K.K. Srivastava, President:
1. This is a complaint filed under Sections 12, 13 and 14 of the Consumer Protection Act, 1986 [for short hereinafter referred to as the C.P. Act] for refund of a sum of Rs. 6,60,000/- on account of deficient services rendered by the opposite parties - Shri Baldev Singh Pabla and Shri G.P. Singh both residents of House No. 921, Phase IV, Mohali, Distt. Ropar in not completing the house in time who has also claimed interest @ 24% per annum from the date of receipt of payment till its realisation. The complainant has also claimed compensation to the tune of Rs. 2 lacs on account of mental torture, agony and harassment faced by him at the hands of the opposite parties. The averments made in the complaint may briefly be mentioned as under.
2. The complainant is the owner of Plot/House No. 330, Sector 46-A, Chandigarh. He was desirous of getting ground floor of the house constructed in an area of 1054.20 sq. ft. (21.31 x 47) and for the said purpose, he approached the opposite parties named above as they were the building contractors having specialisation in construction of residential houses. It was averred in the complaint that the opposite parties had assured the complainant that they had sufficient experience in building residential houses and they averred that the house would be constructed at a total cost of Rs. 6,60,000/- including costs of construction material, labour, all types of fittings also. The payment was to be made by the complainant to the opposite parties as per the schedule described in Para 3 of the complaint, as under :
| (i) | Before starting | 10% |
| (ii) | 2 days before wood purchase | 15% |
| (iii) | at 7 lenter | 10% |
| (iv) | On shuttering reaching at site | 10% |
| (v) | On day of lanter | 5% |
| (vi) | Lanter opening, laying of pipes fittings electric and sanitary | 10% |
| (vii) | Two days before marble purchase | 20% |
| (viii) | Plastering and lal rori. | 10% |
| (ix) | Laying of marble, tiles, kota. | 5% |
| (x) | Misc. and upto 1st coat of plasticpaint, fitting of putty etc. | 5% |
4. The complaint was not maintainable in the eyes of law and was liable to be dismissed as the complainant was not a consumer as defined under the provisions of the Act. The contract between the parties cannot be given shape of the consumer dispute.
5. It was further alleged that the dispute raised by the complainant involved complicated questions of facts and law which could not be decided in the summary proceeding prescribed under the C.P. Act. Evidence of expert would be required for proving the contention and counter contentions. The dispute involved in this case is also in the nature of rendition of accounts, lengthy statement of account as contended in Para 3 of the complaint has as also the statement of account enclosed with the written statement will have to be gone into and such a dispute can adequately and appropriately be tried and decided by the Civil Court of competent jurisdiction and not in a summary jurisdiction by this Commission. It has also been pointed out that there is no specific deficiency or poor workmanship pointed out by the complainant in the entire complaint. The allegations are in vague terms that the constructions raised were not to the satisfaction of the complainant. It was pointed out further that this vague allegation was also falsified by the fact that the complainant under his own signature applied for the sewerage connection in mid December, 1998 with a certificate from his Architect and licensed plumber for the good workmanship and for the whole of the good material used in the construction of the house. The certificate of the Architect and the licensed plumber were annexed with the written statement as Annexures R-1 to R-3. It was also contended that the only specific deficiency in service as alleged in the complaint related to part of wood work and if for the sake of arguments it be presumed that such deficiency existed then the same is due to the weather effects as during the last about two years, the house was lying deserted due to non payment of dues by the complainant. The alleged deficient service will not cost more than a few thousand rupees only. The incompleteness of some electrical and sanitary works due to non payment of dues by the complainant till today, cannot be termed as deficiency in service. It was also alleged that the complaint case involved an amount of less than 5 lacs of rupees and as such this Commission had no pecuniary jurisdiction as the complaint would lie for such an amount of below Rs. 5 lacs before the District Forum. There was mis-joinder and non-joinder of the parties. The complainant had not disclosed how both of the opposite parties were liable to refund the amount. The contract work and payments were given only to the opposite party No. 1 and the opposite party No. 2 was not connected with the alleged work of construction. The contract work was not allotted to the opposite party No. 1 in writing and no terms and conditions were settled between the parties. There were only verbal instructions regarding the construction work and from time to time the complainant was verbally instructing the opposite party No. 1 to raise construction and utilise standard material in the building. It was also mentioned that prior to the written statement by the opposite parties, an application was moved on 19.5.2000 requesting the complainant to produce the original documents of Annexure C-2 but the same was not produced despite availing four opportunities. The complainant was guilty of concealing the material facts, documentary evidence, verbal discussions, the constructed area, additional fixtures and instructions etc. in the complaint. The allegations made in the complaint are based on conjectures and surmises and the complaint has been moved with the ulterior motive of not making the payment of opposite party No. 1. Annexure C-2 as produced was nothing. It was alleged but a payment mode list. It was the tentative estimate and payment mode which was given on the request of the complainant in early 1997. The complainant had assured to make the payment at stages of the construction work carried out by the opposite party No. 1 but the actual contract for construction of the building was given to the opposite party No. 1 on 18.5.1998 only and not prior to that. First payment was also made on the said date and at that time the price of the construction material had increased so it was further verbally agreed between the parties that the rate would be Rs. 650/- per sq. ft. of shuttering area and not Rs. 625/- per sq. ft. It was further verbally settled that the opposite party No. 1 would adjust amount of Rs. 50,000/- on account of work of foundation got done by the complainant himself giving the work to the opposite party No. 1. The details of the agreed rate of Rs. 650/- per sq. ft. as per agreement between the parties were as under :
(a) That the grills will be installed over the boundary walls.
