Shri B. Mukhopadhyay, President.   

This is an application u/s.12 of the C.P. Act, 1986.

          Complainants by filing this compliant have alleged that they are flat owners of the flat building having named Merlin Niket Flat Owners Association of 88C & 88E, Baburam Ghosh Road, Kolkata – 40 and it is their main contention that for the purpose of painting and repairing the building in the month of November, they invited quotation from various Paint Companies for providing Exterior and Interior (Common Area) Painting Solutions of Premises and various reputed company submitted their quotation and the Project Sales Officer Sri Debasish Mukherjee of OP1 also visited the premises.

          That on 24-11-2010 a quotation including terms of quotation was submitted to the Project Sales Officer Sri Debasish Mukherjee for providing the said work and the representative of the OP1 introduced T.P. Construction Company of 132, Dr. Meghnath Saha Sarani, Kolkata 29 as his authorized applicator of OP1 as per the letter dated 24-11-2010 and 27-11-2010 the authorized applicator of OP1 i.e. OP2 submitted quotation for Exterior and Interior Painting Solution of the Premises. 

          Thereafter, the flat owners authorized the complainant to further negotiation with the OP2 and after negotiation a final quotation dated 10-01-2011 was submitted and a work order dated 18-01-2010 for a sum of Rs.4,46,600/- for such work was awarded to OP2 and terms and conditions are also mentioned in the letter dated 15-11-2010 along with 7 years warranty of the said premises and OP2 after being satisfied signed in the work order of 18-01-2011 and duly witnessed by the representative of the OP1.

          Subsequently, the work of buildings commenced under the supervision of the representative of the OP from time to time and the complainants and the other flat owners pointed out the defects of the work during execution of the work as also after execution of major portion of defects of work brought to the notice of the applicator OP2 and OP2 was informed that service preparation was improper which was allowed to the failure of the painting work and the applicator OP2 assured that all defects specifically the boundary wall shall be rectified after monsoon but before the final and last payment. 

          Thereafter, complainant made payments to the OP2 on various occasion by various cheques totalling Rs.4,32,222/- out of Rs.4,46,000/- and OP2 was asked to collect balance Rs.48,778/- after satisfactory completion work and submission of warranty for agreed term.

          Practically being allured by the advertisement through TV channel through film world celebrity for using the paint of OP1 complainant relied upon them and handed over the work to the OP2 as per OP1’s direction.

          Not only that OP1’s representative also assured that the defects will be repaired after monsoon, 2012 and representative of the OP1 also collected pictures of the defects of the wall after taking snaps but no remedial measure was taken as yet but in the meantime defects has been deteriorated further and the paints are being peeled off and black patches have appeared on the Exterior Wall. 

          Considering the above acts of the OPs complainant sent notice to the OPs 1 and 2 on 21-11-2011 which was duly received by the OPs but they did not respond against that and also the defect has not yet been cured so for their negligent manner of the service and for rendering not proper service and also defect of the work complainant has appeared before this Forum praying for relief and for compensation.

          OP1 by filing written statement submitted that a talk of compromise was going on between the parties for retaining reputation, goodwill and confidence in the market, as OP1 is a reputed wall manufacturer and was very much eager to take responsibility of the OP2 although no specific authorization was taken to the OP1 to perform work but OP2 was only known to the company as a buyer of paints as a sole proprietor of T.P. Construction Company and further submitted that there was no privity of contract in between the OP1 and the complainant after refusal to accept the quotation submitted on 24-11-2010 so whatever the acts did or done by the OP2 as an applicator without any authorization of the OP1 cannot bind the OP1 for any defective jobs if any done by the OP2 and they have also stated that they failed to submit proper written version because their prayer for time was rejected and they also prayed for recalling the order dated 02-07-2012 and 17-09-2012.  Subsequently, OP1 submitted written version and submitted the same plea as previously mentioned in the previous parts.

          Practically, OP2 did not appear even after receipt of notice so accordingly this case was finally heard in presence of the complainant and OP1 because OP1 contested the case ultimately up to final hearing of the argument.

Decision with Reasons

After considering the argument as advanced by the Ld. Lawyer for the OP1 and also the factual aspect of the complainant including the argument as advanced by the Ld. Lawyer of the complainant and also relying upon the document as filed by the complainant and at the same time the one vital letter of the complainant No.1’s company to the Secretary of the complainant flat owners association dated 06-04-2012 it is found that OP1 by that letter reported to the complainant’s Flat Owners Association that a discussion had been made with their General Manager and subsequent visit and assurance from their side and the issue is settling mutually outside the court and they have also admitted that they shall have liked to written concurrence to that effect and against that letter Merlin Niket Flat Owners Association reported Divisional Commercial Manager of OP1 that the matter can be settled out of court subject to the repair of the boundary wall and defecting wall service with 7 years warranty.  So, considering letters it is clear that when the complaint alleged to the OP1 and 2 regarding the defective work and improper work of the flats regarding painting and repairing by the OP2, OP1 reported that the matter shall be mutually settled and written concurrence is required and to that effect complainant sent written concurrence for repairing the boundary wall and wall service.  At the same time OP has admitted that fact by filing petition dated 16-10-2012 and admitted that they shall take very much care to take responsibility of OP2 when OP2 did not discharge his duties and also submitted that same shall be settled outside the Forum.

