BEFORE THE DISTRICT CONSUMER DISPUTES

REDRESSAL FORUM, JALANDHAR.

Complaint No.459 of 2014

Date of Instt. 30.12.2014

Date of Decision :18.08.2015

Rajwinder Kaur aged about 40 years Wd/o Sh.Balwinderjit Singh R/o H.No.31, Aman Nagar, Sodal Road, Jalandhar.

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

Tirath Singh, Building Contractor New Kailash Nagar, Near Hind Pal Bhatha Gujja Peer Road, Now presently Opposite Domino Pizza Hut, KMV College Road, 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.Akhil Chopra Adv., counsel for complainant.

Sh.Surinder Singh 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 parties on the averments that the house of the complainant was single story constructed, she engaged the opposite party for constructing the first floor. She paid the charges to the opposite party. She hired the services of the opposite party, thus the complainant falls within the definition of the consumer. An agreement was drawn on 25.8.2014, between the parties on a letter pad of the opposite party. It was signed by both the parties and witnessth by the witnesses. The opposite party had to construct the portion with material @ Rs.1200/- per feet. The total area was 70 feet which was to be handed over after complete construction. The opposite party had to provide two bed rooms, two bathrooms, kitchen, lobby, momty, stairs, down ceiling. Some of the conditions were drawn into writing where as the other were orally agreed. The opposite party shall use Saagwan wood for doors and windows, Toughened Glass, Steel Grills, Tiles on the front, ready made kitchen, wash basins with stands/base, electricity fitting, lights in down ceiling. The opposite party used to receive the payment in installments off and on. He had received Rs.8,53,000/- but till date he has not completed the construction. The works which are still incomplete, no ready made kitchen, no wooden fitting, no tiles, no marbles, no switches, electricity wires still hanging, no wash basins, no decorative lights in down ceiling. The opposite party had received excess payment but construction is still incomplete. He has stopped the construction. The complainant requested the opposite party several times to finish the construction but he is demanding Rs.7 Lacs for completing the work. The complainant told him that the said demand is exorbitant and irrelevant. Then the complainant left with no option except to get the services of some other masons for completing the construction. She had to spend Rs.57,000/- on lights, Rs.10,000/- on front tiles. She paid from her own pocket Rs.13,000/- for AC wiring, Rs.8000/- for Grills of three windows. It is not out to place to mention here that the on the second floor one room measuring 14x18 feet was also to be constructed by the opposite party. That room was not a part of the written agreement, but it was orally agreed that the said room will be completed for Rs.1,75,000/-. The opposite party has received Rs.2 Lacs for that room but that room also is incomplete. Doors, windows, grills have not been fixed, down ceiling incomplete, no switches. On such like averments, the complainant has prayed for directing the opposite party to pay her Rs.7,24,000/-. She has also demanded compensation and litigation expenses.

2. Upon notice, opposite party appeared and filed a written reply pleading that the true facts are that the complainant entered into agreement with the opposite party for construction of her house and as per the agreement opposite party started to raise construction but the complainant failed to give payment of the agreed amount to the opposite party as per the terms of agreement. The complainant to grab the money of the opposite party and to cause wrongful loss to the opposite party, made forgery in the receipts and manipulated the same by mentioning the amount of Rs.1,30,000/- instead of actual amount paid of Rs.30,000/- and entered one false entry of Rs.72,000/-. The complainant provide the photocopy of the receipts to the opposite party and in the said copy the above said entries are missing and complainant to cause wrongful loss to the opposite party forged the said entries in the receipt. The opposite party also moved complaint to the police against the present complaint, for forgery and for causing wrongful loss to the opposite party and in the said complaint police called Rajwinder Kaur and said matter is still pending before the police. It denied other material averments of the complainant.

3. In support of her complaint, learned counsel for the complainant has tendered into evidence affidavit Ex.CA alongwith copies of documents Ex.C1 to Ex.C69 and closed evidence.

4. On the other hand, learned counsel for the opposite party has tendered affidavit Ex.OPW1/A alongwith copies of documents Ex.OP1 to Ex.OP11 and closed evidence.

