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Judgment
Subhash Chandra, Presiding Member
The present appeal has been filed under section 19 of the Consumer Protection Act, 1986 against the judgment dated 5th August 2016 passed by the Gujarat State Consumer Disputes Redressal Commission, Ahmedabad in Complaint no. 33 of 2012.
The brief facts as stated by the appellant are that the appellant no.1, Manidweep Ashram Trust, had filed a consumer complaint in their personal capacity against the contractors / respondents herein alleging deficiency of service in construction of temple for their deity Bhuvaneshwari Mata Temple. It was contended that even after receiving 90% of the agreed amount for the construction of the temple, the construction work of the temple has not yet been completed. Appellant nos. 2 to 8 herein who are the trustees of Appellant no.1 had on 25.04.2005 executed the Trust Deed and on 09.11.2005 registered the Manidweep Ashram Trust who is appellant no.1.
The respondent herein are traders-cum-building contractors and run their business in the name of Sompura Navinchandra Chunnnilal, Shrine Temple Contractor and Stone Trader situated at Ganesh Society, Jogsar Road, Dhrangadhra, District Surendra Nagar, Gujarat 363 310. The appellant had entered into a contract with the respondent to construct the temple at Ambasar in 2007 for Rs.58,00,000/- within a span of three months. The respondents started the construction work of the temple on 10.09.2007 but the left the construction midway and did not complete the work in the stipulated time even after admittedly receiving Rs.53.68 lakhs. The appellant filed a police complaint against the opponents for cheating, criminal breach of trust etc. on the grounds that the respondent left the construction work incomplete and was also demanding extra money by disputing the agreed amount for the construction of the temple. On 18.11.2011 a settlement/ compromise agreement was executed and signed by both the parties wherein the respondents agreed to complete the construction of the temple within one year and the Trust agreed to pay an amount of Rs.12 lakh in a time bound manner and Rs.5.00 lakh after completion of the work addition.
The appellant on 08.06.2012 sent a Legal Notice to the respondents stating that even after accepting the contract in the year 2007 for Rs.58,00,000/- to construct the temple within three years, the respondents after undertaking some construction demanded more money whereas only 30% of the work was completed. The appellant sought refund of the money after deducting the amount for the actual work worth Rs.15 lakh. It is alleged that the respondents did not intend to complete the work or return the money taken from the appellant and in their reply dated 23.06.2012 denied the claim of the appellants and disputed that a contract for the construction was fixed between the parties at Rs.71,00,000/-.
The appellants thereafter filed consumer complaint no.33 of 2012 against the respondent before the State Commission seeking refund of Rs.40,00,000/-. On 23.12.2013, the appellants filed documentary evidence in support of their claim including detailed calculations of paid amount, all the bills issued by the respondent, certificate issued by the Government approved Engineer regarding the work done and other documents. As per the certificate dated 15.12.2013 issued by the Government approved Engineer and Contractor, Shri Kamlesh Patel, Civil Engineer, only 30% construction work (Structure) of the temple has been done and the balance work of temple was incomplete. The respondents in their reply dated 13.02.2014 admitted to have received Rs.53.68 lakhs from the appellant. The appellants in their rejoinder to the reply of the respondent reiterated their claim as contended in the consumer complaint. On 06.12.2014, the sub-contractor for masonry work engaged by the respondent in its affidavit dated 06.12.2014 filed before the State Commission stated that Shri Manidwep Ashram Trust had awarded a big contract to construct temple in Ambasar to Sompura Navinchandra Chunilal and Sompura Jagdish Navinchandra, residents of Dhagandhra. The payment for the mason work in the temple was given regularly for two years, and thereafter, no payment was made for the masonry work.
The State Commission vide the impugned order dated 05.08.2016 has held that:
Complaint no.33 of 2012 is dismissed. No order as to costs. The complainant is at liberty to approach the appropriate forum for redressal of its grievances. If the complainant filed any application / suit or complaint before the appropriate forum, then the said forum will consider and dispose of the same in accordance with law without being influenced by the order passed by this Commission in the present complaint. The time spent in pursuing the complaint before this Commission will be given set off as per rules.
Office is directed to forward a copy of this order to the Charity Commissioner, Ahmedabad for taking appropriate steps, if deemed fit.
The appellant herein filed written arguments before the State Commission reiterating the same arguments which was filed in the consumer complaint. The State Commission on 05.08.2016 passed the impugned order and dismissed the consumer complaint filed by the appellant holding as under:
It has submitted by learned advocate for the opponent that the complainant trust is not consumer as per the definition of consumer under the Consumer Protection Act, 1986 and entire dispute is civil in nature and therefore, the State Commission has no jurisdiction to entertain the complaint as detailed evidence, both oral and documentary is required to be adduced and as under the provisions of Consumer Protection Act, the cases are disposed of in summary manner, requested to dismiss the complaint.
