Haryana

Panchkula

CC/112/2014

G.S SANDHU - Complainant(s)

Versus

NEERAJ MITTAL. - Opp.Party(s)

P.S BEDI

26 Nov 2015

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM,  PANCHKULA.             

                                                                  

Consumer Complaint No	:	112 of 2014
Date of Institution	:	03.07.2014
Date of Decision	:	26.11.2015

                                                                                          

Sh.G.S.Sandhu son of Sh.Kehr Singh Age 81, R/o Plot No.213-L, Sector 4 MDC, Panchkula.

                                                                             ..Complainant No.1.

 

Smt.Amarjeet Sandhu w/o Sh.G.S.Sandhu R/o House No.213-L, Sector 4, MDC, Panchkula.

                                                                             ..Complainant No.2.

 

Sh.Akashdeep Sandhu s/o Sh.G.S.Sandhu R/o House No.213-L, Sector 4 MDC Panchkula.

                                                                             ..Complainant No.3.

                                                   

Versus

Sh.Neeraj Mittal s/o Sh.O.P.Mittal, r/o House No.769, Sector 21, Panchkula.

                                                                             ..Respondent No.1.

Smt.Nisha Mittal w/o Sh.Neeraj Mittal r/o House No.769, Sector 21, Panchkula.

                                                                   ..Respondent No.2

 

COMPLAINT UNDER SEC. 12 OF THE CONSUMER PROTECTION ACT, 1986.

 

Before:                 Mr.Dharam Pal, President.

Mrs. Anita Kapoor, Member.

Sh.S.P.Attri, Member

                            

For the Parties:     Sh.P.S.Bedi, Advocate for complainants.

Mr.Parmod Bhardwaj, Advocate for OPs.

ORDER

(Anita Kapoor,  Member)

1.               The complainants are owners of House No.213-L, Sector 4 MDC, Panchkula and it has been purchased by complainants No.2 & 3 to live in with their family and the said plot was re-allotted by the HUDA to complainants No.2 & 3  vide re-allotment No.15041 dated 03.11.2006. It is further averred that 50 % share of the property was transferred in favour of complainant No.1 as per order dated 03.12.2012 passed by Hon’ble Additional Civil Judge (Sr.Divn.), Panchkula. The complainants No.1 & 2 are old aged persons and complainant No.3 is residing at Mumbai, therefore, the complainant No.1 approached the Ops for the construction of house as well as for drawing of map of the home/plot.  The Ops assured the complainant No.1 that they are professional architects and builders having vast experience in this field. The complainant No.1 being an innocent citizen got convinced from the courteous consultation and asked them to draw the map and to construct the building on plot No.213-L, Sector 4 MDC, Panchkula. The Ops visited the spot and thereafter a written agreement was executed between the complainants and Ops on 14.05.2011. Rough estimated cost for the structure was agreed as Rs.56,70,000/- and total cost of the building was agreed as Rs.1,03,00,000/-. As per agreement the Ops had to complete the project within a period of 13 months for the whole building and 5 months for the structure part. The Ops started the construction of the house on 27.03.2011. The complainant No.1 visited the site and found that low quality of work was being carried on by the Ops and the labour hired by the Ops for construction was totally inexperience.  On 24.10.2012 the complainant No.1 brought into the notice of Ops about prominent structural defect such as Crack in lobby/drawing room foundation: The cracks were of heavy in nature which can never occur in any structure designed for Earth Quake Resistance, Lobby’s Ceiling is slanting, Ground Floor master bedroom’s bathroom wall is not straight, thereby leaving the bathroom as out of square/rectangle, Ground floor powder room is out of square/rectangle, A very bulky beam between the Drawing Room and Lobby was demolished in order to adjust the height of the door. Lateron it was not replaced with the similar size beam.  The Ops had assured that the notified defects would be rectified but it was not done by the Ops despite visiting of complainant to the Ops many a times.  On 29.10.2012 the complainant decided to terminate the contract and also issued notice to the Ops regarding this. On 06.11.2012 the Ops visited the complainant and thereafter the contract was revised and an another contract was executed between the parties and it was settled for Rs.1.21 Crores. The Ops had undertaken to complete the work within 45 days from the date of signing of the agreement on 25.12.2012 but they kept on delaying the work on one pretext or the other. In the month of December, 2012 the Ops gave the possession of two rooms in the house of the complainant as the work was pending in other rooms. On 01.03.2013 the complainants brought into the notice of Ops about inexperienced work of plumbing and painting. On 11.03.2013 the complainant also informed the Ops about leaks, cracks and seepages in his house but all fell on deaf ears.  The work was not being carried out upto the satisfaction of the complainant  despite paying hefty amount of Rs.1.18 crores. On 23.04.2013 the complainant again informed the Ops about the pending work. On 17.08.2013 the complainant also intimated the Ops to complete the project within 15 days but after passing of eight months the complainants and his family are not in a position to occupy their own home constructed at substantial cost and out of their life savings.  The Ops failed to complete the pending work therefore, it was got done by the complainants by hiring services of other professional builder by spending an amount of Rs.5,00,000/-. The complainants had to engage other labour  for repairing the doors and windows which were left unfurnished.  The quality and the quantity of the tiles/marbles/granite used by the Ops were cheaper and lesser than what the Ops had charged from the complainants. The difference in the price charged from the complainants and the rate at which the goods purchased from the market speak that the Ops are deficient in providing service and they exercised the unfair trade practice.  It is further averred that in short span of time, heavy and medium cracks developed in the walls of the ground floor and drawing room, lobby and on the roofs which shows the defective working and low quality of material used in the construction after charging hefty amount of Rs.1.21. Crores. The complainants sent emails and also written letters besides visiting personally to the office of Ops but they did not pay any heed.  The complainants got inspected the defects in the construction of building from M/s Sharma and Associates and also assessed the cost of the construction of the house. Due to the act and conduct of the OP the complainant and his family has undergone mental agony, harassment and deficiency in service on its part.  In evidence, the complainant has tendered affidavits and documents Annexure CA to Annexure CW, Annexure C1 to Annexure C77 and closed the evidence. 
2.               On notice, the Ops appeared and contested the complaint by filing joint reply. In the reply several preliminary objections such as maintainability, suppression of material facts from this Forum, complainants do not fall within the ambit of consumers etc. have been taken. It has been submitted that the complainant No.1 approached the Op No.1 and represented that he was the owner of plot No.213-L Sector, Panchkula and he wished to construct his house and further to give contract to OP No.1. A written contract was executed but lateron it came to the notice of OP No.1 that Ops no.2 & 3 are co-owners of the said plot. Agreement was executed on 23.03.2011 and was matured on 14.05.2011 after signing of both the complainant No.1 and OP No.1. As per terms of the agreement dated 22.03.2011 signed on 14.05.2011 following work and rate was settled:

