Haryana

Kurukshetra

206/2017

Gurmeet Singh - Complainant(s)

Versus

Jai Bhagwan - Opp.Party(s)

Tirlochan Singh

02 Nov 2021

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, KURUKSHETRA.

 

                                                          Consumer Complaint No.206 OF 2017

Date of instt.3.10.2017 

                                                          Date of Decision: 02.11.2021.

 

1.Gurmeet Singh son of Shri Nath Singh

2.Nath Singh son of Arjun Singh, both residents of village Kheri Sahidan, Post office Chammmu Kalan, Sub Tehsil Ismailabad District Kurukshetra.

                                                                             …….Complainant.                                                          Versus

Jai Bhagwan son of Shri Hans Raj village Kheri Sahidan, Post office Chammu Kalan, Sub Tehsil Ismailabad District Kurukshetra.

          ….…Opposite party.

 

                  Complaint under Section 12 of Consumer Protection Act.

 

Before        Smt. Neelam Kashyap, President.    

                   Ms. Neelam, Member. 

                   Shri Issam Singh Sagwal, Member.                                                        

 

Present:      Sh.Tirlochan Singh Advocate for the complainant.

                   Sh.A.N.Manocha Advocate for the OP.

ORDER

                                                                         

                    This is a complaint under Section 12 of the Consumer Protection Act, 1986 moved by complainant Gurmeet Singh   against  Jai Bhagwan, the opposite party.

2.                The brief facts of the complaint are that the complainant for the construction of their joint residential house engaged the OP. The OP demanded Rs.90/- per sq. yard for the construction work including elevation/erection of the building and plaster work, boundary wall and roof tiles.  It is submitted that the complainants were agreed to pay Rs.90/- per sq. feet to the Ops. Before starting the construction work at the  premises, the complainant had paid Rs.5000/- in cash to the OP on 9.9.2013 as an advance money and also gave the site plan of the residential house which was prepared by the Architect according to which the OP had to complete the work of the house of the complainant. It is further submitted that the OP started the construction work on September 2013 and during the construction work, the complainants have paid the amount of Rs.5,75,000/- to the OP as mentioned in para no.4 of the complaint. Apart from the above said  payment some building material like cement ,sand and bajri etc. worth Rs.22,320/- was also taken by the OP for his personal use and neither the payment of the same was made nor the material was returned by the OP and in this way the OP in total received Rs.5,97,320/- from the complainant..  The OP further demanded  more amount from the complainants but the complainants asked that they have already paid the excess amount to the OP and if any amount will become outstanding then the same would be cleared after completion of the work.  It is further submitted that the OP delayed the construction work  intentionally and willfully in order to get more money from the complainants and he falsely assured that he will complete the work and thus lingered on the matter. It is also submitted that in the month of Sept. 2016 the complainants alongwith other respectable approached the OP  and requested him to complete the pending work i.e. installation of roof tiling after filling earth on roof construction of boundary wall but the OP did not pay any heed towards the legal and genuine  demand of the complainants.  When the OP did not pay heed to the requests of the complainants, then the complainants engaged new contractors, disclosed that the lintel level is not proper, the construction is not raised as per site plan as there is change in the 1^st floor right and left sides the cracks were developed in the main side walls and then in order to ascertain the said defects, the complainants approached the Govt. approved  Architect and requested him to inspect his under construction premises and to disclose the defect in the house if any. Then Engineer, N.P.Gupta, B.E. Civil (Hons)approved by the Govt. of India (Income Tax Deptt.) has inspected the site of the house of the complainant and found that i) slope level of RCC lintel at 2^nd floor was given reverse, ii)The design of the building at front on 1^st floor left side was changed, iii) The design of the building at front on 1^st floor right side was changed iv) the design of the building at top floor was changed v)that cracks were developed on side wall sof the building and storm water drain pipe was laid from 2^nd floor to 1^st floor, not laid directly to the ground floor. It is further submitted that  said Engineer, specifically mentioned in the  report dated 4.2.2017 that the losses occurred to the complainants due to the negligence of contractor/Mason. It was mentioned in the report that extra earth work is to be laid on 2^nd floor for giving proper shape, so that rain water can easily disposed off; that life of the construction became less due to over earth work/increase in weight on RCC slab; that extra amount involve for putting more  earth work etc.   Thereafter the complainant requested the OP to remove the said defects in the house of the complainant but the OP refused to do the needful. It is also submitted that on refusal of the OP, the complainant asked the said mason to complete the pending work in all respects and then the Masons have completed the construction work at the site and charged  Rs.40,000/- from the complainant. It is further submitted that after completion of the work by the other mason the complainant met the OP and requested him to pay Rs.3,17,320/- i.e. Rs.57,320/- paid in excess to the OP as well as paid Rs.40,000/- to the new masons for the construction of the pending work left by the OP and Rs.20,000/- on account of filling earth work on the roof of send floor due to reverse lintel slope level and also Rs.2,00,000/- on account of change of design on the left and right side of the front but the OP refused to pay the same which amounts to deficiency in services on the part of the OP. Thus, the complainant has filed the present complaint alleging deficiency in services on the part of the OP and prayed that the OP be directed to  pay the sum of Rs.3,17,320/-  on account of loss sustained by the complainant alongwith compensation for the mental agony and harassment suffered by him and the litigation expenses.

