DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II
Udyog Sadan, C-22 & 23, Qutub Institutional Area
(Behind Qutub Hotel), New Delhi- 110016
Case No.79/2017
Dhirender Nath Puri & ORS.
R/o C-237, Defence Colony,
New Delhi - 110024
….Complainant
Versus
M/s Shruti & Sidharth Constructions Pvt, Ltd.
Office at C-281, Defence Colony,
New Delhi - 110024
….Opposite Party
Date of Institution : 23.02.2017
Date of Order : 28.01.2022
Coram:
Ms. Monika A Srivastava, President
Ms. Kiran Kaushal, Member
Sh. U.K. Tyagi, Member
ORDER
President: Ms. Monika A Srivastava
The complainants have filed the present complaint against the builder OP praying for a sum of Rs. 19,88,867 for deficiency in service and unfair trade practices with interest at 12% per annum from the date of complaint till realization along with cost of litigation.
The facts leading to the complaint are that the complainants are real brothers and sisters and the OP is a company which is engaged in the business of house building and taking over projects for reconstruction of properties under a collaboration agreement. It is the case of the complainants that they had hired the services of the OP for the purpose of reconstructing their property bearing No. C-327 Defence Colony New Delhi 110024. The OP was to bear the entire cost of the reconstruction and in return the OP would be given the second floor of the property along with 2 car parking space in stilt, one servant quarter with attached WC on second floor, use of common areas and 22.5% undivided, indivisible impartible ownership in the land.
The complainants have further stated that the OP represented to the complainants that they are in the business of promoting, developing and construction of real estate for last many years and have vast experience and was enjoying good reputation in the market, believing his assurances the complainants after deliberation agreed to have their above mentioned property constructed through the OP and in this regard a collaboration agreement was entered into between the OP and the complainants. The collaboration agreement is annexed as Ex. CW1/1.
It is further stated that as per the terms of the collaboration agreement the property was to be constructed by the OP within a period of eighteen months and in case the OP was not able to do that then he was liable to pay a penalty of Rs. 2,00,000/- per month. It was also stated in the agreement that the OP was bound to rectify all structural, electrical, defects, leakage and seepage in any portion falling to the share of the complainants after the same was brought to the attention of the OP. The OP was duty bound to rectify such defects within 24 months from the date of handing over the physical possession of the portion so falling to the share of the complainants in the aforesaid property.
It is the claim of the complainants that the property was handed over by the OP to them in nineteen months from the date of sanction of the building plan by the MCD. Further, complainants state that there were various defects in the building and certain works were left incomplete by the OP which was brought to his knowledge but the OP has refused to attend to such complaints. The complainants have stated that the OP has not supplied them with all the original bills and warranty cards of all the appliances and gadgets such as AC, Geyser, fans, washing machine, dryer, oven, microwave cooker and chimney that were installed/fixed by the OP in the said property on the ground first and third floors respectively. The complainants have also provided a list of items that was not supplied by the OP. The entire list is given on page 9 of their complaint which has been divided into sections A to K amounting to Rs.19,88,867/-. On account of these heads, the complainants state that there is clear deficiency in service on the part of the OP and that the OP has adopted unfair trade practices in reconstructing/redeveloping the property and therefore is liable to compensate the above said amount to the complainants. To support their case the complainants have also placed on record an opinion from a third party along with their evidence.
In their reply, the OP has taken a preliminary objection that this complaint is not maintainable as it is a commercial transaction for the development of complainant's property and therefore the complaint is not maintainable. It is stated that apart from carrying out the construction at his cost the OP also paid a sum of Rs. 3,000,000/- to the Complainants which was in the nature of Agreement to Sell and therefore this Agreement is not a service agreement.
It is further stated that the present complaint is an abuse of the process and has been filed to blackmail the OP to meet the illegal demands of the complainants and it is the complainants who have to pay Rs. 35,00,000/- to the OP for the additional work carried out at the property in question and which was beyond the scope of the said agreement. And this complaint is made as a counterblast to the demand of the OP which is raised by them in their legal notice dated 19.04.2017 in reply to the legal notice of the complainants dated 04.01.2017. It is stated that the complainants are not the consumer under Section 2 (d) of the Act and nor is the OP a service provider to come within the purview of the Act.
