Ishan Chandra Das, President

This Appeal has been directed against the Judgement and Order dated 2.11.2018 passed by ld. D.C.D.R.F., Hooghly at Chinsurah, in C.C. 217 of 2014 where ld. Forum concerned while disposing of the said Complaint Case allowed it in part on contest against the OP, directed the OP to complete the remaining work and the repairing of damaged portion of the building of the complainant within a month after getting Rs.2,00,000/- (Rupees two lakh) from the Complainant and after completion of the remaining work, the OP would get another Rs. 1 lakh (Rupees one lakh) from the Complainant for charges of extra work and the Complainant was directed not to interfere with the work of the Op as the work would be done according to the Agreement, made between the parties.

Being aggrieved by such order the Complainant preferred this Appeal.

Briefly stated the case of the Appellant/Complainant (and hereinafter referred to as the Complainant) was that the complainant being the owner and occupier of the plot referred to in the Schedule of the Petition of complaint entered into an Agreement with the OP on 8.7.2012 for the purpose of construction of a two storied building measuring 800 Sq.ft. per floor covered area and the rate of construction for the ground floor is Rs.1000/- per sq.ft. and Rs.800/- per sq.ft. for the first floor and the total estimation was that the complainant would pay a sum of Rs.18,00,000/- (Rupees eighteen lakh) for the construction of the building including labour charges, building material costs and other ancillary charges , inside wall putty, cement priming painting finished with plastic emulsion . The total cost of construction of building was Rs.18 lakh (Rupees eighteen lakh) as per the covered area given in the sanctioned plan. That the construction of the building was due to start from the July 2012 and to be completed by 31st March, 2013. The complainant paid a sum of Rs.16 lakh (Rupees sixteen lakh) out of the total estimated costs of Rs. 18 lakh (Rupees eighteen lakh ) but despite such payment a considerable portion of the construction of the building remained incomplete till 31st December 2013. The OP though agreed to provide best quality of house building materials , supplied low quality materials causing the defective degraded and sub-standard construction. The OP stopped the works of construction on 31.12.2013 after making an intentional and prolonged delay , claimed Rs.2 lakh (Rupees two lakh) from the complainant and tried to realise the same with the help of some anti-socials . The complainant served an Advocate’s notice dated 25.3.2014 asking the OP to complete the works and construction on the complainant’s property within 15 days from the date of receipt of such notice to which the OP by a letter through his Advocate dated 27.5.2014 claimed further sum of Rs.4,98,800/- (Rupees four lakh ninety eight thousand eight hundred) from the complainant, showing absurd expenditure of the construction. The complainant lodged a diary on 16.4.2014 before the Serampur Police Station alleging that inspite of keeping the construction incomplete, the OP was avoiding to have any discussion as proposed by the complainant and being annoyed he showed criminal intimidation to the complainant. When the complainant demanded a sum of Rs.15,93,600/- (Rupees fifteen lakh ninety three thousand six hundred) for defective construction by the OP in the entire building and for also completion of undone works . Showing the deficiency of service as categorically alleged in the petition of complaint that the complainant expected a beautiful house for her living but the action of the OP was not fulfilled to the expectation of the complainant, rather it was detrimental to her interest though the OP claimed another sum of Rs.4,98,800/- (Rupees four lakh ninety eight thousand eight hundred) through his ld.Advocate’s letter dated 22.5.2014. The complainant also claimed that the OP while constructing the building tried to use sub-standard materials though it was agreed upon between the parties that the OP would provide best quality of house building materials, to be used in the construction of the building, installation of electricity etc. and such improper action of the OP being detrimental to the interest of the complainant , forced her to take recourse of the D.C.D.R.F. concerned, seeking reliefs in terms of her application U/s 12 of the C.P.Act, being C.D.F.Case no. 217 of 2014.

The OP /Respondent /Developer filed a written version to contest the Complaint case before ld. D.C.D.R.F. and contended that the Complaint case was not maintainable . Denying the cause of action as averred in the body of the application, the OP categorically denied all the material allegations as averred in the Petition of complaint but in the said Written version the Op admitted that he entered into an Agreement with the complainant for construction of two storied building measuring 800 sq.ft. per floor at the rate of Rs.1000/- per sq.ft. Denying the allegation of gross deficience in service, the OP claimed that the complainant was reluctant in payment of the total cost of construction and she failed to pay the same as per Agreement which caused hardships for him in constructing the building which was about 996 sq.ft. covered area in the ground floor of the building and the first floor covered area was 1053 Sq.ft. and the total cost was to be paid Rs.19,48,800/- (Rupees nineteen lakh forty eight thousand eight hundred only) and a sum of Rs.1,50,000/- (Rupees one lakh fifty thousand ) towards extra works done, and the OP was entitled to Rs.4,01,360/- (Rupees four lakh one thousand three hundred sixty) . Denying and disputing all other material allegations this OP prayed for dismissal of the Complaint case, the same being filed to cause harassment of the OP upon certain baseless allegations against him.

