RAJEEV KAPOOR vs M/S. REAL GOLD BUILDERS PVT. LTD

Learned counsel for the complainant present. Arguments heard. It is stated that the premises of opposite party was found to be locked. An affidavit has been filed.

On 18.11.2013, the right of the opposite party to file the written statement was forfeited, in presence of its counsel. However, Mr. G. P. Singh, learned Advocate appeared again for opposite party on 3.3.2014. He stated that he went to meet the opposite party at Gurgaon but his office was found to be locked. Learned counsel for the opposite party wanted to withdraw from this case. Therefore, he was allowed to withdraw from this case. The case was fixed for final arguments but as a precautionary measure, final notice was also ordered to be issued upon the opposite party at the instance of the complainant. On 11.7.2014 the order for substituted service was passed.

Learned counsel for the complainant submits that the complainant has tried his level best to serve the OP but it is absconding and is not traceable. He submits that under the circumstances, he is not under obligation to serve him through substituted service and spend a huge amount on publication as the OP has already appeared through his Advocate Shri G. P. Singh.

We are in full agreement with him. It appears that the opposite party wants to delay the case unnecessarily. Under the circumstances, we proceed ex parte against the opposite party. Evidence has been filed. We have heard the learned counsel for the complainant.

Shri Man Mohan Nath Kapur, since deceased, was the Karta of Joint Hindu Family Property bearing No. Plot No. F-12, Lajpat Nagar -III, New Delhi. It was stated that at the time of filing of this complaint, Smt. Man Mohan Nath Kapur, since deceased, was an aged person suffering from non-curable diseases, therefore, the complaint was filed through his son Shri Rajeev Kapoor, a coparcener. Shri Man Mohan Nath Kapur was the owner of two floor structures standing over the above said property. He made up his mind to get new plan sanctioned from the concerned authority for the construction of new building on the said plot. The new plan was sanctioned by the Municipal Corporation of Delhi on 13.5.2011, a copy of the sanctioned plan has been placed on file as annexure ''D''. On the basis of sanctioned plan, structural design was got prepared from M/s Garg Consultation and Design Engineer.

Thereafter, the complainant approached M/s Real Gold Builders Pvt. Ltd.-OP to construct the building in accordance with the sanctioned plan, true copy of the structural Design which is annexed as Annexure ''E''. Thereafter, the parties entered into an agreement wherein it was stipulated that the opposite party shall accomplish the construction after accepting the total amount of Rs.1,31,00,000/-. The said construction was to be raised within a period of eight months from the date of sanction of the agreement dated 11.2.2012. It was agreed that the time of the agreement was the essence of the contract. It is also transpired that the final draft did not mention certain points, for instance the construction details of the bathroom as provided in annexure ''A'', the words ''glass panel'' were found to be missing. It was also not mentioned that the OP would get the liaison work done with the MCD and other government departments. When it was pointed out to the OP, the OP asserted that it was a typographical mistake simpliciter. It is alleged that in the course of construction, the OP violated the terms of agreement dated 11.2.2012 and misused the basement space by constructing water tank. The agreement stipulated that the water tank was to be underground but the said condition was violated. The OP did not raise the construction as per sanctioned plan and unilaterally deviated from the construction plan. As per the agreement, the basement was to be used for water tank purposes. The OP was supposed to construct the four underground water tanks with the capacity of 5000 ltr. each. The OP was also supposed to provide overhead tanks for each of the four flats having capacity of 1500 ltr. each but instead of that, the OP installed the water tank of only 1000 ltr. each. The OP also failed to get an anti-termite treatment of the said plot form any specialized company. There were also discrepancies in respect of water proofing, leakage/seepage or dampness but due to negligence, inaction and passivity on the part of the OP, the needful could not be done. Again, the raft of the building under construction was constructed by flouting the established norms prescribed for the construction of the building especially in the seismic zone where the building is situated. The OP intentionally violated point (IV) of the annexure ''A'' that categorically specified that ready mix concrent would be used for casting slabs. The opposite party has laid down the RCC wall but has not done any gunniting in the same. Reminders were issued through registered letters but it did

not bring the desired result. Skirting in drawing, dining and lounge was to be six inches high but the skirting provided is only four inches high. The doors fixed were not made of teakwood as agreed. Marbles and granites were not provided.

Vide letter dated 24.11.2012, the complainants specifically requested the OP to give the specific details of the work done for getting the required funds disbursed from its banker/financer. It sent vague, undated and unsigned status report to the HUF on 16.12.2012. The letters have been placed on record as Annexure N & O, respectively. Vide letter dated 17.12.2012 (annexure P), it was explained that 90% of the construction work was completed but it was having number of discrepancies. Another letter dated 21.12.2012 was also sent and the same was placed on record as annexure Q. Till the date of filing of this complaint, the HUF disbursed a sum of Rs.1,14,25,000/- out of Rs.1,31,00,000/- to the OP. The payment was made according to the payment schedule. The opposite party made acknowledgement of each and every payment made on intervals, as detailed in the complaint. Acknowledgment receipts have been placed on record as Annexure R(colly)

