DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II
Udyog Sadan, C-22 & 23, Qutub Institutional Area
(Behind Qutub Hotel), New Delhi-110016
Case No.267/2015
Sh. S. D. Mitroo Senior Citizen
S/o Late Sh. D. C. Rajput (74 years old)
R/o C-95, Third Floor,
Panchsheel Enclave,
New Delhi-110017 ….Complainant
Versus
M/s Lord Buildcon Private Limited
Through its Director
Shri Ritesh Chopra
A-1/63, Panchsheel Enclave,
New Delhi-110017 ….Opposite Party
Date of Institution : 28.09.2015 Date of Order : 27.11.2017
Coram:
Sh. N.K. Goel, President
Ms. Naina Bakshi, Member
ORDER
Briefly stated, the complainant and the OP executed and entered into a Memorandum of Understanding (MOU) on 10.05.2013 at New Delhi alongwith its specifications for the reconstruction and redevelopment of property bearing No.C-95, Panchsheel Enclave, New Delhi admeasuring 216 sq. mtrs (in short, the property in question); that vide the said MOU dated 10.05.2013 it was mutually agreed between the parties that after demolishing the then existing structure the OP would reconstruct and redevelop the said property comprising of basement, stilt floor, ground floor, first floor, second floor and third floor with terrace and make a new fresh building on its own cost and resources after obtaining necessary permissions and approvals as per sanctioned plan from the Municipal Corporation of Delhi; that after reconstruction of the said property, the complainant would acquire the entire basement, entire ground floor, entire third floor and entire terrace/roof over and above the third floor of the said property of the said newly constructed property with space for two utilities (servant quarters) in the basement and entire car parking spaces in the stilt area on the central driveway alongwith common bathroom and toilet for servants, use of common areas, open areas, staircase, lift, back courtyard with free ingress and egress to the said portions of the said property alongwith proportionate undivided, indivisible and impartible freehold ownership rights/ share in the land underneath the said property; that the remaining portion of the said property viz. entire first floor, entire second floor, space for two utilities (servant quarters) with common bathroom & toilet in the stilt, four car parking spaces in the stilt area alongwith two independent driveways, use of common areas, open areas, staircase, lift with free ingress and ingress to the said portions of the said property alongwith proportionate undivided, indivisible and impartible freehold ownership rights/ share in the land underneath the said property would be acquired and owned by the OP; that in addition to incurring the entire cost and expenses etc. OP shall pay a sum of Rs.1,03,00,000/- to the complainant as non refundable interest free security deposit which shall form the total consideration against the rights in the property to be transferred in favour of OP on the completion or during the course of construction of the building; that the complainant and the OP also executed and entered into a supplementary MOU on 01.09.2014 whereby OP gave an undertaking to indemnify the complainant against any incomplete work in the said building and also to get the damaged portions, if any, repaired at his own costs and expenses within one year period from the date of taking over physical possession i.e. 01.09.14; that time and again the complainant reminded the OP to expedite the balance/unfinished construction and repair work in the portions fallen in the share of the complainant but the OP did not pay any attention to repeated requests of the complainant; that as per the said MOU/Agreements, the OP did not complete the following work in the portions fallen in share of the complainant in the said property:-
“a) Handling railing on basement staircase,
b) Rear spiral stair case stilt level to basement,
c) Provisioning of seven shop lift in place of 5 stop lift as per terms of agreement,
d) Basement utilities two rooms (servant rooms), completion of balance civil works, as per agreed plans/drawings,
e) Provision of three Air Conditioners in Basement, as per plan,
f) Rain water harvesting well & pit to be cleaned to make it absorbent and operational,
g) Counter/side-boards in drawing room of ground and third floors,
h) replace the broken kitchen slab at 3rd floor,
i) Final painting/polishing coat to the walls and wooden fixture,
j) LED light in the entire ground & third floor, stair case & terrace.”
It is submitted that as per the normal practice of the trade, the said MOU & Agreements, the OP was also under obligation to hand over to the complainant the originals of the following documents:
“a) Approved building drawing/plan,
b) Building completion drawing/plan,
c) building completion/occupancy certificate
d) ‘B1 & B2’ certificates/sanitary completion certificates from DJB,
(e) Lift safety certificate issued by Govt. of NCT of Delhi,
f) Water and electricity connections,
g) Certificates of guarantees & warrantees intrinsic with all fittings, fixtures & appliances,
h) All common user facilities and amenities as per MOU as are understood in such cases.”