Upon consideration of the materials on record ld. D.C.D.R.F allowed the Complaint Case in part on contest and directed the complainant to pay some amount as referred to in the earlier part of this judgement and being aggrieved by such direction the Complainant preferred this Appeal as noted earlier.

Now the point for consideration is whether ld. D.C.D.R.F. was justified in passing such order.

The fact remains that the parties to the proceeding entered into an Agreement and as per said Agreement the Op herein agreed to construct the building on the plot in question as referred to in the Schedule of Petition of complaint measuring 2 cottah 12 sq.ft. at holding no. 54L/15 S.C.Chatterjee Lane, Serampur under Serampur Municipality, District Hooghly. The complainant claimed that the Op agreed to construct the said building at the rate of rs.1000/- per sq.ft. for ground floor and Rs.800/- per sq.ft. for the first floor and the total covered area with estimation that the complainant would pay a sum of Rs.18 lakh (Rupees eighteen lakh) for construction of the building including labour charges, building materials , other ancillary charges , inside wall putty cement priming painting finished with plastic emulsion, to be completed within March, 2013. As per the Petition of complaint , the complainant paid a sum of Rs.16 lakh (Rupees sixteen lakh) out of total estimated cost of Rs.18 lakh (Rupees eighteen lakh) as per agreed terms and conditions and Rs.2 lakh was due and the OP tried to realise that amount with the help of some outsiders/anti-socials without completing the building as per agreement. It is the complainant who alleged that the sub-standard building materials were used by the OP for construction of the building.

Ld. Counsel appearing for the Appellant/Complainant in course of argument relied on a catena of decisions of the Hon’ble National Commission and tried to impress that the complainant has been made victim of circumstances as she was not given possession of the building as per agreement dated 8.7.2012 . Relying on the decision of the Hon’ble National Commission in Paban Kumar and Anr. –Vs- Raheja Developers Ltd & Anr. , reported in 2019(3)CPR 341 (NC) , he tried to impress that the Developer did not have liberty to prolong construction of area to an indefinite period without paying compensation for such a deficiency on its part in rendering services to the complainants. He further argued that the Complainant filed the instant Petition of complaint before ld.D.C.D.R.F. for claiming reliefs which included compensation for delayed construction and for not giving proper materials but sub-standard materials, as per agreement in constructing the building but ld. D.C.D.R.F. instead of giving direction to the OP to pay such compensation or other reliefs, directed the Complainant to pay a sum of Rs.3 lakh (Rupees three lakh) towards completion of remaining work and the charges of extra works done. Such an argument was counter-acted by ld. Counsel for the OP/Respondent (Developer) who submitted that the complainant did not pay the entire consideration as per agreement and the complainant should pay another considerable amount for the extra works done in the premises which was done at the instance of none but the complainant.

We have considered the submissions of the ld. Counsel for the parties. Undoubtedly the Consumer Courts are meant for protecting the interesting of bon-fide consumers and to protect them from the clutches of the unscrupulous traders/developers but at the same time the Consumer Courts cannot give undue advantage to the defaulting consumers as well. Here the complainant admittedly agreed to pay a sum of Rs.18 lakh (Rupees eighteen lakh) to the OP within certain specific period but she did not pay the entire amount to the OP for construction of the building, as per specification given in the Agreement. It is surprising to note that Appellant/Complainant did not file the copy of the Agreement dated 8-7-2012 for our perusal and to decide the matter in controversy between the parties. Whether the OP/Developer did not construct the building as per specification or not or whether any sub-standard materials were used in such construction or not shall be decided with the aid and assistance of a competent Engineer (Civil) in the field and the com

plainant is under contractual obligation to pay the entire consideration to the OP within the time frame and to pay for extra work , if any , where the OP was directed by the complainant to do so. Hence, instead of deciding the disputes between the parties we feel it proper to send the Complaint case on remand for fresh decision by ld. D.C.D.R.F. which shall obtain a report from a competent Engineer in the field regarding the matters in controversy. Ld. D.C.D.R.F. is further directed to appoint a competent Engineer (Civil) for ascertaining the grievance of the Complainant and to decide the case on merit. The Cost of such commission shall be borne by the Appellant/Complainant and thus we dispose of the Appeal by allowing it, setting aside the judgement impugned and sending the case back on open remand for fresh decision of the case as quickly as possible but preferably within a period of six months from the date of receipt of this order. With the above observations, we dispose of the Appeal. Parties do bear their respective costs of this Appeal. To 16.3.2020 for appearance of the parties before ld. D.C.D.R.F., Hooghly.