The OP raised further demand of Rs.5,50,000/- from the HUF. The complainant vide its letter dated 5.3.2013 requested the OP to redress its grievance and for the speedy handover of the possession. The complainant sent further letters in this case, which have been placed as Annexures S T & U. In the meantime, the opposite party sent bills, which pertain to extra work beside the said agreement. However, the details of the extra wood work as provided in Annexure 1 were considerably covered under the agreement dated 11.2.2011. Only an extension of bathroom was done in addition to the agreed agreement, which the OP had raised as per promise made by it. It is alleged that the OP has not provided any break up of any work either of the work done under the pursuance of the said agreement or of the alleged additional work. It is alleged that the OP demanded more money. It assured that it will deliver the possession by 15.7.2013. The lift was not installed. He explained that after the execution of the agreement, the complainant and other co-parcenors of the HUF are residing in the rented accommodation since October 2011. After October, 2012, the OP considerably slowed down the work which resulted into late construction and delay in completion of the work. It is averred that pursuant to the letter dated 15.3.2013, Shri Suresh Kumar Ahuja, Managing Director of the OP personally visited the member of HUF and interacted with Mr. Pradeep Kapur and other members of the HUF. He categorically threatened the members of HUF that if the complainant did not stop making queries from him vide letters regarding the details of the construction expenditures, about the time when the construction would be finalized and the building would be handed over to the HUF, he would not expedite the existing rate of work. He further threatened that if in future he receives any such letters, then he would stop the work altogether and ensured that the construction of the said building could never get completed.

It is also explained that mother of the complainant Smt. Kamla Kapur, who wished to reside in her own house unfortuntley died on 4.4.2013. The OP again issued letters dated 10.4.2013, wherein it was stated that payments will have to be made by the HUF. It raised a demand of Rs.5,50,000/- despite the fact that the complainant had made excess amount. Ultimately, this complaint was filed with the following prayers: "a) The opposite party shall be directed to complete the construction of the building at Plot Bearing NO. F-12, Lajpat Nagar-III, New Delhi, at the earliest in terms of the specification details as mentioned in the Agreement dated 11 th February, 2012.

b) The opposite party may be directed to compensate the members of the HUF for the loss caused to him by the unethical business practice adopted by the opposite party herein and the lawful loss of space/storage space.

c) The opposite party may also be directed to adequately compensate the members of the HUF for unnecessarily being disgressed/discoursed from his professional responsibilities in pursuit of redressal for various inaction of the opposite party.

d) The opposite party may also be directed to compensate complainant for causing mental pain, agony, harassment caused to them.

e) The damages accrued on account of delay and all such future damages may be awarded to the complainant against the opposite party in proportion to the account of damages as decided by the opposite party vide its letter delivered on 19 March, 2013. th

f) The cost of proceedings may be awarded in favour of the HUF and against the opposite party

8) Any other relief or order(s) which this Hon''ble Commission may deem fit and proper in facts and circumstances of the present case may be also passed in favour of the HUF, to meet the ends of justice."

Learned counsel for the complainant has filed the evidence. Agreement entered into between the parties Ext. Annexure ''F'' mentions that the construction will be completed within eight months. It also mentions all the details, which are mentioned in Annexure ''A''. It is appended with construction agreement. It also mentions above the lift. The complainant has also filed the sanction site plan, structural design plan, construction details etc.

However, the namby pamby pleas raised in the complaint do not go to help the legal proceedings. A bare look on the pleadings shows that it is a dispute about accounts. The complainant has not given the assessment of loss he has suffered. No details or documentary evidence regarding payment of rent saw the light of the day. The but and ben stand set up by the complainant further casts a film of suspicion about this case. The counsel for complainant admits that complainant remained in partial possession of the premises. It was not brought to the notice of this Commission for how much money the work was already accomplished. What was the criteria of losses and how much are other knotty unanswered questions. No expert report was adduced.

We have perused the one side of coin but at the same time the other side ought not be overlooked. The deficiency on the part of the OP stands established. It has not yet completed the construction and has violated the provisions of agreement as detailed above. There is no proof that the lift stands installed. The wood, marbles, granites, water tank etc. were not made according to specifications. There appears to be some hesitation on the part of the OP to give accounts for the amount incurred thereof. The OP has adopted a Fabian policy and the delay remains unexplained. The non-appearance on the part of OP in this Commission is indicative of arrogance, despotism and highhandedness.

In the result, we, hereby direct the OP to complete the construction as per agreement, details appended thereto, rectify the violations, amend the same within 90 days from the date of dispatch of this order, otherwise, it will be liable to pay the penalty of Rs.1000/- per day till the needful is done. We also grant Rs.50,000/- compensation to the complainant which be paid to the complainant within aforesaid 90 days otherwise it will carry interest at the rate of 9% per annum till its realization. The complainant is also directed to pay the rest of amount with this Commission within 90 days from the receipt of copy of this order, which will be kept in FDR in a nationalized bank. The same would be released in favoour of the OP after the satisfaction of this decree. Matter stands disposed of.