The OP in para 16 and 17 of their reply have stated that the additional cost of Rs.35 lacs was incurred on the additional work beyond the scope of the agreement and this not only entailed additional expenditure but also delayed the completion of the construction by over 2 months. It has further been stated by the OP that the OPs have all along attended to all the maintenance requirements of the property and are willing for the maintenance in terms of the agreement till its expiry. It is further stated that the possession was handed over by the OP and taken over by the complainants without any protest, demur or objections after fully satisfying themselves of the completed work in accordance with the agreement and to the satisfaction of the complainants.
It has also been further stated that the complainants have made wild and unsubstantiated allegations after 14 months of taking the possession of the property. It has been also stated that all the original bills and warranty cards with appliances were handed over to the complainants which factor is evident from the possession letter given by the complainants at the time of taking possession. It is further stated that the complaint is nothing but an afterthought and is fortified from the fact that the complainants executed the sale deed in respect of the OP’s share without any protest and all these claims are raised for the first time after 14 months of the taking over of possession and execution of sale deed. The OP deny that there is any deficiency of service on their part or that they have been guilty of any unprofessional conduct and therefore they are not liable to pay the amount claimed by the complainants and in fact have to recover a sum of Rs. 35,00,000/- from the complainants.
Both the parties have filed their evidence and written submissions and we have carefully gone through them. The argument of the OP that this complaint is not maintainable because it is a collaboration agreement cannot be upheld in light of the judgments given by Hon’ble SC in Faqir Chand Gulati vs Uppal Agencies P Ltd. In Civil Appeal No. 3302/2005 decided on 10.07.2208 and then relied on by Hon’ble NCDRC in this regard in Vasant Shankar Toraskar vs Shreeji Builders decided on 23.04.2012, Swapan Bera vs Shyamal Sengupta 20.02.2014 and Pawan Kumar vs Praveen Kumar decided on 04.06.2018.
Therefore, this is established that the present complaint is maintainable against the OP. Having held that, the next point that has to be seen is whether the complainants have been able to prove their allegations against the OP. The various allegations made against the OP include
- not finishing the work on time i.e not handing over the possession of the property in designated time,
- work was not completed by the OP as per specification
- all the original bills and warranty cards of all the appliances and gadgets have not been supplied to the complainants.
Having carefully gone through the material on record this Commission is of the view that the complainant has been able to prove his allegations against the OP on some accounts. They have been able to establish that the possession of the property was not handed over in time by the OP. The OP has not denied this allegation however has stated the delay was on account of the additional work that was assigned to him by the complainants. This has not been substantiated by the OP and is a mere bald allegation therefore it is held that the OP was deficient in his service in handing over the possession to the complainants in time.
The other allegations of the complainants against the OP are also referred to in the emails written to the OP time and again and refer to the periods both prior and post taking over possession and vividly describe the harassment that the Complainants had to undergo on account of non -completion of work in some instances and in other instances, work not done as per specification. These allegations though are refuted by the OP however it is an evasive denial, there is nothing on record to support the stance taken by the OP.
Next we deal with the allegation that all the original bills and warranty cards of the appliances and gadgets have not been provided to the complainants. As far as this allegation is concerned the complainants have not filed any material on record however the OP has refuted these allegations and has relied on the possession letter in this regard. We have seen the possession letter on record and conclude that only bills pertaining to AC have been referred to in the possession letter. However, much time has flown past since then and it seems that even if the warranty cards of the appliances were arranged by the OP now they would not be of much help to the complainants.
The complaint is therefore partially allowed and it is held that the OP is bound to pay to the complainants Rs. 2,00,000/- being the rate of rent fixed in the agreement for one month with interest @7% p.a. from the date of the institution of the complaint till its realization within three months from the date of this order. The OP is also liable to pay to the complainant a consolidated sum of Rs.5,00,000/- towards claims made in list provided in the complaint which has been divided into sections A to K with interest @7% p.a. from the date of the institution of the complaint till its realization within three months from the date of this order. In case the OP fails to comply with the order within three months then he would be further liable to pay Rs. 50,000/- to the complainants.
File be consigned to the record room after giving copy of the order to the parties. Order be uploaded on the website.
