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2014 DIGILAW 434 (UTT)

AKBAR KHAN v. VINOD KUMAR

2014-10-01

B.C.KANDPAL, D.K.TYAGI

body2014
ORDER (Per: Mr. D.K. Tyagi, Member): This appeal, under Section 15 of the Consumer Protection Act, 1986, has been preferred by the appellant-opposite party against the order dated 18.04.2009 passed by the Members of the District Forum, Haridwar in consumer complaint No. 51 of 2008, whereby the Members allowed the consumer complaint and directed the opposite party to pay to the complainant a sum of Rs. 1,500/- towards litigation expenses and also directed that after seeking permission from Haridwar Development Authority, Haridwar by complainant, the opposite party shall complete the construction work within three months from the date of permission and shall deliver it to the complainant, failing which the opposite party shall pay the total amount received by him from the complainant along with the interest @ 9% per annum, pendent lite and future. The opposite party shall pay Rs. 1,500/- to the complainant within one month from the date of order. 2. Briefly stated the facts of the case, as mentioned in the consumer complaint, are that the complainant-Sh. Vinod Kumar is a resident of Vishnu Garden, Kankhal, Tehsil & District Haridwar and an agreement was made with the opposite party to construct a house on a plot measuring area 320.78 square meter, which is situated in Khasra No. 548/1, whose covered area is 561.236 square meter. Both the parties had put their signatures on agreement in presence of witnesses. The opposite party received Rs. 4,00,000/- through cheques on 14.11.2006. This agreement was made for total cost of Rs. 44,08,349/- @ 730/- per square feet covered area. It was agreed on 14.11.2006 that the construction work shall be completed by the opposite party within six months. The complainant had paid Rs. 22,00,000/- to the opposite party till 18.05.2007, but the opposite party did not complete even half of the construction work till end of the time agreed between the parties. The opposite party violated the terms and conditions of the said agreement. The opposite party stopped the construction work in the month of September, 2007 and intentionally delayed the construction work. When the complainant asked about the delay of work, the opposite party challenged him and advised to go in the court. Thus, alleging deficiency in service and unfair trade practice on the part of opposite party, the complainant filed a consumer complaint before the District Forum, Haridwar, that the opposite party be directed to pay Rs. When the complainant asked about the delay of work, the opposite party challenged him and advised to go in the court. Thus, alleging deficiency in service and unfair trade practice on the part of opposite party, the complainant filed a consumer complaint before the District Forum, Haridwar, that the opposite party be directed to pay Rs. 12,00,000/- to the complainant, which had been paid by him to the opposite party, Rs. 5,00,000/- for mental agony and Rs. 5,000/- towards litigation expenses. 3. The opposite party filed the written statement before the District Forum that the complainant has wrongly mentioned the covered area of the plot in his consumer complaint. The complainant is not owner of the plot in question, therefore, he is not a consumer in the eye of law and he has no right to file the consumer complaint against the opposite party. The complainant has concealed the facts regarding the construction work and he has not come with clean hands. The matter regarding this construction is pending before the Haridwar Development Authority, Haridwar. The Haridwar Development Authority has sealed this disputed construction. That it was the liability of the complainant to get the map passed by Haridwar Development Authority. Despite request by the opposite party, the complainant did not get the map passed by the Haridwar Development Authority, even then the opposite party continued the construction work. During this period, the Secretary of Haridwar Development Authority issued notice to the complainant as well as the opposite party, even then the complainant did nothing in the office of Haridwar Development Authority and pressurized the opposite party to complete the construction work. Therefore on 12.09.2007, the Haridwar Development Authority sealed the construction site and a case No. uks0@cgk0343@2006&07 is still pending before the Haridwar Development Authority. The complainant did nothing in this case, therefore, the construction work stopped. Due to the negligence and not taking interest in the case pending before the Haridwar Development Authority, the opposite party is facing a great loss, for which the complainant is responsible. In the said case, pending before the Haridwar Development Authority, the complainant as well as the opposite party are the parties. The opposite party has suffered irreparable loss and caused mental agony due to the pendency of the case before the Haridwar Development Authority, Haridwar. 4. In the said case, pending before the Haridwar Development Authority, the complainant as well as the opposite party are the parties. The opposite party has suffered irreparable loss and caused mental agony due to the pendency of the case before the Haridwar Development Authority, Haridwar. 4. Learned Members of the District Forum, Haridwar on an appreciation of the material on record, allowed the consumer complaint vide impugned order dated 18.04.2009 in the above terms, whereas the Learned Chairman of the District Forum, Haridwar has dismissed the said consumer complaint vide order dated 17.04.2009. Aggrieved by the order passed by the Members of the District Forum, the opposite party has filed this appeal. 5. We have heard learned counsel for the parties and have also perused the record. 6. Learned counsel for the appellant-opposite party has submitted that the matter before District Forum was for specific performance of the contract and the Consumer Forum has no jurisdiction to hear and decide the matter. It is also submitted by the learned counsel that there was no map passed by the Haridwar Development Authority. Despite repeated requests to the complainant-respondent, he did not try to get a map passed from the Haridwar Development Authority. Therefore, Haridwar Development Authority, after giving notice to the appellant as well as to the respondent, sealed the house, under construction. Learned counsel for the appellant has also submitted that the appellant, the contractor, had already spent money received by him from the complainant. The complainant did not face the case regarding the seal of building before Haridwar Development Authority despite notice, as well as the proceedings to seal the structure. Contrary to it, the learned counsel for the respondent has submitted that the agreement was made between the parties for construction of house. The plot, on which the construction was to be made, was in the rural area and the appellant was agreed to make construction over the plot after perusal of the map. 7. Having considered the submissions raised by the learned counsel for the parties, we find force in the submissions raised by the learned counsel for the appellant-Sh. Akbar