Seema Chandra vs M/s Magnum Interiors Pvt. Ltd. & Anr

Ram Surat Ram Maurya, Presiding Member

Heard Mr. Vivek Narayan Sharma, Advocate, for the complainant and Ms. K. Iyer, Advocate, for the opposite parties.

Mrs. Seema Chandra has filed above complaint, for directing M/s. Magnum Interior Private Limited and Mr. Rahul Kalhan, to pay (i) Rs.70/- lacs (i.e. advance, penalty and interest up to 31.01.2015) with interest @24% compounded quarterly from the date of filing the complaint till the date of refund, (ii) Rs.9228793/- (i.e. actual damages) with interest @24% compounded quarterly from the date of filing the complaint till the date of refund, (iii) Rs.64/- lacs (damages, penalty and interest up to 31.01.2015) with interest @24% compounded quarterly from the date of filing the complaint till the date of refund, (iv) Rs.5.5/- lacs, as cost of litigation and (v) any other relief which is deemed fit and proper in the circumstances of the case.

The complainant stated that she booked Flat No.-616-B, in “Magnolias”, Golf Course Road, Gurgaon, built by M/s. DLF Universal Limited, which was delivered to her in semi-finished condition as according to the terms of allotment, the complainant was to get interior work done at her own level. M/s. Magnum Interior Private Limited was company registered under the Companies, Act, 1956 and engaged in the business of Interior/finishing works of the buildings. The complainant approached the opposite parties for interior works in the aforesaid flat. After examining the flats, the opposite parties agreed to do interior works for Rs.11529300/-, within period of 220 days. They entered in to contract dated 01.05.2012, specifying the terms and conditions and specification of works to be done. The complainant paid Rs.57.5/- lacs to the opposite parties for purchase of materials etc. However, the opposite parties did not carry out the work in time lines as promised in the contract dated 01.05.2012, under which they had to finish the work up to 06.12.2012 but they carried out very little work in a haphazard manner till then. M/s. DLF Universal Limited wrote a letter dated 16.10.2012, stating therein that in order to avail the benefit of Move-in-Rebate, the Interior works had to be finished till 31.10.2012. From 01.11.2012, M/s. DLF Universal Limited would charge delayed penalty @ Rs.125000/- per month plus service tax. M/s. DLF Universal Limited further put a condition for payment of remaining amount as mentioned in the contract, on completion of anterior works. Due to no-completion of interior work in the above flat, the complainant was prevented to pay remaining instalments and was required to pay interest on the balance amount. The opposite parties did not do any work till October, 2012, in spite of extracting Rs.57.5/- lacs. The complainant then asked to return her money with interest and penalty due to inordinate delay in completion of the work. Then the opposite parties assured to complete construction works within 2-3 months, failing which they would pay penalty, interest and damages. The complainant agreed for the proposal of the opposite parties and accordingly a fresh contract was executed on 11.11.2014 between the parties. The opposite parties also handed over Cheque No.633420 dated 31.01.2015 for Rs.60/- lacs to the complainant. The opposite parties, however, again could not compete the interior works till 31.01.2015 and gave another Cheque No.633495 dated 12.05.2015 for Rs.10/- lacs. These cheques were issued towards the refund of Rs.57.5/- lacs with interest. Above cheques were presented for encashment on 20.04.2015 and 12.05.2015 but were dishonoured by the concerned bank on 21.04.2015 and 15.05.2015 respectively. Due to delay in completion of the work, M/s. DLF Universal Limited raised a very high demand of Rs.4417500/- as penalty and Rs.4811293/-as interest on 16.06.2015. The complainant was suffering from financial crunch due to Kidney ailment of her husband. The complainant got valued the works done by opposite parties through M/s. Creative Design, Engineers, Interior Designers, a Government approved valuers, who inspected the site on 12.06.2015 and submitted report dated 17.06.2016, valuing the total work of the opposite party to Rs.319948/-. The opposite parties also obtained valuation report of their works through M/s. Collaborations Architects & Interior Designers, who submitted his report dated 04.07.2015 and assessed the valuation of the work to Rs.610527/-. The complaint was filed on 06.10.2015, complaining deficiency in service.