          Fact remains at the time of hearing the argument OP1 prayed for an appointment of handwritting expert for verifying the signature of Debasish Mukherjee in the said contract but most interesting factor is that that matter was never agitated after their appearance and also in their application dated 16-10-2012.  When OP1 had that application admitted that they are very much care to take responsibility about the OP2’s work but admitted that OP2 is a company and buyer of the paints as a sole proprietor of T.P. Construction Company from the OP1 and in view of the fact we are very much annoyed about the conduct of the OP1 at the fag end of the case without getting any chance to file written statement but they ultimately raised this point at the time of hearing argument.  So, their prayer for appointment of handwriting expert is rejected by this judgment on the ground it is afterthought and fails in view of their admission dated 16-10-2012 and that they are willing to take responsibility of the OP2’s act.  But we are not unmindful to the fact that there was no privity of contract in between the OP1 and complainant but entire contract was in between the complainants and OP2 and payment was taken by the OP2 not by OP1 and no doubt we cannot anyway recognize the OP1 as service provider because complainant has admitted in his compliant that they ultimately entered into a contract with OP2 after negotiation with the OP2 and fact remains that complainant has failed to produce any document to show that there was contract between OP1 and complainants.  Another factor is that work order for repairs and paintings of the complainants flats was give to OP2 and agreement was executed by T.P. Construction and the complainants.  Anyhow, T.P. Construction supplied a detailed list about their valued clients and further he supplied what type of quality and articles would be used and in that case he supplied the description of the paints etc. and of Nerolac Excel or Nerolac Super Gloss Enamel paints etc.  Work order was issued by the complainant on 18-01-2011 in favour of the T.P. Construction with brief description of the item of work and condition including scheduled and its warranty.  Payment was made regarding work was to T.P. Construction then how the complainant can bind the OP1 in respect of this work but may be their there was giving advertisement of the quality of paint but they are not engaged in work if any applicator is provided then it is be proved that contract was in between the complainant and the company applicator.  But complainant’s own document certifies that contract was in between the complainants and OP2 and not with OP1.  At the same time complainants have failed to produce any such paper of agreement even if it is found in the agreement that on behalf of the company anyone signs as witness to the contract.  No doubt witness one D. Mukherjee signed.  But it is rule of law that witness cannot be bound by any terms on contract.  But unfortunately complainant tried to bind the company as because his representative’s signed as witness.  And if any representative signed in the document this complainant shall have to show that there was a authority letter and that was handed over to the complainant at the commencement of the agreement but no such letter is produced by the complainant so the complainant noway charged for deficiency in service or negligent manner of service of OP1 but no doubt OP2 is negligent, deficient and he has failed to discharge the work but for that reason OP1’s company cannot be liable because paint is purchased by OP2 as sole buyer and along with that paint it might be at the time of painting OP2 mixed some other paints for which painting work was not up to the mark and that is not the fault on the part of the OP1 so in view of that complainants can get relief against OP2 not against OP1 but unfortunate fact is that in the whole compliant complainant made allegation against the OP1 but allegation must be against OP2 because in the agreement everything is written in favour of the complainant’s protection and agreement is binding upon the OP2 for his  fault and for which considering the contact complainants are entitled to relief against the OP2 but not the OP1.

          As because OP1 has assured that they have taken some responsibility regarding the work of the OP2 then invariably for that the purpose some other order may be passed.  Accordingly, the complaint succeeds.

Hence,

Ordered

That the complaint be and same is allowed on contest against OP1 in part and same is allowed ex parte in full against OP2 and OP2 shall have to pay the cost of Rs.10,000/- (Rupees Ten thousand only) to the complainant.

            OP2 is directed to remove all defects as would be found in those buildings of the complainant at OPO2’s own cost within 2 months from the date of this order as per satisfaction of the complainants failing which OP2 shall have to pay a penalty of Rs.3(three) lakhs to the complainant’s Secretary and if OP2 takes charge of the work to rectify and remove the defects as would be pointed out by the complainants in those buildings and if the said work is done by the OP2 in that case OP1 shall have to cooperate and give such moral support as per OP1’s desire so that the work may be completed at the satisfaction of the complainants.  But if OP2 does not take any charge to repair in that case OP2 shall have to pay Rs.3(three) lakhs after completion of the above one month and if OP2 fails to comply the order in that case for adopting unfair trade practice and for deceiving the complainant OP2 shall have to pay Rs.50,000/-(Rupees Fifty Thousand only) as punitive damages to this Forum only to check the OP2’s evil business in such a fashion in future and to prevent the OP2 to deceive the customers in future.           

            OP2 is directed to comply the order very strictly failing which for each day’s delay OP2 shall have to pay penal interest @500/-(Rupees Five hundred only) per day till full satisfaction of the decree and even for disobedience of the Forum’s order penal proceedings shall be started against them.