1. The scope of work was to construct the building at the rate of Rs.1300/- per sq.feet for basement and Rs.1050 Sq.feet for ground floor and first floor for structure only.

2. The rough estimated cost of the structure is Rs.56,70,000/- and total cost for the building is Rs.1,03,00,000/-
3. The tentative time frame for the completion would be for the whole building 13 months and for the structure part 5 months.

The delay in execution of work was not due to any lapses on the part of OP No.1 rather it caused due to fault of the complainants as on their request the OP no.1 had stopped work for six months i.e. from Sept.2011 to March, 2012 and it was stopped due to shortage of funds with the complainant No.1. Due to change of thoughts in the mind and specifications of the complainants time and again after construction of a particular area/part of the floor the Op No.1 got already done work dismantled which the OP No.1 had redone as per the complainant No.1 fresh requirement. The complainants have failed to make the payment as per the schedule given in the agreement. It was settled if the required money was not paid by the owner, the contractor cannot proceed for further construction which requires money for expenditure. It has been further submitted that additional construction of the first floor and work executed in addition to the scope of work  agreement dated 22.03.2011/14.05.2011 and construction of 2^nd floor assigned in Sept.2011 in addition to the scope  of work of agreement executed between the parties. The OP No.1 has completed the work as per his commitment but the complainants have withheld the payment illegally and malafidely.  The deficiencies pointed out by the complainants have been rectified before shifting in the new house on 20.12.2012. The complainants did not make the payment due towards them and in order to avoid the payment the complainants have engaged other person for completion of alleged work.  The Op No.1 requested the complainants to make the outstanding amount but they did not pay any heed therefore, the OP No.1 got served a legal notice upon them but despite that the complainants have not made the payment, forcing the Op No.1 to file a civil suit  for a decree for Mandatory Injunctions before the court of law at Panchkula and the same is pending for adjudication.  It has been further submitted that there was no leakage, cracks and seepages in the house.  Between the parties revised contract amount have been settled at Rs.1.21 crore. The break up for this includes all costs for total area measurement breakage, client work and client’s extra work totaling to Rs.1.15 crores and contractor side escalation charges as per bill submitted earlier of Rs.6 lacs, payment till date is Rs.1.05 crore. The complainants were bound to pay Rs.16 lacs as per schedule made in the amended agreement dated 06.11.2012. The Ops have pleaded that there is deficiency in service and unfair trade practice on their part. Other pleas made in the complaint were controverted and a prayer for dismissal of the complaint has been made. In evidence the Ops have tendered affidavit and documents Annexure RA, Annexure R1 to Annexure R11.