The opposite parties filed their written reply on 23.08.2017 and contested the case. They stated that the complainant vide email dated 08.04.2012, submitted a design layout, scope and fee structure through ‘Fianza Home Solutions Private Limited’, for interior designing of the said flat. As per specification, the opposite parties supplied estimate vide letter dated 27.04.2012, which was accepted by the complainant and her husband. Thereafter, contract dated 01.05.2012 was executed, in which, the estimate supplied by the opposite parties is annexed. The complainant paid Rs.120870/- through two cheques on 01.05.2012 although under the contract 30% of the estimate i.e. Rs.3458790/- was payable as mobilization amount and Rs.691758/- (i.e. 6% of total estimate) was payable for the design to be submitted to M/s. DLF Universal Limited, for approval. Rs.15/- lacs was advanced on 10.05.2012. The complainant directly made payment to vendors, from where the materials were purchased time to time. Out of total amount of Rs.57.5/- lacs, Rs.31/- lacs in total was paid to the opposite parties and remaining amount was paid to the vendors directly. First activity i.e. construction of internal wall had to be done by M/s. DLF Universal Limited, which was initially delayed. After lapse of 282 days from the contract, the complainant asked for revision in the internal wall to DLF contractor. The complainant frequently changed the designs vide email dated 07.02.2013, 07.03.2013, 12.03.2013 and 10.07.2014. The opposite parties requested the complainant to complete freezing of design and specification, so that work could proceed on one line. Delay in completion of work cannot be attributed to the opposite parties. The opposite parties completed most of his pre-installation at site tasks till September, 2014. The materials, like stone etc. were purchased after lapse of 410 days. As timely payment was not done and required materials were not supplied, the work was delayed. From September, 2014, the complainant started to raise one or other issue with the opposite parties. Various owners of apartment started occupying their flats. Due to which DLF curtailed working hours to 12 hours from 24 hours. The husband of the complainant sent incomplete copy of supplementary contract dated 11.11.2014 through email, without any previous discussion with them. On 14.11.2014, the husband of the complainant sent another contract of two pages through email and asked opposite party-2 to sign it and return its scanned copy to him. Immediately after email, telephonic calls was also made, in which, he threatened that in case contract was not signed, he would implicate opposite party-2 in criminal case. Opposite party-2 was extremely perturbed by such threats and requested to resolve the issue amicably by personal meeting. Opposite party-2 went to the house of the complainant. The complainant and her husband immediately bolted the door. They started threatening of dire consequences, in the event of not executing the contract. Mr. Vivek Chandra, husband of the complainant threatened that opposite party-2 could not imagine about his power and influence; on his one call, goons would take away his sister from his residence. It would be in the interest of opposite party-2 and his family to do, what was asked by them. Opposite party-2 was badly terrorized with the threats given by the husband of the complainant. Opposite party-2 signed stamp paper attached with some typed paper and blank papers and a cheque of Rs.60/- lacs on their dictation. Due to threats of family, particularly unmarried sister, opposite party-2 did not give any complaint to police in this respect. The opposite parties agreed to 30% discount on furniture elements, like doors, door frames, kitchen cabinets and wardrobes etc. and also agreed take balance payment after installation, vide email dated 15.01.2015. The husband of the complainant, vide email dated 18.01.2015, sought for clarification as to how the penalty imposed of DLF would be handled. The opposite parties replied vide email dated 18.01.2015 that they could give consolidated discount of Rs.25/- on entire work. The opposite parties had neither any knowledge about the terms and conditions between the complainant and DLF nor had any concern with it. It has been denied that the opposite parties agreed to pay penalty of Rs.2/- lacs per month till completion of the work. It is not possible to refund for interior works viz AC ducting, electrical wiring, works, fire services, welded pipe grids, POP, paint works, false ceiling works, water proofing works etc. Alleged valuers reports are false and collusive. Even the value of stones used in the flat was of more than Rs.15/- lacs, Mechanical, Electrical and Plumbing works was of more than Rs.25/- lacs. The complainant and her husband told that salvage materials were worth Rs.30/- lacs and asked the opposite party to give a cheque of Rs.10/- lacs as advance for salvage materials, for selling salvage. The opposite party gave the cheque of Rs.10/- on 12.05.2015, towards salvage. The complainant gave an email dated 18.05.2015, authorising the opposite party to remove salvage. When the opposite party went on the flat for collecting salvage, the flat was locked. This complaint was filed on various false allegations with an intension of unjust enrichment

