Date of Filing : 24.01.2015 Date of Disposal : 26.07.2021
BEFORE THE KARNATAKA STATE CONSUMER DISPUTES REDRESSAL COMMISSION, BENGALURU (PRINCIPAL BENCH)
DATED : 26th JULY 2021
PRESENT
HON’BLE Mr JUSTICE HULUVADI G RAMESH : PRESIDENT
Mr KRISHNAMURTHY B SANGANNANAVAR : JUDICIAL MEMBER
Mrs DIVYASHREE M : LADY MEMBER
COMPLAINT No. 33/2015
Mr Kishore Kumar Roy
S/o Late Amiya Kumar Roy,
Aged about 57 years,
R/at No. L-148,
7th Main, Jeevan Bheema Nagar,
Bengaluru – 560 075.
(By Mr Madhu V) Complainant
-Versus-
1. Mr Nataraj K C
S/o Mr Chithrappa,
No.18, 'Banashankari Krupa',
Teachers Colony,
HBR Layout, I Block,
Bengaluru – 560 043.
2. Mr.Suresh,
S/o Mr Raju,
SD Constructions,
No.8/46, 'Sri Krishna',
4th Block, Doddabommasandra,
Vidyaranyapura Post,
Bengaluru – 560 097.
(By Mr A J N -1 & C B -2 ) Opposite Parties
: O R D E R :
BY Mr JUSTICE HULUVADI G RAMESH : PRESIDENT
1. This Complaint is filed under Section 17 of Consumer Protection Act 1986 against OPs 1 & 2, seeking refund of excess payment of Rs. 12,50,000/- with interest @18% p.a. from the date of Notice, till payment and for additional sum of Rs. 8,50,000/- towards expenditure for rectifying the defects in construction with interest @ 24% p.a. from the date of Notice, till payment and Rs. 10,00,000/- as Compensation.
2. It is alleged by the Complainant that he is the absolute owner of the property bearing Plot No. 1989 MCECHC situated at Dr. Shivaram Karanth Nagar, Srirampura Village, Yelahanka Hobli, Bengaluru - 560 064, measuring 2,400 Sq ft; the Complainant decided to build a house in the said site and approached one Mr. Lakshmi Narayana, a Civil Engineer referred by his Office colleague for floor-wise plan in September 2012 and the said Lakshmi Narayana offered that he will provide Floor Plan & structural drawing and introduced OP1 for structural drawing ; During October 2012, the Complainant got the final Floor Plan from Lakshmi Narayana along with few structural drawings from OP1 ; OP1 took Soil Bearing Capacity (SBC) as 20T and accordingly, prepared the structural drawing, but, now it is learnt that SBC of the site is 13T and not 20T; thereafter, the Complainant was on the lookout for a good Engineer for the construction of his house; in November 2012, OP1 showed great interest to construct the house for the Complainant; he persuaded the complainant and also promised that he will use very good quality river sand & good quality material and do a very good job of construction; he held several meetings and discussions about the specification and construction; during one such discussion in February 2013, OP1 brought one of his associate – Mr Suresh / OP2 and informed the Complainant that OP2 would assist him in his work; he is an Engineer and good at work; meanwhile, Complainant obtained a Loan of Rs.42,20,000/- by mortgaging the proposed under construction house to SBI, Bengaluru ; from May 2013, the Complainant has been paying EMI of Rs.59,492/- and he entered into an agreement of construction with the OP1 on 28.04.2013; the total value of the construction as per the agreement was Rs. 50,43,500/- and the construction was supposed to be completed within 48 weeks from 03.05.2013 i.e., by the end of March 2014 etc.
