CONSUMER DISPUTES REDRESSAL FORUM – X
GOVERNMENT OF N.C.T. OF DELHI
Udyog Sadan, C – 22 & 23, Institutional Area
(Behind Qutub Hotel)
New Delhi – 110 016
Case No.700/2010
MR. RAJAT PRATAP JAIN,
S/O SH. RAMESH JAIN,
R/O J-1965, CHITRANJAN PARK,
NEW DELHI-110019
…………. COMPLAINANT
Vs.
- M/S HOME PAINTING SERVICES
D-14/2, OKHLA INDUSTRIAL AREA,
PHASE-II, NEW DELHI-110020
- M/S WINGS DREAM HOMES
D-14/2, OKHLA INDUSTRIAL AREA,
PHASE-II, NEW DELHI-110020
- M/S BERGER PAINTS INDIA LTD.
D-14/2, OKHLA INDUSTRIAL AREA,
PHASE-II, NEW DELHI-110020
…………..RESPONDENTS
Date of Order:10.08.2018
O R D E R
A.S. Yadav - President
By way of this complaint under the Consumer Protection Act, 1986, Shri Rajat Pratap Jain, the complainant, has sought redressal of his grievances against (1) M/s Home Painting Services, (2) M/s Wings Dream Homes and (3) Berger Paints India Ltd. The facts and allegations narrated in the complaint are that the complainant had constructed a new four-storeyed house at Chitranjan Park, in addition to basement and the contract to paint and polish the same was given to OPs vide document titled as Purchase Order dated 25.3.2010 for a total agreed consideration of Rs.3.75 lacs. It is submitted that at the time of execution of the aforesaid document, the OPs were paid a sum of Rs.1,75,000/- vide cheque bearing no.111734 dated 25.3.2010, in favour of OP-1. It was stipulated in the document that the entire work was to be completed within a period of 60 days starting from 29.3.2010 and to be finished by 27.5.2010. It is submitted that the OPs failed to start the work in the beginning, they hired local workers from time to time and delivered only sub standard work and stopped the work at their own sweet will and hardly completed 25% of the total work, and that too was sub standard and of no use to the complainant. The OPs started pressing for future payments, and finding himself entrapped in the design of the OPs, he had to pay a further sum of Rs.45,000/- on 6.8.2010 vide a cash deposit in OP-2’s account with HDFC Bank. It is further submitted that the complainant was further forced to pay cash payment of Rs.50,000/- from time to time on one pretext or the other. It is submitted that the even after 220 days having expired, the OPs have not even completed first half of the work. The complainant has further submitted that on the one hand he has been paying rental for his own residence in the sum of Rs.95,000/- p.m. and on the other losing rental income of the unfinished building to the tune of Rs.4 lacs a month. It is submitted that the OPs have committed gross breach of the agreement and that the conduct of the OPs amounts to cheating and fraud on criminal side and deficiency in service and unfair trade practice and restrictive trade practice for which all the OPs have jointly and severally made them liable. It is further submitted that the complainant served a legal notice dated 13.11.10 to the OPs and the was replied back vide reply dated 15.12.10, 16.12.10, which are not only false but self-contradictory and tantamount to admission of the contents of the complaint.
OP-1 chose not to be represented despite notice and was thus proceeded ex parte. In reply, OP-2 submitted that there is no cause of action; the complaint is bad for misjoinder of parties; OP-2 and 3 are not necessary parties inasmuch as the agreement was between the complainant and OP-1. It is submitted that the complainant had approached OP-3 for carrying out painting and polishing job of his house no.J-1967, C.R. Park, New Delhi when the building was still under construction, and in pursuance of the agreement, a cheque of Rs.1,75,000/- was paid to OP-1 and the remaining amount was to be paid on completion of the work on the basis of actual measurement. It is further submitted that OP-1 and 2 had entered into an agreement dated 1.4.2009, with OP-3 M/s Berger Paint India Ltd. In terms of the agreement, it was the duty of OP-1 for giving the estimate of the total expenditure of painting inclusive of cost of paint, collection of the said amount and to arrange to carry out the painting after exercising due diligence, and that it was agreed between OP-1 and 2 and OP-3 that Berger Paints India Ltd shall not assume any liability on account of acts, omissions and commission and negligence of the other or its staff or any other person engaged by those parties. It is submitted that the contract was to be completed within 60 days from start date of 29.3.2010. It is submitted that the complainant was supposed to provide sufficient area for the painting of the house, but the same was not done by the complainant, therefore, the stipulation of 60 days for completion of the job became redundant. It is stated that the complainant excluded the area of basement from the job work, and got the extra work done from the OP for which the complainant got the exterior texture rustic coat instead of weather coat all guard exterior emulsion which resulted in extra cost. There was an over all increase of 5000 sq. Ft. as per actual measurement as against the total area of 22000 sq.ft. which resulted into an additional cost till 2nd week of November, 2010. Consequently the OP demanded part payment against the said work done till that date and the complainant refused in a very bad manner that he would not pay any single penny and kept the compressor, electronic sanding meachine, six small roller, one extension roller, one jhulla and three ladder worth Rs.29,500/- from their contractor. It is submitted that in these circumstances, the OPs had no other alternative but to stop the work. OPs further submits that the complainant owes a sum of Rs.1,34,065/- towards the work done which includes additional job of painting. The complainant has not paid the cost of the machines and goods held illegally by him. It is submitted that the allegations made against the OPs in the legal notice have been denied vide reply sent to the complainant. It is prayed that for these reasons the complaint being misconceived is liable to be dismissed.
