G.D.MALHOTRA vs LIZU BARBARA

BRIEFLY the facts are that respondent No. 2 is carrying on the business as builder and respondent No. 1 is the head and respondent Nos. 3 & 4 are partners of respondent No. 2.The complainant is the owner of plot No. A-12, Sector 40, Noida. He asked the respondents in Decembers''90 to build a house on the said plot. It is alleged that it was agreed between them that the respondent would charge him @ Rs 245/- per sq. ft. for the construction. The said rate included the price of the material as well labour. In addition to that the complainant would pay Rs. 28/- per sq. ft. for constructing the boundary wall. The construction of the house was to be completed by 28th February ''91.

AFTER the work was started by the respondents it was found by the complainant that the construction was going on at a very slow pace, and this fact was brought to their notice. Respondent No. 4 in March'' 91 sought extension of time and promised that the building would be completed by 12th April'' 91. In case he failed to complete the house by that date, he would pay compensation Rs. 1,000/- per day to the complainant w.e.f. 12thApril ''91 till the date of the completion of the house. Inspite of that the house was not completed on the agreed date. It is further pleaded that as the respondents failed to complete the house, the complainant had to get that completed himself by spending a huge amount of Rs. 40,000/- from his own pocket. He requested the respondents to pay the amount which he had spent for completion of the house and further to pay penalty @ Rs. 1,000/-per day w.e.f. 12.4.91 to 10.6.91 till the date of final completion and to obtain the completion certificate, but, they failed to do so. He has paid an amount of Rs. 1,34,177/- to the respondents and spent an amount of Rs 40,876/- for completion of the house. He also got the completion ceritficate on his own. In addition he had to pay Rs. 868/- as compounding fee which he is entitled to recover from the respondents. Consequently he has prayed that the respondents be directed to pay an amount of Rs. 60,000/- as damages and Rs. 40,876/- the amount spent by him for completion of the building, Rs. 868/- compounding fee paid to Noida and Rs. 1,00,000/- as damages for mental agony and torture.

The complaint was contested on behalf of respondent Nos. 1,3 & 4. Respondent No. 3 has raised a preliminary objection that the Commission has no territorial jurisdiction to adjudicate the complaint as no part of cause of action arose within the jurisdiction of this Commission. Moreover it is alleged, respondent No. 1 and respondent No. 4 were residing at Noida and respondent No. 3 was working at Noida. He further pleaded that the complainant does not fall within the definition of the term ''consumer'' as defined in the Act. On merits it is stated that there is no partnership firm existing in the name of respondent No. 2 and that he had no connection with respondent No. 1. He further submitted that in view of allegations of the complainant that he was an agent of respondent No. 1, no complaint against him was maintainable. No undertaking as alleged, was given by him in writing to the complainant. It is denied by him that the complainant spent any amount from the his pocket or was entitled to any amount as claimed by the complainant. He pleaded that the complainant never raised any objection regarding the material used in the building.

IT is further pleaded by him that respondent No. 4 was an architect and he had engaged him to supervise the work and agreed to pay Rs. 100/- per day as supervision charges. However, in order to avoid tax, respondent No. 4 used to obtain his signatures on various papers including the bank account. The complainant had agreed at a later stage to pay1@ Rs.300/- per sq. mt. for the covered area as he asked them to provide mosaic flooring. In addition he had agreed to pay Rs. 25,000/- extra for wood work and iron grills. Thus the complainant was liable to pay Rs. 1,19,750/- to them. The other allegations were controverted by him. Respondent No. 4 in his written statement took preliminary objections regarding the territorial jurisdiction as was taken by respondent No. 4. It is submitted by them that respondent No. 1 had introduced the complainant to him. There was no partnership between respondent Nos. 3and4andno firm by the name of respondent No. 2 existed. He denied any contract in writing with the complainant. He took similar other pleas as have been taken by the respondent No. 3. He denied any undertaking given by him on 12.4.91 or that he agreed to pay Rs. 1,000/-perday to the complainant. It is stated that the said undertaking was a forged and fabricated document. He also denied that the complainant completed the building at his own expense on purchased sanitary and electrical goods in order to complete the same. The other allegations are also denied by him.

