Shakuntla Devi Vs. Space Design - Court Judgment

Excerpt:
1. the applicant is a well-known eminent mathematician. as per facts stated in the application she is an astrologer, who has been giving astrological consultations and advice to the people approaching her.she also undertakes extensive travel abroad in connection with her work. she has accommodation available with her at delhi, bangalore, mumbai, madras etc. it so happened that she purchased an embassy apartment, 15, all askar road, bangalore about 6-7 years back. for the interior design work in the said apartment, she hired services of one ms. nandini shankar c/o m/s. space design, 3/1, gangadhar chetty, bangalore. the respondent was required to do the interior work including making of the beds, some furniture, cup-boards as well to improve upon the electrical facilities and provide a room for consultancy services. m/s. space design is stated to have not only not adhered to the specifications given for carrying out the work, it also constructed a bar in the drawing room for which no instructions were said to have been given. the interior work done was also not in accordance with the suggestions of the applicant and the wooden work carried out was found to be shabby and sub-standard. even electrical wires were not covered which led the applicant to file a petition before this commission under section 12b of the monopolies and restrictive trade practices act, 1969 (hereinafter referred to as the 'act'), seeking compensation at rs. 10,00,000/- for the alleged deficiency in services on the part of the respondent.2. pursuant to the notice issued under section 12b of the act, ms.nandini shanker while challenging the maintainability of the proceeding refuted all the allegations on merits. it is the contention of the respondent that at no stage the applicant conveyed that she intended to stay on the ground floor of the said apartment and that the access to the upper portion of the apartment is to be from inside the house. in fact an impression given was that the aforesaid portion of the apartment was to be given on rent to the senior executives of multi-national companies for which the provision for bar was to be made. the work carried out was strictly in conformity to the suggestions given by the applicant, designs submitted by the respondent and the work supervised by the applicant. on many occasions the applicant was accompanied by one mrs. rajashree himatsingka, who was introduced as one of the tenants and wife of the managing director of m/s. himatsingka seide limited. the latter also monitored the progress of the work. the present application was contended to have been filed to counter the civil suit filed by the respondent for recovery of the amount of rs. 1,35,000/- due to her. (1) whether this application is maintainable in view of the objections taken in para 1 of the reply (2) if the above is in favour of the applicant then whether the respondent has indulged in the unfair trade practices as alleged in the petition (3) whether the said unfair trade practices are prejudicial to the consumer or consumers in general (4) whether the applicant has suffered any loss or damage due to the above 3. affidavit and counter affidavits along with supporting documents were filed on both sides. ms. nandini shanker deposed on behalf of the respondent and ms. shakuntla devi was cross-examined by mr. joseph pookat, counsel for the respondent.4. submissions made on both sides have been carefully considered. the first issue pertains to the maintainability of the proceedings. section 2(r) of the act reads as under: "service' means service which is made available to potential users and includes the provisions of facilities in connection with banking, financing, insurance, chit funds, real estate, transport, processing, supply of electrical or other energy, board or lod going or both, entertainment or the purveying of news or other information, but it does not include the rendering of any service free of charge or under a control of personal service." 5. the above clearly shows that the definition is sufficiently exhaustive to cover up the matters concerning the real estate. in the present case the services of the respondent have been hired by the applicant for consideration. accordingly, the proceedings being maintainable, the first issue is decided in favour of the applicant.6. the main issue in question is whether the work assigned to the respondent was primarily with the object of making the apartment suitable for the purposes of self occupation or for deriving rent by tenanting it to the third party. in view of the contrary stand taken by the parties, unsupported by any specific written agreement, the intention of the parties can be best gathered from the arrangement/understanding arrived at between them before the execution of the work. material available on record includes interior designs, description of work to be executed with estimate of approximate cost and the copies of sketches of original designs with modification stated to have been suggested by shakuntla devi, the correspondence brought on record includes letters addressed by the respondent to the applicant.material evidence in the form of letters addressed to the applicant dated 20.8.1994 and 21.9.1995 are denied to have been received by the applicant. these letters are material inasmuch as while in a letter dated 20.8.1994 the respondent has asked the applicant to confirm certain decisions taken at site, the letter dated 21.1.1995 on the other hand contains the approximate estimate for the additional furniture and mill work to be executed. the former confirms the plans to rent/lease the lower portion and convert the upper area into a separate apartment/office with a separate entrance from the mid level.the same letter further states that the builder also has no objection to it. the copy of the estimate filed has, however, not been specifically denied by the applicant. the design and the layout map of the apartment shows a provision for the bar in the premises. on the other hand, there is no material brought on record to show that the applicant ever expressed objection to the proposed design and the manner in which the work has been carried out. the very fact that the house has been rented out to the third party for consideration of rs. 50,000/- per month rather reflects the intention of the applicant. the possession of other house at bangalore coupled with her absence from india for almost six months is another indication that the changes in the house were with the intentipn of renting it out. even for the sake of arguments if it is accepted that the provision for bar was never included in the designs, nothing prevented her from removing the same at her own expense. the very fact that the respondent filed a suit for recovery of rs. 1,35,000/- shows that the work has been carried out for which the payment has not been made in full. in absence of any evidence to show that there was deficiency in service as pleaded by the applicant, we are afraid that no case for unfair trade practice has been made out for which compensation is to be awarded to the applicant.in view of the facts and in the circumstances of the case the compensation application is dismissed with no order as to the costs.

