DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II
Udyog Sadan, C-22 & 23, Qutub Institutional Area
(Behind Qutub Hotel), New Delhi-110016.
Case No.288/2012
Sh. Krishan Kumar Malhotra SENIOR CITIZEN
S/o late Sh. Karam Chand Mehra (DOB 13-04-1940)
R/o C-83, Malviya Nagar,
New Delhi-110017 ….Complainant
Versus
Sh. Rajesh Verma
S/o Late Sh. B. L. Verma
R/o 90/61A, Malviya Nagar
New Delhi-110017 ……Opposite Party
Date of Institution : 05.06.12 Date of Order : 09.11.16
Coram:
Sh. N.K. Goel, President
Ms. Naina Bakshi, Member
O R D E R
Complainant’s case, in very brief, is that he being the owner of property bearing Municipal No.C-83, Malviya Nagar, New Delhi admeasuring 222 sq. yards entered into a Collaboration Agreement with the OP on 20.09.09 and it was agreed that the OP, after demolition of the then existing structure over the land, shall construct a residential building comprising of basement, ground floor, first floor, second floor and third floor out of his own financial sources, in accordance with the Municipal Bye - Laws and Plans sanctioned by the MCD and the specifications contained in “Annexure-A” to the Collaboration Agreement and also that the second floor shall belong to the OP and the remaining portion to the Complainant. However, the OP did not carry out the construction in terms of Annexure-A and used poor quality of workmanship, seepages, usage of inferior and sub-standard material for construction and the OP did not care to remove some of which had to be got removed by the Complainant himself by engaging petty contractors. According to the Complainant, basement and ground floor of the building had been let out by him to IDBI Bank and he incurred expenditure on renovation and rectification of faulty workmanship. The details of the alleged deficiencies in the construction and the amount of expenditure made for repairing the same have been given in the complaint amounting to Rs.12,20,258/-. Besides, pleading other deficiencies for which no prayer has been made, it is stated that the Complainant sent legal notice dated 13.02.12 to the OP but to no effect and the OP is not willing to reimburse the money spent on his account by the Complainant. Hence, pleading deficiency in service on the part of OP, the Complainant has filed the present complaint for issuing directions to the OP to pay Rs.12,20,258/- being the payments made by the Complainant on account of OP, cost of rectification of faulty workmanship and other liabilities of the OP in terms of the Collaboration Agreement, interest @ 18% p.a. from the date of filing of the complaint till the date of payment, Rs.5 lacs as compensation for harassment, inconvenience, frustration and mental agony suffered by him, to complete the unfinished work within a time frame and to rectify the seepage.
OP in the Written Statement has inter-alia pleaded that the Complainant got the property constructed under his complete supervision and interference and he was always satisfied with the quality and workmanship and also the speed of the work even during the course of the construction. It is stated that not only that the Complainant physically checked each and every material, raw material, fixtures, fittings, electrical and sanitary fittings and he did not even permit any substituted brand /standard items even if the named/specified brand item was not available in the market; that besides this the Complainant got the entire work inspected through his known architect time to time and, therefore, the question of any short coming or deficiency does not arise; that the OP has full fledged team of skilled workers, architectures, supervisors, sub-contractors and complete infrastructure and, therefore, the OP’s work was always upto the mark and without any fault and that the entire construction had been carried out by adhering to all the agreed specifications and in consonance with the building plan. It is stated that when sometime in September, 2010 while the work was almost complete and last finishing was about to complete within 3-4 weeks, the Complainant revealed to the OP his intention to convert the entire basement and ground floor as totally commercial and in the first week of October, 2010 the Complainant told the OP about finalization of the transaction with IDBI Bank. In preliminary submissions, it is stated as follows:
“9 That since lot of changes as well as addition-alteration were required to be done/provided by the bank/complainant at the cost of the complainant, as per the specifications of the IDBI Bank, the complainant started carrying out the same at his own cost by employing his own contractor in the supervision of the Bank. The complainant on the instance and as per the requirement of the bank, carried out massive changes in contravention of sanctioned plan and building bye-laws. Lot of granating was done as per the requirement of the Bank which was not part of the specification of the OP. The marble flooring provided by the OP (as per agreed specification) was also replaced at many places by the complainant (as per Bank). To construct a strong room, lot of unauthorized construction was done. The OP provided KV connection for each floor (as per agreement) but Bank required 50 KV load and complainant provided the same. The complainant broken/cut the roof/ceiling slab of the Basement in order to connect both portions and to provide staircase (which is totally illegally and in contravention of sanctioned plan) in a most callous and irresponsible manner. The bathrooms and kitchen were demolished and alternate arrangement was done as per the requirement of the Bank. Boundary wall was broken to take out the stairs. The underground Water tank was pushed down, which not only deprived the owner of the second floor of potable water but also caused seepage. The Sanitary Pipe lines provided in ground floor for domestic/residential purpose were removed and hanged as per requirement, which might have caused some seepage. Spilt Act units were installed by puncturing 9 inches walls, not only in basement and ground floor bur also in third floor also. Apart there from, a complete pucca Bus Stand was erected by the Govt. just in front of the ground floor, which also caused damage. A front staircase was provided for ATM in violation of all norms and bye-laws, which later on had to be removed due to threatening of MCD and police. All the illegal and unauthorized construction was raised in most callous manner.
