(1.) COMPLAINANT Shri Jaswant Hans and opposite party (OP) Shri Ashok Kumar Goel, who were arrayed as parties before the District Forum, Shimla in Consumer Complaint No. 98/2007. This complaint was disposed of on 25.03.2010. District Forum below while disposing of the complaint as ordered as under: -
"Resultantly, we allow this complaint and in the given facts and circumstances of the case, we proceed to direct the OP to pay the market value extantly prevailing of the deficient area sold to him. Also the OP shall pay the balance/difference of the amount agreed to be spent on fixtures and fittings and the amount actually spent, which shall carry interest at the rate of 9% per annum, with effect from the date of filing of the complaint, till realization. The litigation cost, is, quantified at Rs. 2500/ -. This order shall be complied with by the OP, within a period of forty five days, after the date of receipt of copy of this order. The learned counsel for the parties has undertaken to collect the certified copy of this order, from the office, free of cost, as per rules. The file after due completion, be consigned to record room. "
(2.) COMPLAINANT has preferred Appeal No. 230/2010, whereas the OP has preferred Appeal No. 235/2010 as both are not satisfied with the said decision. Complainant at the time of hearing prayed for allowing the appeal and prayed for grant of relief in terms of prayer clause of the said complaint. Whereas in his appeal, the OP has prayed for dismissal of the appeal of the complainant, while allowing his appeal and consequently dismissing the complaint being frivolous. Both parties have prayed for costs as well as special damages.
(3.) RECORD of the District Forum below reveals that flat No. 322 comprising of two bed rooms, one drawing room, two toilets, one kitchen, common corridor with RCC beams columns and RCC slab half brick wall and common wall of Hotel laid in cement mortar, soft wood frames and shelters of doors and windows, measuring 96.25 sq. mtrs. (1036 sq. feet) in the second floor was purchased by the complainant and according to him he made the entire payment. In this behalf he has placed on record photocopy of sale deed Annexure C -1 with his complaint. Despite full payment and registration of the sale deed, possession of the flat was given only in the month of December, 2006. At that time he was surprised to find that what was held out at the time of sale of flat was different and at spot the flat was in a deplorable condition, because of poor quality of construction, workmanship, using old and inferior quality of material. Whenever attempt was made to contact the OP, he evaded the issue. Deficiency which was found according to the complainant has been projected in paragraph No. 5 of the complaint. In this background on account of deficiency of service, he suffered mental, physical as well as financial harassment and was thus entitled to be compensated for it. Further case of the complainant was that against the huge area of 96.25 sq. mtrs. (1036 sq. feet) area provided to him was 84.17 sq. mtrs. , i. e. 906 sq. feet in addition to deficiency in material, like sanitary fittings, fixtures etc. etc. He thus claimed Rs. 15,00,000/ - as damages from the OP. With a view to support his claim, complainant relied upon photographs Annexure C -2 and report of Shri Vivek Karol Valuer Annexure C -3.
This stand of the complainant was disputed by the OP. According to him, complaint was misconceived, groundless; Forum had no jurisdiction to entertain upon the disputes involved in the complaint, because it was not a "consumer dispute", therefore, does not fall within the provisions of Consumer Protection Act, 1986 and was exclusively triable by a Civil Court. It was a flagrant abuse of process of law and aim to harass and blackmail the OP. Complainant had no locus standie to file the present complaint which was liable to be dismissed under Section 26 of Consumer Protection Act, 1986, transaction being commercial under Contract Act. Besides this, the complainant had not come to the Forum with clean hands having concealed material facts. Reliance was placed by him on possession letter dated 28.03.2007 executed between the parties. It was admitted by the OP that he had sold flat No. 322 consisting of two bed rooms, one drawing room, two toilets, one kitchen and one corridor with RCC beams columns and RCC slab half brick wall and common wall, wood frames and shutters of doors and windows and inferior designing such as all internal wooden works, fixtures and wall carving etc. Deficiency of service as alleged on the part of OP was categorically denied. With a view to contest the claim of the complainant regarding the area being less, reliance was placed by the OP on Annexure R -2 written by him to Engineer Vivek Karol whose report Annexure C -3 was relied upon by the complainant. In response to Annexure C -2 Engineer Karol had informed the complainant that the material as mentioned to the tune of Rs. 1,67,687/ - was not the part of sale deed and it was a different head and further according to the OP it was admitted by Engineer Karol that while calculating the area, he had not taken into consideration the thickness of plaster and length of flat from the right side when you face the flat. He has also not taken into consideration the area of passage and stairs which according to Shri Ashok Kumar Goel (OP) was approximately 30 sq. feet and if the plaster thickness and the length from the left hand side of the flat was also taken into consideration, then the total super area shall be 1036 sq. feet. Para -2 of Annexure R -3 is reproduced as follows: -
"2. I have clearly mentioned in my valuation Report and the sale deed shown to me by Sh. Jaswant Hans that the value of Rs. 18,00,000/ - as per the sale deed includes the value of flat i. e. Rs. 9,00,000/ - which is RCC Beams, RCC columns, RCC slab and half brick walls, common corridor and common wall of the hotel and another Rs. 9,00,000/ - for other internal wood works, fixtures and wall carving etc. In my opinion the above specifications does not include the furnishing material such as furniture, crockery, almirahs, bed sheets etc. The valuation prepared by me for Sh. Jaswant Hans of the furnishing material as mentioned above (written in red colour) is Rs. 1,67,697/ - and is not the part of the sale deed. It is a different head. ";