Chandigarh

DF-I

CC/814/2022

Capt. VINOD CHAUDHRI - Complainant(s)

Versus

Sh. MUKESH MEHTA C/o M/s Balaji Builders - Opp.Party(s)

AJAY KUMAR

03 Sep 2024

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION-I,

U.T. CHANDIGARH

                                     

Consumer Complaint No.	:	CC/814/2022
Date of Institution	:	19.9.2022
Date of Decision	:	03/09/2024

 

1. Capt. Vinod Chaudhri S/o Late Sh. Sham Lal Chaudhri, R/o 1277. Sector 34-C, Chandigarh.

2. Geeta Chaudhri D/o Sh. Vinod Chaudhri, Rio H.No.1277, Sector 34- C, Chandigarh

3. Sh. R.L. Chaudhri s/o Late Sh. Sham Lal Chudhri, Rio H.No.1277, Sector 34-C, Chandigarh.

..... Complainants

VERSUS

 

1. Sh. Mukesh Mehta C/o M/s Balaji Builders, SCO No.666, 2nd Floor, Sector 70, S.A.S. Nagar, Mohali (Punjab).

2 Sh. Sanchit Mehan, R/o H.No.344, Sector 38-A, Chandigarh

......Opposite Parties

 

CORAM :	SHRI PAWANJIT SINGH	PRESIDENT
	MRS. SURJEET KAUR	MEMBER
	SHRI SURESH KUMAR SARDANA	MEMBER

 

                                                                               

ARGUED BY	:	Capt. Vinod Chaudhri, Advocate- complainant No.1 in person, also for complainants No.2&3.
	:	OP No.1 exparte
	:	Sh. Rajneesh Kaushal, Advocate for OP  No.2

