NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION
FIRST APPEAL No. 359 OF 2003
(Against the Order dated
The Mayur Co-operative Group Housing
Society Ltd
Plot No. GH – 39, Sector 20 Appellant
Panchkula, Haryana
Through its Secretary, A. K. Gupta
versus
1. M/s Osan and Associates
Through its Proprietor Avtar Singh Osan,
Architect Respondent No. 1
15, Sector 20-A,
At present H. No. 21, Sector 20-A,
2. Avtar Singh Osan
Proprietor and Senior Architect
M/s Osan and Associates Respondent No. 2
15, Sector 20-A,
At present H. No. 21, Sector 20-A,
BEFORE:
HON’BLE
MR. JUSTICE R. C. JAIN, PRESIDING MEMBER
HON’BLE
MR. ANUPAM DASGUPTA, MEMBER
For the Appellant Mr. Maibam N. Singh, Advocate
for Mr. Joy Basu, Advocate
For the Respondents Mr. D. K. Singhal, Advocate
Dated
ORDER
ANUPAM DASGUPTA
The
appellant (hereafter, ‘the society’) was the complainant before the Union
Territory Consumer Disputes Redressal Commission,
2. We
have carefully considered the grounds set out in the memorandum of appeal, the
written version of the respondents, their respective evidence - affidavits and other
documents produced by the parties before the UT Commission and also heard their
learned counsel.
3.1. The
pleadings and contentions of the parties before the UT Commission and the
contents of their evidence-affidavits as well as other documents filed by them
have been discussed in great detail by the UT Commission. Still, some of these
need to be recapitulated. The main allegations in the complaint as well as the
evidence-affidavit filed by the society in support thereof can be summarised as
under:
(i)
The
respondents were deficient in rendering service in accordance with the agreement
in this behalf, particularly in respect of structural consultancy (detailed
drawings not being ‘upto the mark’, estimated quantity of material in the
detailed notice inviting tender – DNIT – not tallying ‘correctly’ and the
estimated cost not being ‘commensurate’ with the ‘actual expenditure incurred’
and provision of four lintel slabs in the drawings as against five required for
the proposed four-storeyed building on stilts for parking), supervision
(failure to ensure twice-a-week and ‘as-and-when necessary’ visits by qualified
and experienced structural engineer, leading to ‘glaring structural defects and
huge loss’ – as evidenced by some photographs enclosed with the complaint), quality
control (failure to observe quality control, as evident from some of the
photographs showing ‘the flooring of the stilt parking and outside road of the
complex’ giving way ‘at many places because of improper laying due to lack of
supervision and lack of quality control’, etc.) cost estimation (casual
approach, clear from the tender document which gave estimation of four lintel
slabs as against five required, as also lack of supervision, resulting in final
cost of Rs. 1.53 crore as against Rs. 1.19 crore initially estimated by the
respondents), delay in completion of the project (period of delay unstated in
the complaint) and estate services like sewerage, roads (within the premises of
the society), storm water (drainage), horticulture, lighting, other electrical
installations, etc. (failure to provide any services regarding storm water and
horticulture – horticulture works arranged by the society, failure to provide
supervision of storm water drainage works as a result of which ‘lot of trouble
caused to the members of the society’, improper design and wrong drawings of
the sewerage system and non-supervision of execution – sewer level kept much
below the required level leading to the sewerage system not working properly
and occasional ‘back-fire’ of the sewage, failure to provide proper layout of
the electrical installations, ‘proper ventilators’ in the drawings, ‘proper
electrical as well as sanitary and supply services’).
(ii)
The
estimated cost of repairs and removal of defects caused on account of the
deficiency of the respondents, as assessed by another engineer-cum-licensed surveyor,
was Rs. 5,66,266/-.
(iii)
The
society suffered loss of interest due to delay in obtaining the
completion/occupancy certificate from HUDA and had to also pay a penalty (compounding
fee) to HUDA.
(iv)
In
addition, the members of the society suffered mental and physical harassment.
