BEFORE THE DISTRICT CONSUMER DISPUTES

REDRESSAL FORUM, JALANDHAR.

Complaint No.10 of 2015

Date of Instt. 09.01.2015

Date of Decision :03.06.2015

Col.Narinder Singh Bhangoo (Retired) R/o 108, Basant Hills Extension, Backside Imperial Manor Resort, Ladhewali, Jalandhar.

..........Complainant Versus

Sukhwinder Singh C/o Alisha Constructions, University Road, Near Partapl Palace, Ladhewali, Jalandhar.

.........Opposite party

Complaint Under Section 12 of the Consumer Protection Act.

Before: S. Jaspal Singh Bhatia (President)

Ms. Jyotsna Thatai (Member)

Sh.Parminder Sharma (Member)

Present: Sh.RP Goel Adv., counsel for complainant.

Sh.Gurvinder Arora Adv., counsel for opposite party.

Order

J.S.Bhatia (President)

1. The complainant has filed the present complaint under section 12 of the Consumer Protection Act, against the opposite party on the averments that complainant is a retired army personal and has retired as Col.from Indian Army. Complainant wanted to have his own good house at 108, Basant Hills Extension, Backside Imperial Manor Resort, Ladhewali, Jalandhar and for that purposes, he engaged opposite party to construct the said Kothi/house over the land belonging to the complainant comprising in sale deed bearing No.8297 dated 5.2.2014 in favour of complainant and his wife. Opposite party is a building contractor and agreement between the parties has been executed on 24.4.2014 for total cost of Rs.32 Lac which was to be paid by the complainant as per payment schedule reduced into writing and opposite party was to construct house as shown in model photographs produced on the record showing the quality and grace of the house. Opposite party did not fulfill the agreement within the time stipulated under the agreement. The said house/Kothi was to be completed on 22.10.2014 and possession of complete Kothi was to be delivered to the complainant by the end of October 2014. Opposite party made fake phone calls to the complainant and told him that Kothi in question is ready for delivery and complainant should come from USA to take the delivery of Kothi and also to finalize the accounts. Complainant on his assurance, came to India on 20.11.2014 and after coming to India, complainant visited the Kothi in question which was quite incomplete and was not in accordance with agreement executed between the parties. Complainant complain about this to the opposite party and on this, opposite party oversaw the complainant and issued a legal notice dated 12.12.2014 and complainant replied to the legal notice and stated true facts. Opposite party has finally refused to carry out complete construction work and left the Kothi/house in abandoned by keeping therein empty boxes of paint and other building material shown in the photographs attached with this complaint and much work was required to be carried out to complete the said Kothi. Complainant then got services of Er.Anil Tandon who has made estimate of Rs.6,53,000/- to be spent for the remaining work to be done over the Kothi in question. Total cost for the construction of the said Kothi is Rs.32 Lacs out of which Rs.29 Lacs have already been paid to the opposite party and the further expenditure of Rs.6,53,000/- as per estimate given by the said Er.Anil Tandon, so the total amount which the complainant has to pay is about 35-36 Lacs i.e Rs.3-4 Lacs extra than the contractual amount which is the responsibility of the opposite party. Complainant has made huge expenditure for coming to India from USA and has spent Rs.1 Lac approximately which is also responsibility of opposite party to pay. Complainant is working in USA. On such like averments, the complainant has prayed for directing the opposite party to pay him Rs.15 Lacs as compensation.

2. Upon notice, opposite party appeared and filed a written reply pleading that the complainant had approached the opposite party for construction of a Kothi bearing No.108, Basant Hills Extension, Backside Imperial Manner Resort, Ladhewali Tehsil & District Jalandhar at the rate of lump sum of Rs.32 Lacs with terms and conditions which were reduced into writing regarding the job to be done by the opposite party and the payment to be paid by the complainant vide agreement dated 24.4.2014 duly signed by the complainant and opposite party. The opposite party purchased the material after due verification and inspection by the complainant. All the payments of the said material so purchased, was paid by the opposite party. The opposite party did the job as per the terms and conditions of the agreement, but the complainant has not paid the amount to the opposite party as per the terms and conditions. The complainant also got extra work done from the opposite party over and above the agreement referred to above, for which the complainant had agreed to pay Rs.4,35,000/- for that extra work. A sum of Rs.3 Lac is still due of the work done as per the agreement and total sum payable by the complainant to the opposite party is Rs.7,35,000/-. Though the complainant has completed the project within time, but the opposite party caused damage to the opposite party by taking time to inspect and verify the material purchased by the opposite party. The complainant has been many times requested by the opposite party to pay the amount referred to above to him, but the complainant did not accede to the genuine request of the complainant and threatened to involve him in the police case and case of income tax and also to cause damage to his life and property, if he demanded the payment from the complainant. After completion of construction of the Kothi, the complainant handed over the Kothi to the complainant and the complainant is living in the said Kothi. The opposite party intimated that the complainant is causing threats to his life and of dire consequences by using his power and official position and the opposite party shall file criminal case in case the complainant continue to threat and fail to pay the balance amount. A legal notice dated 12.12.2014 was served upon by the opposite party to the complainant through his counsel Sh.Mukhtiar Mohammad Advocate in this regarding calling upon the complainant to pay the amount of Rs.7,35,000/- to the opposite party alongwith interest @ 12% per annum within the period of seven days, but despite the service of the notice, no amount has been paid by the complainant to the opposite party. Rather the complainant has filed the false complaint against the opposite party just to put pressure upon him so that he should not make any claim of Rs.7,35,000/- which is liable to be paid by the complainant to the opposite party. Thus, the complaint is liable to be dismissed. This Forum has got no jurisdiction to entertain, try and decide the present complaint. The intricate question of law is involved in the present case with regard to the alleged claim made by the complainant for which scrutiny of the civil court is required and as such this Forum is not competent to decide the matter in question and as such the complaint is liable to be dismissed. It denied other material averments of the complainant.