Per Pawanjit Singh, President

1. The present consumer complaint has been filed by the complainant under Section 35 of the Consumer Protection Act 2019 against the opposite parties (hereinafter referred to as the OPs). Briefly stated,  The brief facts of the case are as under :-
   1. It transpires from the averments as projected in the consumer complaint that the OPs claimed themselves to be the reputed builders of tricity and in response to advertisement in leading newspapers, the OP No.2 contacted the complainants and claimed himself as an expert in providing cutting edge technology in the construction of modern buildings and finalize, the deal in Chandigarh to construct the houses. The complainants wanted to construct their H.No.3318 and H.No.1214 in Sector 82-A, Mohali (hereinafter to be referred as subject houses). After initial meeting, the Opposite party  No.2 suggested that he would finalize the deal after consulting his engineer who has been arrayed as Opposite party  No.1 and after two days both Opposite Parties met the complainant No.1 and agreed  to complete the construction  of house No. H.No.3318 for an amount of R. 21 lakh & Rs.13 lakh for  H.No. 1214, in this manner the total amount for contractions of both the houses was Rs.34,00,000/- Sector 82A, IT City, Mohali was settled. It was agreed that H.No.3318 would be completed in six months which would include complete basement (including fixing of tiles) and one living unit on the first floor.. The Opposite Parties agreed to complete the construction within 6 months. However, when the Opposite Parties had completed the said work,  it was found that the construction was not only poor, but was pathetically of low standard. Opposite party No.2 had been taking payment from complainant No.1 from time to time under his signature by claiming himself to be close partner of the Opposite party No.1. However, later on it was discovered  that Opposite party No.2 is a BDS doctor and was totally ignorant about the construction work. In this manner, Opposite party No.2 has cheated  the innocent people  by claiming himself to be expert in the construction.  Not only this, the subject buildings developed crack and became rocky  and was not in a position to stand  the test of heavy rain and wind. Photographs of the building are annexed as Annexure C-1 to C-21.  The total  payment of Rs.34.00 lakh  had been taken by Opposite party No.2 under his own signatures which also included Rs.3.00 lakh taken by Opposite party No.2 separately by claiming that  cost has been increased.  Opposite party No.2 not only cheated the complainants  but also indulged in unfair trade practice. When the grievance of the complainants was not redressed, legal notice Annexure C-22 was sent but to no avail. In this manner, the aforesaid act amounts to deficiency in service and unfair trade practice on the part of OPs. OPs were requested several times to admit the claim, but, with no result.  Hence, the present consumer complaint.
   2. Opposite party No.1  was properly served and when Opposite party No.1 did not turn up before this Commission, despite proper service, they were proceeded against ex-parte on 6.1.2023.
   3. Opposite party No.2 resisted the consumer complaint and filed its written version, inter alia, taking preliminary objections of maintainability, cause of action  and concealment of facts. However, it is alleged that in fact the present complaint has been filed by the complainant No.1 by conspiring with Opposite party No.1 to extract money from the answering Opposite party  as in the entire complaint, complainant is making allegations against Opposite party No.2 instead of  Opposite party No.1 who is proprietor of Balaji Builders  through whom the complainant had agreed to get the construction completed. In fact the answering Opposite party is a dentist by profession  and is running his clinic independently . In the year 2020 the family of Opposite party No.2 intended to re-build their house in Sector 38, Chandigarh  and for that purpose the family of Opposite party No.2 engaged Opposite party No.1  for the construction of their house. However, the Opposite party No.1 had cheated the family of the answering Opposite party by receiving full amount from the answering Opposite party as per agreement and their house was not completed.  The father of the answering Opposite party had lodged police complaint against Opposite party No.1 on 23.5.2021  vide Annexure R-2/1. when the Opposite party No.1 could not succeed in his evil designs to extract more money from the family of the answering Opposite party, Balaji Builders through its proprietor Mukesh Mehta instituted a civil suit for permanent injunction restraining the Opposite party NO.1, his agents, representative etc. from  employing other workmen to complete the construction of the house NO. 344, Sector 38-A, Chandigarh.  The copy of the plaint is annexed as Annexure R-2/2. Alongwith the said suit, Balaji Builders also filed one application for temporary injunction which ended in dismissal  by the learned civil judge vide order dated  2.8.2021. Copy of order is annexed as Annexure R-2/4.  Against the said order Balaji Builders  through its proprietor Opposite party No.1 had filed appeal through complainant No.,1  before the learned District Judge, Chandigarh which also ended in dismissal vide order dated 28.9.2021 Annexure R-2/6 passed by the learned Addl. District Judge, Chandigarh. It is further alleged that agreement  of work  contract Annexure R-2/7 was executed between Opposite party No.1 and the answering Opposite party and in this manner the complainant No.1  in connivance with Balaji Builder through Opposite party No.1 filed appeal before learned additional District Judge in order to extract money from the answering Opposite party  who has nothing to do with the construction work qua the subject houses. Moreover, the complainants have made allegations of cheating in the complaint hence, the same is not within the jurisdiction of this Commission. It is further alleged that in fact whenever the Opposite party No.1 used to leave to his native place in Bihar, he used to ask the answering Opposite party  to attend his customer but as the answering Opposite party has no privity of  contract  with the complainants of  the subject houses, therefore, the complaint qua the complainants is not maintainable.  On merits, the facts as stated in the preliminary objections have been re-iterated. The cause of action set up by the complainant is denied.  The consumer complaint is sought to be contested.