3.2. Similar
grounds have been cited by the society in its appeal memorandum. The main
additional point is that while the UT Commission has devoted most of the
impugned order to recording the rival contentions of the parties, it has not
dealt adequately with any of these grounds raised in the complaint and disposed
them of by merely observing that the complainant had failed to establish “by
specific and cogent evidence the lapse on the part of the OPs in making
supervision of the construction under the agreement.”
4.1. In
this appeal, the respondents have also relied upon their written version and evidence-affidavit
filed before the UT Commission. In these documents they had raised several
preliminary objections, including the complaint being filed after the period of
limitation, non-joinder of necessary parties like the main contractor, M/s
Chattar Singh & Company, who executed the works of the society’s building
in question and the society not seeking recourse to the clause relating to
arbitration provided for in the agreement between the society and the
respondents.
4.2. On
the merits of the complaint, the respondents contended, inter alia, as under:
(i)
in
accordance with the agreement with the society, the respondents were responsible
for architectural services for and supervision of construction of structure of
the building through twice-a-week and as-and-when-necessary visits by a
structural engineer but not day-to-day supervision of the construction and that
they performed the said task;
(ii)
the
complainant did not meet its part of the agreement in respect of releasing the full
payment of the professional fees due to the respondents @ 1% of the total cost
of the construction (i.e., Rs. 1.53 lakh) though it made full payment of Rs.
1.53 crore for construction of the flats to the construction contractor, after
verification of the work done by the said contractor and also fully released
the cash retention amount after expiry of the defect liability period, which
would show that the society did not find the construction quality
unsatisfactory;
(iii)
the
said contractor M/s Chattar Singh and Co. was responsible for the construction
and hence the alleged structural defects in the construction of the flats,
internal roads, etc., as sought to be demonstrated by the photographs produced
before the UT Commission, could have been due to deficiency on the part of the construction
contractor or normal wear and tear after the construction was completed;
(iv)
the
respondents complied fully with the construction specifications prescribed by
the Public Works Department (PWD) of Haryana and the building bye-laws of the
Haryana Urban Development Authority (HUDA) as a result of which the HUDA
officials gave the necessary stage-wise approval of construction of the
building after inspection;
(v)
the
variation between the estimated and actual costs of construction could not be
held against the respondents because the former are always based on standard
assumptions while during construction changes occur because of variations in the
quantity and quality of the material actually used and the prevailing market
prices for which the respondents were not responsible;
(vi)
the
delay in completion of the construction (19 months as against the tendered
period of 12) was on account of disputes between the society and the
construction contractor relating to release of payments claimed by the latter,
as evidenced by the letters written by the latter to the society (copies of two
such letters produced);
(vii)
the construction
was completed on 18.12.1999 and the completion/occupation certificate was
issued on 30.03.2000 and thus the delay, if any, in obtaining the completion/occupation
certificate from the HUDA was minor and could not be held against the
respondents because the agreement did not require the respondents to obtain the
said certificate for the society and, in any case, the respondents did furnish
to the society all documents necessary for the DPC, which was issued within
three months approximately of the construction being actually completed;
(viii)
as
the completion certificate was issued after inspection of the completed
construction by the HUDA officials concerned, the society could not claim that
there was any variation between the approved site plans, architectural drawings,
etc., and the actual construction;
(ix)
the report
and cost estimates of repairs to the building, etc., obtained by the society
from a licensed surveyor and loss assessor (and produced before the UT
Commission) could not be accepted because the latter was technically not
qualified to opine on the nature of defects and corresponding rectifications as
he was not authorised under his licence to do so and, in any case, the claim
for damages on that account was hypothetical because the society had not
produced proof of having incurred any expenditure on that score and further,
even in his report, the surveyor had attributed the defects to the construction
contractor;
(x)
the
society’s claim for damages on account of loss of interest lacked proof as did
its claim for damages on account of additional fees alleged to have been paid
to the HUDA for ‘compounding of deviations’ in construction vis a vis the
sanctioned plan ;
(xi)
the
lintel slabs were provided for in the detailed drawings and cost estimates
based thereon; and
(xii)
the
ventilators as well as sewerage inverts were designed and provided in
accordance with the specifications and site conditions.
