NIRANJANBHAI T PAREKH AND ORS Vs. AJAYBHAI HARSHADBHAI SHAH

JUDGEMENT

(1.) THIS complaint is filed under the provisions of the Consumer Protection Act, 1986 (hereinafter referred to as the Act or C.P.A. for the sake of brevity).

(2.) THE short facts of the complainant's case are that the complainants had their own plot No.70A at Bhavnagar, details of which are given in para -2 of the complaint. The complainants decided to float a scheme of flats on their plots and as such they had given contract of those flats for construction and building them to one Kamal Trivedi who had left the work half way. The opponent thereafter was hired to complete the remaining work of the scheme. It is the say of the complainants that there were disputes between the parties in regard to payments to the opponent therefore he had filed a Special Civil Suit No.70 of 2004 in the Court of Civil Judge (S.D.) which came to be withdrawn unconditionally by the opponent as there was compromise between the parties. As per agreement dated 4.2.2003 the opponent was required to complete the work within 12 months as per condition No. 9 of the agreement. The opponent failed to complete the work of the scheme as stated by them. On this set of facts the complainants have demanded Rs.25,61,609.71 as the amount for carrying out the alleged incomplete work, Rs. 1,00,000 for mental stress and Rs.50,000 as cost.

(3.) THE opponent's reply dated 17.7.2006 is at Ex.9 wherein the opponent has inter alia stated that the complaint is not maintainable. This Commission has no jurisdiction to try this complaint. The complaint is time barred. The complainants have suppressed the material facts and as such they have not come with clean hands. The opponent relied upon the agreement which does not exist. The complainant No.1 himself is a builder and he along with his other family members had floated a scheme for construction of 16 flats on his ancestral property for commercial purpose. The complainants had entered into construction agreement dated 4.2.2003 with the opponent. The agreement was signed by the complainant No.1 as power of attorney holder of remaining complainants. It was for the consideration of Rs.36,63,000. The condition No. 9 of the said agreement provided that the builder i.e. complainants are free to sell the flat to any person at any price. The complainants under the agreement are builders and the opponent is mere contractor engaged to complete the remaining work left out by earlier contractor. The complainant's purpose of floating the scheme was to earn profits. The complainants therefore, is not 'consumer' as defined under Section 2(d) of the Act. The complainant No.4 has cancelled the power of attorney of first complainant because of certain dispute in regard to sharing of the profits, etc. The complainants are not using any of the 16 flats personally. Out of those flats flat No.102 has been sold to one Bharat Sinh Jamsinh Jadeja for which a civil suit No.39 of 2004 is pending and interim injunction has been granted by the Civil Court. The complaint is not maintainable for that flat. The complainant No.4 has stated his address at Flat No.304 but the details in regard to individual ownership of the complainants qua the flats are not given. The complainants have not paid the opponent as per the agreement. The opponent has completed 80% of the work. An amount of Rs.9,76,378 has not been paid. The cheque given by the complainants have also bounced. The report of Pankaj Sojitra is false and one sided to favour the complainants, who are his clients. Rest of the say of the opponent however is in denial.