Judgment:
Mrs. Devinderjit Dhatt, Presiding Member:
1. This order is directed against the order dated 6.5.2003 in Complaint Case No. 224 of 2001 by District Consumer Disputes Redressal Forum-I, U.T., Chandigarh (for short, hereinafter, to be referred as District Forum-I).
2. The contextual facts in brief are as under :
The respondent/complainant, resident of H.No. 1541, Sector 36-D, Chandigarh hired the services of appellant/O.Ps, Proprietor/Partner of Designer International for prepartion of plan of first floor of his house and all necessary actions for the approval of this plan from the Competent Authority i.e., Estate Officer. As per averments the entire fee of Rs. 5,000/- was paid vide Cheque No. 442176, dated 12.1.2000. The aforesaid plan when submitted for approval was returned for want of Architects signatures (Annexure P-1). The respondent/complainant has alleged that when the appellant/OP was approached to put signatures on it and remove the deficiencies in the plan he refused to perform his legal obligations arising out of the contract. The respondent/complainant has submitted that the entire consideration stood paid up to the appellant and due to refusal by him to comply with the terms and conditions, he has rendered deficient services for which Rs. 25,000/- with interest @ 24%, since 12.1.2000 till realisation have been claimed. The respondent/complainant has also prayed for a direction to the appellant/O.P. to comply with the conditions stated in letter dated 14.3.2000 issued by the Estate Officer.
3. In the reply filed by the respondents the preliminary objections of concealment of material facts necessary for the decision of the case has been taken. The appellant/O.P. has submitted that as per term of contract/agreement between the complainant and O.P. 3% of Rs. 10 lacs. i.e., Rs. 30,000/- was agreed to be paid by the complainant out of which Rs. 5,000/- was paid in advance against which the drawings were prepared and given to the complainant. Further, amount of Rs. 5,000/- for preparation and submission of drawing after being duly signed, Rs. 5,000/- for objection, if any, and for compliance of those objections, Rs. 5,000/- after obtaining sanctioned building plain from the Estate Office, Rs. 5,000/- on completion of detailing for construction, and Rs. 5,000/- for periodic supervision during the construction, were to be paid. The appellant has submitted that against Rs. 5,000/- paid by the respondent/complainant the drawings were prepared and given and for executing the other steps of the contract since the complainant refused to make any further payment he was not obliged to undertake any job. On merits, it has been submitted that at the initial stage the agreement between the parties was for the preparation of the drawings only and no other services were agreed to be rendered. After the preparation of drawings and submitting the same to the Estate Office the respondent/complainant terminated the contract vide Annexure R-1. The appellant has alleged that the complaint has been filed with ulterior motive to get the work done without making the payment. It has further been submitted that his services were not hired beyond the preparation of the building plan which was prepared and submitted to the Estate Officer. The allegation of deficiency have been denied. The receipt of legal notice has also been denied.
4. In the replication filed by the complainant, it has been submitted, inter alia, that the oral contract was that the O.P. was to prepare the plan of the first floor, submit the duly signed copies and to do all other acts necessary including to get the plan approved from the Estate Officer. The complainant has submitted that Rs. 5,000/- was to be paid in total. It is vehemently denied that total amount of Rs. 30,000/- was to be paid at different stages was payable as averred by O.Ps. Further, it has been submitted that it is inconceivable that an Architect would commit the mistake of not signing ammonia prints in ink and submit the same for approval without signature, rather, it was a ploy to put pressure on the complainant to pay more money than was due to him. The complainant has also alleged that deliberately a faulty plan was submitted. Further, the complainant has submitted that on Annexure R-1, dated 7.3.2000, the words contract terminated could have been added later on and the appellant/O.Ps. are trying to take undue advantage of his old age (72 years) and failing memory. All other averments of the complaint have been reiterated.
5. In evidence the complainant has brought on record his affidavit alongwith documents Annexures P-1 to P-6 while the O.P. filed Annexure R-1 and the affidavit of Proprietor Sh. Anil S. Thakur.
6. The District Forum allowed the complaint and directed the O.Ps. to refund an amount of Rs. 5,000/- and pay compensation of Rs. 10,000/-, and Rs. 1,000/- towards cost of litigation.