4.3. By
separate applications submitted to the UT Commission, the respondents claimed
that the cracks in the building and internal roads sought to be demonstrated by
the society through photographs produced before the UT Commission could have
been on account of a variety of factors and requested examination of the
alleged defects in the construction by a panel of independent experts for which
they also submitted a list of names. The papers filed along with the appeal
memorandum by the society include these applications but no copy of rejoinder,
if any, of the society to these documents filed by the respondents – in other
words, they seem to have gone unrebutted. There is also no paper filed by the
society with its appeal memo to show whether the UT Commission passed any order
on this application of the respondents for expert examination/evidence.
5.1. In
the impugned order, the UT Commission has rightly overruled the preliminary
objections and proceeded to adjudicate the complaint on the basis of the
agreement between the society and the respondents, as the agreement specified
the respective rights and obligations of each party. A copy of this agreement was
filed by the society before the UT Commission, as it has been before this
Commission along with the appeal memorandum.
5.2. This
document shows the following:
(i)
In the
agreement, the society is termed as ‘the Execution Agency’, and the respondents
as ‘the Executing Agency’ and also “an architect”. It has 13 principal clauses
(I to XIII), covering ‘Architectural Services’, ‘Structural Consultancy’, ‘Specification’,
‘Quality Control’, ‘Cost of Project’, ‘Time Period/Completion Period’, ‘Rate’,
‘Estate Services’, ‘Electrical Services’, Sanitary and Water Supply Services’,
‘PERT / Bar Chart’, ‘Penalty (applicable to architect only)’ and ‘Arbitration’.
(ii)
Under
‘architectural services’ and ‘structural consultancy’, specific sub-clauses
dealing with ‘scope of work’ and ‘supervision’ required to be provided by the
respondents have been detailed while in the clauses for the remaining services,
the scope of work has been described in the body of the respective clauses.
(iii)
The
scope of work under ‘architectural services’ provides for specified types of
‘detailed working drawings’ and ‘detailed drawings’ of public health (i.e.,
sanitary) services, electrical services, central cooling, joinery, elevations,
lift installation and detailed design and layout of fire fighting system, on
the one hand, and preparation of detailed estimates, specifications and tender
documents and assistance in evaluating tenders bids and giving recommendation,
on the other. ‘Structural consultancy’ includes detailed calculation as well as
providing structural drawings. The supervision services under both these heads provide
for twice -a - week (and also ‘as and when necessary’) site visits by ‘architect/qualified
civil engineer or his representative’ and ‘experienced and qualified structural
engineer’ respectively.
(iv)
The Haryana
PWD specifications are to be followed. Quality control tests (sand, cement,
steel, aggregates and cube) are to be carried out by the construction agency at
its ‘cost’ while the records and test reports are to be checked by the architect.
(v)
The
rates to be adopted for estimation of costs are specified to be as per the
Haryana PWD schedule and prevailing market rates and cost of the project would
be “intimated after preparation of detailed working drawings alongwith the
specification as approved by the
concerned department/architect.” (emphasis supplied).
(vi)
The
descriptions of the scope of work under ‘IX. Electrical Services’ and ‘X. Sanitary
and Water Supply Services’ make it amply clear that they pertain almost
entirely to the electrical and sanitary/water supply facilities in (or directly
relating to) the building. On the other hand, the scope of work under ‘VIII. Estate
Services’ is recorded as, “The estate services like sewerage, roads, storm
water, drainage system, horticulture, campus lighting, etc. will be provided in
the schedule time, i.e., 12 months period to complete the project.”
(vii)
Finally,
clause XIII provides for arbitration and reads, “In case of any dispute the
matter shall be first referred to the sole arbitrator, i.e., the President of
the society and his decision shall be final and binding on both the parties.”