It is pertinent to mention here that complainant done all this without any technical advice. It was the OP who advised the complainant to appoint some architect or technical person to oversee the work and complainant after spoiling many things got lesson and appointed a part time technical person of his own for the bank’s work. The breaking/cutting of a roof of basement (for stairs) also spoiled the flooring. Due to fight between the complainant and the immediate neighbour, the neighbour did not allow plastering on his side.
Since it is mandatory to deposit conversion and parking charges to MCD, Bank directed the complainant to deposit the same. Otherwise also, without depositing the said charges, no one could start commercial activity. However, all the work done/carried out by the complainant or things provided for ground floor and basement for Bank had nothing to do with the OP, nor was the OP under any obligation to do or provide the same. Not only has that, the massive unauthorized and illegal work done by the complainant if caused any damage was also not attributable to the opposite party. It is really surprising and also self explanatory that when there is nothing or no alleged complaint against any other floor i.e. first floor, second or third, then whey there is an alleged grievance and claim against only in regards with basement and ground floor, because of the tenancy of bank.
10. That work of ground floor and basement in accordance to the specifications of the Bank took about five-six months and it was only thereafter completion of the entire work of the basement and ground floor, the opposite party carried out the exteriors yet one again as per the request of the complainant. Thereafter the complainant was requested to issue possession and satisfaction letter to the OP, and accordingly the complainant formally issued the same on 02/05/2011.
It is worth mentioning here that the complainant signed and issued the possession & satisfaction letter voluntarily with his own sweet volition and without any pressure of any kind. The complainant has categorically admitted and declared in the said letter that the construction of the building is super and to his complete satisfaction. Further the construction is absolutely as per specification given to opposite party. The collaboration agreement is thus completed and performed fully by the opposite party. It is important to mention here that the OP was not to do anything with any revised plan as the revised plan (if any) was only in regards with commercialization of ground floor and Basement for IDBI Bank, yet the complainant has shown his complete satisfaction over the same by mentioning the same in his own writing at the foot of the possession letter. The possession letter is enclosed herewith, which the complainant has intentionally not filed and concealed from this Hon. Forum.”
The other averments made in the complaint have been denied. It is prayed that the complaint be dismissed.
Complainant has filed a rejoinder wherein he has stated that he is deficient in a competence relating to civil engineering and, therefore, to suggest that the building activity was conducted under his complete supervision is meaningless; that it was the job of the OP to supervise the project in accordance with the terms and conditions of the contact and specification contained in Annexure-A; that any short coming can only be attributed to the negligence of the OP, be they be willful or otherwise. It is stated that quality of construction and defects in the building including seepage speak for themselves and hence the OP is bound to rectify the defect, remove seepage on first and third floor and complete the work remaining in accordance with the terms of the agreement. Para No.9 of reply to preliminary submissions of the rejoinder reads as under:-
“9 That in reply to the contents of para 9 relate to following allegations, viz.
- In respect of Ground Floor and Basement, which have been tenanted to IDBI bank that unauthorised construction has been done to suit the requirement of the Bank, i.e., strong room constructed, portion of the roof of Basement cut and stair case provided in order to connect the Ground Floor and Basement, provision of 50 KV load instead of 11 KV provided by the O.P. and;
- Bathrooms and kitchen were demolished and alternative arrangement was done to suit the requirement of the Bank.
- Underground water tank pushed down, resulting in seepage. Sanitary Pipe Lines provided in ground floor were removed and changed, which might have caused some seepage.
- Split AC units installed by puncturing 9” walls.
- Bus stand just in front of Ground Floor also caused damage.
- Violations of Municipal Bye Laws by provision of Bank ATMs.
So far as (a), (d) and (f) are concerned, the opposite party needs no explanation from the complainant, as the matter concerns the MCD and complainant. However, it may be pointed out that alterations, if any, where in accordance with the Bye laws Rs.5,80,938/- was spent by IDBI for laying the flooring of entire basement and Ground Floor.
In reply to (b), the allegations is not only patently false but ridiculous also. If bathrooms and kitchen were demolished then the Staff of the Bank could be deprived of such an essential requirement, which is not possible at all for human existence.