3.                          We have heard the arguments advanced on behalf of both the sides besides going through the material available on the case file. The complainants have come with the plea that the Ops have neither completed the work in time nor the work was done upto their satisfaction and the Ops have not rectified the deficiencies which were left during construction as was agreed at the time of execution of agreement forcing them to get the work completed from another professional constructor by spending an amount of Rs.5,00,000/-. On the other hand the Ops have come with a plea that the delay in construction has been caused due to fault of the complainants as on their request the work was stopped for about six months i.e. from September 2011 to March, 2012 due to shortage of funds. The Ops have further come with the plea that due to change of mid and specifications of the complainants time and again after construction of a particular area/part of the floor the work already done was got dismantled  and he got the work redone. The Ops have further pleaded that an amount of Rs.4,05,940/- is outstanding towards the complainants and despite making several request the complainants have not made the payment, therefore, the Ops have filed a suit for a decree for Mandatory Injunction against the complainants before the court of law at Panchkula  and the same is pending for adjudication. Perusal of the case file reveals that a civil suit for recovery filed by the Ops is pending between the parties as is evident through Annexure R6. 

4.                The complainants, all of them, deserve to be non-suited. The reasons therefor are as under.

5.                Is apparent from the record that the Ops have already filed a Civil Suit for recovery against the complainants which is pending for consideration at the hands of the Civil Court, Panchkula. The complainants did not mention this fact in the complaint. The OPs made a mention of it in the written statement. The complainants, in their own discretion, did not opt to file a rejoinder. Without at all suggesting that the filing of rejoinder is mandated under the current procedural law, it needs to be stressed that the filing of rejoinder would be required, nay ideal, to rebut a fact which appears for the first time in the written statement. The complainants having refrained from filing a rejoinder and thereby denying the factum of pendency of a Civil Suit on this very cause of action, cannot claim to have come to the forum with clean hands. That fact disentitles them from the grant of relief by the forum. Hon’ble National Consumer Disputes Redressal Commission, New Delhi in case titled as S.Girija Selvaraj Vs. The Proprietor decided on 04.02.2013 in Revision Petition No.3092 of 2012 has held as under:

12.       It is well settled that any party who seeks an equitable relief must approach the judicial Forum with clean hands and should not conceal the material facts. Honble Supreme Court in Faquir Chand Gulati Vs. M/s Uppal Agencies P. Ltd. & Anr. Special Leave Petition (c) No. 18225-18226 of 2011 dated 14.08.2011 observed ;

From what we have stated above, it is clear that the petitioner has not approached the Court with clean hands. Therefore, he is not entitled to be heard on the merits of his grievance. Reference in this connection can usefully be made to the judgment of this Court in Dalip Singh Vs. State of UP (2010) 2 SCC 114, the first two paragraphs of which are extracted below ;

1. For many centuries Indian Society cherished two basic values of life i.e. satya (truth) and Ahinsa (non-violence) Mahavir, Gautam Budha and Mahatma Gandhi guided the people to ingrain these values in their daily life Truth constituted an integral part of the justice-delivery system which was in vogue in the pre-Independence era and the people use to feel proud to tell truth in the courts irrespective of the consequences. However, post-independence period has seen drastic changes in our value system. The materialism has overshadowed the old ethos and the quest for personal gain has become so intense that those involved in litigation do not hesitate to take shelter of falsehood, misrepresentation and suppressions of facts in the court proceedings.

2.           In the last 40 years, a new creed of litigants has cropped up. Those who belong to this creed to not have any respect for truth. They shamelessly resort to falsehood and unethical means for achieving their goals. In order to meet the challenge posed by this new creed of litigants, the courts have, from time to time, evolved new rules and it is now well established that a litigant, who attempts to pollute the stream of justice or who touches the pure fountain of justice with tainted hands, is not entitled to any relief, interim or final.

5.                 A perusal of the pleadings made by the party would indicate that there are indeed disputed questions of fact which cannot be disposed of in a summary manner in the proceedings before the forum which require voluminous documentary and oral evidence including cross-examination of various witnesses and experts which cannot be done possibly by the Forum.

6.                 For the above noticed reasoning, we do not feel called upon to adjudicate upon the validity or otherwise of the grievance made by the complainants against the OPs in this complaint.

7.                 For the reasons mentioned in the above paras, we hold that the complaint is not maintainable before this forum. It shall stand dismissed accordingly. The parties shall, in the circumstances of the case, bear their own costs of the litigation.

8.                 A copy of this order shall be sent, free of cost, to the parties to the complaint.

 

ANNOUNCED

26.11.2015       S.P.ATTRI       ANITA KAPOOR             DHARAM PAL

                           MEMBER        MEMBER                        PRESIDENT

 

Note: Each and every page of this order has been duly signed by me.

 

 

                                 

                                                                   ANITA KAPOOR

                                                                     PRESIDENT