6.1. Comparison
of the copy of the agreement with the relevant parts of the Proposal - cum - Offer
document apparently sent/submitted by the respondents to the society (copies of
both filed by the society before the UT Commission) would show that some important
changes vis a vis the terms of the said Offer document were incorporated in the
agreement, particularly in respect of the scope of work of architectural
services and structural consultancy as well as the payment schedule therefor. Though
not present in the Offer document, the scope of architectural services in the
agreement included preparation of detailed estimates and of specifications and
tender documents and giving assistance in evaluating the tender bids and
recommendations (obviously regarding final selection of the contractor). In the
payment schedule for architectural services, proportionate payment of 40% of
the fees was linked to casting of each slab. The last - stage payment term was
also modified to: “Balance 25% will be paid at the time of completion of the project and receipt of completion certificate from
HUDA.” (emphasis supplied). In the case of structural consultancy, the
extra lumpsum payment suggested in the Offer document was not included in the
agreement. The period of completion of the project was specified at 12 months
as against 15 months suggested in the Offer document. A new clause relating to
sole arbitration of all disputes by the President of the society was
introduced. However, the clause relating to the estate services remained as it was
in the Offer document of the respondents.
6.2. The
society has also filed before us a copy of the final tender document submitted
by the selected contractor, M/s Chattar Singh & Co. that was produced
before the UT Commission. This tender document was a pre-typed “DNIT”
(incorporating, inter alia, general and special terms and conditions, bills of
quantities – BoQs, etc.). This was obviously prepared by the respondents and
only the item rate column was filled in by the selected contractor (along with
other bidders, if any). The document shows that the respondents were authorised/required
to (i) issue the tender forms to the bidding contractors, (ii) check the
layouts done by the contractor (with the help of the contractor’s employees),
(iii) carry out verification and checking of all bills of the contractor, (iii)
to advise whether the reasons advanced by the contractor for extension of the
period of contract for reasons beyond the contractor’s control, (iv)
increase/decrease the quantity of material in the schedules attached to the
tender document “as per working architectural/structural drawings or as per
instruction of the architect or his engineer in-charge”, (v) approve the
quantity of all material to be used by the contractor (which had to be as per
“ISI mark or equivalent as specified by the society” and (vi) approve all CP
fittings , chinaware and other sanitary fittings as well as all electrical materials
(of which there is a long summary at the end of Schedules II and IV attached to
the DNIT). It is also noticed that the copy of this document filed before us
has no schedule detailing the BoQ for either the works of sewerage, storm water
drainage, etc., or of horticultural works, together broadly categorised in the
agreement between the parties as “Estate Services”.
7. The
foregoing discussion leads us to the following conclusions:
(i)
The
cost estimates for the entire project and the tender documents (DNIT),
including BoQ Schedules, various detailed drawings, etc., were prepared by the
respondents under the agreement. It is also clear from Schedule I, i.e., the
BoQs for civil construction of the main building that the respondents recorded
the quantity of RCC work for the lintel slab of the floor above the stilts as
“Nil” (vide item at sr. no. 7(a) of the BoQ). This is clearly a deficiency,
which affected the cost of the works and yet was never satisfactorily explained
by the respondents in their written version though the society highlighted this
point in its complaint.
(ii)
Further,
though clause V. Cost of Project in the agreement required that the cost “will
be intimated after preparation of detailed working drawings alongwith the
specification as approved by the department/architect”, there is no evidence that the
final cost was intimated by the respondents to the society after acceptance of
the tender of M/s Chattar Singh & Co. Had this been done, the cost
implication of the missing lintel slab of the floor above the stilts would have
come to light immediately. This coupled with the omission in the BoQ of the
DNIT would clearly show another deficiency in fulfilling the requirements of
the agreement.
(iii)
Moreover,
the estimated cost put to tender was Rs. 1.20 crore, as is evident from the
DNIT (“Memorandum”). The “Scope of Work” defined in the DNIT specifically
provided, “No claim on account of variations due to additions and alterations
in the construction drawings necessitated to meet the requirements of the society
shall be entertained.” If that were so, the question arises as to how the cost
of the construction went up from Rs. 1.20 crore to Rs. 1.53 crore (i.e., by over
19%).