Khan and we are of the view, that the learned Members of the District Forum have never discussed in the impugned order that the respondent was not the owner of the plot in question, for which an agreement between the complainant and opposite party was made. Akbar Khan and we are of the view, that the learned Members of the District Forum have never discussed in the impugned order that the respondent was not the owner of the plot in question, for which an agreement between the complainant and opposite party was made. The owner of the plot, who was the son of the complainant, had never provide a power of attorney in favour of the complainant for making any agreement with the opposite party and the complainant was not authorized to enter into any agreement or transaction of money with the opposite party. Learned Members of the District Forum have mentioned in the impugned order that there was an endorsement on the back side of the stamp paper of Rs. 100/- regarding first payment through cheque and about payments in future and the duration of construction and completion. Learned Members have also mentioned that there was an endorsement of payment of Rs. 22,00,000/- to the opposite party, even then he did not complete the construction work in the stipulated time. So it was a deficiency in service on the part of the opposite party. Learned Members of the District Forum have also mentioned in the impugned order that besides stamp paper of Rs. 100/-, some white papers may be attached to write terms and conditions of the agreement. Learned Members did not mention in the impugned order why did the complainant write some matter regarding payment or the duration for construction on the back side of the stamp paper? It is necessary to mention here that in the judgment/order passed by the Learned Chairman of the District Forum, Haridwar has expressed his view that there is no signature of the parties on the matter written on the back side of the stamp paper. It is also pertinent to note that no matter regarding terms and conditions of an agreement can be written on the back side of the stamp paper. It is also not worthy that there is no mention of six months’ time to complete the construction work on the back side of the stamp paper. Agreement is always written on the front side of the stamp paper and not on the back side of the stamp paper. 8. It is also not worthy that there is no mention of six months’ time to complete the construction work on the back side of the stamp paper. Agreement is always written on the front side of the stamp paper and not on the back side of the stamp paper. 8. From the perusal of the record, it is clear that there is not a single word in the consumer complaint that there is any proceeding regarding the disputed construction work pending before the Haridwar Development Authority. The complainant–respondent has also concealed the fact that some notice was received by him from Haridwar Development Authority regarding unauthorized construction of the house and Haridwar Development Authority sealed this partially constructed house on 12.09.2007. The appellant has filed photocopies, verified by Oath Commissioner, regarding the consumer complaint, inspection report of Advocate Commissioner, objections against the report Commissioner and certain papers regarding proceedings pending before Haridwar Development Authority, notice, seal memo, certain photographs at the time of sealing of disputed construction, bill of contractor and photocopy of stamp paper of Rs. 100/- (Paper Nos. 21 to 48). Document regarding proceedings in Haridwar Development Authority clearly shows that the Secretary, Haridwar Development Authority passed an order on 10.09.2007 on the basis of the report of Junior Engineer that despite order dated 27.12.2006, the complainant and opposite party did not come before the Haridwar Development Authority and they did not file any objection against the report of the Junior Engineer. Therefore, the Secretary, Haridwar Development Authority passed an order that this unauthorized construction would be sealed on 12.09.2007. This shows that the complainant did not participate in the proceedings pending before the Haridwar Development Authority. So this partially constructed house was sealed by the Haridwar Development Authority. This fact has been concealed by the complainant in his consumer complaint. If the partially constructed house sealed by the Haridwar Development Authority, then there was no occasion for the contractor-appellant for further construction of the house. From the perusal of the first page of agreement (Paper No. 48) it is clear that it was the duty of the owner of the plot to get a map passed for the construction of house, even then he did not try to obtain the map from Haridwar Development Authority before the construction of house. Therefore, Haridwar Development Authority, after giving notice, sealed the structure. Therefore, Haridwar Development Authority, after giving notice, sealed the structure. So far the duration of construction work is concerned, no documents were filed by the complainant on the record of the District Forum. Learned Members of the District Forum have mentioned in the impugned order that the matter written on the back side of the stamp paper and the duration of the construction work, payment of Rs. 22,00,000/- to the opposite party. Learned Members have erred in passing such order because no matter can be written on the back side of the stamp paper except the name of the person who had purchased the stamp paper. Learned Members have agreed in their judgment that the plot in dispute belong to the complainant’s son, even then no power of attorney given by him in complainant’s favour before making such agreement. There was no condition between the parties for construction work within six months’ duration, as there is no such evidence on record. The building in question is still sealed as per the appellant and there is no evidence on record that Haridwar Development Authority has unsealed the structure on any move of the complainant. The citations of the complainant placed before the District Forum are regarding the agreement for construction of house between the parties, where one party is at default then other party will go in the court and if the other party is at default then first party will go in the court or about the contract between the parties where the contractor has not given possession within the stipulated time. Therefore, the citations mentioned in the impugned judgment are not applicable in this case. 9. Thus, it is quite clear that the learned Members of the District Forum have not considered all the facts and circumstances of the case and have wrongly allowed the consumer complaint vide order dated 18.04.2009, whereas the learned Chairman of the District Forum has considered all the facts and circumstances of the case and has rightly dismissed the said consumer complaint vide order dated 17.04.2009, which does not suffer from any legal infirmity. 10. For the reasons aforesaid, this appeal is allowed. The impugned judgment and order dated 18.04.2009 passed by the Members of the District Forum is set aside and the consumer complaint No. 51 of 2008 is dismissed. No order as to costs.