(b) That the opposite party No. 1 will do butch work in front of the boundary wall.
(c) That the opposite party No. 1 will affix marble tiles/slabs in the backyard of the house.
(d) That the opposite party No. 1 will provide an extra sewerage point in the backyard.
It was further alleged that on the contrary and during different construction stages the complainant instructed for the installation of totally fancy as well as costly gate, fancy boundary wall, grills, butch work at the face and marble in the entire backyard and an extra sewerage point in the backyard. The complainant agreed to make extra payments for these additional works as indicated in the statement of account with the written statement. The photographs of the additional construction raised by the opposite party No. 1 under instructions of the complainant were also enclosed as Annexures P-4 to P-11. Thereafter, the reply was given to the various paragraphs of the complaint case and the opposite parties denied the averments made in the complaint case and made averments regarding their own case. Evidence was led by the parties in this case which was in the shape of affidavits and documents.
6. During the course of arguments the learned Counsel for the opposite parties urged before us that the pleadings of the case raised involved intricate and complicate questions of facts regarding the actual work of construction which was entrusted by the complainant to the opposite party No. 1. The dispute was regarding the rate of construction as well as about the quality of various items to be used in the construction of the building. The dispute was also regarding the genuineness of Annexures C-1 and C-2 as would be seen from the pleadings referred to above. According to the complainant, Annexure C-2 related to the payment of various amounts and the photocopy of some page of the diary was placed on record bearing signatures of the opposite parties who disputed the mode and manner of payments as also the amount of payment. In nutshell, the pleadings of the parties show that the accounting of payments made allegedly by the complainant to the opposite parties is also substantially and materially in dispute. It clearly shows that the case is one for rendition of account and further for breach of an agreement entered into between the complainant and the opposite parties for which the remedy would lie before the Civil Court of competent jurisdiction and not before the Consumer Disputes Redressal Agencies. This case requires leading of voluminous evidence and appreciation of certain aspects by an expert evidence regarding the quality of material allegedly used in the construction of the building. Apart from it, reference was made to the definition of âservice as contained in Section 2(1)(o) of the C.P. Act, which reads as under :
â2(1)(o). âserviceâ means service of any description which is made available to potential users and includes the provision of facilities in connection with banking, financing, insurance, transport, processing, supply of electrical or other energy, board, or lodging or both [housing constructions] entertainment, amusement or the purveying of news or other information, but does not include the rendering of any service free of charge or under a contract of personal service;â
The learned Counsel for the opposite parties mainly drew our attention to the last line of the definition of âservice which excludes :
â...rendering of any service free of charge or under a contract of personal service.â
The learned Counsel for the opposite parties contended that there is no material placed on record to show that the opposite parties were professionally carrying on the business of contract work and are contractors for the construction of building/houses. It was contended that as a matter of fact, the opposite party No. 1 had been teaching the children of the complainant who had casually asked him to construct the house which he undertook. Besides this, it was urged that in any view of the matter, it was at best a contract of personal service entered into between the opposite party No. 1 and the complainant and the same is excluded from the definition of âservice under Section 2(1)(o) of the C.P. Act and as such this case would not lie under the provisions of C.P. Act. The cumulative effect of all these contentions and the involving of the intricate and complicate questions of facts, leading of such evidence and appreciation thereof together with the consideration that the complaint in fact is one of rendition of account of various payments made allegedly by the complainant to the opposite parties, we are of the considered view that this Commission cannot adequately and properly deal and decide this complaint under the summary jurisdiction given to it under the C.P. Act. It is a fit case in which the complainant may seek remedy by filing an appropriate civil suit before the Civil Court of competent jurisdiction. Resultantly, we dispose of this complaint by relegating the complainant to his remedy of seeking appropriate remedy before the Civil Court of competent jurisdiction. The parties shall under the circumstances of the case bear their own costs of the proceedings.
Copies of this judgment be supplied to the parties free of charges.