IT is next pleaded that the complainant had paid only Rs 1,00,000/- and that he was liable to pay Rs. 1,19,705/- more to him. The first question that requires determination is, whether the Commission at Delhi has got the jurisdiction to entertain the complaint. It is not disputed that respodent No. 3 is residing at Delhi and respondent No. 1 is carrying on business at Delhi. In case one of the respondent is residing at Delhi the Commission has got the jurisdiction to decide the complaint against him. It is provided in Section 17 of the Consumer Protection Act, that the complainant should obtain the permission of the Commission in case the complainant files one complaint against various persons, some of whom are living outside the jurisdiction of the Commission. The Counsel for the respondent submits that no permission has been obtained by the complainant as required and therefore, the complaint is liable to be dismissed on this ground. We have considered the argument. The case was filed in January''92 and the parties lead full evidence. The Commission has got very wide power to grant such permission. It can be even granted at later stage. If permission is granted now none of the parties shall be prejudiced in any way. Consequently we grant permission to the complainant to file the complaint against the respondents before this Commission. The second question that requires determination is, whether the Commission has got the pecuniary jurisdiction to entertain the complaint. The complainant has claimed Rs 60,000/- on account of damages for delaying the construction of the house, Rs. 40,876/- on account of actual expenses incurred by him towards the completion of the house, Rs. 868/- on account of extension fee paid to Noida due to the failure of the respondent to complete the construction work in time and Rs. 1 lac on account of mental agony and torture. Thus the total claim of the complainant comes to more than Rs 2 lacs. Section 17 of the Consumer Protection Act which relates to jurisdiction of the State Commission reads as follows:- "17 Jurisdiction of the State Commission - Subject to the other provisions of this Act, the Stale Commission shall have jurisdiction,- (a) to entertain- (i) complaints where the value of the goods or services and compensation, if any, claimed exceeds rupees one lakh but does not exceed rupees ten lakhs;.."

From a reading of the Section it is evident, that if the compensation claimed is more than Rs. 1 lac it is the State Commission which can grant such relief. The learned Counsel for the respondent referred to a decision of the State Commission, Haryana in B.S. Gaba v. Steel Authority of India and Another, I (1991) CPJ 631. The facts of that case are absolutely different and the ratio therein has no applicability to the present case. Consequently we are of the opinion that the State Commission has pecuniary jurisdiction to entertain the complaint

THE third question that arise for consideration is, whether the house was completed by the respondent. THE complainant has filed an affidavit that the house was left incomplete by them which they did not complete inspite of various letters to them. It is not disputed that respondent No. 4 agreed to construct the house and boundary wall and charge, Rs. 245/- per sq. foot for the house and @ Rs. 28/- per sq. foot for the boundary wall. THE rates include the price of the material. This is clear from the undertaking dated 22.3.91 (Annexe ''A''). When the house was not completed within the prescribed period, the complainant wrote letters to Mr. Lizu and Mr. Chauhan requesting them that they should complete the same. THE letters dated 24.4.91 and 22.5.91 were written by him to Mr. Lizu respondent No. 1 and letter dated 24.4.91 to Mr. Chauhan respondent No. 4.THE respondents did not care to reply those letters. In case the house had been completed by them, they would have replied those letters and pointed out that the house had been completed. Otherwise also we have no ground to disbelieve the affidavits to the complainant. THEre fore. we are of the opinion that the respondents left the house incomplete.

THE fourth question that arises for determination is as to how much amount the complainant spent for completing the house. He has stated in the complaint that he spent Rs. 40,000/- from his own pocket to complete it. THE respondents have challenged the statement. THE complainant has not produced the account books, the receipts and cash memos for purchasing the material. He has also not produced the receipts regarding payment to the labour/contractor(s). It was his duty to have produced the same. He has claimed a huge amount of Rs. 40,000/-. In the absence of the proof, it is not possible to hold to that he spent Rs. 40,000/- for completing it. THE complaint is liable to be dismissed on this short ground. Two other objections have been raised by the respondents which give rise to two questions, firstly in case of decree, who is liable to pay the amount and secondly that the Commission should not decide the present, as it involves question of accounts. As we have held that the complaint is liable to be dismissed on the ground , that the complainant has failed to prove the expenditure incurred by him, therefore, it is not necessary to adjudicate upon these matters.

For the aforesaid reasons we dismiss the complaint with the observations that the complainant may file a civil suit for recovery of the amount, if so advised. No costs. Complaint dismissed.