Judgment:
1. The applicant is a well-known eminent Mathematician. As per facts stated in the application she is an Astrologer, who has been giving astrological consultations and advice to the people approaching her.

She also undertakes extensive travel abroad in connection with her work. She has accommodation available with her at Delhi, Bangalore, Mumbai, Madras etc. It so happened that she purchased an Embassy Apartment, 15, All Askar Road, Bangalore about 6-7 years back. For the interior design work in the said apartment, she hired services of one Ms. Nandini Shankar c/o M/s. Space Design, 3/1, Gangadhar Chetty, Bangalore. The respondent was required to do the interior work including making of the beds, some furniture, cup-boards as well to improve upon the electrical facilities and provide a room for consultancy services. M/s. Space Design is stated to have not only not adhered to the specifications given for carrying out the work, it also constructed a Bar in the drawing room for which no instructions were said to have been given. The interior work done was also not in accordance with the suggestions of the applicant and the wooden work carried out was found to be shabby and sub-standard. Even electrical wires were not covered which led the applicant to file a petition before this Commission under Section 12B of the Monopolies and Restrictive Trade Practices Act, 1969 (hereinafter referred to as the 'Act'), seeking compensation at Rs. 10,00,000/- for the alleged deficiency in services on the part of the respondent.

2. Pursuant to the notice issued under Section 12B of the Act, Ms.

Nandini Shanker while challenging the maintainability of the proceeding refuted all the allegations on merits. It is the contention of the respondent that at no stage the applicant conveyed that she intended to stay on the ground floor of the said apartment and that the access to the upper portion of the apartment is to be from inside the house. In fact an impression given was that the aforesaid portion of the apartment was to be given on rent to the Senior Executives of multi-national companies for which the provision for Bar was to be made. The work carried out was strictly in conformity to the suggestions given by the applicant, designs submitted by the respondent and the work supervised by the applicant. On many occasions the applicant was accompanied by one Mrs. Rajashree Himatsingka, who was introduced as one of the tenants and wife of the Managing Director of M/s. Himatsingka Seide Limited. The latter also monitored the progress of the work. The present application was contended to have been filed to counter the civil suit filed by the respondent for recovery of the amount of Rs. 1,35,000/- due to her.

(1) Whether this application is maintainable in view of the objections taken in para 1 of the reply (2) If the above is in favour of the applicant then whether the respondent has indulged in the unfair trade practices as alleged in the petition (3) Whether the said unfair trade practices are prejudicial to the consumer or consumers in general (4) Whether the applicant has suffered any loss or damage due to the above 3. Affidavit and counter affidavits along with supporting documents were filed on both sides. Ms. Nandini Shanker deposed on behalf of the respondent and Ms. Shakuntla Devi was cross-examined by Mr. Joseph Pookat, Counsel for the respondent.

4. Submissions made on both sides have been carefully considered. The first issue pertains to the maintainability of the proceedings. Section 2(r) of the Act reads as under: "Service' means service which is made available to potential users and includes the provisions of facilities in connection with banking, financing, insurance, chit funds, real estate, transport, processing, supply of electrical or other energy, board or lod going or both, entertainment or the purveying of news or other information, but it does not include the rendering of any service free of charge or under a control of personal service." 5. The above clearly shows that the definition is sufficiently exhaustive to cover up the matters concerning the real estate. In the present case the services of the respondent have been hired by the applicant for consideration. Accordingly, the proceedings being maintainable, the first issue is decided in favour of the applicant.

6. The main issue in question is whether the work assigned to the respondent was primarily with the object of making the apartment suitable for the purposes of self occupation or for deriving rent by tenanting it to the third party. In view of the contrary stand taken by the parties, unsupported by any specific written agreement, the intention of the parties can be best gathered from the arrangement/understanding arrived at between them before the execution of the work. Material available on record includes interior designs, description of work to be executed with estimate of approximate cost and the copies of sketches of original designs with modification stated to have been suggested by Shakuntla Devi, The correspondence brought on record includes letters addressed by the respondent to the applicant.

Material evidence in the form of letters addressed to the applicant dated 20.8.1994 and 21.9.1995 are denied to have been received by the applicant. These letters are material inasmuch as while in a letter dated 20.8.1994 the respondent has asked the applicant to confirm certain decisions taken at site, the letter dated 21.1.1995 on the other hand contains the approximate estimate for the additional furniture and mill work to be executed. The former confirms the plans to rent/lease the lower portion and convert the upper area into a separate apartment/office with a separate entrance from the mid level.

The same letter further states that the builder also has no objection to it. The copy of the estimate filed has, however, not been specifically denied by the applicant. The design and the layout map of the apartment shows a provision for the Bar in the premises. On the other hand, there is no material brought on record to show that the applicant ever expressed objection to the proposed design and the manner in which the work has been carried out. The very fact that the house has been rented out to the third party for consideration of Rs. 50,000/- per month rather reflects the intention of the applicant. The possession of other house at Bangalore coupled with her absence from India for almost six months is another indication that the changes in the house were with the intentipn of renting it out. Even for the sake of arguments if it is accepted that the provision for Bar was never included in the designs, nothing prevented her from removing the same at her own expense. The very fact that the respondent filed a suit for recovery of Rs. 1,35,000/- shows that the work has been carried out for which the payment has not been made in full. In absence of any evidence to show that there was deficiency in service as pleaded by the applicant, we are afraid that no case for unfair trade practice has been made out for which compensation is to be awarded to the applicant.

In view of the facts and in the circumstances of the case the compensation application is dismissed with no order as to the costs.