DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, SAHIBZADA AJIT SINGH NAGAR (MOHALI)

Consumer Complaint No.1021 of 2018

                                                Date of institution:  26.09.2018                                              Date of decision   :  15.07.2019

Gaurav Verma son of J.C. Verma, resident of # 563, Gillco Valley, Sector 127, Kharar, District Mohali.

…….Complainant

Versus

Amit Dhiman c/o Design Square, Architecture, Interior Design, Approved Valuer, Turn Key Solutions, Flat No.65 (G.F.) Sector 51(A), Chandigarh 160047.

                                                                 ……..Opposite Party

Complaint under Section 12 of

the Consumer Protection Act.

Quorum:   Shri G.K. Dhir, President,

                Mrs. Natasha Chopra, Member.

Present:    Complainant in person.

                Shri Pankaj Chandgothia, counsel for the OP.

Order by :-  Shri G.K. Dhir, President.

Order

                  Application for dismissal of complaint at preliminary stage filed by OP by claiming that civil case between the parties on  same issue is pending in the court of Shri Jaspreet Singh, Civil Judge (Jr. Division), Chandigarh with captioned title as M/s. Design Square Vs. Gaurav Verma. Complainant Gaurav Verma has appeared there and contesting that case. Next date of hearing in that case alleged to be 21.02.2019. Shri Jagdish Chand Verma father of Gaurav Verma has put in appearance in the said case on 16.10.2017. So complainant is fully aware of pendency of that case. Issues have already been framed in that case and same is pending for evidence. This fact has been deliberately concealed while filing this complaint in September, 2018 i.e. after more than one year of  filing of civil case. As and when civil case is pending on same issue, then Consumer Fora cannot entertain any complaint regarding same issue. Moreover, when complicated questions are involved, for settling of which elaborate evidence required, then matter should be referred to civil court. So prayer made for dismissing the complaint in limni, but with liberty to complainant to approach civil court for redressal of grievance raised through this complaint.

2.             In reply to this application, it is claimed that complainant has not concealed material facts, but this Forum has rightly issued notice to OP. Grounds of civil case and of this consumer complaint are different from each other. Suit for recovery of Rs.75,000/- filed for claiming professional fee  admittedly is pending before Civil Judge (Jr. Division), Chandigarh. Proceedings of that suit also alleged to be of summary in nature. This complaint has been filed on grounds of deficiency in service and adoption of unfair trade practice and as such prayer made for dismissal of the application. Leave to defend proceedings of summary civil suit under Order 37 Rule 2 CPC has been sought. Court of Civil Judge (Jr. Division), Chandigarh after hearing on application for leave to defend has observed that plaintiff claims recovery of Rs.75,000/- on account of non payment of professional fee. No written contract between parties placed on record, even though defendant of the suit admitted about arrival of contract between the parties. However, reservations made regarding deficiency in service on part of plaintiff of that case. It is claimed that factum of completion of work by plaintiff is a matter of evidence and that is why court of Civil Judge (Jr. Division), Chandigarh observed as if complainant of present complaint entitled to grant of leave to defend said civil suit.  Complainant was compelled to terminate agreement on ground of deficiency in service regarding which intimation through email dated 08.08.2017 was given by claiming as if there is deficiency in rendering services. Two further notices were served on OP on 14.08.2018 and 28.08.2018. All this happened before any civil suit was filed by OP in civil court at Chandigarh. No complex and complicated questions are involved in the complaint. Drawings on which complainant built the stair caved in subsequently. Copy of  drawing given by OP is attached with the complaint. Expert Mistry (Thekedar) has expressed reservations that stair will not survive as per defective drawing provided by OP. That fact was conveyed to OP by complainant by phone, but OP reassured structural stability of stair with advice to complainant to go ahead with the construction of stair. OP was duly informed about mishap by complainant and by expert Mistry, but OP did not bother to visit spot and assess the damage suffered by complainant.

