Delhi

North West

CC/807/2014

lokesh jain - Complainant(s)

Versus

otis elevetor - Opp.Party(s)

04 Oct 2024

ORDER

DISTRICT CONSUMER DISPUTE REDRESSAL COMMISSION-V, NORTH-WEST GOVT. OF NCT OF DELHI
CSC-BLOCK-C, POCKET-C, SHALIMAR BAGH, DELHI-110088.
 
Complaint Case No. CC/807/2014
( Date of Filing : 17 Jul 2014 )
 
1. lokesh jain
N.A.
...........Complainant(s)
Versus
1. otis elevetor
N.A.
............Opp.Party(s)
 
BEFORE: 
  SANJAY KUMAR PRESIDENT
 
PRESENT:
 
Dated : 04 Oct 2024
Final Order / Judgement

ORDER

04.10.2024

 

Sh. Sanjay Kumar, President

  1. The factual matrix of the present case is that during September 2012, the complainant approached the OP at Pitampura New Delhi office seeking quotation for one electric traction passenger elevator for his residential building being constructed at Plot no.1, Road no.28, East Punjabi Bagh, New Delhi. It is stated that OP company reported its technical engineer to visit the site and after site visit detailed negotiations were held regarding specifications and requirements at site. It is further stated that on October 17, 2012 a detailed proposal submitted to complainant for signature and return of all documents if same were acceptable.
  2. It is stated that the total cost of installation including supply, installation, commissioning and maintenance charges for 12 months as per proposal was Rs.13,15,000/-. It is stated that after various representations by the personal of OP, complainant submitted acceptance to the terms and conditions mentioned in the proposal by signing all the pages of the proposal as advised alongwith a crossed cheque of Rs.1,31,500/-. It is stated that during June 2013 as per clause 5 of the conditions of the contract two cheques of Rs.5,26,000/- respectively forwarded being 80% of the contract value.
  3. It is stated that as per condition of contract upon receipt of 90% and the contract value required to supply and commence installation of the said equipment within 10 weeks and as per clause 25 (a) of the conditions of contract the OP was required to complete the installation within 28 weeks from the receipt of order. It is further stated that the order for supply, installation, commissioning and maintenance was placed on the OP on 10.11.2012 and 90% of the total contract value was duly received by OP by June 2013. However, OP failed to supply/dispatch the equipments, leave alone, install the same at the site even upto November 2013.
  4. It is stated that OP’s staff/personal, time and again on being contacted by complainant/his representative insisted on payment of excess amount on the ground that cost of the equipments had result and OP would not be in position to supply, install, commission and maintain the same at the agreed rates/price. It is stated that OP’s staff/personal further failed to give anything in writing. It is stated that complainant was forced to request for refund of the amounts paid to OP as suffering loses on account of non installation. It is stated that the complainant coerced to execute a document due to dominant advantages position of OP on doted lines if wish to avail the refund of the money from OP.
  5. It is stated that complainant being left with no other option under coercion/duress was forced to execute the change in contract forms in triplicate and forwarded the same to OP in January 2014 for refund of the amount. It is further stated that OP refunded amount of Rs.11,83,500/- being the principle amount (90% of the contract value) vide cheque dated 05.02.2014 without accounting for interest as amount retained and enjoyed for about six months period. It is stated that a legal notice dated 10.03.2014 sent to OP for paying Rs.1,24,267.50 towards interest @ 18% for illegally retaining and enjoying amount of Rs.11,83,500/- and Rs.2,50,000/- towards loss/damages suffered by complainant. No reply given by OP.
  6. Complainant is seeking direction against OP to hold guilty of unfair trade practice, to pay amount of Rs.1,24,267.50 as interest @ 18%, to pay Rs.2,50,000/- towards loss/damages suffered by complainant and further Rs.2,50,000/- on account of loss of time suffered by complainant and all amount alongwith 18% per annum pendentalite interest and future interest and cost of the proceedings also be awarded to complainant.
  7. OP filed detailed reply and taken preliminary objections that complainant has not approached the Hon’ble Forum with clean hands. It is stated that there is no cause of action in favor of complainant and complainant does not fall under the definition of a consumer. It is stated that complainant failed to pay contract price within stipulated time and whatever is paid by complainant was refunded to him and the contract for installation of elevator is cancelled, therefore, complainant is not entitled to seek any relief from this Hon’ble Forum.
  8. It is stated that OP issued a quotation/proposal letter dated 17.10.2012 for installation of an elevator in the residence of the complainant at the agreed cost of Rs.13,15,000/- specifying therein the terms of the contract and specification of the model of the lift. It is stated that the proposal for installation of elevator was accepted by the complainant on 10.11.2012 by paying 10% of offer price with simultaneous signing the proposal form for installation of OTIS Elevator at his residence.
