ORDER

Complaint under  Sec.12 of the CPA 1986 as amended upto date

Per Sh. Rakesh Kapoor, President

          Complaints filed u/s 12 of the CP Act are decided by this Forum in the summary mode of procedure prescribed in the act ibid.  Where however, there are questions of facts involved in the case which need to be determined by means of an elaborate evidence including cross examination of the witnesses,  the matter can not be decided by this Forum in its summary procedure  The present one is such a case where the parties are at variance as regards  various questions of fact which can be determined only after evidence is led on both sides and the witnesses are subjected to a lengthy cross examination.  The proper remedy therefore, lies in a civil court and not in a consumer Forum.

          Let us state the facts:

      The complainant herein is employed in the office of IFCI, Nehru Place, New Delhi.  She had entered into a contract in January, 2009 for construction of first floor flat plot bearing no. 16/67-68, Gali No. 2-3, Joshi Road, Karol Bagh, New Delhi which the OP was developing.  She had made the payment on account of the aforesaid flat to the OP on 10.7.2009 against a receipt.  After the construction of the first floor a sale deed was executed between the parties on 18.12.2009 and the possession of the first floor flat was delivered by the OP to the complainant.  The grievance of the complainant is that the OP had not completed the work of POP, distemper of walls and ceiling and had not given the final coating.  It is also alleged that the wood work had also not been given final varnish painting; grills work had not been  provided in the outer windows.  It is also alleged that construction of outer ward robe in all the three rooms, tile fitting work in the kitchen had been left incomplete. Three wooden rafts and three doors penal were of inferior and defective quality.  It is further alleged that marble flooring was also incomplete besides incomplete electricity fittings.  It is also alleged that the OP had also started raising construction of the second and third floors due to which the water used in the construction of the said floors had started seeping in the walls as a result of which the ceiling of the first floor  flat had been damaged besides damage to the entire wood work of the kitchen, POP work distemper paintings in all the four rooms tiles etc.  It is alleged by the complainant that the OP had assured her that he would removes all kinds of defects, damages incomplete work , defective wooden work, marble flooring work, fittings of grills etc.  but later on backed out from his promise.  The complainant had served the OP with a legal notice but to no result. Hence, the complaint. 

     The OP has contested the complaint and has filed a reply.  The OP has taken preliminary objections which read as under:-

1. The complaint filed by the complainant against the opposite party is not maintainable under the law for the relief claimed therein as the opposite party had not entered into any written agreement to provide any service after the sale deed executed and registered in favour of the complainant for the flat and no legal obligations arose under the law against the opposite party to provide any service or repair in the flat after the sale deed has been executed and registered in her favour.
2. That no provision of law has been specified under which the opposite party was liable to repair in the flat purchased by the complainant from the opposite party after the sale deed has been executed and registered for the flat in question in the condition in which the possession was handed over to the complainant according to the sale deed in her favour and no material particulars have been specify for the liability of the opposite party enforceable under the law for any amount claimed in the complaint.

     The OP has contested the complaint on merits and has denied that it had promised to remove all kinds of defects, damages incomplete work, defectives wooden work, marble flooring work, fittings of grills etc.  as has been alleged in the complaint.  It has also denied that that it had given assurances that the  entire wooden work such as ward robes, wooden fittings and fixtures at the kitchen etc. would be completed by it. The OP has claimed that the complaint is false and frivolous and has no merits.  It has prayed for the dismissal of the complaint. 

     We have heard arguments advanced at the bar and have perused the record.

     On behalf of the complainant an affidavit has been filed by her wherein she has corroborated the contents of the complaint.  An affidavit of Sh.Mohan Malhotra, a photographer who had taken photograph of the first floor has also been filed.  The complainant has also placed on record report dated 28.6.2010 prepared by Sh. Harbans Lal Gupta, a Govt. Registered  Valuer, who has pointed out the defects in the floor in question.  An affidavit of Sh. H L Gupta in support of his report has also been filed.

      Having gone through the record it appears to us that the parties are at variance with each other on numerous facts of the case. It is the case of the complainant that a number of works were not carried out by the OP despite agreed to before possession of the flat had been handed over to her.   It is also the case of the complainant that the OP had given an assurance that he would carry out all the left over work.  The parties had entered into the agreement of construction in January, 2009. It was an oral agreement and evidence needs to be led as to what was actually agreed to between the parties as regards the construction of wooden ward robes in all the three rooms, the tiles fittings work, wooden rafts in door panel, bathrooms flooring and electricity fittings etc.  The OP has specifically denied having left the aforesaid works and having promised to carry out the same in future.

     The complainant has further alleged that because of the construction carried out in the second and third floor of the plot in question, water had seeped in to ceiling of her flat which had damaged the entire wood work of the kitchen, POP work; distemper paintings in all the four rooms tile etc. Again OP has denied this fact and has further denied the damage if any caused due to his action.

      The possession of the flat was handed over to the complainant vide sale deed dated 18.12.2009.  There is nothing in the sale deed to support the contention of the complainant that the OP had left certain works and had promised to complete the same afterwards.   The flat was inspected by Sh. H L Gupta on 28.6.2010 i.e.  after a period on about nine months of the possession having been delivered to the complainant and therefore has no co-relation with the defects existing on the day of delivery of the possession.  We are therefore, of the considered opinion that in the facts and circumstances of the case, we are not in a position to adjudicate the controversy in issue as all the allegations levelled in the complaint have been denied by the complainant and it is not possible to adjudicate said controversy on the basis of the affidavits filed on record and the summary procedure provided under the act ibid.  The complainant may take re-course to any other remedy provided to her under the law.  With these observations, we dispose off this complaint.

                   Copy of the order be made available to the parties as per rule. 

File be consigned to record room.

          Announced in open sitting of the Forum on.....................