7. Aggrieved against this order, the present appeal has been filed pleading, inter alia that the order of the District Forum is liable to be set aside on the ground that contract between the parties came in effect in the month of August, 1999 which is evident from Annexure P-1 showing that plan sketch of the house was submitted with the Estate Office in August, 1999 and signatures put on the same on 19.8.1999. Further, the order of the District Forum is erroneous as it failed to appreciate that plans were returned by Estate Officer on 7.9.1999. The letter No. 4284, dated 14.3.2000 relied by the District Forum was erroneous as it was a mis-representation on the part of complainant because it was never communicated to him and this pertains to internal office correspondence of the Estate Office as is demonstrated by the number and dates mentioned by the various authorities of Estate Officer till 22.3.2000. The appellant has further alleged that Annexure P-1 is a scrutiny form attached to the plans submitted by the appellant in August, 1999 and the same was returned back by the Chandigarh Administration on 7.9.1999. This form was again attached with the plans and submitted by the respondent/complainant after termination of the contract on 7.3.2003. The appellant has alleged that the respondent has misused the form to get the relief by misleading the District Forum and the order of the District Forum should be set aside being against the facts on record. Further, the District Forum failed to appreciate that the contract came into force in August, 1999 as the plans submitted in the same month returned with objection by Chandigarh Administration on 7th September, 1999. The advance payment which was due to be made in August, 1999 was delayed by the complainant and was paid on 12.1.2000. The District Forum failed to appreciate that it was a case of delayed payment by the respondent/complainant. The District Forum further failed to take cognizance of letter of Estate Officer vide which the plans were returned. The order of the District Forum is also erroneous as it failed to appreciate Annexure R-1 whereby the complainant himself terminated the contract and confirmed the receipt of drawings/sketches returned by the Estate Officer. Hence, after termination of contract by respondent/complainant himself the question of submitting the plans further, removing the objections etc. by appellant/O.P. does not arise. The appellant has also submitted that the District Forum failed to appreciate that in Chandigarh supervision of construction is part of architects contract, though, the same may be oral or written infact it is an integral part of the contract, hence the scope of service as in the present case was not limited to preparation of plan but execution of further steps which also were inextricable part of the same. However, the District Forum failed to appreciate these material aspects and granted the compensation to the complainant which was not justified.
8. A perusal of record of the case, rival contentions of both the parties and hearing Mr. Anand Chibbar, Advocate for the appellant and Mr. V.M. Malhotra, Authorised Agent for respondent/complainant, makes it evident that it was an oral agreement/contract. The respondent/complainant has averred that total Rs. 5,000/- were to be paid to the appellant for all the jobs to be undertaken while the contention of appellant/OP is that 3% of total amount which comes to Rs. 30,000/- was to be paid to him at the various stages out of which Rs. 5,000/- was towards the first step i.e., preparation of plan and submission of same to the Estate Office. This amount of Rs. 5,000/- was admittedly received by the appellant after submission of drawing/sketch of plans etc. The appellant has submitted that an amount of Rs. 30,000/- was to be paid in stages, however, the stand of the complainant is that Rs. 5,000/- in total were agreed to be paid for the entire job to be undertaken. In the absence of any contract on record it is not possible for this Commission to adjudicate on compliance or otherwise of the terms agreed as there is nothing to substantiate the averment of either party and the terms of the contract on which both the parties are basing their case are disputed and are totally at variance with each other. In the absence of any document on record, the District Forum was not justified in giving a categorical finding of deficiency on the part of appellant/O.Ps. Further, the letter of termination of contract brought on record vide Annexure R-1 whereby the complainant has received back the set of plans has been stated to be forged document by the respondent/complainant during arguments and also at Page 6 of replication he has stated that he is a man of 78 years and is suffering from failing memory, though the signatures have been put by him but some lines might have been added. A careful perusal of the record of the case and rival submissions brings us to the conclusion that the facts and issues involved in the case are such which cannot be decided under the summary jurisdiction of Consumer Protection Act. The very base of the agreement of the service is oral and disputed the terms of which are stated differently by both the parties. The contract of termination of agreement though signed by the complainant, the contents of same has been disputed and some part thereof has been denied by the complainant. Annexure P-1 and letter dated 14.3.2000 brought on record by the complainant is stated to be a scrutiny form and an internal document of the Estate Officer and the appellant has also alleged that the complainant has wrongly placed this form on record of the District Forum with a view to mislead. We are of the opinion that dispute like this where almost the entire contract of service is oral and most of the documents are disputed by both the parties cannot be properly adjudicated under the summary jurisdiction by the Consumer Redressal Agencies. The District Forum was not justified in recording a categorical finding of deficiency in service on the part of O.Ps. on the basis of oral evidence and probabilities. The order of the District Forum is set aside and the parties are relegated to Civil Court of competent jurisdiction to prove their contentions.
9. The Demand Draft No. 518540, dated 14.7.2003 for Rs. 8,000/- placed on record be returned to the appellant against proper receipt and after placing a photocopy of the same on record.
Copies of this order be sent to the parties free of charges.