w w w . L a w y e r S e r v i c e s . i n



Sukumar Sutradhar & Another v/s Sanjoy Saha


Company & Directors' Information:- SAHA (INDIA) PRIVATE LIMITED [Strike Off] CIN = U67120KA1991PTC012267

Company & Directors' Information:- C C SAHA LTD [Active] CIN = U36920WB1933PLC007695

Company & Directors' Information:- K K SAHA AND CO PVT LTD [Strike Off] CIN = U51109WB1938PTC009499

Company & Directors' Information:- B N SAHA CO PVT LTD [Strike Off] CIN = U12000WB1938PTC009498

    First Appeal No. A/230/2017

    Decided On, 03 July 2018

    At, West Bengal State Consumer Disputes Redressal Commission Kolkata

    By, THE HONOURABLE MR. SAMARESH PRASAD CHOWDHURY
    By, PRESIDING MEMBER

    For the Appellant: Bibhas C. Roy, Advocate. For the Respondent: Asim Kumar Chattopadhyay, Advocate.



Judgment Text

The instant appeal under Section 15 of the Consumer Protection Act, 1986 (hereinafter referred to as ‘the Act’) is at the behest of complainants to impeach the final order/judgment dated 24th January, 2017 passed by the District Consumer Disputes Redressal Forum, Kolkata, Unit – III (in short, ‘Ld. District Forum’) in Consumer Complaint No. 296 of 2016 whereby the complaint lodged by the complainants under Section 12 of the Act was dismissed on contest.

The appellants herein being complainants lodged the complaint before the Ld. District Forum asserting that by way of registered Deed of Conveyance dated 07.09.2015 they have purchased one flat being Flat No. 4E on the 4th Floor, Spectra at ‘Bhabani Exotica’ lying and situated at Premises No. 997/1, Dakshindanri Road, P.S.- Lake Town, Kolkata – 700048, Dist.- North 24 Parganas within the local limits of South Dum Dum Municipality. After purchase, for the purpose of interior decoration of the said flat, the appellants entrusted the job to the opposite party/respondent through one Shri Keshab Ghosh and Shri Bipul Biswas but there was no written contract was ever executed between the parties. The appellants have paid Rs. 4,00,000/-, Rs. 3,00,000/- and Rs. 2,00,000/- on 22.01.2016, 15.02.2016 and 08.03.2016 respectively to the respondent. By the end of April, the appellants visited their flat at Kolkata from their working place at Bankura and found that the construction of the false ceiling and modular kitchen had been satisfactorily done by the respondent but all the furniture, fittings and fixtures including machinery, carpentry and electrical items and others which were to be completed by the respondent, were found full of defects. The appellants have spell out the extensive damages being caused by the respondent which are as follows – (a) The lock attached to the sliding glass door has been left broken, necessitating replacement of the entire door unit as otherwise, the unit would remain in a defective state; (b) the door-video unit attached to the entrance door, has been left damages in course of the interior decoration work; (c) a cheap, low-quality and odd-looking basin has been installed in the dinning-cum-drawing space; (d) the window-glass of the bathroom has been left broken. Further, the floor files of the dining and living room and master bedroom also has been left broken which caused total damage of the said rooms; (e) the Opp. Party had compelled the Complainants to purchase three exhaust fans having the wrong dimensions, as a result of which the same could not be affixed in their proper place in the bathrooms and kitchen, resulting in wastage of money; (f) he had not provided the bathroom-fittings as per specifications agreed upon; (g) the book-shelf constructed in the reading room, has been poorly fixed, resulting in misalignments and odd looking gaps, and over and above, the material provided, was not according to the specifications agreed upon. Moreover, the same has also been left in an incomplete condition, and there is design mismatch between the different drawers; (h) the bed in the bedroom has been poorly constructed. It has been rendered a very weak structure. Instead of being carved out of a single plank/block of wood, the large planks at the head-side and the leg-side have been constructed by joining two individual blocks/planks. The wooden wardrobe has been similarly poorly built, having misalignment between its different movable parts, particularly the drawers; (i) the wooden cupboards affixed on the wall of the storeroom have defects in construction, suffering from misalignment between their parts; (j) the dressing table unit has been built short of the specifications; (k) the hinges are all defective, and the door locks and have been installed carelessly, making it difficult to operate them; (l) the exposed surfaces of all wardrobes and panels, bearing white colour, have been left with ugly spots and imprints, giving a very dirty look all throughout. The floor-tiles have been damaged in course of the interior decoration work, and they have been left in that condition' etc. Being dissatisfied with the job performed by the respondent when the appellants asked the respondent to compensate for such damages caused by him, the respondent misbehaved with them and on the contrary claimed an amount of Rs. 1,04,600/- as net outstanding due. The appellants have stated that they have to incur an expense of Rs. 4,00,000/- for repairing several items like basin, wardrobe including paintings etc. which have been left by the respondent in a defective and incomplete stage. Hence, the appellants being complainants lodged the complaint on the allegation of deficiency in services on the part of respondent with prayer for following reliefs, viz.- (a) an order directing the opposite party/respondent to refund the amount of Rs. 4,00,000/- only as compensation for damages against the defective interior decoration of the flat; (b) an order to pay the amount of Rs. 1,00,000/- which the appellants had to spend in making the said flat habitable; (c) a compensation of Rs. 2,00,000/- for harassment and mental agony; (d) litigation cost etc.