  9. It is stated that the said contract also includes 12 months free maintenance service which shall commence from the date when the installation of the said lift is completed and the OP has offered the complainant for inspection of the said elevator. It is stated that as per the policies and terms of the said contract executed between the parties, the commissioning of installation of lift shall commence only on receiving the full advance payment of the said contract value, which the complainant had miserably failed in fulfilling as per clause 5 of the said contract. It is stated that complainant has suppressed the material facts that 80% of the contract price i.e an payment of Rs.10,52,000/- remitted by the complainant to OP through cheque no.449933 had been dishonoured with a remark of “insufficient funds”.
  10. It is stated that there delay in installation of the lift occurred due to non fulfillment of condition precedent under the said contract by the complainant. It is stated that the delay in installation of the lift occurred due to the non fulfillment of condition precedent under the contract by the complainant, therefore, OP cannot be held liable for the delay. It is stated that on account of failure on the part  of complainant OP could not supply and install elevator at the residence of complainant. It is stated that the contract come to an end upon failure of timely payment of contract price on the part of complainant. It is stated that there is no deficiency on the part of OP.
  11. It is stated that upon failing to pay the initial payment for supply and installation of elevator by the complainant, the period of completion of the contract shall also be extended for such succeeding dates till the realization of final bill of the contract value and the period  of completion of the contract i.e 28 weeks shall be calculated from the date of receipt of final payment of the contract value as per clause 25 of the contract. It is stated that OP has not at any point of time breached the terms and conditions of the contract. It is stated that the contract between the complainant and OP was a reciprocal works contract and execution of the awarded job by the OP.
  12. It is stated that the time frame within which the OP was to complete the elevator installation was 28 weeks which commence from the date of receipt of the order or advance payment, layout approval and settlement of all technical details whichever is later. It is stated that the said period was further subjected to the completion of the various preparatory works by the complainant before 22 weeks of the date of completion and timely remittance of payment to OP as per payment schedule stipulated under the contract.
  13. It is stated that it was agreed between the complainant and the OP that the payment of the contract price was to be made by the complainant pro rata basis. It is stated that complainant has suppressed the material facts that he failed to pay the contract price as per the agreed payment schedule. It is stated that the offer of contract price was valid till June 2013 and 80% of the contract price would have been paid latest by June 2013 but complainant had paid the same in July 2013. It is stated that complainant was required to give his acceptance on the revised contract price as per the prevailing rates as on date under clause 2 of the contract.
  14. It is stated that complainant insisted and requested the OP for commissioning of the work on previous rates and subsequently issued two fresh cheques of Rs.5,26,000/- dated 15.07.2013. It is further stated that the timely payment of bills like other contracts, was an important term of the contract having bearing on the execution of the contract but the complainant had waddled out of the commitments and on the contrary alleged that the execution of contract was delayed by OP. It is stated that the contract price was based on the cost of the raw material, components and the labour cost as on the date of quotation and the variation in whole sale price for  metal products, therefore, rates quoted and agreed between the parties were valid till June 2013 and the contract was extended beyond this period, therefore, OP is entitled to reprice the contract as per clause 2 of the contract.
  15. It is stated that OP made clear to complainant that he had failed to make the payment as per the payment schedule and the validity of the contract price had expired and price is subject to escalation and OP requested complainant to give the approval of revised proposal. It is stated that no response was received from the complainant. It is stated that complainant requested the OP to accept 80% of original contract price and reconsider the contract on old price rate. It is stated that the OP after discussion at regional office and head office level found the request is not feasible from commercial point of view, therefore, this was disapproved. It is stated that OP had offered an extended warranty of three months free of cost. It is stated that in July 2013 the right to cancel the contract or penalty on late payment accrued in favour of OP.
  16. It is stated that the OP did not exercise the right and agreed to continue to execute the contract without imposing any penalty as envisaged under clause 2 of the contract. It is stated that the rates quoted under the contract were valid till June 2013 and the execution of contract was extended beyond the stipulated period due to non remittance of scheduled installment under the contract on the part of complainant and OP was entitled to revise the contract price as per the prevailing rates as installation of elevator on the original price due to commercial constraint.