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

6. Ex.C1 is agreement dated 25.8.2014 executed by the parties regarding construction of one kitchen, two bathrooms, floor tiles which are shown in the site plan on the first floor of the house @ Rs.1200/- per sq.feet. The grievance of the complainant is that the opposite party has not completed the construction as per agreement and the work was left incomplete and as such she got completed the remaining work by spending amount from her own pocket. On the other hand, according to the opposite party, he started raising construction as per agreement but the complainant has failed to give payment of the agreed amount to him. Further according to the opposite party, the complainant has made forgery in the receipts and converted the amount of Rs.30,000/- to Rs.1,30,000/- by adding digit one and has further entered one false entry of Rs.72,000/- which are missing from the photocopy provided to the opposite party by the complainant. The complainant has produced copy of agreement Ex.C1 and below it the payments alleged to have been made by the complainant to the opposite party on various dates are entered. On the other hand, opposite party has also produced photocopy of the above said agreement Ex.OP2 on which payments made by the complainant to him are mentioned. In this copy of agreement, the first payment of Rs.30,000/- is mentioned but in copy of agreement Ex.C1 produced by the complainant, the first entry is of Rs.1,30,000/-. According to the opposite party, the complainant has entered the digit one before the amount of Rs.30,000/-. Further in agreement Ex.C1 one entry dated 12.11.2014 of Rs.72,000/- is mentioned but the same is missing from the copy of agreement Ex.OP2 produced by the opposite party. The opposite party has also produced one another copy of agreement Ex.OP3. At the time of arguments, counsel for the complainant showed the original agreement and in the original agreement the entries were as per copy of agreement Ex.C1. Counsel for the opposite party contended that copy of agreement Ex.C1 has been prepared after making forgery in the original agreement. Counsel for the complainant contended that in the original agreement total amount of Rs.8,53,000/- is not mentioned but on the other hand in the copy of agreement Ex.OP3, the same is mentioned. Counsel for the opposite party contended that above said amount is not entered in copy of agreement Ex.OP2 and in fact the total amount alleged to have been paid by the complainant was written by him and thereafter copy Ex.OP3 was prepared. So from the copies of agreement produced by both the parties on which payments are entered one thing is evident that either complainant or opposite party has made forgery regarding the payment of Rs.72,000/- and disputed amount of Rs.30,000/- or Rs.1,30,000/-. For deciding the forgery, the appropriate forum is civil court. Moreover, even otherwise the dispute involved in the present complaint can not be effectively decided in the present summary proceedings for various reasons. In para 5 of the complaint, the complainant has mentioned that some of the conditions were drawn in writing and whereas the other were orally agreed but conditions were orally agreed are not specifically mentioned in the complaint. In para 5 of the complaint, the complainant has further mentioned that the opposite party shall use Saagwan wood for doors and windows, Toughened Glass, Steel Grills, Tiles on the front, ready made kitchen, wash basins with stands/base, electricity fitting, lights in down ceiling but all these items are missing from the agreement Ex.C1 produced by the complainant. In the agreement there is no mention that Saagwan wood shall be used for doors and windows or that opposite party shall provide Toughened Glass, Steel Grills and further Tiles on the front, ready made kitchen, wash basins with stands/base, electricity fitting, lights in down ceiling. So for effectively deciding the controversy involved in the present complaint and alleged forgery elaborate evidence and inquiry is required. The examination and cross examination of the parties and witnesses is also required. Further even evidence of handwriting expert is required to determine if the above said two entries have been fabricated and by whom. In Oriental Insurance Co.Ltd Vs. Munimahesh Patel 2006(3) Apex Court Judgment 365 (SC), it has been held by Hon'ble Supreme Court as under:-

"Proceedings before the Commission are essentially summary in nature and adjudication of issues which involve disputed factual questions should not be adjudicated. It is to be noted that Commission accepted that insured was not a teacher. Complainant raised dispute about genuineness of the document (i.e proposal forms) produced by the appellant.

The Commission having accepted that there was wrong declaration of the nature of occupation of the person insured, should not have granted the relief in the manner done.

The nature of the proceedings before the Commission as noted above, are essentially in summary nature. The factual position was required to be established by documents. Commission was required to examine whether in view of the disputed facts it would exercise the jurisdiction. The State Commission was right in its view that the complex factual position requires that the matter should be examined by a appropriate court of law and not by the Commission".

7. So in our opinion, the controversy involved in the present case can not be effectively decided in the present summary proceedings as the adjudication of the dispute between the parties involves disputed questions of facts i.e what was orally agreed to be constructed or provided by the opposite party and if the opposite party raised construction as per terms and conditions agreed in writing and orally, if any. Moreover, the question of forgery is also involved in the complaint for which appropriate forum is civil court as already observed above.

8. In view of above discussion, the complainant is relegated to civil court for redressal of her grievance and present complaint is dismissed with 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

18.08.2015 Member Member President