3. In support of his complaint, learned counsel for the complainant has tendered into evidence affidavits Ex.CW2/A and Ex.CW1/X alongwith copies of documents Ex.CW2/1, Ex.CW1/A to Ex.CW1/K, CW1/1 to Ex.CW1/35 and closed evidence.

4. On the other hand, learned counsel for opposite parties has tendered affidavits Ex.OP-1 and Ex.OW-2 alongwith copies of documents Ex.O1 to Ex.O3 and closed evidence.

5. We have carefully gone through the record and also heard the learned counsels for the parties.

6. It is not disputed that complainant availed the services of the opposite party, who is building contractor for the construction of his house/Kothi and agreement dated 24.4.2014 Ex.CW1/B in this regard was executed between the parties. It is also not disputed that complainant was to pay Rs.32 Lacs in all for completion of the Kothi to the opposite party. It is also not disputed that opposite party has received Rs.29 Lacs out of the above said amount. The grievance of the complainant is that the opposite party did not complete the work of the Kothi and left it incomplete. On the other hand, the version of the opposite party is that the Kothi was completed in accordance with the terms and conditions and on the contrary, the complainant got some extra work done from him and complainant is liable to pay Rs.3 Lacs out of the above said amount of Rs.32 Lacs and Rs.4,35,000/- for extra work got done by complainant from him. The complainant has tendered affidavit Ex.CW2/A of building engineer and surveyor namely Anil Tandon wherein he has stated that he visited the spot on 3.1.2015 and observed that following work is yet to be completed in respect of incomplete Kothi which are mentioned in his report from serial No.1 to 9 and estimate cost of the same is Rs.6,53,750/-. Ex.CW2/1 is report of this building engineer and as per his report a further sum of Rs.6,53,750/- is required to be spent to complete the Kothi. In his estimate/report Ex.CW2/1, the building engineer at serial No.1 has mentioned that stair case toughened glass 80 sq.ft @ 350/sq.ft valued at Rs,28,000/-. In the agreement Ex.CW1/B there is no specific mention that in the stair case toughened glass shall be used. At serial no.2 of the report P.U. polish for wood work of the value of Rs.2 Lacs is mentioned. Again in the above said agreement Ex.CW1/B there is no specific mention that P.U polish for wood work would be done. Further in the estimate/report Ex.CW2/A it is mentioned that calculation of quantities are as per site visit and requirement give by the owner i.e complainant. In the report it is also mentioned that rate are as per specification and quality of materials to be used as told by the owner. So the above said building designer and surveyor has given the estimate as told by the owner. In his report he has no where mentioned that he has gone through the construction agreement and as per agreement the work has been completed by the opposite party or not. The opposite party was to construct the Kothi as per agreement Ex.CW1/B. Even in his affidavit of Anil Tondon Ex.CW2/A the building designer and surveyor i.e expert witness has not mentioned that he inspected the work in accordance with terms and conditions of the agreement Ex.CW1/B and found any discrepancy in the work completed at the spot accordingly. So the estimate or report of building engineer Sh.Anil Tondon is of not much help to decide the controversy involved in the present case. In our opinion to decide the controversy involved in the present case, civil court is appropriate forum. From the evidence on record, it can not be decided one way or another that the work on the spot has been done in accordance with the terms and conditions of the agreement or not. To determine this fact, detailed evidence and inquiry is required. Even the appointment of local commissioner is necessary who should visit the spot and report whether the work on the spot has been done in accordance with the agreement or not. Both the parties are raising the claim against each other and for deciding the same examination and cross examination of parties and witnesses is also required. In our opinion, the present complaint can not be decided effectively in the present summary proceedings.

7. In view of above discussion, the present complaint is dismissed with liberty to the complainant to approach the civil court. There shall be no order as to cost. Copies of the order be sent to the parties free of costs under rules. File be consigned to the record room.

Dated Parminder Sharma Jyotsna Thatai Jaspal Singh Bhatia

03.06.2015 Member Member President