 

3.                Upon notice, the OP appeared and filed written statement disputing the claim of the complainant. It is submitted that the  OP is Mason
Raj Mistri). The OP started the work of construction of house of the complainant no.1 on 5.09.2014 and completed the work to the full satisfaction of the complainant no.1 in the year 2014. The total area on which lintal was put was 6,000/-ft. The OP worked on the lintal for construction of Parda and plasteer work and outside the  same designing work was done. In this work Jai Bhagwan, Rak Lal, Sanjeet and Ram Pal worked as Mason and Soni, Hanny,  Sakina, Ram Karan, Darshan and Kalu etc.work with the OP. All these persons completed the construction of kothi of the complainant no.1 in the year 2014.The total wages of  OP comes to Rs.6,31,000/- out of which the complainant paid Rs.5,09,400/- in installments to the OP by causing harassment. The complainant no.1 has not paid the balance amount of Rs.1,21,900/- to the OP.  On 10.8.2017, the OP  visited the house of the complainant no.1 with respectable for receiving the balance amount but the OP No.1 refused to make the balance payment. The OP filed an application dated 11.8.2017 to Labour Inspector, Kurukshetra in this regard and the OP as a counter blast of the said application filed the present complaint. Hence, there is no question of any deficiency in services on the part of the OP and prayed for dismissal of the present complaint.

 

4.       The complainant in order to prove his case has filed affidavits Ex.CW1/A to Ex.CW4/A and tendered documents Ex.CW2/A to Ex.CW2/F and examined CW-1 Sh.N.P.Gupta.

 

5.                On the other hand, OP in support of his case has filed affidavits Ex.RW1/A to Ex.RW7/A and tendered documents Ex.R-1  and Ex.RW-2 and closed his evidence on 2.04.2021.

 

6.                We have heard the learned counsel for the parties and gone through the case file very carefully.

 

7.               The learned counsel for the complainant has argued that the present complaint is within limitation and the authorities cited on behalf of the OP are not applicable to the facts and circumstances of the present case. Reliance has been placed on the authority Faqir Chand Gulati Vs. Uppal Agencies Pvt.Limited and another (SC)Law Finder Doc Id# 145891.