(iv)
The
blank tender forms were issued/sold from the office of the respondents and they
advised the society on selection of M/s Chattar Singh & Co., as the
contractor finally entrusted with the contract for construction. The tender
form (DNIT, etc.) placed additional duties and responsibilities on the
respondents, as discussed in the preceding paragraph 6. Till this stage, i.e.,
award of the contract for construction, the respondents were undisputedly the
only qualified technical agency advising and assisting the society. What is,
however, unclear is how and under what circumstances the society thought it
necessary to appoint some other person(s) to provide day-to-day supervision
over the entire construction, limiting the role of the respondents strictly to
the periodic visits, as strenuously averred by the respondents. The society is
a cooperative society of individuals, not a professional builder/developer of
real estate. Clearly, the flats were being built for the use of individual
members and the natural tendency of the society’s management in such a
situation would be to ensure good-quality, hassle-free construction. At no
stage in the proceedings before the UT Commission did the respondents disclose
the name(s) of the person(s) in charge of supervising the construction on a
day-to-day basis, despite their averment that there was such a person (or,
persons). Even if one were to accept this assertion of the respondents that
some other person was indeed appointed by the society to supervise the
day-to-day construction and ensure that all went well, the fact remains that
the respondents were still responsible to check the quality and quantity of all
material brought on site by the contractor and examine, verify and certify each
running bill of the contractor before payment. It does not stand to reason that
such an experienced company of architects as the respondents, if they were true
to these obligations under the agreement and the DNIT, would not at once
recognise the pitfalls in carrying out their supervisory duties faithfully and
professionally if another unconnected person were to supervise the day-to-day
construction and its quality.
(v)
The
respondents produced before the UT Commission two letters written by the
contractor M/s Chattar Singh & Co. to the society. The first letter dated
18.06.1998 is regarding delay in release of interim payments. The second dated
06.11.1999 is a final notice issued by the said contractor raising a host of
issues, the main thrust of which appears to be the engagement of some person by
the society to measure and verify the works carried out by the contractor and
consequent difference relating to the value of the works carried out and
payment therefor. The aim of the respondents appears to be to demonstrate how
the society itself was responsible, and not the respondents, for the delay in
completion of the project. The second letter, however, also shows that it was
only towards the end of the construction, i.e., in October - November 1999 (according
to the respondents, the construction was completed in December 1999 and the
completion/occupation certificate was Issued by the HUDA on 30.03.2000) that
there was explicit evidence of the society having engaged the services of a
person other than the respondents to verify the contractor’s bills for
construction and the payments claimed therefor. Had there been any other documentary
instance of the society having engaged the services of any person other than
the respondents, surely the latter would have been in a position to point that
out by producing a similar document. As noticed in paragraph 6.1 above, this
verification of the contractor’s bills was squarely the responsibility of the
respondents, specified in the DNIT which they themselves prepared in accordance
with the agreement clause already discussed. The question that arises then is:
why did the society find it necessary to engage another person towards the fag
end of the construction to do what the respondents were enjoined to do
according to the responsibilities cast upon them under the DNIT drafted by
themselves and put out to bidding contractors? To us, the likely answer does
not help the respondents’ case at all.
(vi)
Another
question that needs to be posed is why the schedules in the DNIT (copy produced
before the UT Commission) do not include that relating to the Estate Services,
namely, sewerage, storm water drainage, horticultural works, etc., mentioned in
the agreement. It has been noticed earlier that this copy of the DNIT was not
objected to by the respondents before the UT Commission. The unanswered
question is: is it then to be inferred that the respondents did not prepare and
issue any detailed schedule/BoQ or drawings of the works to be carried out
under this category of essential services and include them in the DNIT? It has
also been noticed that the wording of the clause in the agreement relating to
these services is so vague that any interpretation is possible (vide paragraph
5.2(vi) above). And, it is in respect of these services that the society’s
allegation regarding lack of supervision to ensure the right slope of the sewer
within the society’s premises and the society having to get at least some of
these works done separately need to be viewed.
