G.D. MALHOTRA vs LIZU BARBARA

THE complainant has filed a complaint under Section 17(1)(a)(i) of the Consumer Protection Act, 1986 (hereinafter referred to as ''the Act'') alleging deficiency in service on the part of the O.Ps.

THE case of the complainant, in brief, is that he had engaged services of the O.Ps. in the year 1990 for constructing a house on the plot belonging to him bearing No. A-12, Sector 40, NOIDA. As agreed between the complainant and the opposite parties, the O.Ps. were to construct one room, one kitchen, one bath room and boundary wall on the plot in question as per terms and conditions as detailed in Para 3 of the complaint. O.P. No. 1/Mr. Lizu Barbara had assured the complainant that he would personally be supervising the work and that the same would be executed to his entire satisfaction through his concern M/s. Krishna Builders and Developers/O.P. No. 2 which is based at NOIDA. O.P. Nos. 3 and 4 being partners of O.P. No. 2 were to carry out the construction and the payment was agreed to be made directly to O.P. No. 2. However, in contravention of the agreement between the complainant and the O.Ps., the progress of the construction work was very slow and unsatisfactory and the behaviour of O.P. No. 3 Mr. Babu Lal, who was in charge of the construction job of the building, was very harsh and rude towards the complainant. Since the complainant was dissatisfied with the progress of the construction of his house, he contacted O.P. No. 1 in his office on 22.3.1991 to remind him that as per agreement the building had to be completed by 28.2.1991 and since the O.Ps. had failed to adhere to the terms and conditions settled between the parties, the complainant was not prepared to suffer further until and unless the O.Ps. were bound by some penalty clause to be introduced in the agreement. Upon persistence of the complainant, O.P. No. 1/Shri Lizu Barbara called O.P. No.4/Shri Chauhan to his office, who at the instance of O.P. No. 1 gave an undertaking in writing dated 22.3.1991 that the house of the complainant would be completed in all respects by 12.4.1991, failing which he would be liable to pay Rs. 1,000/- per day to the complainant w.e.f. 12.4.1991 till the date of completion of the house. However, even after the said undertaking given by O.P. No. 4, neither the pace of the construction of the house was accelerated nor was the house completed despite the fact that the O.Ps. had been informed that the inspection date of NOIDA Authorities for obtaining completion certificate was fast approaching. Since the said inspection was due on 2.5.1991, for issuance of completion certificate, the complainant had no other alternative but to complete the construction work of the house himself by 1.5.1991 and as such had to make local purchases of sanitary and electrical materials on his own, as well as, pay the labour charges and as such had to spend an amount of over Rs. 40,000/- from his own pocket, in addition to the payments made to the O.Ps. for the timely completion of the house. THEreafter the complainant vide letter dated 22.5.1991 addressed to O.Ps. had protested against the whole state of affairs and also sought the refund of the amount spent by him on completing the house on his own, as well as, penalty in terms of undertaking dated 22.3.1991. THE complainant had also requested O.P. No. 1 to obtain the completion certificate. But depsite repeated reminders in writing and personal visits to the office/residence of the O.Ps., no heed was paid to the requests of the complainant who being a heart patient had to undergo untold misery and harassment at the hands of the O.Ps. Ultimately the complainant has filed a complaint before this Commission praying for directions to the O.Ps. to pay to the complainant Rs. 1,000/- per day as penalty w.e.f. 12.4.1991 to 10.6.2001 amounting to Rs. 60,000/- together with interest, as well as, refund of the amount of Rs. 40,876/- (with interest) spent by him from his own pocket towards the completion of the house. THE complainant has also prayed for the refund of the amount of Rs. 858/- paid to the NOIDA authorities as extension fee for not having completed the construction of the house in time, as well as, for compensation of Rs. 1,00,000/- on account of mental agony and harassment undergone by him on account of unfair trade practice and deficient services rendered by the O.Ps. together with cost of the present proceedings. The complaint is resisted by O.P. Nos. 3 and 4 only. O.P. No. 3 in its reply/written version has raised a number of preliminary objections.

On merits the stand of O.P. No. 3 is that he is not a partner of O.P. No. 2 and no such partnership firm is in existence. It is further stated by O.P. No. 3 that he is not liable to pay anything to the complainant as the work was being done to the entire satisfaction of the complainant. The undertaking dated 12.4.1991 is false and fabricated and is not binding on him even otherwise, as the same was executed without the consent and authority of O.P. No. 3 by O.P. No. 4. It is further the case of O.P. No. 3 in his reply/written version that as per oral contract between the complainant and O.P. Nos. 3 and 4 the work was to be executed @ Rs. 300/- per sq. ft. for covered area with mosaic/marble chips flooring and an extra amount of Rs. 25,000/- was to be paid by the complainant for the wood work and iron grills and as such as per settlement between the parties a sum of Rs. 1,19,705/- is outstanding against the complainant, payable to O.P. Nos. 3 and 4.