3. It is further alleged that, there were certain modifications & additions in construction and also for payment in that regard; the complainant alleging in detail about the work carried out, materials used by the OPs were all sub-standard, work was not as per drawing, etc.; by that time the Complainant had paid a total amount of Rs. 46.00 lakhs excluding for Granite, 6 Concealed Cistern (already installed), 6 Western Commode, 4 wash basins, one bath room concealed diverter and CCTV media cable, etc. and further alleged that tiling of bathroom was also defective work, etc.; further alleged that subsequently, as demanded by OP2, he paid an additional sum of Rs.1,50,000/- and thus, Complainant has paid in all Rs. 50,50,000/-. It is further alleged by the Complainant that, from July 2014 onwards, no work was done by OPs; terrace work was not done; bathroom tiles work was not completed; in the 1st Floor, water is leaking from the North Western side Bath Room due to the non-filling of Cinderblock properly; OP2 was not at all coming to the site; extension of 3’ at Ground Floor Utility was not done; therefore, Granite laying was also not completed; below the stair case also granite work is not done; compound wall was done only on two side partially, without plastering; one side compound wall is done by cement block, whereas, as per Contract it should be brick work etc.; thus, in view of OPs poor approach towards performance of their work under the said Agreement, Complainant was constrained to appoint a duly qualified & Government Registered Valuer for assessing & issue a Certificate on the status of the property and accordingly he surveyed the property on 13.09.2014 and evaluated the work done as worth Rs. 40,00,000/- only; during 15.09.2014, the OPs have fixed the main door for the Ground Floor and 1st Floor without checking with the Complainant for auspicious day & time and locked the Doors without handing over the Keys, so that the Complainant cannot enter the house and the keys of the same were retained by the OPs; hence, Complainant lodged a Complaint on 26.09.2014 and by mediation of Jurisdictional Police on 28.09.2014, the Complainant visited the site along with his wife and children; OP2 came to the site and handed over possession of the partially constructed house to the Complainant and he alleged about the incomplete work; in the circumstances, Complainant has filed present Complaint seeking reliefs as stated supra.
4. In his statement of objections, OP1, apart from denying the case of the Complainant, specifically pleaded as here under:
“Maintainability of complaint: The complaint in the present form is evidently filed for recovery of money and for payment of compensatory damages allegedly on the basis of an Agreement. The disputes of this nature ought to have been adjudicated before the Civil Court upon payment of appropriate Court Fees. The dispute is of civil nature and this Hon’ble Commission does not have the jurisdiction to try the instant matter.
Further, the Complainant’s averments evidently disclose complex factual disputes, which mandate a full fledged trial. It is humbly submitted that, in a summary proceedings of this nature, this Hon’ble Commission does not have the jurisdiction to adjudicate upon such complicated factual disputes. The complainant has approached this Hon’ble Commission merely to avoid payment of Court Fees and to avail the benefit of summary proceedings, with a view to avoid elicitation of truth in cross examination. The instant Complaint is nothing short of an abuse of the process of Court. Therefore, the instant complaint is liable to be dismissed for lack of jurisdiction and on the ground of abuse of process of the Court.”
5. Similarly, OP2 has also pleaded that the above Complaint lacks jurisdiction; the Complaint contains 53 paragraphs in 19 pages; the documents produced in support of the Complaint is voluminous and involves complicated questions of law & facts and is hyper technical in nature; therefore, the Complaint cannot be decided summarily on the basis of the allegations & documents produced in time bound proceedings; the Complainant has filed the Complaint before the Commission only to avoid payment of Court Fees etc.
Thus, OPs 1 & 2 pleaded specifically that Complaint is not maintainable under the Consumer Protection Act and matter needs to be referred to the Civil Court.
6. Heard the arguments of both parties on IA as well as on merits.
7. It is submitted by the learned counsel for the OPs that the case involves lengthy evidence, cross-examination etc., and also evidence with regard to the accounts. Hence, the Consumer Court cannot decide the matter. Further, they relied upon the decision reported in 2001 CPJ Vol III Page 274 rendered in the case of D.S. Kohli Vs. Baldev Singh Pabbla & Anr, wherein it is held as hereunder:
“Held: The cumulative effect of all these contentions and the involving of the intricate and complicate questions of facts, leading of such evidence and appreciation thereof together with the consideration that the complaint in fact is one of rendition of account of various payments made allegedly by the complainant to the opposite parties, we are of the considered view that this Commission cannot adequately and properly deal and decide this complaint under the summary jurisdiction given to it under the C.P. Act. It is a fit case in which the complainant may seek remedy by filing an appropriate civil suit before the Civil Court of competent jurisdiction. Resultantly, we dispose of this complaint by relegating the complainant to his remedy of seeking appropriate remedy before the Civil Court of competent jurisdiction.”