(vii)
The
respondents took strong objection to the affidavit and report of one Sarvinder
Singh, a Government approved surveyor and loss assessor who was asked by the
society sometime in late 2002 (the affidavit of Sarvinder Singh being dated
02.01.2003) to examine the construction of the parking area (apparently under
the stilts), internal roads and sewerage and storm/rain water drainage works.
The affidavit (copy of the report is not before us) listed three main sets of
defects, viz., the cement concrete (CC) under the parking area had given way at
nearly all places; the concrete work under the roads had also similarly given
way leading to pot holes; and the slope of the sewer line connected to the main
sewer was not proper, leading to back flow of the waste water. The said
surveyor concluded that the concrete works would need to be dismantled and
re-laid and so would the sewer and storm water drains leading to the municipal
mains and gave an estimate of Rs. 5.16 lakh approximately as the likely cost.
This was challenged by the respondents on the ground that the surveyor, being a
Diploma Holder in Civil Engineering, was not qualified enough to come to the
conclusions regarding the causes of distress to the said concrete works and,
particularly, the remedial measures, i.e., complete dismantling and re-laying.
In their written version, the respondents also emphasised that the society was
not entitled to claim any compensation on this account because it had not
produced any evidence of actually undertaking the said repairs and incurring
the expenditure. Finally, the respondents claimed that even the surveyor had
held these defects to be the result of poor workmanship of the contractor but
not that of any deficiency on the part of the respondents. It appears to us
that the remit of the surveyor was limited – he was asked to carry out a
detailed visual inspection and suggest remedial measures. Naturally, the
surveyor did not carry out a detailed survey of the theoretically possible
causes (as was attempted by the respondents in their additional affidavit
objecting to the surveyor’s report), followed by prolonged sample testing of
the distressed concrete, examination of seepage of water underneath, etc.,
before making his recommendations The point which would, however, strike even a
lay observer is why the CC work underneath both the parking area and the
internal roads should give way at almost all places within 2-3 years of
completion of a new construction and why should the waste water from the
building flow back. Even if it is assumed that these were due primarily to the
contractor’s faulty workmanship, were the respondents not all responsible to
prevent such workmanship through proper supervision under the agreement? The CC
works under the parking area as well as under the internal roads were
specifically provided for in the BoQ prepared by the respondents and would
surely constitute part of the ‘structural works’ – for, it is not merely the
reinforced CC (RCC) works of columns, beams, lintel/roof/floor slabs, etc., of
the residential building that constituted the ‘structural works’ of a project
comprising not a residential building as well as several other works involving
laying of CC after proper preparation of bedding, etc. The respondents were
thus squarely responsible for supervising the construction of these structural
works outside the building as well, as part of their obligations under the
agreement, by deputing a qualified and experienced structural engineer to the
site, at least twice a week and also as and when necessary. That these CC works
gave way within 2/3 years of their laying does not, in our view, signify
adequate structural supervision by the respondents and for this conclusion it
is also not necessary to establish the most likely cause thereof, out of a host
of theoretical possibilities that the respondents were at pains to point out in
their additional affidavit. Similar conclusion is also more probable in respect
of the defective sewerage and drainage items of construction in the project.
(viii)
The
estimated cost of the project put to tender was Rs. 1.20 crore. It is not
disputed that the final cost came to Rs. 1.53 crore. Unfortunately, neither
party cared to spell out the item-wise and the total cost of the accepted
tender of the construction contractor and the final cost paid to the latter.
That would have been the only valid basis to compare the tendered cost with the
final cost and see what led to the difference. Suffice it to observe, however,
that if the higher cost was due to variation in the quantities of items
provided for in the BoQs put to tender, it was the responsibility of the
respondents to check them before allowing the contractor to execute such items
of work or disallow the claims altogether, in accordance with the clause
referred to in paragraph 7. (iii) above.
