Delhi

North

CC/230/2018

KAMAL KHURANA - Complainant(s)

Versus

LAXMI BUILD WELL - Opp.Party(s)

20 Dec 2023

ORDER

District Consumer Disputes Redressal Commission-I (North District)

[Govt. of NCT of Delhi]

Ground Floor, Court Annexe -2 Building, Tis Hazari Court Complex, Delhi- 110054

 

Consumer Complaint No.: 230/2018.

 

Sh. Kamal Khurana

S/o Sh. Tilak Raj Khurana

1590, Outram Lanes,

Kingsway Camp,

Delhi-110009.                                     …                                   Complainant

 

                                                          Vs

 

Laxmi Buildwell

16-D, Kamla Nagar,

Delhi-110007.                                     ...                         Opposite Party No.1

 

Sh. Dhruv Sehgal

S/o Sh. Sushil Sehgal,

16-D, Kamla Nagar,

Delhi-110007.                                     …                            Opposite Party No.2

 

ORDER/

20/12/2023

 

Ashwani Kumar Mehta, Member:

 

(1)      The present complaint has been filed under Section 12 of the Consumer Protection Act, 1986. The brief details of facts, as alleged by the Complainant in the Complaint in hand, are that the complainant entered into a collaboration agreement with the OP-2 through its authorized signatory Mr. Dhruv Sehgal on 14/04/2015 for plot no. 1590, Outram Lines, Kingsway Camp, Delhi-09. As per the collaboration agreement,  the OP was required to re-construct the above property consisting of stilt for parking, ground floor, first floor, second floor and third floor with lift, after demolishing the existing old structure at its own cost, expenses, income and resources after getting the plan sanctioned from the Municipal Corporation of Delhi (MCD) at its own cost and expenses. It has been alleged  that the OP-2 also gave the complainant an annexure for construction work and as per the annexure, the OP was supposed to do all the necessary works including water proof of external walls of the building. The complainant got possession of the building on March 2017 and from the date of possession, the complainant is facing problems such as water leakage from lift portion, external walls, internal walls, cracks in the marbles, improper level of marbles etc. During rainy season, water came from the external walls to internal walls and causing damage to the wallpapers and paint on the walls. Also, during rainy season, the parking area overflows from the water of sewer from outside the building. The complainant, feeling aggrieved, sent a mail and letter to the OPs on 24/09/2018 and 08/10/2018 respectively but only some work like water proofing from one side of the building had been done and remaining work on issues like water leakage from the other side of the wall, cracks on marbles, damaged wall paint, wallpaper replacement, lift area water leakage has not been addressed by the OPs. The complainant, due to the acts of the OPs suffered not only monetary loss but also mental harassment due to unprofessional conduct on behalf of the OPs. The complainant has alleged that the OPs were very much negligent in providing services to the complainant and there were deficiencies on their part.

 

2.       The complainant has filed a copy of  the collaboration agreement dated 14/04/2015, copy of the mail sent to the OP dated 24/09/2018, a reminder letter dated 08/10/2018 to the OPs, a CD and some photographs of building showing the leakage, damaged walls, marbles.

3.       Accordingly, notices were issued to the OPs and in response, the OPs have contested the case contending that the complainant is a dishonest person and has filed present complaint with intention to extort money from the OP-1 who raised the ground floor, first floor, second floor and third floor as per sanctioned plan and as per choices and wishes of the complainant. The construction was carried out in the presence of the complainant and the raw material used by them is of first quality and as per the wish and desire of the complainant.

4.       The OP-1 has also contended that the collaboration agreement was between Kamal Khurana and Dhruv Sehgal (OP-2) and it has been denied by the OP-1 that they have played any role in the construction of the property as Dhruv Sehgal signed agreement in his personal capacity. The OP-1 has further stated that the building material has been provided by the complainant from his supplier and some material has been purchased by the OP-1 as per desire and wishes of the complainant. The OP-1 has further contended that they had done the labour work and acts as “Thekedar” on the basis of the Collaboration Agreement. The OP-1 has also stated that water proofing was done with quality materials (Dr. Fixit, URB) and latest technology has been used as well as the whole process was conducted in complainant’s presence. The possession was handed over to the complainant in March 2017 and there has been water leakage from lift portion or from either external or internal walls. The marble was not affected as alleged since the marble installed has been done in complainant’s presence. The OP-1 has further contended that   the water got choked due to sewer blockage during rainy season for which OP-1 cannot be made liable. Since handing over the possession to the complainant in 2017, the complainant didn’t carry out any whitewash, repair generally a constructed building requires periodical maintenance every six months, which the complainant avoided. However, in November 2018, the OP-1 carried out water proofing in lift area, filled the tile gaps with water proofing, chemicals from outside the building and spent a sum of Rs.2,00,000/- approx. The OP1 denies that the complainant suffered monetary loss and the OP-1 was very much negligent in providing service to the complainant. The OP has also filed photographs of the building.