The respondent being opposite party by filing a written version has stated that the appellants approached him through one Shri Keshab Ghosh and Shri Bipul Biswas for interior decoration of the flat and after mutual discussion he raised a total bill of Rs. 10,88,200/- under different heads and the same was duly approved by the complainants. He has further stated that on various occasions, the complainants expressed their complete satisfaction of the work and as such complainants are not entitled to any compensation as there was no deficiency in services on the part of him.

After assessing the materials on record, Ld. District Forum by the impugned judgment/final order dismissed the complaint. To assail the said order, the complainants have come up in this Commission with the present appeal.

Ld. Advocate for the appellants has submitted that the Ld. District Forum has totally failed to appreciate the extensive damages of the flat as well as decoration job done by the respondent. Ld. Advocate for the appellants has further submitted that the Ld. District Forum has erred in law by not observing that the respondent herein deviated from the interior decoration job of the flat as proposed and agreed between the parties and failed to appreciate that payment of Rs. 9,00,000/- has already been made by the appellants for the interior decoration of the flat and as such the impugned order should be set aside.

Per contra, Ld. Advocate for the respondent has contended that as there was no written agreement, the complaint is not amenable before a Forum constituted under the Act. Supporting the observation of the Ld. District Forum, Ld. Advocate for the respondent has submitted that the appellants did not take any steps to appoint a technical person to ascertain the deficiencies on the part of respondent and as such on the basis of mere statement of the appellants, the Ld. District Forum has rightly dismissed the complaint.

I have given due consideration to the submission made by the Ld. Advocates appearing for the parties and scrutinised the materials on record.

Undisputedly, by way of a registered Deed of Conveyance dated 07.09.2015 the appellants purchased a newly constructed residential flat being Flat No. 4E on the 4th Floor, Spectra at ‘Bhabani Exotica’ lying and situated at Premises No. 997/1, Dakshindanri Road, P.S.- Lake Town, Kolkata – 700048, Dist.- North 24 Parganas within the local limits of South Dum Dum Municipality. Whether the appellants through one Shri Keshab Ghosh and Shri Bipul Biswas approached the respondent or whether the respondent had come into contact with the appellants through his two partners is not so much relevant for the purpose of ascertaining the real dispute. The fact remains that the appellants engaged the opposite party for interior decoration of the said flat for which the respondent submitted a composite estimate of Rs. 10,88,200/-. It is not in dispute that the appellants have paid Rs. 9,00,000/- to the respondent on three occasions for interior decoration of the said flat.

The evidence on record indicates that the appellants had no allegation against the respondent with regard to construction of false ceiling and modular kitchen. However, the appellants became dissatisfied with the fittings and fixtures including machinery, carpentry and other items which were to be completed by the respondent and in this regard the appellants have made extensive allegations in Paragraph – 16 of the petition of complaint.

However, as there is no written agreement between the parties it is quite difficult to ascertain the standard or name of companies from which furniture, fittings and fixtures or electrical items will be bought and installed for interior decoration of the flat. Therefore, it is quite difficult to ascertain how much deviation has been made by the respondent in the interior decoration job of the appellants. In AIR 1996 SC 2508 (Bharti Knitting Co. – Vs. DHL Worldwide Express Courier Division of Airfreight Ltd.) the Hon’ble Supreme Court has observed thus –

'In an appropriate case where there is acute dispute of facts necessarily the Tribunal has to refer the parties to original Civil Court establish under the CPC or appropriate State Law to have the claims decided between the parties. But when there is a specific term in the contract, the parties are bound by the terms in the contract'.

Having heard the Ld. Advocates appearing for the parties and on perusal of the record, I find that there are acute dispute of facts which are involved in this case. A Consumer Forum is primarily meant for disposal of a dispute in a summary way for a limited purpose and when there is no written agreement or specification as to the articles which are to be bought and installed for the purpose of fittings and fixtures in the residential flat of the appellants, it would be quite difficult to ascertain the deviation made by the respondent. In order to decide the dispute, an extensive cross-examination will be required and in this regard the evidence of Shri Keshab Ghosh and Shri Bipul Biswas will be very much essential which can only be appreciated by a competent Civil Court.

In view of the above, I do not find any reason to interfere with the order impugned. In other words, the

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Ld. District Forum has rightly observed – 'Complainants have alleged that bathroom fittings have been installed which was agreed and bedroom has been poorly constructed. If these were such, what was the hurry that complainants took the possession and did not pray for any local inspection commission in order to substantiate the allegations'. I do not find any reason to differ with the view of the Ld. District Forum in this regard. Consequently, the appeal is dismissed on contest. However there will be no order as to costs. The impugned judgment/final order is hereby affirmed. However, this order will not debar the complainants/appellants to approach the appropriate Court/Forum in accordance with law and in the process in order to overcome the hurdle of limitation they may seek assistance of a decision of the Hon’ble Supreme Court reported in (1995) 3 SCC 583 [Laxmi Engineering Works – vs. – P.S.G. Industrial Institute]. The Registrar of the Commission is directed to send a copy of the order to the Ld. District Consumer Disputes Redressal Forum, Kolkata, Unit – III for information.
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