O.P. No. 4 also, in its reply/written version, has denied the averments made by the complainant in the complaint. It is, however admitted that O.P. Nos. 3 and 4 had undertaken to construct the house for the complainant. It is alleged that the rate of contract though initially agreed upon was Rs. 245/- per sq. ft. but later on had been modified to Rs. 300/- per sq. ft. for the covered area with mosaic/marble chips flooring. It is also stated that besides the rate of contract as settled the complainant was to pay an extra amount of Rs. 25,000/- for wood work and iron grills which amount has not been paid by the complainant. It is also denied that obtaining the completion certificate was the liability of O.P. Nos. 3 and 4. The existence of the partnership firm is also denied. O.P. No. 4 has also denied the execution of the undertaking dated 22.3.1991 whereby the said O.P. is liable to pay Rs. 1,000/- per day to the complainant in case of non-completion of the construction of complainant''s house in time. In this regard it is the stand of O.P. No. 4 in its reply/written version that he was made to sign blank papers which had later on been fabricated into the undertaking dated 22.3.1991. Rest of the averments made by the complainant in his complaint have been denied. It is further stated that the O.P. Nos. 3 and 4 have received only Rs. 1,00,000/- from the complainant whereas the balance amount of Rs. 1,19,705/- is further payable by the complainant. As such it is prayed that the complaint, filed by the complainant, being false and frivolous is liable to be dismissed with compensation and cost in favour of the said O.P. The parties have led their evidence by way of affidavits. The complainant and O.P. Nos. 1, 3 and 4 have filed their own affidavits in support of the averments made by them. Interrogatories by way of cross-examination were served by the complainant on O.P. Nos. 1, 3 and 4 which were duly replied to by the respective parties. The interrogatories served on the complainant and the reply thereto was also filed along with his counter affidavit by the complainant.

ON the basis of the material on record this Commission vide order dated 11.6.1993 dismissed the complaint on the ground that the complainant had failed to prove the expenditure incurred by him, however, giving liberty to the complainant to file a civil suit for the recovery of the amount is so advised. Aggrieved by the aforesaid order of this Commission, the complainant had filed an appeal before the Hon''ble National Commission, being First Appeal No. 438 of 1993. The said appeal was disposed of by the Hon''ble National Commission vide order dated 6.12.1995 whereby the complaint was remanded back to this Commission with the following directions: "After hearing both the sides we are of the view that in the larger interests of justice the complainant who, no doubt, had failed to discharge the burden of placing all the necessary evidence before the State Commission in support of his claim for reimbursement of the expenditure said to have been incurred by him on rectifying the deficiencies in the building delivered to him, by the builder should be afforded a fresh opportunity to adduce such evidence before the State Commission by remanding the case to the State Commission for the limited purpose of enabling the parties to adduce their evidence restricted to the question as to the nature of the works, if any, that were got done by the appellant herein in the house that was built for him by the respondent Nos. 1 to 3 and the expenditure that was actually incurred on the said work. The parties will be allowed to adduce oral as well as documentary evidence restricted to the aforesaid question and the State Commission is requested to enter a fresh finding on the said question in the proceedings after remand and dispose of the case in the light of such finding."

Accordingly, as per directions of the Hon''ble National Commission, evidence has been adduced by the complainant by filing an additional affidavit, to which a counter affidavit has been filed by O.P. No. 3. We have heard the learned Counsel for the complainant and have also carefully gone through the documents/material on record, as well as, the written submissions filed on behalf of the parties. The complainant has placed on record the vouchers/receipts pertaining to purchase of building/electrical materials along with his additional affidavit dated 25.3.1996, The veracity of the said documents has been challenged by the O.Ps. on the ground that there are some cuttings in the vouchers and the same have been fabricated after the remand of the case from the Hon''ble National Commission. On the other hand the complainant has in his written submissions explained that the dates and cuttings on the vouchers have occurred on account of the fact that while tallying the vouchers from his pass book he had put some dates on the vouchers/bills and by mistake had mentioned the year 1992 instead of 1991 which he rectified, however, it is observed that the dates of issuance of said vouchers/bills/receipts are clear and there is no tampering in the same. Furthermore, the complainant has been cross-examined by the Counsel for O.P. No. 3 and the position has been clarified in respect of each voucher/receipt by the complainant. The complainant has also placed on record statement of account, as well as, pass book whereby the payments made for the purchase of materials etc. have been proved. From the evidence on record which has not been rebutted by the O.Ps. except for stating that the same are forged and fabricated. There is no reason to doubt the said documents proved on oath by the complainant. It is thus clear that the complainant has indeed spent an amount of Rs. 40,876/- over and above the amount paid to the O.Ps. for completion and rectification of the house constructed by the O.Ps. and, therefore, the complainant is entitled to the refund of the said amount which is inclusive of the extension charges paid by the complainant to the NOIDA Authority for seeking extension of time for completion of the house in question. Besides the said amount the complainant is also entitled to compensation for the delay in the construction of the house resulting in mental harassment and inconvenience to the complainant.

ACCORDINGLY, the O.P. Nos. 3 and 4 are directed to pay to the complainant a sum of Rs. 40,876/- inclusive of the extension charges of Rs. 870/- paid to NOIDA Authority for extension of time to complete the house in question. The complainant is also entitled to interest at the rate of 10% per annum on the above said amount w.e.f. 2.5.1991 (date for inspection by NOIDA Authority for issuance of completion certificate) till date of actual payment, as well as, cost of the present proceedings, which are fixed at Rs. 10,000/-. The O.Ps. are directed to comply with this order within 45 days of this order, failing which the complainant will be at liberty to initiate proceedings under Sections 25/27 of the Act, as he may be advised. Complaint allowed.