 

5.       The complainant has also filed rejoinder denying the contention of OPs and affirming the allegations levelled in the complaint. The complainant denies that the OP-1 has constructed the property as per his choice. The complainant has also denied that he provided raw material from his known supplier. The OP-1 did water proofing as a formality and used low quality material.

6.       Accordingly, the complaint has been examined in view of the facts of the case and averments/documents/Evidence put forth by the complainant & OPs and it has been observed that:-

 

1. As per the  terms of Collaboration Agreement filed by the Complainant,  the Complainant has received Rs.40,00,000/- from the OP-2 for allowing construction on the plot after demolishing the existing old structure at his own cost. It is also mentioned in the said agreement at Para 13  that “ after completion of the construction of the entire building, entire Ground Floor portion (over and above Stilt for parking) only without roof/terrace rights, alongwith common right to use the lift and one fourth (1/4^th) undivided share in the stilt area for parking purpose for one car only, will fall into the share of the Second Party and Entire First Floor, Second Floor and Third Floor portion with roof/ terrace rights upto sky and Lift and three fourth (3/4^th) undivided share in the Stilt Area for parking purpose for three cars only, will fall into the share of the First Party.”
2. In addition to the above said agreement,  an annexure  of seven pages relating to construction work , signed by the complainant and OP-1 through its authorised signatory has also been filed on the letter head of M/s Laxmi Buildwell/OP-1 wherein specification for construction has been. It is relevant to note that in this annexure, no details of parties have specifically been mentioned.
3. As per the details (mentioned at I and II above) of the agreement filed with the complaint, the complainant has received Rs.40 lakhs from OP-2 and has got the building constructed from the OP-1 without making any payment to it. However, in consideration, the complainant has transferred one floor to the OP-2. As such, the complainant is not covered in the definition of consumer as defined u/s 2 (1)  (d) which states that  “consumer” means  any person who,— (i) buys any goods for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any user of such goods other than the person who buys such goods for consideration paid or promised or partly paid or partly promised, or under any system of deferred payment when such use is made with the approval of such person, but does not include a person who obtains such goods for resale or for any commercial purpose; or (ii) 8 [hires or avails of] any services for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any beneficiary of such services other than the person who 8 [hires or avails of] the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person 2 [but does not include a person who avails of such services for any commercial purpose].
4.  The Hon’ble Supreme Court of India  has discussed various categories of collaboration agreements, in Civil Appeal No.3302 of 2005 in the matter of Faqir Chand Gulati vs Uppal Agencies Pvt. Ltd. & Anr but the style of collaboration agreement filed by the complainant is not found covered in any of the category discussed in the aforesaid judgment.
5. Further, to examine the issue of poor construction, number of evidence are required for which details evidences are to be led by the parties because the allegations of the complainant and reply of the OPs also contain issues of dispute of civil nature which cannot be adjudicated by this commission in light of observations of the Hon’ble Supreme Court delivered in the matter of Chairman & Managing Director of City Union Bank Ltd. & Anr. Vs. R. Chandramohan {2023 INSC 300} which stipulates that “the proceedings before the Commission being summary in nature, the complaints involving highly disputed questions of facts or the cases involving tortious acts or criminality like fraud or cheating, could not be decided by the Forum/Commission under the said Act. The “deficiency in service”, as well settled, has to be distinguished from the criminal acts or tortious acts. There could not be any presumption with regard to the wilful fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance in service, as contemplated in Section 2(1)(g) of the Act.”

 

 7.      In view of the above observations, the complaint is dismissed being non-maintainable. The complainant is at liberty to avail any other legal remedy as so advised.

8.       Order be given dasti to the parties in accordance with rules. Order be also uploaded on the website. Thereafter, file be consigned to the record room.

 

 

              ASHWANI KUMAR MEHTA                               DIVYA JYOTI JAIPURIAR            

            Member                                                                            President       

 DCDRC-1 (North)                                                            DCDRC-1 (North)