3.             Arguments on this application were heard.

4.             Even if complainant may have sent notices Ex.C-11 and Ex.C-12 on 28.08.2017 and 14.08.2017, but despite that this complaint has been filed on 26.09.2018 i.e. after wait of more than one year of service of these notices. What prevented complainant from filing complaint at earliest after service of these notices, qua that no due explanation rendered. In notice Ex.C-11 it is mentioned that OP of the present complaint should pay back Rs.1.00 lakh to complainant of this complaint within 15 days after receipt of notice, failing which complainant of the present complaint will go in for civil and criminal proceedings. That period of 15 days was to lapse on 15.09.2017, but despite that this complaint filed after one year of lapse of notice period of Ex.C-11. Same is the position with respect to notice Ex.C-12 dated 14.08.2017, whereby demand of Rs.60,000/- put forth by complainant from OP by pointing out deficiencies in the rendered services.  Notice period of 15 days of Ex.C-12 was to lapse on 29.08.2017, but this complaint filed after one year and approximately one month of lapse of this notice period also. This circumstance cannot be lost sight while deciding this application, particularly when perusal of copy of plaint filed by OP against present complainant in the court of Civil Judge (Jr. Division), Chandigarh reveals that civil suit No.1412 of 09.09.2017 was filed for claiming recovery of Rs.75,000/- on account of non payment of professional fee by complainant of present case. So it is obvious that OP of the present case filed suit on 09.09.2017 i.e. about one year prior to filing of present complaint.

5.             Perusal of order dated 04.09.2018 passed by Shri Jaspreet Singh, Civil Judge (Jr. Division), Chandigarh in Civil Suit No.1412 of 09.09.2017 reveals as if leave to complainant of present case to defend that civil suit was granted by observing that though plaintiff of that case (OP of present complaint) has not placed on record any written contract between parties, but defendant of that case (complainant of present complaint) admitted about factum of contract between parties and that is findings on question as to whether completion of work done by present OP or not had to be recorded on the basis of evidence to be produced, so permission to complainant of present case to defend suit was granted. In the present complaint also it is admitted as if claim of deficiencies projected on the basis of agreement of 12.10.2016 arrived at between parties. So virtually rights of the parties in the civil suit and in the present complaint flows from performance/non performance of terms and conditions of agreement dated 12.10.2016 arrived at between parties. Services of OP were availed by present complainant for providing architectural designs as per taste of the complainant. As per contents of complaint, after approval of the complainant, agreement was finalized for amount of Rs.1,35,000/- for giving complete architectural and working drawings alongwith payment plan divided into 10 stages time plan  and same was to be provided by OP.  Complainant claims to have paid Rs.60,000/- to OP and that fact is not disputed. However, balance amount of Rs.75,000/- not paid by complainant to OP and that is why OP filed civil suit under Order 37 of Civil Procedure Code against present complainant.

6.             Perusal of copy of plaint of the civil suit reveals as if present OP claims to have visited office premises of present complainant for knowing about requirements of present complainant. It is claimed through Para No.2 of civil suit that complainant of present complaint requested OP of present complaint to prepare designs and thereafter email the same to present complainant. It was after receipt of email of the design by complainant that he was to respond.  Through para-2 of civil suit it is also claimed that personal meetings from time to time were held as per mutual convenience. Emails were exchanged between parties and present OP supplied various designs, drawings, layout plans as per requirements, on the basis of which house was at finishing stage. It is claimed that thereafter due admitted payments have not been made. So virtually OP of the present case through civil suit claimed about entitlement for balance professional fee of Rs.75,000/- .

