Judgment : Dt.8.9.2017

Shri S. K. Verma, President.

            This is a complaint made by one Shiv Krishna Mitra of 1, Townsend Road, P.S.-Bhawanipore, Kolkata-700 025 against Mr. Sudipta Saha, C/o M/s Dine & Design, 12B, 1D, Chanditala Lane, P.S.-Behala, Kolkata-700 040 praying for an order upon the O.P. and his men, agents, associates and subordinates to replace or change the defective goods used for the interior decoration and renovation as made at the premises Nos. 1, Townsend Road, P.S.-Bhawanipore, Kolkata-700 025 and also of the scheduled property and further order upon the OP to pay Rs.1,00,000/- as compensation and Rs.50,000/- as litigation cost.

            Facts in brief are that Complainant is a bona fide consumer and OP is a service provider. Complainant is a medical practitioner by profession and is residing at 379, Jodhpur Park, P.S.-Lake, Kolkata-700 068. Complainant for the purpose of renovation and interior decoration in the house approached by the OP who is an interior decorator and proprietor of M/S Dine & Design having its principal place of business at 12B, 1D, Chanditala Lane. For the purpose of renovation and interior decoration work, Complainant contracted the OP for providing the service. Complainant has also stated in course of decoration and renovation work complainant paid full consideration money in respect of the fittings and fixtures. Complainant received an e-mail dt.7.4.2016 of the demand raised by the OP for payment for some alleged bills which as per Complainant has already been paid. Complainant being dissatisfied with the alleged demand made by the OP and also the quality of the work and the material used by the OP, issued a notice through his Advocte on 11.4.2016 in reply against the alleged e-mail dt.7.4.2016 for demand for payment of some alleged bills and alternatively requested for refund of Rs.10,00,000/- and also requested OP to replace the defective goods for causing illegal trade practice and deficiency in service. Further by a letter dt.11.4.2016, Complainant categorically mentioned to replace the defective products which are mentioned in A to J of the complaint petition. Since OP did not oblige the Complainant, so, Complainant filed this case. Further, Complainant has stated that letter dt.7.4.2016 is an illegal one and sent with the intention to cheat.

            OP No.1 did not contest the case by filing written version and so the case is heard ex-parte against it.

            OP filed written version and denied all the allegations. OP has stated that Complaint is barred by limitation. The work of interior decoration was assigned by the Complainant to the OP in August, 2013 and was completed by the OP in April, 2014. The present complaint is filed in November, 2016 and so it is beyond the limitation period. Further, OP has stated that Complainant hired service of OP for his residential house as well as Sadhana Guest House through which the Complainant is running his business. As the service availed is for commercial purpose, the complaint is barred under C.P.Act. OP carries on proprietorship business under the name and style of M/s Dine & Design. The OP commenced the work from late 2014 and time to time raised bills for the job done and assured to make full payment. The entire work was completed by the OP in early 2015 to the satisfaction of the Complainant. For completion of the entire work the OP raised total bill of Rs.20,98,750/- towards the residence and a sum of Rs.3,95,100/- towards the guest house. Complainant paid only Rs.16,00,000/-. At the time of doing the work Complainant never raised any objection. From time to time OP  used to give reminder. After giving credit to the payments a sum of Rs.4,98,750/- and Rs.3,95,100/- were due to be paid by the Complainant to the OP and so OP issued e-mail to the Complainant. Except this, OP has denied the allegations and prayed for dismissal of the case.

Decision with reasons

            Complainant filed affidavit-in-chief to which OP filed questionnaire to which Complainant filed affidavit-in-reply. Similarly, OP filed affidavit-in-chief to which Complainant filed questionnaire to which OP filed affidavit-in-reply.

Main point for determination is whether Complainant is entitled to the reliefs as prayed for.

            On perusal of the prayer portion of the complaint, it appears that Complainant has prayed for an order upon the OP, his men, agents and associates to change the defective goods as used for the interior decoration and renovation as made at the premises No. 1, Townsend Road, P.S.-Bhawanipore, Kolkata-700 025. Replacement of the defective goods as per Complainant is mentioned in the complaint petition. In paragraph A -  Point 1- stated as incomplete floor tiles with cheap tiles quality with damaged materials. This point does not make it clear as to whether replacement is required or completion is required. So, this appears to be vague. Point B relates to damage paint work as made in the living room as well as in the bed room. Further, it does not make it clear as to why the painting as alleged by the Complainant got damaged. A painting cannot remain damaged from the beginning. Point C – Cheap materials used in toilet for erection of false ceiling. This is also a vague connotation as it does not make it clear again that complaint made for using cheap materials whether there was any terms and condition for the materials to be used between the parties. Similarly, all other points appear to be vague. On perusal of the record, we do not fine anything, any document to prove the terms and conditions between the parties and specific materials to be used by the Op for alleged interior works.

            In such a situation, it cannot be safely inferred that this complaint is filed in response to the e-mail sent by the OP and nothing else. Further, the OP has alleged that there was agreement between them for interior work both at residence and also at Sadhana Guest House. However, Complainant very intelligently did not bring this fact in his complaint as because contention of the written version is clear. This complaint appears to be beyond the jurisdiction of this Forum. Accordingly, we find that Complainant failed to prove the allegation and is not entitled to any relief.

            Hence,

ordered

            CC/535/2016 and the same is dismissed on contest.