In reply to (c), the O.P’s assessment of the cause of seepages is based on the theory that seepage resulted because underground water tanks were pushed down. Such an exercise is neither possible nor required. There are 4 water tanks of sufficient capacity meant for catering the requirement of the entire building. Besides, it is not possible to push down such tanks, without reconstruction of the same and there was no reason in doing that. The other assessment for the cause of alleged seepage attributable to complaint is removal and change of the existing sanitary pipe lines in ground floor. This has not been done as it may require removal of entire plaster and complete re-doing of the removal of entire plaster and complete re-doing of the entire civil work. Both the assessments are prima facie untenable and false.
In reply to (e), the O.P. admits that the then existing bus stand could have caused damage as it was located adjacent to the Ground Floor. This is a correct fact but the O.P. has not clearly mentioned the reason behind such damage, been caused by the bus stand. The reason is that the entire 75 feet long wall of the basement with a height of 12 feet runs parallel to the road on which bus stand was located. It was not the bus stands that cause damage but the water accumulated on the road which seeps inside the basement as the entire 75’ X 12’ wall of the basement was neither plastered nor water-proofed as per the prescribed norms of civil engineering, - i.e., no tarcoal, no soil compaction etc. was don. Moreover, walls of basement were only 5 inches in thickness instead of 9 inches, minimum.
The actual cause of seepage is not as alleged in (c) above, but due to the following reasons:-
- Basement is not constructed in accordance with prescribed MCD Building Bye laws procedure/practice followed by Builders/ Architects and no proper Water-Proofing done.
- The Sanitary Work is defective and poor. The joints of sanitary pipes lying inside the wall have not been properly fixed and insulated, resulting in seepage.
- The 75’ X 12’ wall adjoining the road was not even plastered, what to say about water-proofing of the same.
- Basement wall is only 5” instead of 9”.
Here, we must point out at once that nowhere in the rejoinder the Complainant has denied that the construction work was not supervised by his own architect from time to time or under his own supervision.
Complainant has filed his own affidavit in evidence. On the other hand, OP has filed his own affidavit in evidence.
Written arguments have been filed. We have heard the arguments on behalf of the parties and have also gone through the file and the copies of the judgments filed by the complainant very carefully.
From the pleadings and the documents of the parties, it is evident that a Collaboration Agreement had been executed between the Complainant and the OP for carrying out the construction in the building as per Annexure-A thereto. As pleaded by the OP and not specifically denied by the Complainant the construction in the premises had been carried out under the complete supervision and interference of the Complainant and the Complainant was always satisfied with the quality and workmanship of the construction. There is also material on the record that the Complainant infact used to reach the site of the building in the morning and leave only after closing of the work everyday and that he had been physically checking each and every material, raw material, fixtures, fittings, electrical and sanitary fittings and he did not permit any substituted brand /standard items to be used even if the named/specified brand item was not available in the market. The version of the Complainant in this regard that he is deficient and incompetent relating to civil engineering and, therefore, the fact that the building activity was conducted under his complete supervision is meaningless is not believable. There is material on the record to show that the Complainant had been getting entire work inspected through his known architect time to time. Therefore, the Complainant had also been obtaining the service of an architect himself without relying upon the OP. Admittedly, the Complainant himself is not an architect. He does not himself know about the quality of the goods used in the construction of the building. After getting the possession of the portion falling under his share he did not get the same inspected through a registered Architect or Civil Engineer. When he himself is deficient and not competent in civil engineering, then how could he all of a sudden after getting possession of the portions of the building falling in his share jumped to the conclusion that the building had deficiencies and short comings as detailed in the complaint. Therefore, we are not inclined to believe the version of the Complainant and, on the other hand, we are of the view that the Complainant has not come to this Forum with clean hands and has tried to suppress the material facts from this Forum.
It is an admitted case of the parties that the Complainant had let out the basement and ground floor portion of the building to IDBI bank. The IDBI bank required certain alterations and renovations to be carried out in the basement and ground floor portion. These additions and alterations have been shown by the OP in para No.9 of the preliminary submissions. The version of the Complainant in this regard has already been reproduced hereinabove. Therefore, there is ample material on the record to prove that huge unauthorized construction had been carried out in the basement and ground floor portion of the building for making the same fit for use of the IDBI bank according to the bank norms. In the absence of any expert opinion to the contrary filed on behalf of the Complainant we are not satisfied that the said additions and alterations etc. carried out in ground floor and basement were according to the MCD building bye-laws. Therefore, we hold that the Complainant has failed to prove that there is any deficiency in service in the construction of the building by the OP. Suffice it to say that the judgments relied on by the Complainant do not apply to the facts of the present case.
In view of the above discussion, we dismiss the complaint leaving the parties to bear their own costs.
Let a copy of this order be sent to the parties as per regulation 21 of the Consumer Protection Regulations. Thereafter file be consigned to record room.
Announced on 09.11.2016.