The complainant filed Rejoinder Reply on 06.03.2018, in which, the facts stated in the complaint were reiterated. The complainant filed Affidavit of Evidence of Seema Chandra. The opposite parties filed Affidavit of Evidence of Rahul Kalhan. Both the parties filed documentary evidence and written submission.

I have considered the arguments of the counsel for the parties and examined the record. A perusal of letter dated 16.10.2012 (Annexure-C-2) of DLF Ltd. shows that DLF Ltd. offered the flat buyers to do interior works at their own level within a period of nine months and Move-in-Rebate was also offered, vide letter dated 10.09.2009. By a subsequent letter dated 23.06.2010, DLF Ltd. provided to reckon the period of nine months w.e.f. 01.09.2010. “Occupation Certificate” of Tower Nos.-1 to 7 of “The Magnolias” was obtained on 07.09.2011. Then DLF Ltd., vide letter dated 29.10.2011, extended six months time for completion of interior works, which was again extended till 31.07.2012 and lastly it was extended till 31.10.2012, vide letter dated 16.10.2012. The complainant gave contract to the opposite party for interior works on 01.05.2012, giving 220 days time for completion of the work i.e. up to 07.01.2013. The complainant did not adopt the time schedule, according to the scheme of DLF Ltd. at any of the stage. At the time of contract, the period of completion of interior work was up to 31.07.2012 as provided by DLF ltd., while the complainant provided time up to 07.01.2013. If DLF Ltd. is charging penalty for delay in anterior works then, opposite parties cannot be held liable for it.

Annexure-II of contract dated 01.05.2012 provides Payment Schedule, under which, 30% advance payment was required to be made for mobilization advance and long drawn equipment order. The opposite party admitted that Rs.15/- lacs was paid on 12.05.2012. 30% of the Estimate comes to Rs.3458790/-. The complainant has stated that Rs.57.5/- was paid to the opposite parties but this fact has been denied by the opposite parties. Even then the complainant has not adduced any evidence to prove payment although burden of proof was upon her to prove payment. She had not discharged her obligation under the contract. If the complainant did not make payment according to time schedule fixed under the contract, then delay in completion of the work cannot be attributed to the opposite parties.

The complainant stated that the opposite parties gave Cheque No.633420 dated 31.01.2015 for Rs.60/- and Cheque No.633495 dated 12.05.2015 for Rs.10/- lacs, towards the refund of Rs.57.5/- lacs with interest. These facts have been denied by the opposite parties. According the opposite parties, Cheque No.633420 dated 31.01.2015 for Rs.60/- was obtained under coercion and Cheque No.633495 dated 12.05.2015 for Rs.10/- lacs was obtained as advance for salvage. However, when he went to collect the salvage, the flat was locked and he was not allowed to sell the salvage. Above cheques were presented for encashment on 20.04.2015 and 12.05.2015 but were dishonoured by the concerned bank on 21.04.2015 and 15.05.2015 respectively. The complainant had remedy to proceed against opposite party-2 under Section 138 of Negotiable Instrument Act and prove the liability of opposite parties. The complainant could not adduce any reliable evidence to prove liability of opposite party.

Clause-1 of Obligations of Mrs. Chandra under the contract dated 01.05.2012 provides for 24 hours access to the flat to the opposite parties. After obtaining “Occupation Certificate” on 07.09.2011, DLF Ltd. started handing over possession to the buyers of the flats. Due to which, the working hours and access to the flat has been reduced to 12 hours. In such circumstance it cannot be said that there was deficiency in service on the part of opposite party.

ORDER

In view of the aforesaid discussions, the complaint is dismissed.