In our opinion, considering the averments made in the complaints, prima facie it seems that there is no written contract entered into by an between the parties and only oral contract took place. So, without detailed evidence, it would be very difficult to come to the conclusion which were the terms and conditions of the oral contract. As per the say of the complainant though amount of Rs.55 lakh has been given to the opponent, the opponent carried out construction of Rs.15 lakh only and therefore, the complainant trust is entitled to get back rs.40 lakh out of the amount paid by the complainant to the opponent, while as per the say of the opponent, there is breach of contract on the part of the complainant as complainant did not carry out the plastering work and therefore, the opponent could not carry out the work of fixing the stone and breach of contract has been committed by the complainant. Considering the rival contentions and the specific allegation made of cheating, misappropriation, criminal breach of trust and fraud, in our opinion, all these issues can be decided only by a civil court as voluminous evidence is required to be adduced in the matter.
We have gone through the trust deed also. In the objections of the trust, it is nowhere stated that one of the objects of the trust is to carry out religious activities of constructing temples and/ or administering them. No evidence has been adduced by the complainant trust which would prima facie show that Bhuvaneshwari Mata Temple is run by the complainant trust. So also, in our opinion, whether the construction of the temple is being carried out as per the object of the trust is also required to be considered. This point can also be decided by a civil court. In above view of the matter, in our opinion, the complainant is not tenable. It is a matter of great surprise that though contract of about Rs.58 lakh took place between the complainant trust and opponent, there is not written contract. No tender appears to have been floated. It was incumbent upon the complainant trust to invite tenders and enter into written contract as per law before entrusting the construction work of temple to any party.
a. Set aside the impugned order passed by the State Commission, Gujarat in CC no. 33 of 2012;
b. Pass such other and further order/ orders as this Honble Commission may deem fit and proper in the facts and circumstances of the present case;
The appellants have made an additional prayer to:
a. Permit the appellants to raise the above mentioned additional ground and direct the opponents to complete the incomplete construction work of the proposed temple by setting aside the impugned order dated 05.08.2016 passed by the State Commission, Gujarat in CC no.33 of 2012;
b. Pass such other and further order/ orders as this Honble Commission may deem fit and proper in the facts and circumstances of the present case.
Aggrieved by the order of the State Commission, the appellant has filed this present first appeal.
I have heard the learned counsel for the parties and have carefully perused the material on record.
The learned counsel for the appellant argued that the respondents are liable to complete the construction of the temple as per the agreement. He stated that appellant nos. 2 to 8 herein are all Trustees of the appellant no.1 and on 25.04.2005 had executed a Trust Deed and on 09.11.2005 registered the Manidweep Ashram Trust/ appellant no.1 herein for various charitable purposes including construction of the Temple. On behalf of the appellant it was further stated that an oral contract for the construction of the temple at Ambasar agreed to in 2007 and an amount of Rs.58,00,000/- was given to the respondents who were supposed to complete the construction within three years by 31.11.2012 and the respondent used to demand money from time to time which was duly paid by the appellant. Till date a sum of Rs.55 lakh was stated to have been paid to the respondents. Learned counsel for the appellant stated that the respondent had however, stopped the construction of the temple since 2011. The appellants thereafter lodged a complaint before the Dhansura Police Station and the respondents had settled the dispute at the Police Station and executed a written Agreement for temple construction/ Settlement Deed on Rs.100/- non judicial stamp paper which was notarized on 18.12.2011. Appellants had agreed to pay an additional amount of Rs.17 lakhs to the respondent. Learned counsel for the appellant further submitted that despite making the payments the construction of the temple was not complete. Hence, the appellant was compelled to file a consumer complaint before the State Commission. Learned counsel for the appellant submits that the respondents filed their reply dated 13.02.2014 denying all facts as stated by the appellant and the State Commission ignored the admitted material facts regarding the written agreement executed between the parties and receipt of Rs.53.68 lakh as admitted in the reply by the respondents and had dismissed the complaint on whimsical grounds that the present matter involved disputed facts regarding an oral contract and required to be decided by the appropriate civil court for which appellants were at liberty to approach the civil court for redressal of their grievance. Hence, the learned counsel for the appellant submits that the appeal be allowed in his favour.