It is stated that despite repeated requests and reminders since the past over one year the OP did not complete the balance/unfinished construction & repair works in the portion fallen in the share of the complainant but continued to do other civil and construction job/activities in his portion; that on 24.01.15 at about 3.30 p.m. when the complainant requested for completion of his unfinished construction, then the OP through his staff conveyed to the complainant that he would not carry out any leftover works the complainant’s portion but continued to complete the balance work in his portion. It is stated that the OP’s staff present at the spot started unprovoked quarrel and fight with the complainant and damaged the main gate and broke the lock fixed on it for which the complainant had to make a written complaint to the police. It is submitted that finding no other way, the complainant through his advocate sent a legal notice dated 11.02.15 to the OP but the OP did not mend his ways and on the contrary leveled false allegations against the complainant vide reply dated 18.02.15 which was replied by the complainant vide his letter dated 30.4.15. It is stated that due to the callous attitude of the OP the complainant was compelled to obtain the structural assessment dated 21.06.15 of his property from an independent structural engineer in which certain discrepancies and shortcomings were pointed out. It is stated that the complainant sent a legal notice dated 09.07.15 to the OP to appoint a sole arbitrator as per arbitration clause in para 28 of the MOU dated 10.05.13 but the OP did not respond. Hence pleading deficiency in service and negligence on the part of the OP, the complainant has filed the present complaint for issuing the following directions to the OP:
(a) to complete the balance work;
(b) to carry out all the repair work at his costs and expenses on most immediate basis;
(c) to remove all the anomalies of structural and construction shortfall(s);
(d) to submit to the complainant all the original documents as detailed above;
(e) to pay a compensation of Rs.10,00,000/- to the complainant on account of mental agony and harassment caused due to the gross negligence and casual approach of the OP in dealing with the complainant;
(f) to pay to the complainant litigation expenses.
In the written statement/reply the OP inter-alia has stated that without admitting the contents of complaint prima-facie dispute, if any, is of civil nature and does not come within the ambit of Consumer Protection Act; that the relief claimed by the complainant is outside the jurisdiction of the forum; that the complainant is enjoying the property since 2014 and is earning fruits of the property by renting; that the complainant has failed to pay the statuary government taxes such as VAT & Services Tax of his portion; that the complainant suppressed the documents such as specification sheet and indemnity bond in favour of the OP (Annexure B & C respectively); that the complainant is not a consumer within the meaning of section 2 of the Consumer Protection Act nor is entitled to file the present complaint as the complainant is co-owner and not a consumer. It is submitted that the complainant and the OP are the residents of C-95, Panchsheel Enclave, New Delhi-110017 wherein the complainant was the owner of ground floor, first floor and half of the terrace above the second floor and the OP was the owner of the second floor and the half of the terrace above the second floor. It was mutually decided by the parties to demolish the existing structure and rebuild the plot in question afresh with modern amenities, designs and facilities. It was also decided between both the parties that they would share statutory taxes in accordance to their respective share of ownership in the newly constructed property/building. In addition it was also agreed between the parties that the OP shall pay a sum of Rs.1.03 crores to the complainant which was duly paid to the complainant. It is stated that the complainant acquired physical possession of his part very gladly without any cause of complaint whatsoever on 01.09.2014 (Annexure-E) without any protest, reservation or demur. The complainant never complained about the construction work done by the OP and all the construction work was done under the supervision and instructions of the complainant himself. It is stated that the OP constructed the building with his own funds and engaged architect and other professionals to work on the building. The original documents are with the OP and the photocopies thereof were sent to the complainant by registered post as well as delivered by hand also. The cost incurred for the said bills are already booked in the books of the OP as expenses and the originals of these are required to be maintained and possessed by the OP for the taxation and other accounting purposes. It is stated that building completion/ occupancy certificate was never a part of obligation to be done by the OP and also BI and B2 were duly applied and the photocopies of the same were handed over to the complainant. It is stated that OP has done all construction work in the portions falling in the share of the complainant and no construction work remains unfinished. It is submitted that the complainant took the possession of his part on 01.09.2014 and is now avoiding to fulfill the obligation on his part as per the MOU. It is submitted that the complainant undertook construction of MS structure by drilling on the parapet wall himself arbitrarily without taking the OP into confidence and the complainant is himself responsible for the cracks on the terrace parapet etc. [para 16(b)]. It is submitted that superficial cracks in the plaster of parapet wall occurred due to drilling and installation of MS structure on parapet walls which was brought to the notice of the complainant by the Architect Mr. Kamal Dewan through email exchanged between to satisfy the complainant (Annexure-F & G) (para 17). It is submitted that if there was any willful damage caused to the building, the OP cannot be held responsible as per supplementary MOU dated 01.08.14. Other averments made in the complaint have been denied. OP has prayed for dismissal of the complaint.
Complainant has filed a replication reiterated the averments made in the complaint. As per the averments made therein it is denied that complainant is not a consumer or the dispute is of a civil nature. It is, however, not denied that the OP is a co-owner of the property in question though it is stated that builder is a service provider. In corresponding para 11 & 16 (b) & (c) of replication it is stated as hereunder:-
“11 … All original documents relating to the portion belonging to the Complainant must be retained by the Complainant and the Opposite Party has no right or business to possess the same. The retention of original documents by the Opposite Party is illegal and unconstitutional. The Originals of all bills of materials, drawings, permissions, records etc., and all other related documents connected with the portion under ownership of the Complainant are and must be retained by the complainant, ONLY.”