  17. It is stated that the complainant was adamant and showed his disinterest to continue with the revised scheduled price of completion of installation of work. It is stated that OP as a goodwill gesture on receiving application for cancellation and refund of deposit amount refunded the amount deposited by the complainant vide cheque dated 05.02.2014 without any deduction although OP was entitled to claim damages/compensation including the cost of material and loss of profit/administrative expenses, actual or at the rate of 10% of the value of contract, whichever is higher in the event of cancellation of contract.
  18. It is stated that OP has not at any point of time or violated or breached the terms and conditions of the said contract and present complaint is filed without any cause of action and with an intention to gain undue advantage from OP. It is stated that present matter is not in the nature of a consumer dispute as the same is a dispute with regard to the execution of a contract entered into between the complainant and OP wherein extensive evidence is required to be lead in order to prove alleged claim, therefore, present complaint is liable not to be entertained by this commission.
  19. It is stated that there is neither any negligence nor deficiency in service nor unfair trade practice on the part of OP. It is stated that the contract entered into between the complainant and the OP consists of an Arbitration Clause for the settlement of dispute between the parties, therefore, as per clause 20 of the said contract the present dispute is to be referred to an Arbitrator which is to be appointed as per section 8 of Arbitration and Conciliation Act, 1996, therefore, present complaint is liable to be dismissed.
  20. On merit all the allegations are denied and contents of preliminary objections are reiterated. It is stated that present complaint is liable to be dismissed and complainant is not entitled to any relief claimed in the complaint.
  21. Complainant filed rejoinder to the WS and denied all the allegations made therein and reiterated contents of complaint.
  22. Complainant filed evidence by way of his own affidavit. In the affidavit contents of complaint are reiterated. Complainant relied on copy of negotiation no.52N27616 dated October 17, 2012 alongwith conditions of contract Ex.CW1/A, copy of change in contract form Ex.CW1/B, copy of legal notice dated 10.03.2014 alongwith postal receipt and AD card Ex.CW1/C (colly) and copy of original reply sent by OP dated 22.05.2014 Ex.CW1/D.
  23. OP filed evidence by way of affidavit of Sh. Ajay Kumar Singh AR of OP company and reiterated contents of WS. OP relied on copy of power of attorney dated 04.09.2012 Ex.RW1/1, copy of contract with quotation/proposal letter dated 17.10.2012 Ex.RW1/2 and Ex.RW1/3.
  24. Written arguments filed by complainant as well as by OP.
  25. We have heard Sh. S.S. Pandit counsel for complainant and Sh. Dhananjaya Sharma proxy for Sh. Prem Prakash counsel for OP and perused the record.
  26. It is admitted case of parties that complainant entered into an agreement with OP company for installation of elevator at Plot no.1, Road 28, East Punjabi Bagh, New Delhi. After negotiation a proposal submitted by OP of Rs.13,15,000/- and complainant paid Rs.1,31,500/-  10% of the contract value. In June 2013 as per conditions of contract no.5 two cheques of Rs.5,26,000/- were forwarded to OP by complainant. The complainant alleged that under coercion/duress OP forced to execute the change in contract in January 2014 for refund of amount and OP refunded Rs.11,83,500/- on 05.02.2014. The complainant alleged deficiency of service and unfair trade practice on the part of OP and claimed compensation and interest on the amount paid as per initial agreement with OP. On the other hand OP alleged that complainant suppressed the material fact that the payment of Rs.10,52,000/- which was paid through cheque was dishonored due to insufficiency of funds, therefore, as per contract complainant failed to fulfill conditions and caused delay and contract came to an end. We have gone through the relevant clauses of contract between the parties specially clause 2 and clause 25 and correspondence exchange between the parties. The material on record establish that the cheques given by complainant were dishonored and complainant admitted that he has received the amount of Rs.11,83,500/- on 05.02.2014 after the contract between parties came to end. The complainant as per material on record failed to establish unfair trade practice and deficiency of service on the part of OP. Hence present complaint is dismissed. No order as to cost. File be consigned to record room.
  27. Copy of the order be given to the parties free of cost as per order dated 04.04.2022 of Hon’ble State Commission after receiving an application from the parties in the registry. The orders be uploaded on www.confonet.nic.in.

 

Announced in open Commission on  04.10.2024.

 

 

 

 

     SANJAY KUMAR                 NIPUR CHANDNA                       RAJESH

       PRESIDENT                             MEMBER                                MEMBER   

 
 
[ SANJAY KUMAR]
PRESIDENT
 

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