Per contra, learned counsel for the respondent argued as per their written submissions to contend that the appellant in June 2007 approached the respondents for fixing the stones in the construction of Mata Bhuvneshwari Temple, Dhansura. The appellant agreed to pay an amount of Rs.71 lakh for fixing the stones, including the price of stones. The fixing of the stones was to be completed within three years which was only possible after completion of foundation involving mason work by the appellant. He further alleges that the appellant/ Trust Committee had not carried out the plastering work and consequently the work of fixing of stones by the respondents was delayed due to plastering work. Learned counsel for the respondent states that on 20.03.2009 all the stone material had been sent to the construction site and the respondent tried to do their part despite non-cooperation. Learned counsel for the respondent further alleges that the appellant delayed the base work and even the payments of the respondents despite several reminders and letters sent to the appellants for the outstanding payment. Of the total amount towards the work and material, the appellant had paid only Rs.38,88,500/- to the respondent and the balance of Rs.31 lakh was due from the appellant. As there was no response from the appellant, the respondent had to stop the work in the year 2011 as it was not possible for it to carry out further work without receiving payments. Counsel for the respondent argued that a total of 83 trucks of stones had been agreed to, of which 53 trucks had already been used at the construction site and the remaining 30 trucks of stones and machinery work Rs.3,00,000/- used for the temple work were lying in the possession of the appellant Trust. Respondent further submitted that the appellant had filed a criminal case against the respondent to put undue pressure and caused harassment due to which the respondent had to sign a compromise Agreement on 18.02.2011 before the police. As per this Agreement, it was decided that the respondents shall commence the work within a week of signing of the agreement and the appellant has agreed to pay Rs.2,00,000/- within seven days, Rs.4,00,000/- after three months and Rs.6,00,000/- at an interval of three months and on this basis the respondent carried out the construction. Learned counsel for the respondent submits that due to the constant harassment by the appellant and its committee and the delay in the masonry work of respondent was getting prolonged and the respondent was suffering huge losses. Hence it was constrained to stop the work. On 18.05.2012 the appellant and others harassed and abused the respondent to complete the construction without payment. Learned counsel for the respondent contended that in order to escape from its responsibilities of paying the amount due to the respondent, the appellant sent a legal notice dated 08.06.2012 to the respondent for refund of Rs.40 lakhs and warned of civil and criminal proceedings against the respondents. The respondents, in their reply to the legal notice, had denied the false allegations of the appellant and stated that the goods worth Rs.16 lakh are lying in the precincts of the temple and labour charges worth Rs.7.00 lakh are also due to be paid by the appellant. The respondent alleges that to escape from its responsibility, the appellant had filed a false consumer complaint against the respondent before the State Commission. The respondent in their reply dated 13.02.2014 disputed the facts stated by the appellant and questioned the maintainability of the complaint before the Consumer Forum. Learned counsel for the respondent has further stated that the State Commission vide order dated 05.08.2016 after considering the submissions of both the parties held that the dispute in the present case involved elaborate and detailed evidence and hence, a civil court was the appropriate forum to decide the same.
The State Commission in its finding has recorded that based on the Trust Deed, wherein it was nowhere stated that one of the objects of the trust was to carry out the activity of constructing temples and / or administering them. No evidence had been adduced by the complainant Trust to prima facie show that Bhuvaneshwari Mata Temple was run by the appellant/ complainant Trust. Hence, in their opinion, whether the construction of the temple was being carried out as per the objects of the Trust was also required to be considered. This point can also be decided by a civil court. In view of the above, the complaint was held by the State Commission to be not tenable. The State Commission also held that though a contract of approximately Rs.58 lakh was stated to have been entered into between the appellant Trust and the respondent, no written contract existed. No tender appears to have been floated. The State Commission held that it was incumbent upon the complainant Trust to have invited tenders and entered into a written contract as per law before entrusting the construction work of temple to any party.
The foregoing contentions of the respondent have not been countered through any evidence by the appellant. It has been admitted that there was no written contract between the parties before the work on the temple was commenced. The only document relied upon by the appellant is the Settlement Agreement before the Dhansura Police Station on 18.12.2011. The appellant is before this Commission challenging the order of the State Commission in CC no.33 of 2012 which was based on the oral arrangement/ contract between the parties. Under the Consumer Protection Act, 1986 an appeal before this Commission under Section 51 lies against an order of the State Commission. From the order of the State Commission in the instant case it is evident that no deficiency in service or unfair trade practice on the part of the respondent has been established since there was no document promising services against payment of consideration that had been brought on the record. In the absence of such evidence, the conclusion of the State Commission that the issue should be adjudicated by the appropriate civil court based on leading of evidence and after due process cannot be found fault with. The procedure under the Consumer Protection Act, 1986 is summary in nature and the law is well laid down in this regard. There are several issues and allegations of civil and criminal nature which arise in this matter as is apparent from the allegations of work quantities, payments, etc. The State Commission has rightly refrained from adjudicating on these issues as there is no supporting evidence, especially with regard to a formal agreement between the parties to establish the relationship of a consumer with a service provider.
In view of the foregoing, I am unable to accept the contention of the appellant. The appeal is therefore, dismissed. Parties to bear their own cost.
All the pending IAs, if any, shall also stand disposed of by this order.