DINESH CHANDRA JOSHI vs Shambhu Prasad Dhaundiyal

BOTH the fora below have decided the case against Shri Dinesh Chandra Joshi, petitioner/opposite party/builder. The facts germane to this case are these. Shri Shambhu Prasad Dhaundiyal, the complainant entered into a contract with the petitioner/opposite party for construction of his house. It was agreed that construction work would be completed within six months i.e. by 6th May, 2008 and the cost of construction was agreed @ Rs.550/ - per sq. ft. and accordingly a total sum of Rs.9,35,000/ - was to be paid by the complainant to the opposite party. The said amount was paid. Again, total area to be constructed was 1700 sq. ft but during the construction it transpired that the total area to be constructed was 2000 sq. ft. The opposite party asked the complainant to pay extra amount, failing which, he threatened the complainant to stop the construction work. Consequently, the complainant gave three post dated cheques in the sum of Rs.50,000/ - each to the opposite party.

IT is alleged that the opposite party did not complete the construction work and also took away the construction material from the site. The opposite party also did not return the cheques to the complainant but the complainant got the payment of the said cheques stopped through his banker. The opposite party filed a complaint against the complainant under Section 138 of the Negotiable Instruments Act. The constructed house was measured as 2170 sq. ft. and the total amount recoverable from the complainant was Rs.11,93,500/ -. The complainant filed a complaint before the District Forum for deficiency as the opposite party had left the construction work incomplete.

THE District Forum visited the site for inspection and reported that the work was still to be carried out in the house. The District Forum gave the following report: "1. Gate and boundary was not constructed in building.

Flooring abrasion, grouting, painting of house and electrical work not completed, and plaster incomplete and kitchen work is not completed.

Almirah and racks work in room is not completed.

Glass of windows and rallying of stairs has not been fitted and fixed.

Sanitary work not done.

Doors were not installed."

The District Forum further directed that the complainant in his affidavit mentioned that he had incurred expenses in the sum of Rs.1,04,546/ - towards construction of incomplete work. Consequently, the District Forum allowed the complaint filed by the complainant and directed the opposite party to pay Rs.1,04,546/ - to the complainant.

AGGRIEVED by that order, an appeal was filed before the State Commission and the State Commission dismissed the same.

WE have heard the learned counsel for both the parties. During the course of arguments, it transpired that in a case filed under Section 138 of the Negotiable Instruments Act, the complainant/respondent has been held guilty and has been directed to pay the amount and was sentenced to six months simple imprisonment. The complainant has filed an appeal which is still pending before the appellate court.

LEARNED counsel for the respondent/complainant vehemently argued that deficiency on the part of the petitioner stands established. He contended that the petitioner had not completed the work and as per the report of the District Forum, certain above mentioned works were yet to be completed. He defended the order passed by the fora below.

WE are of the considered view that the fora below have not appreciated the evidence properly. The affidavit of Shri Rajeev Kukreti is crucial. In his affidavit from paras 1 to 6, he has given the details of this case. Paras 7, 8 and 9 of the affidavit are relevant, which read: "7. That after arising of dispute the deponent and Shree Mahipal Singh Pyal mediated and in total of Rs.11,93,500/ - reduced Rs.93,500/ -. After reduction of Rs.93,500/ - complainant was liable to pay Rs.1,50,000/ - to O.P.

That on 15/07/2008 Complainant Shambhu Prasad Dhondiyal in presence of Mahipal Singh Pyal and deponent gave three cheques of Rs.50,000/ - 50,000 for the remaining balance of Rs.1,50,000/ - in absence of O.P. and it became known to the deponent that Dinesh Chandra Joshi stopped payment of the same.

That complainant on the basis of wrong facts with a malafide intention filed this case and grabbed Rs.1,50,000/ - of O.P.

THE complainant did not pick up a conflict with this affidavit. No counter affidavit saw the light of the day. Even during the arguments, learned counsel for the complainant/respondent did not take any objection. It is apparent that Rs.93,500/ - were reduced from payable amount because of the rest of the construction for which the complainant himself spent Rs.1.04,546/ -. There is a small difference between Rs.1,04,546/ and Rs.93,500/ -. At best, the complainant is entitled to Rs.11,046/ -.

THIS calculation be read in conjunction with para 7 of the affidavit of Shri Rajeev Kukreti. The opposite party/petitioner had given advantage of Rs.93,500/ - due to non -construction of the aforesaid items mentioned by the State Commission. Succinctly stated it comes to Rs.11,93,500/ - minus the concession of Rs.93500/ - for further construction to be raised by the complainant. Rest of Rs.11,00,000/ -, already paid amount Rs.93,500/ - balance Rs.165000/ - for which cheques of Rs.1,50,000/ - were given. Rs. 15,000/ - were yet to be paid. The complainant''s fight against the windmills does not produce the desired result. We accept the opposite party''s revision petition, set aside the orders passed by fora below and dismiss the complaint.

IT is interesting to note that the District Forum in his judgment has admitted that the construction of the house to the extent of 2170 sq. fit was raised. The relevant para runs as under: "Both parties admitted that the construction of house was to be made as Rs.550/ - per sq. feet and total constructed area came 2170 sq. feet and thus the total construction cost as per O.P. was Rs.11,93,500/ -. But as per complainant cost of area of 2000 sq. total cost Rs.9,50,000/ - was paid and the O.P. has not completed the entire construction work."

THE State Commission has not given any finding regarding 2170 sq. ft. There is no deficiency on the part of the petitioner/opposite party. He stopped the work because the petitioner had refused to pay the balance amount and cheques issued by him got bounced. These things were not considered by both the fora. The record reveals that the complainant has spent Rs.1,04,546/ - for which he was given the concession of Rs.93500/ -. The difference is of Rs.11046/ - but he has to account for Rs.15,000/ -. The complainant stands benefited.

THE revision petition stands disposed of in above terms.