 

8.                  The learned counsel for the OP has strongly argued that the present complaint is hopelessly barred by limitation. The work of construction of the house of the complainant started  in September 2013 and it was completed in the month of  April 2014 and the present complaint has been filed on 3.10.2017 which is time barred and deserves to be dismissed.  It is also argued that the complainant has not filed any application for condonation of delay. It is also argued that  if the complaint is time barred yet the consumer forum decides it on merits, the forum would be committing an illegality. The learned counsel for the OP has placed reliance on the law cited in the authority  titled State Bank of India Vs. M/s B.S. Agriculture Industries  2009 (2) CPC 1, Jay Grih Nirman Pvt.Limited Vs, Arunoday Apartment Owners Association  2014 (1) CLT page 361.       

 

9.                After hearing the learned counsel for the parties, we are of the considered view that the present complaint is time barred.  The construction work of the house of the complainant started in the month of  September 2013 and as per the OP it was completed in April 2014. This fact is also supported by the pleadings of the complainant as mentioned in para no.4 of the complaint because the last payment of Rs.7,000-00 was made  on 24.4.2014.  The present complaint has been filed by the complainant on 03.10.2017. As per averments made in the complaint in the month of September 2016 the complainant alongwith respectable peoples approached  the  OP requesting for completion of the work  but even then the complainant has filed the present complaint on 3.10.2017.  The cause of action arose to the complainant in April 2014 when the OP allegedly refused to complete the work and the present complaint must have been filed by the complainant upto April 2016.

                   As per section 24A of the Act, 1986 prescribes limitation period for admission of a complaint by the consumer for a thus:

 

                  24A-Limitation period- (1)The District Forum, the State Commission or the National Commission shall not admit a complaint unless it is filed within two years from the date on which the cause of action has arisen.

 

                 (2) Notwithstanding anything contained in sub-section (1), a complaint may be entertained after the period specified in sub-section (1), if the complainant satisfies the District Forum, the State Commission or the National Commission, as the case may be, that he had sufficient cause for not filing the complaint within such period.

 

                  Provided that no such complaint shall be entertained unless the National Commission, the State Commission or the District Forum, as the case may be, records its reasons for condoning such delay.

 

                   In this case, the complainant has  failed to file an application for condonation of delay as argued by the learned counsel for the OP.

 

                   In State Bank of India’s case (Supra) the Hon’ble Supreme Court of India has held:

                  

                   “Consumer Protection Act, 1986, Section 24A-Limitation-Complainant sold engines and pump sets to certain firm on credit basis and gave the bills and documents to Bank for collection.-Bank failed to collect the amount of bills and did not return the bills to complainant-Complaint against bank  filed before Consumer Forum claiming compensation for deficiency in service-Complaint however, filed after a gap of three years from the cause of action- Limitation prescribed under Section 24A is 2 years-Complaint barred by limitation-Despite that consumer forum granted compensation without considering the point of limitation-Order of Consumer Forum set aside—If complaint is time barred yet consumer forum decides it on merits, the forum would be committing an illegality-Aggrieved party would be entitled to have such order set aside.”

                   In Jay Grih Nirman Pvt.Limited’s case (Supra) the Hon’ble National Commission has held as under:

 

                   “Consumer Protection Act, 1986, Section 24A-Flat allotment-Limitation-Condonation of delay-cause of action-Plea of petitioner that since the developer was under an obligation to hand over the possession of the subject area to the flat owners, the “ cause of action” has to be treated as “continuing cause of action” and therefore, the complaint was filed within time-Plea rejected-Complaint, alleging deficiency of service, was hopelessly barred by limitation and could not be admitted for adjudication on merits, more so, when there was no prayer for condonation of delay in filing the same.”

 

10.               As discussed above the present complaint is barred by limitation, therefore, there is no need to go on the merits of the present complaint and the present complaint deserves to be dismissed on this score alone.

 

11.              For the reasons recorded above, we do not find any merit in the present complaint, therefore, the present complaint is hereby dismissed being barred by limitation. Certified copy of the order be supplied to the parties concerned and the file be consigned to the record room after due compliance

 

Announced in the open Commission.

Dated: 2.11.2021.                                                ( Mrs.Neelam Kashyap)

                                                                                President.

 

                             (Issam Singh                  (Ms.Neelam)

                               Member                           Member.