(ix)
The
agreement between the society and the respondents did require the latter to
pursue the HUDA for obtaining the completion certificate for the society’s
building. Otherwise, the provision in the agreement governing the payment of
the last instalment of fees would not have been worded as it was.
(x)
Only
one certificate of the HUDA relating to stage-wise completion of the building,
viz., the DPC certificate was produced by the respondents (full expansion of
‘DPC’ not furnished by them). This certificate related to completion of
construction only upto the plinth of the building (and recorded that the
construction upto that level was according to the sanctioned plan). However,
the allegations of the society related to deficiencies in services rendered by
the respondents in preparation of estimates and lack of supervision leading to
poor quality in later stages of construction. This certificate is thus not
enough to support the respondents’ assertion that the HUDA had issued the
necessary certificates at each stage of construction, after due inspection and
finding the construction in accordance with the sanctioned plan. Moreover, a
certificate that a construction is ‘according to sanctioned plan’ does not
imply proper quality of construction nor is it a guarantee by the certifying
agency that supervision of the construction was as warranted. Further, a copy
of the final completion/occupancy certificate was not produced before the UT
Commission. This assumes importance as one of the allegations was that the actual
height of the building exceeded that sanctioned, which was one of the reasons
that the society had to pay a compounding fee to the HUDA before obtaining
completion/occupancy certificate.
8. On
the other hand, we also find that the complainant-society did not convincingly establish
its allegation that the various defects mentioned in the complaint were all
attributable to the respondents who failed in discharging their duties and
responsibilities under the agreement. Thus, there was no evidence of long delay
in obtaining/receiving completion certificate which could be a ground for any
compensation as alleged. There is also no evidence that the respondents did not
furnish the documents necessary for obtaining the said certificate from the
HUDA. The society did not produce a copy of the communication from the HUDA
demanding compounding fee for the alleged deviation from the sanctioned plan
nor did it produce a copy of the receipt of having paid the said fee. There was
also no evidence before the UT Commission of the society having suffered any
loss of interest, etc., as alleged. The respondents also stayed on with the
project till its physical completion and the completion certificate was
received after a gap of less than 3 months. Hence, under the relevant clause of
payment, the society was bound to release the balance instalment of fees to the
respondents, particularly when it released the payments due to the contractor
in full, including the defect liability retention money, inspite of the
disputes that had arisen between the contractor and the society and the
construction defects that came to notice. The society did not also effectively
disprove the contention of the respondents that there was some sort of
supervision over the construction by some person(s) engaged independently by
the society, at least for a part of the period. In other words, each party to
the dispute had something to blame itself. It may have perhaps been more
expedient for the society to have sought arbitration under the relevant clause
in the agreement, which was clearly got included at its own initiative.
9. However,
much time has lapsed since the construction was completed and the complaint was
filed. The benefit of remanding the matter back to the UT Commission for a
considered fresh adjudication of the contentions of the parties and their
evidence, in the light of the foregoing observations, would not be commensurate
with the further lapse of time and collective expenditure that this would
entail. On balance, therefore, we set aside the impugned order of the UT
Commission by holding that the respondents were guilty of deficiency in service
to the extent detailed in sub-paragraphs 7(i), 7(ii), 7 (vii) and 7 (viii)
above but hold that the said deficiencies would not make the respondents liable
for damages or compensation claimed by the society.
10. We
accordingly order that the respondents shall pay to the society a sum of Rs. 1
lakh as lumpsum compensation for the above-mentioned deficiencies on their part.
Out of this, the respondents would, however, be entitled to retain half of the
unpaid fees due to them, i.e., Rs. 39,000/- and pay the balance Rs. 61,000/-,
resulting in full settlement of the respondents’ fees. In addition, the
respondents shall pay costs of Rs. 9,000/- to the society. The payment (Rs.
70,000/-) shall be made within four weeks of this order.
..............................................................
[R.
C. JAIN, J]
..............................................................
[ANUPAM
DASGUPTA]