8. The Learned Counsel for the Complainant also relied upon the decision rendered by the Hon’ble Supreme Court in the case of Faqir Chand Gulati Vs. Uppal Agencies Pvt. Ltd. and Anr. by the Apex Court in Civil Appeal No. 3302/2005 reported in 2008 10 SCC 345 Manu/SC/3133/2008, wherein, it is discussed at para 23 as hereunder:
“23. We may notice here that if there is a breach by the landowner of his obligations, the builder will have to approach a civil court as the landowner is not providing any service to the builder but merely undertakes certain obligations towards the builder, breach of which would furnish a cause of action for specific performance and/or damages. On the other hand, where the builder commits breach of his obligations, the owner has two options. He has the right to enforce specific performance and/or claim damages by approaching the civil court. Or he can approach the Forum under Consumer Protection Act, for relief as consumer, against the builder as a service provider. Section 3 of the Act makes it clear that the remedy available under the Act is in addition to the normal remedy or other remedy that may be available to the complainant.”
Another decision reported in MANU/SC/0178/1994 rendered by the Hon’ble Apex court in the case of Lucknow Development Authority Vs. M.K. Gupta in Civil Appeal No. 6237/1990, wherein at para 6 it is stated as hereunder:
“6. What remains to be examined is if housing construction or building activity carried on by a private or statutory body was service within meaning of Clause (o) of Section 2 of the Act as it stood prior to inclusion of the expression ‘housing construction’ in the definition of “service” by Ordinance No. 24 of 1993. As pointed out earlier the entire purpose of widening the definition is to include in it not only day-to-day Buying & Selling activity undertaken by a common man, but, even to such activities, which are otherwise not commercial in nature, yet they partake of a character in which some benefit is conferred on the Consumer. Construction of a house or flat is for the benefit of person for whom it is constructed. He may do it himself or hire services of a Builder or Contractor. The latter being for consideration is service as defined in the Act. Similarly, when a statutory authority develops land or allots a site or constructs a house for the benefit of common man, it is as much a service as by a Builder or Contractor. The one is of contractual service in nature and other is of statutory service. If the service is defective or it is not what was represented, then it would be unfair trade practice as defined in the Act. Any defect in construction activity would be denial of comfort and service to a consumer. When possession of property is not delivered within stipulated period, the delay so caused. amounts to denial of service. Such disputes or claims are not in respect of Immovable Property as argued, but deficiency in rendering of service of particular standard, quality or grade. Such deficiencies or omissions are defined in Sub-clause (ii) of Clause (r) of Section 2 as Unfair Trade Practice. If a builder of a house uses sub-standard material in construction of a building or makes false or misleading representation about the condition of the house, then it is denial of the facility or benefit, on which, a Consumer is entitled to claim value under the Act. When the Contractor or Builder undertakes to erect a house or flat, then it is inherent in it that he shall perform his obligation as agreed to. A flat with a leaking roof, or cracking wall or sub-standard floor is denial of service.”
9. Complainant has entrusted the construction of the building on the site to the OP on 28.04.2013 for a total value of Rs.50,43,500/- as per Agreement was and the construction was supposed to be completed within 48 weeks from 03.05.2013 i.e., by the end of March 2014. The allegation of the Complainant is that, OPs received excess amount for construction of the building and there are defects in the construction of the building and he prayed for refund of amount, compensation and expenditure for rectifying the defects.
10. According to the OPs, the case involves lengthy evidence, cross-examination and also evidence with regard to the accounts by appointing Court Commissioner and get the report to decide the case, Hence, the Consumer Court cannot decide the matter, wherein, the disputes involved is civil in nature.
11. It appears that the dispute on the hand is to be resolved by appointing an independent Court Commissioner of choice of either of the parties and after getting the Commissioner’s Report, detailed examination of the witnesses needs to be recorded.
12. In view of the aforesaid observations, the Complaint filed before this State Commission cannot be entertained on the point of maintainability and it is needless to say that the Complaint is liable to be returned to the Complainant for presentation before the Hon’ble Civil Court to get the reliefs. Liberty is granted to the Complainant to approach appropriate Court for redressal of his grievances, and in which event, he is entitled for benefit under Section 14 of the Limitation Act and accordingly, the present Complaint is disposed of.
Lady Member Judicial Member President
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