7.             In the application filed by complainant of present case, in civil suit for seeking leave to defend, it is claimed that no response to emails was received and 3 D designs of floors were not shared by present OP with complainant. Rather OP of the present complaint brought hard copies of 3 D designs of both floors which were already shared. In Para No.15 of that application for leave to defend it is specifically mentioned by the present complainant that as per structural design  given by the present OP, constructed stair fell down due to faulty design provided by present OP. In Para No.15 of that application it is further mentioned that before construction started, concerned expert Mistry made reservations about survival of the structure as per design provided by OP. That  information given by present complainant to OP for cross checking the design, but present OP assured structural stability of the stair and advised present complainant to go ahead with the construction of the stair. Through Para 15 of this application it was claimed by complainant of present case as if he is entitled to recover amount of Rs.40,000/- from present OP either by filing counter claim or by other legal course.  In Para 16 of that application it is mentioned that house is still incomplete upto extent of 60% and that is why damage through notice dated 28.08.2017 of Rs.1.00 lakh was claimed. Through present complaint same pleas almost are taken regarding sending of structural design of 3D of ground floor as well as of first floor. Further it is claimed through present complaint as if OP of the present case had been asking the present complainant to visit specific shop for buying construction material, but when complainant of present case refused to oblige, then OP of the present case started behaving indifferently. Non receipt of response to email dated 13.07.2017 is also projected through this complaint. Further through Para No.10 of this complaint, it is sought to be mentioned as if OP of present case shared copies of 3D designs, which had already been rejected by complainant. All these are facts mentioned in the application for leave to defend as filed by complainant of present case in the proceedings of the civil suit. Even facts mentioned in Para-15 of application for leave to defend civil suit are same as are those of Para No.12 of the present complaint regarding caving in of stair case and claim qua damages of Rs.40,000/-. Through prayer clause also damages of Rs.40,000/- on account of caving in of stair case sought alongwith refund of paid amount of Rs.60,000/-. So it is obvious that issues involved in the present complaint regarding recovery of damages of Rs.40,000/- on account of caving in of constructed stair as per design given by OP or of entitlement of OP to retain Rs.60,000/- are the same as are the issues involved in the civil suit, on the basis of which leave to defend granted by Civil Judge (Jr. Division), Chandigarh to complainant of present case. Whether caving in of constructed stair took place due to faulty design provided by OP is a matter requiring elaborate evidence because witnesses have to be examined and cross examined for adjudicating that controversy. Even complainant contemplating to examine expert and that is why he claims to have already obtained report of Thekedar Mistry and as such in view of voluminous evidence required to be adduced by the parties, it is fit and appropriate to direct complainant to put counter claim in the proceedings of civil suit because he through Para No.15 of application for leave to defend proceedings of summary suit himself opted either to file counter claim or to start other legal proceedings for recovery of suffered damages of Rs.40,000/- due to caving in of stair case. Deficiencies pointed out in the present case by complainant are also subject matter of deficiencies of the civil suit. Complainant of the present case appeared in the civil suit on 16.10.2017 is a fact borne from copy of application for leave to defend proceedings of summary suit. As this complaint has been filed after appearance of complainant in the proceedings of the civil suit and after seeking leave to defend and as such this complaint virtually is filed in counter blast to proceedings of civil suit already instituted by present OP. Issues involved in the present case virtually are the same as are issues involved in the civil suit and as such in view of ratio of law laid down in case M/s. Special Machines Karnal Vs. Punjab National Bank & others, I (1991) CPJ 78 (NC), it is fit and appropriate to direct complainant to avail remedy from civil court by filing counter claim in the pending civil suit. As proceedings of the civil suit initiated about one year prior to this complaint, but 10 months after appearance by present complainant in the civil suit and as such proceedings of this complaint deserves to be terminated at this stage itself, more so when ratio of above cited case lays that when subject matter of a complaint is sub judice before civil court, then Consumer Forum will not conduct proceedings under the Consumer Protection Act in respect of the same subject matter. Moreover in the above said case it has been held that Forums constituted under the Act though are vested with powers to examine witnesses on oath,  but such power to be exercised in such cases only where issues involved are simple like that of defective quality of purchased product etc. In this reported case it has further been held that if it appears to the concerned Consumer Forum that the issues raised cannot be determined without taking elaborate oral and documentary evidence, then the Forum can decline to exercise jurisdiction by referring the parties to ordinary remedy by way of suit. Same is the proposition of law laid down by Hon’ble Delhi State Consumer Disputes Redressal Commission, New Delhi in case titled as Srikrishan Dass Vs. Dena Bank bearing complaint No.C-330 of 2001 decided on 08.07.2002.  Ratio of this case fully applicable to the facts of the present case and as such it is fit and appropriate to pass order for terminating proceedings of this complaint with observations that complainant by filing counter claim may avail remedy from the civil court, where the already instituted suit by OP is pending.

8.             Benefit from ratio of case titled as  Punjab and Sind Bank Vs. Shakti Sales Corporation & Anr. 2004(2) CPJ 32 (Hon’ble State consumer Disputes Redressal Commission Punjab) cannot be availed by complainant because after going through ratio of that case, it is made out that relief claimed by complainant regarding rendering of deficient services by bank due to non renewal of insurance policy for insuring goods was subject matter different than that of the proceedings of civil suit for recovery of cost on account of forgetting of OP to renew insurance of contracts of electrical goods in reported case, there was no direct connection of issue of recovery suit with the issue of rendering deficient services of non purchase of insurance policy despite obligation of OP, but that direct connection of issues involved in the civil suit vis. a vis. issues involved in the present complaint is there and as such ratio of cases cited by counsel for OP is applicable directly to the facts of the present complaint.

9.             As a sequel of above discussion, complaint dismissed at this stage by observing that complainant will be at liberty to approach civil court for redressal of grievance projected through this complaint, by way of filing counter claim in the civil suit for recovery already filed by present OP of this complaint.  Certified copies of the order be supplied to the parties as per rules.  File be indexed and consigned to record room.

Announced

July 15, 2019.

                                                                (G.K. Dhir)

                                                                President

(Mrs. Natasha Chopra)

Member