Similarly, OP-3 in its reply submitted that OP-3 is not a necessary party as the agreement was between the complainant and OP-1, and that the complainant has not come before this forum with clean hands. The version of facts submitted by OP-3 is exactly the same to the one submitted by OP-2.
In the rejoinder to the WS of OP-2 and 3, the complainant submitted that OP-2 and 3 received part payment in their name against proper receipt, and have given a common reply to the notice of the complainant, through a common counsel. In order to avoid liability, they are creating confusion as regards their identity. All the OPs are working under the same management. The complainant denied that there was any additional area or excess cost. The complainant has denied all the averments of the OPs, including reference to the emails and denied the letter dated 6.12.2010 and the bill as forged document, in their WS, which firstly do not seem to have any relevance to the issue and also totally inadmissible in evidence for want of fulfilment of conditions under Section 65-B of the Indian Evidence Act, and has reiterated and reaffirmed his allegations and facts stated in the complaint.
We have gone through the case file carefully.
It is significant to note that the complaint has been filed against M/s Home Painting Services, M/s Wings Dream Homes and Berger Paints India Ltd. It is not stated as to whether OPs are a partnership concern or a proprietorship concern or a company. From the documents filed by OPs, it is evident that OP-1 is a proprietorship concern of which Mr. Bipin J. Singh is proprietor. It is settled law that proprietorship concern is a legal entity which has to be sued through its proprietor, but it is not done. Likewise OP-2 is a proprietorship concern of which Mr. Arun Samuel is the proprietor and it is not sued through the proprietor. OP-3 is a private limited company which has to be sued through its Director, but it is not done. So on the face of it, the complaint has not been filed against proper persons.
The second point for consideration is whether there was any privity of contract between the complainant and OP-2 and OP-3. It is clear from the case of complainant that certain quotations were given by OP-1 and those quotations were accepted by the complainant by virtue of purchase order dated 25.03.2010. So the privity of contract was between the complainant and OP-1 and there was no privity of contract between OP-2 and OP-3.
It is submitted by Ld. Counsel for the complainant that, it is evident from the reply of OPs that the complainant had contacted OP-3 for the purpose of painting of his newly constructed house bearing No.J-1965, Chitranjan Park. It is true that the complainant has contacted OP-3 and OP-3 entered into the agreement with OP-1 and agreement was on principal to principal basis. No agreement has been entered into between the complainant and OP-2 and OP-3.
The complainant has stated in para 6 of this complaint that OPs initially failed to even start the work in the beginning and they hired local workers from time to time to carry out the work and that was of sub-standard quality and hardly 25% work was completed. It is admitted fact that the work was to start on 29.03.2010 and was to be completed by 27.05.2010. The complaint has not served any notice to OP within this period of 60 days to show that the work was not started or some local workers were hired and they carried sub standard work. In fact first legal notice was sent to OPs on 13.10.2010 i.e. after 220 days of awarding the work. The complainant has not sent any email to OPs regarding sub standard work.
OP-1 was proceeded ex parte. OP-2 and OP-3 specifically stated that in fact during the course of execution of work, the complainant excluded the area of basement from the job work. The complainant further got the extra work done from OPs and as per the extra work, the complainant got the exterior texture rustic coat instead of weather coat all guard exterior emulsion, which resulted in extra cost. After finishing of the job, there as an overall increase of 5000 sq. ft. It is significant to note that OPs have specifically stated that when OP-1 took over the site, the civil work i.e. POP/masonry/electrical fitting/flooring/floor polishing work was going on with the result that OPs could not get a better progress in the work due to hindrances which caused delay in the execution of the work.
It is significant to note that an email was sent by OP-3 to the complainant on 07.09.2010 wherein they have stated “kindly check the enclosed work schedule at your premises” and that schedule is annexed with the email which shows details of work done by OPs. Further there is an email dated 06.09.2010 wherein the work which has been carried out has been detailed. There is a notice dated 06.12.2010 sent by OP-2 to the complainant detailing about the work done for which an amount of Rs.1,34,065/- was due and the same was not paid and instead of paying the amount, the complainant has illegally withheld the equipments namely, one compressor machine, one electrical sanding machine, six rollers, one extension roller, one jhula and three ladders worth Rs.29,300/- wherein the complainant has been called upon to pay the amount. Postal receipts are on record.
The complainant has simply stated that no extra work was carried out. It is significant to note that the complainant has not placed on record the report of any expert to show that the work was not completed or the work was sub-standard or that the extra work was not done.
The complainant has failed to prove any deficiency in service on the part of OP. Hence the complaint is dismissed.
Copy of order be sent to the parties, free of cost, and thereafter file be consigned to record room.
(RITU GARODIA) (H.C. SURI) (A.S. YADAV)
MEMBER MEMBER PRESIDENT
