MOHD. SIDDIQUE vs P.K.MITTAL

BRIEF facts giving rise to this revision petition are that Mr. P.K. Mittal, Mr. Zia-Ul-Hasan, Members and Ghalib Apartments Residents Welfare Association, GARWA for short, filed a complaint before District Forum-I against Mr. Mohd. Siddique as OP-1 and Ghalib Memorial Co-op. G/H Society through its Administrator as OP-2. It was averred in the complaint that the complainants No. 1 & 2 were Members of the Co-operative Society, OP-2. The Society had given contract to OP 1 regarding the following works: (a) Construction of roads inside the complex; (b) Construction of underground water tank and pump house; (c) Laying of water pipe-line; (d) Water proofing cement; and (e) Sewerage.

The then Management of the Co-operative Society had made over payments to the contractor and the contractor had left the aforesaid works without completing them. The complainants, therefore, sought direction against the contractor that he should remove the deficiency in service by completing the unfinished works.

THE complaint was contested by the contractor, OP 1. In the written statement filed by him, a number of preliminary objections were taken. It was stated that the complainants were not the ''consumers'' vis-a-vis the OP and there was no privity of contract between the complainants and the contractor. THE agreement on the other hand was with the Co-operative Society. It was further stated that the work were completed and handed over to the Co-operative Society in 1988 and the complaint which was filed on 8.12.94 was barred by .limitation. Further plea of the OP was that four civil suits and two criminal cases were pending between the contractor and the Co- operative Society. THE present complaint had been filed as a counterblast to the aforesaid suits and in view of the pendency of those suits the present complaint was not maintainable. The District Forum held that the complainants are ''consumers'' being beneficiaries u/ Section 2(1)(d)(ii) of the Consumer Protection Act. The complaint was not barred by limitation as the contractor had failed to complete the works which he was required to complete under the agreement. With regard to the civil suits, it was held that the subject matter therein was different and, therefore, the complaint was maintainable. Aggrieved by the order, the contractor has preferred this revision petition.

We have heard Mr. S.A. Khan, Advocate for the petitioner and Mr. P.K. Mittal, respondent No. 1 and have gone through the records.

WITH regard to complainant''s locus standi Mr. Khan placed reliance on a decision of the National Commission in Nagpur Improvement Trust v. T.D. Wankhede & Anr. I (1994) CCC 99 (NC). The District Forum tried to distinguish the said decision and held that the complainants were beneficiaries of the various works which were the subject matter of dispute in the complaint and they were expressly covered by Sub- clause (ii) of Section 2(1)(d) of the Consumer Protection Act. We affirm the finding of the District Forum. The decision in Nagpur improvement Trust case (supra) is not applicable especially as the decision relates to 7th December, 92 and the Sub-clause (ii) of Section 2(1)(d) relating to hiring or availing of services was amended by the Amendment Act of 1993. With regard to the question of limitation, the case of the complainants was that the various works were still incomplete and the precise grievance was that even though the contractor had received the payment, he had failed to complete the works. No doubt, the plea taken in the written statement was that possession of the works had been handed over in 1988. It follows that it became a mixed question of fact and law, that whether possession of the works had been handed over to the Co-operative Society in 1988, if so, the effect on limitation. In this view of the matter, the objection regarding limitation could not be decided as preliminary question, m any case, the complaint could not be dismissed as time barred. We, therefore, hold that the complaint could not be dismissed as time-barred and the question regarding limitation is required to be decided after the parties had been afforded opportunity of producing their evidence.

IT was brought to our notice that the civil suits have since been compromised. IT was not shown to us that the civil suits related to the various works, which are the subject matter of the present case. IT follows that pendency of the civil suits related to some other matters and the complaint could not be dismissed on that ground. Learned Counsel was permitted to raise an additional ground in the appeal as the ground is legal. He contended that in the facts and circumstances of the present complaint it would be necessary to examine the question how much works under various heads had been carried out. What was the amount to which the contractor was entitled, how much amount had, in fact, been paid and whether it was the contractor, who was guilty of leaving the work unfinished or he was prevented from doing so by the Co- operative Society failing to make payment etc. Having regard to the facts and circumstances of the case, we find force in the above contention. Unless these matters are gone into in necessary detail the case cannot be satisfactorily decided. Accordingly was dispose of the revision petition with a direction that the complainants may, if so advised, have their remedy before the Civil Court. A copy of this order be communicated to both the parties as well as D.F.-I. Revision Petition disposed of.