“16 (b) The fact has been verified by a qualified Structural
Engineer after carrying out a detailed on-the-spot inspection, study and analysis of the building. A certificate was issued dt June 21, 2015;
(c) On the contrary, the Certificate of M/s Design Coordinators, C-58, Hari Nagar Clock Tower, Delhi – 110064, OP’s Structural Engineer produced as Appendix - D by the opposite party along with his reply, is prima-facie false, fictitious, fabricated and misleading….”
Complainant has denied his tax liability. According to him, he has very diligently paid his part of taxes and/or levies to the Govt.
Complainant has filed his own affidavit in evidence. On the other hand, affidavit of Sh. Ritesh Chopra, Director of the OP has been filed in evidence on behalf of the OP.
Written arguments haven been filed on behalf of the parties.
We have heard the oral arguments of the parties and have also gone through the record.
The first question to be decided by this Forum is whether the Complainant is or is not a ‘consumer’ as defined in the Consumer Protection Act. In order to substantiate his contention that the Complainant is a consumer a reliance has been placed on the decision reported as Faqir Chand Gulati Vs. Uppal Agency Pvt. Ltd. (2008) 10 SCC 345. On the other hand, the contention raised on behalf of the OP is that the Complainant as well as the OP are the Co- owners of the property in question and hence the Complainant cannot be a consumer as defined in the Consumer Protection Act. In the case referred to by the Complainant it has been held that where the agreement between the landowner and the builder/ fund provider is a true joint venture, the Complainant cannot be a consumer as defined in the Consumer Protection Act. In the present case, admittedly the Complainant and the OP were the Co-owners of the property in question at the time of execution of the MOU dated 10.05.2013 in which the complainant and the OP have been described as the absolute owners and in possession of their respective portions in the entire built up property. In terms of the said MOU, the OP had to raise the construction in the property in question as per the details/specifications given in the same and the Complainant had agreed to sign, execute and provide the document and support as would be reasonably required by the OP from time to time for obtaining the requisite permissions, sanction of plans, approval etc.. The OP had to apply for the MCD/DDA or other authorities in the matter of permissions, sanctions, approvals for the construction on the said property and on behalf of the Complainant and the OP had agreed to prepare the building plans. Clause 14(b) of the MOU inter-alia provided that the Complainant would execute and get the sale deed of the entire first floor of the newly constructed building registered in favour of the OP or his nominee (s) and /or prospective buyer (s) and simultaneously the OP shall execute and get the sale deed of the half (rear) third floor with terrace of the newly constructed building registered in favour of the Complainant or his nominee (s) and /or prospective buyer (s). In clause 15 it was stipulated that the MOU shall not be construed as partnership between the parties and is on principal to principal basis. It was further stipulated in para 18 of the MOU that both the parties shall themselves be responsible for all the income tax , capital gain, service tax, vat or wealth tax liability, if any, arising out of the sale of their respective rights/allocations in the proposed building and shall keep each other fully harmless and indemnified. Thus, it was an agreement between the two Co- owners of the property. It was not an agreement between the landowner and the builder. The Complainant as well as the OP were the Co-owners of the plot underneath the property in question. The stipulations discussed hereinabove go a long way to prove that it was a joint venture agreement between the parties and it was not an agreement between the landowner and the builder. That being so, we hold that the complainant has failed to prove that he is a ‘consumer’ as defined in the Consumer Protection Act.
Copy of supplementary MOU executed between the parties in the month of September 2014 has been filed on the record which inter-alia provides that the OP had to carry out repair/rectification in the building as may be noticed by the Complainant within 1 year’s period from the date of taking over physical possession of the portions fallen to the share of the Complainant. However, it was stipulated that if any willful damage caused to the building by the Complainant is noticed, the OP shall not be responsible for the same.
As stated hereinabove, the averments made by the OP in the reply that the complainant had undertaken construction of MS structure by drilling on the parapet wall himself arbitrarily without taking the OP into confidence and the complainant was himself responsible for the cracks on the terrace parapet etc. have not been denied by the complainant in the corresponding para of replication.
Thus, there is every reason to believe that it was the complainant who had himself by an act of willfulness or because of his own negligence had caused cracks on the terrace parapet etc. Thus, the dispute raised by the parties cannot be decided in a summary manner because it has to be decided on merits whether or not the Complainant has performed his statutory duties so far as the payment of the statutory taxes is concerned or whether he has not deposited the same and, if so, to what effect? It has also to be decided on merits whether the OP has infact not carried out the construction according to the specifications agreed between the parties. Therefore, the parties are required to lead oral as well as documentary evidence which would imply the cross-examination of each other’s witnesses. Therefore, the appropriate forum for deciding the lis is a civil court and not the consumer forum.
In view of the above discussion, we do not find any merit in the complaint and dismiss it with no order as to costs.
Let a copy of this order be sent to the parties as per regulation 21 of the Consumer Protection Regulations. Thereafter file be consigned to record room.
Announced on 27.11.17.
