BEFORE THE DISTRICT CONSUMER DISPUTES

REDRESSAL FORUM, JALANDHAR.

Complaint No.222 of 2014

Date of Instt. 09.07.2014

Date of Decision :10.03.2015

Amit Gupta son of Ashok Kumar R/o Tibba Bazar, Batala R/o Plot No.196-B, Surya Enclave, Jalandhar.

..........Complainant

Versus

1. M/s Sharma & Associates, 67, BSF Company, Post Office New Market, Jalandhar, through its Prop.Sh.Parmodh Sharma also Parmodh Sharma, Prop of M/s Sharma & Associates, 67, BSF Company, Post Office New Market, Jalandhar

2. Jalandhar Improvement Trust, Main Branch, Jalandhar through its Chairman.

.........Opposite parties

Complaint Under Sections 12 & 14 of the Consumer Protection Act, 1986.

Before: S. Jaspal Singh Bhatia (President)

Ms. Jyotsna Thatai (Member)

Sh.Parminder Sharma (Member)

Present: Sh.Vikas Sood Adv., counsel for complainant.

Sh.Sandeep Dhir Adv., counsel for opposite party No.2.

Opposite party No.1 exparte.

Order

J.S Bhatia (President)

1. The complainant has filed the present complaint under sections 12 and 14 of the Consumer Protection Act, 1986, against the opposite parties on the averments that earlier one properly No.196-B Surya Enclave was allotted to the complainant. The opposite party No.1 approached the complainant to construct a house on the property and accordingly a written agreement was executed between the parties. The complainant has paid a sum of Rs.3,20,000/- through cheques to the opposite party No.1. Only an amount of Rs.30,000/- was due and the construction was to be raised as per the agreement by the opposite party No.1. The complainant is ready to pay the remaining amount. Earlier it was assured by the opposite party No.1 that he shall complete the construction within stipulated period. Many requests were made by the complainant to the opposite party No.1 to complete the construction within stipulated period, but all in vain. The opposite party No.1 has stopped to raise the construction and has failed to complete the construction within the stipulated period. Now the opposite party No.1 has threatened the complainant of dire consequences. Not only this, due to non construction in time, the opposite party No.2 can raise a penalty on the complainant, which is to be payable by the opposite party No.1 now, as opposite party No.1 has not raised the construction as per the agreement. The complainant has requested many a times to the opposite party No.1 to complete the construction, but all in vain. On such like averments, the complainant has prayed for directing the opposite party No.1 to complete the construction. He has also claimed Rs.2 Lacs as damages and further directing the opposite party No.2 to receive the amount of penalty etc from opposite party No.1. He has also claimed litigation expenses.

2. Upon notice only opposite party No.2 appeared and filed a written reply pleading that the true story is that Rs.1,63,350/- are due from the complainant on account of non construction charges and enhancement till 15.9.2014.

3. Opposite party No.1 did not appear inspite of notice and as such it was proceeded against exparte.

4. In support of his complaint, learned counsel for the complainant has tendered affidavit Ex.C1 alongwith copies of documents Ex.C2 and Ex.C3 and evidence of the complainant closed by order.

5. On the other hand, learned counsel for opposite party No.2 has tendered affidavit Ex.OP1 and closed evidence.

6. We have carefully gone through the record and also heard the learned counsels for the present parties and further gone through the written arguments submitted on behalf of complainant.

7. The main grievance of the complainant is against opposite party No.1. According to the complainant, he has paid a sum of Rs.3,20,000/- to opposite party No.1 through cheques and only an amount of Rs.30,000/- was due and construction was to be raised as per agreement by opposite party No.1 but opposite party No.1 did not complete the construction within stipulated period and has stopped raising any construction. Ex.C3 is agreement regarding the construction. In the complaint, the complainant has not alleged as to what extent the opposite party No.1 has raised the construction and what is value of that construction. He has also not mentioned the value of the incomplete construction which was left by opposite party No.1. He has simply pleaded that opposite party No.1 has stopped raising the construction and has failed to complete the construction within stipulated period. So complaint lack material particulars regarding the construction raised by opposite party No.1 before stopping the construction and its value. In disputes relating to construction appropriate forum is Civil Court as in such type of cases local commissioner is required to be appointed to visit the spot and to assess the value of the construction standing there and further the amount which is required to complete the incomplete construction left by opposite party No.1 as per agreement Ex.C3. Even in Civil Courts, the agreement regarding construction can not be specifically enforced and in such type of cases only compensation can not be granted. So direction can not be given to opposite party No.1 to complete the construction. Further in absence of said material particulars and evidence regarding construction existing on the spot which was raised by opposite party No.1 and value of incomplete construction which was supposed to be raised by opposite party No.1 in accordance with the above said agreement, this complaint can not appropriately be decided in the present summary proceedings. The remedy of the complainant is to approach the Civil Court, if so advised.

8. At the time of arguments, learned counsel for the complainant moved an application for additional evidence. Even this application was not signed by the complainant. Alongwith this application, the complainant has filed one valuation report. Purpose of valuation is mentioned as fair market value. In the report it is mentioned that the present cost of construction as on 5.2.2015 for the type of finishes including services as provided, after allowing depreciation over all flat rates may be taken as under:-

Covered Area:-

Ground Floor:- 450.00 SFt @ Rs.355.00 per Sft=Rs.1,59,750.00

Boundary Wall:-1120.00 Sft @ Rs.80.00 per Sft=Rs. 89,600.00

Total =Rs.2,49,350.00

9. In concluding portion it is mentioned that the fair market value of the above said building is at Rs.2,49,350/-. In the report the value of the depreciation is not mentioned and further the value of construction existing on the spot is mentioned as Rs.2,49,350/- as on 5.2.2015. So even this report is of no help to decide the controversy involved in the present case properly. Moreover the complainant should have led this evidence at appropriate stage. No ground for allowing any additional evidence is made out and application moved by the complainant in this regard is dismissed. Opposite party No.2 can not be asked to recover the amount of penalty etc from the opposite party No.1.

10. In view of above discussion, we hold that there is no merit in the present complaint and same is hereby dismissed with no order as to cost. However, the complainant is at liberty to approach the Civil Court. Copies of the order be sent to the parties free of costs under rules. File be consigned to the record room.

Dated Parminder Sharma Jyotsna Thatai Jaspal Singh Bhatia

10.03.2015 Member Member President