served upon the OP to complete the construction or to refund excess amount which has been taken by the OP and compensation but even after successful service of legal notice the OP has failed to complete the construction and also failed to refund the excess amount within statutory period and as such necessity arose to file the present complaint with the prayer that the complaint of the complainant may be accepted and OP be directed to refund Rs.1,17,000/- to the complainant alongwith interest @ 18% per annum. Further, OP be directed to pay a compensation of Rs.5,00,000/- for causing mental tension and harassment to the complainant and Rs.20,000/- as litigation expenses.
2. Notice of the complaint was sent to the OP, who filed reply and contested the complaint by taking preliminary objections that the present complaint is not maintainable in its present form, hence the same is liable to be dismissed on this score alone. It is further averred that the complainant has suppressed the true and material facts from this commission. It is further averred that the present complaint is an abuse process of law, in order to pressurize and to harass the OP filed with the malafide intention by the complainant, hence the present complaint deserves dismissal. It is further averred that the present complaint is not maintainable since it involves complex issues of law and matter of facts which needs evidence to prove and hence, this Commission does not have any jurisdiction to entertain, and to decide the present complaint which needs to be entertained and adjudicated by the Civil Courts and hence, the present complaint deserves dismissal on this score alone. It is further averred that no cause of action has ever accrued to the complainant against the O.P. as alleged. It is further averred that the complainant is stopped to file the present complaint by his own acts, conducts, omissions and submissions. On merits, the factum with regard to agreement relied upon by the complainant is admitted and it is also admitted that the OP agreed to raise residential construction of the building belonging to the complainant and the factum with regard to all the contents of the agreement is also admitted. It is also admitted that the total amount for the construction of the covered area was settled as Rs.10,50,000/-. It is also admitted that Rs.3,98,000/- was received by the OP from the complainant, but the other allegations as made in the complaint are categorically denied and lastly submitted that the complaint of the complainant is without merits, the same may be dismissed.
3. Rejoinder to the written statement filed by the complainant, whereby reasserted the entire facts as narrated in the complaint and denied the allegations raised in the written statement.
4. In order to prove their respective versions, both the parties have produced on the file their respective evidence.
5. We have heard the learned counsel for the respective parties and have also gone through the case file as well as written arguments submitted by counsel for the complainant very minutely.
6. The agreement relied upon by the complainant Ex.C-2 is admitted. It has also been admitted that the OP agreed to raise residential construction of the building belonging to the complainant. It has also been admitted by the OP that as per the agreement, the wood work, sanitary, electricity, bar binding work are to be provided by the OP. It has also been admitted that wooden door, windows and bath aluminum door are also to be fitted by the OP as per agreement. All the contents of the agreement Ex.C-2 have been admitted by the OP. It has also been admitted that the total amount for the construction of the covered area was settled at Rs.10,50,000/-. The complainant has alleged that the amount of Rs.2000/- was given as advance to the OP and after that total amount of Rs.3,98,000/- was given to the OP on different dates as per Ex.C-4. This fact has been admitted by the OP that Rs.3,98,000/- was received by him from the complainant, but he has disputed the receipt of amount of Rs.2000/- in advance as alleged by the complainant. The complainant has submitted that this was verbal contract which was reduced into writing afterwards, but there is no document on record to show that Rs.2000/- were ever paid by the complainant to the OP in advance. No affidavit of any witness has been filed on record by the complainant to prove that Rs.2000/- were given in advance by the complainant in his presence. So, the payment and receipt of Rs.3,98,000/- has been proved and Rs.2000/- has not been proved.
7. As per Ex.C-2, the OP was to complete the construction of Lintel upto Diwali 04 November, 2021 and full and final construction was to be completed till 31.12.2021, but this terms and conditions No.6 & 7 of Clause-8 was never complied with by the OP. The dispute arose regarding the condition NO.6 i.e. Mode of Payment. As per condition No.6, 55% was to be paid by the complainant to the OP and he was to construct upto Lintel. It is admitted and proved that the construction has been raised by the OP upto walls, but no Lintel has been put and constructed by the OP. The OP has submitted in his written statement that the complainant has failed to make the 55% of the total consideration of Rs.10,50,000/- as the work was completed by raising the construction of walls upto Lintel level, therefore, he was bound to pay the balance amount, but he failed, therefore, he stopped the work. Perusal of Ex.C-2 shows that upto Lintel was 55% of the payment, upto plaster was 35% and full and final was 10%. As per this agreement, it has nowhere been mentioned that upto Lintel level rather the word has been mentioned upto Lintel, meaning thereby that putting the Lintel is included in the payment of 55% of total consideration of Rs.10,50,000/-. After the Lintel, the work of plaster of walls, Lintel and extra things starts, but here the dispute is regarding upto Lintel. From the document as well as admission, it is proved that the OP was to raise construction including Lintel and thereafter upto that he was entitled to take the 55% of the total consideration of the construction amount. He has received Rs.3,98,000/- of the amount, out of Rs.5,77,500/-. Therefore, the balance amount is to be paid by the complainant to the OP after the completion of construction of Lintel, but the OP has not done so rather constructed the walls only upto Lintel level and not upto Lintel.
8. The complainant has alleged that the material used by the OP was of Rs.2,83,000/-, used for the construction at the site which includes bricks, cement, sand, bajri, labour, iron and misc. expenses. He has given this detail vide Ex.C/4/A. On the other hand, the OP has produced on record the detail of the estimate of services spent by him including Sand, Crasher, Cement Foundation, Steel Piller, Bricks walls, Labour Walls, Plumber and Materials and others for Rs.4,39,430/-. The complainant has demanded the amount of Rs.1,17,000/- allegedly received by the OP in advance, whereas he has not filed on record any document in the shape of bill, receipt to show that this much material was purchased by Biran Ram, whose signatures are there on Ex.C/4/A, nor this fact has been mentioned by the complainant anywhere or by Biran Ram in Ex.C4/A that he worked as a Mason in the property in dispute, though he may be Mason, nor he has stated anywhere that the material of this much amount was received by him nor he has made the payment of any amount mentioned therein to the seller nor he was authorized by the OP to purchase the material as as per Ex.C1, the material was to be supplied by the contractor as per condition No.1 of Clause-8 of agreement. On the other hand, as per Ex.OP-1, this is the estimate of the services to be provided by the OP. The OP has not produced on record any bill to show that what material was purchased by him and from whom, nothing has been mentioned by the OP in Ex.OP-1 nor the photographs of the material or the construction has been produced on record by any of the parties. It is well settled law that the complainant is to stand by his own legs and to prove his case, but the complainant has failed to prove that the material of Rs.2,83,000/- was purchased by the OP for the purpose of the construction. So no amount as alleged by the complainant can be refunded to the complainant as sought by the complainant.
9. It is proved that there is deficiency in service and unfair trade practice on the part of the OP in not completing the construction as per the terms and conditions of agreement Ex.C-1. He has violated the terms and conditions, in such circumstances, he is directed to complete the construction as per agreement, if not got completed by the complainant and the complainant is directed to pay him the amount as per the agreement. The balance amount is to be paid after the completion of construction of Lintel. Thus, the complaint of the complainant is partly allowed. The OP is directed to pay a compensation of Rs.15,000/- for causing mental tension and harassment to the complainant and Rs.10,000/- 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.
10. 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
24.01.2024 Member Member President