   4. In rejoinder, complainant reiterated  the claim put forth in the consumer complaint and prayer has been made that the consumer complaint be allowed as prayed for.
2. In order to prove their respective claims the contesting parties have tendered/proved their evidence by way of respective affidavits and supporting documents.
3. We have heard the learned counsel for the contesting parties and also gone through the file carefully, including the written arguments on record.
   1. As per case of the complainants, the Opposite party No.2 contacted the complainants for  construction of their subject house with cutting age technology  for which the entire payment was made by the complainants to the tune of Rs.34,00,000/- which was accepted by Opposite party No.2 on behalf of Opposite party No.1, being its partner  but the said construction raised by the Opposite Parties was found so poor and shoddy that it was trembling and was likely to fall and the said fact has been denied by the Opposite party No.2 on the ground that as  the Opposite party No.2 never entered into agreement with the complainant for the construction of the subject houses nor has accepted any money from complainants for the construction of the subject houses, hence, the initial onus lies upon the complainants to prove the fact that Opposite party No.2 have ever agreed to raise the construction of the subject houses  and he had received the said amount of his own.
   2. However, the complainants have utterly failed to prove on record any agreement vide which Opposite party No.2 agreed to raise the construction or complete the construction of the subject houses. Even the receipts Annexure C-24 payment details  clearly indicates that the said payment has been made by the complainant through Balaji Builders  on different dates.
   3. So far as copy of partnership deed dated 30.9.2020 is concerned,  the ld counsel for  Opposite party No.2 has vehemently contradicted the same stating that the same has been created by the complainants and is forged one as the same is not registered one and even otherwise the original partnership deed, if any, either should be with Opposite party No.1 or with the Opposite party No.2, hence, the partnership deed produced by the complainants before this Commission is a forged one prepared by the complainants in connivance with Opposite party No.1 for the purpose of extracting money from the  Opposite party No.2  hence, the partnership deed is of no help to complainants.  The payments made by the complainants to the Opposite Parties  nowhere proves that the same were made by the complainants to the Opposite party No.2 as it shows that the payment was made to Balaji Builders of which Opposite party No.1 is proprietor. Moreover, the best available evidence with the complainants was the agreement through which the Opposite party No.2 agreed to raise the construction of the subject houses, which has never seen the light of the day as the complainants failed to produce the same on record to prove their case.
   4.  The complainants have tried to show the shortcomings in the subject houses on the strength of photographs Annexure C-1 to C-21. However, perusal of copies of photographs does not prove the fact that if the said photographs were clicked prior to the handing over the subject houses for constructions or  after the completion of the construction as there is no date mentioned on the copies of the photographs, showing the date of click of the photographs. Hence, on the mere strength of copies photographs it cannot be concluded that  there was shortcomings in the constructions.
   5. On the other hand the Opposite party No.2 is successful in proving on record  with the help of documents that in fact complainant No.1 who is an advocate by profession represented the Balaji Builder of which  Opposite party No.1 is proprietor  in one civil suit filed by the aforesaid builder against father of  the Opposite party No.2 and Chandigarh police in the appeal filed before the  District Judge, Chandigarh against the order passed by the learned Civil Judge, Chandigarh on 2.8.2021  as is evident from Annexure R-2/4 and the said appeal  was represented by complainant No.1 on behalf of  Balaji Builder   through Opposite party No.1  which ended in dismissal by the  Additional District Judge being infructuous vide order dated 28.9.2021 as is evident from Annexure R-2/6, making further clear that in fact Opposite party No.1 being proprietor of Balaji  Builder had earlier in litigation with the father of Opposite party No.2 and same was represented by complainant No.1 in appeal being its counsel.  .
   6. Since, the Opposite party No.2 during arguments has alleged that the partnership deed   has been forged by the complainant No.1  and also that no payment was made by the complainants to the Opposite party No.2 and  litigation  is already going on between the parties qua the subject houses for the determination of real controversy  as  the complainants have leveled allegations of cheating in para No.6 of complaint toour mind detailed trial and voluminous evidence is required for adjudication of the instant case, which is not possible before this Commission being the proceedings before this Commission are of summary nature.
   7. The law is well settled that when there are allegations of fraud, forgery etc., the Consumer Forum has got no jurisdiction to try & adjudicate it and the matter is to be decided by the Civil Court.  Reliance has been placed on Bright Transport Company Vs. Sangli Sahakari Bank Ltd., II(2012) CPJ 151 (NC), wherein it has been held that :-

 

“Complaints which are based on allegations of fraud, forgery, etc. and trial of which would required voluminous evidence and consideration are not to be entertained by this Commission – This complaint is an attempt to misuse jurisdiction of this Commission only with a view to save on Court fee payable in a suit before Civil Court – Complaint not maintainable’.

 

4. In view of the foregoing, we are of the firm opinion that this Commission has no jurisdiction to try & adjudicate the complaint.  Therefore, complaint stands dismissed, with no order as to costs. However, the complainant is at liberty to approach any appropriate court of competent jurisdiction for redressal of his grievance
5. Pending miscellaneous application(s), if any, also stands disposed off.
6. Certified copies of this order be sent to the parties free of charge. The file be consigned.

Announced 03/09/2024			[Pawanjit Singh] President
mp
			[Surjeet Kaur] Member
			[Suresh Kumar Sardana] Member