ORDER

SMT.SHARAVATHI S.M.  MEMBER

1.     This is the Complaint filed by the Complainant U/S Section 35 of Consumer Protection Act 2019, against the Opposite Parties (herein referred in short as O.Ps) alleging the deficiency in service in not completing the construction of the house entrusted to OPs even though, OP has received Rs.16,80,000/- amount towards the same, and for refund of the said amount of along with interest at 18% on the said amount from the date of remittance of the amount to the account of the OPs amounting to Rs.6,63,110/- together with compensation of Rs.4,00,0000/- along with costs of this complaint and for other reliefs as the Commission deems fit under the circumstances.

2.     The brief facts of the complaint are that:- the complainant is the owner of the Site No.1611, HAL BDA Layout, Singasandra, Bengalore-5600. He wanted to put up a construction having super area of 6780 sq. mtrs. OP agreed to get the said house constructed. The total project cost was Rs.1,09,81,905/-. They entered into two agreements (1) Booking agreement and (2) Construction agreement on 28/06/2019 and 20/09/2019. A sum of Rs.5,00,000/- was paid to him and further a sum of Rs.6,00,000/- on 13/09/2019 in all sum of Rs.11,00,000/- was paid being the 10% of the total cost of the project and Rs.5,80,000/- paid to OPs account on 21.10.2019 OP did not commenced the construction even after 23/09/2019 after entering in to agreement. In the agreement he agreed to complete the construction within 12 months with a grace period of three months from the date of agreement. OP did not start the construction as per the agreement. This all shows negligence of the person.

3.     Further there was delay of more than 6 months after having executed the said agreements to commence the constriction. For the reason of delay in construction,  he had to cancel the contract and terminated the same for which after much persuasion, OP agreed for cancellation.

4.     The construction has not taken place and the loan was cancelled. Hence he decided to cancel the project and on 05/03/2021 and sent an e-mail for cancellation of the project.

5.     It is contended that when requested for the refund the amount of Rs.16,80,000/- OP initially denied for the same. Afterwards, when he insisted for refund sent a refund extract calculation stating that they are agreeable to refund Rs.13,80,000/- only as per the email dated 27/08/2021. Even after complainant waiting  for 6 months, there was no clue of construction at the site. He had taken housing loan  from HDFC bank.

6.     There is deficiency in service on the part of op in not adhering to the time schedule of construction and also delay in not constructing and completing the said project. OP is liable to pay Rs.16,80,000/- and further compensation of Rs.4,00,000/- being the interest on the amount at 18%. He had to issue legal notice on 20/09/2021 calling upon the op’s to pay a sum of Rs.16,80,000/-. Through the OP’s have acknowledge the receipt of the notice, no positive response or reply has been issued by them. The cause of action for the complaint arose on 28/06/2019 and subsequently, hence the complaint and prayed to commission to allow the same.

7.     Upon the service of notice, OP-1 to 3 served as per postal acknowledgement. All OP’s not present before the commission, hence placed exparte.  

8.     In order to prove the case, complainant examined himself by filing affidavit evidence and produced documents. OP’s has not come forward to adduce the evidence. Arguments Heard. The following points arise for our consideration:-

1. Whether the complainant has proved deficiency in service on the part of the Opposite Parties?

2. Whether the complainant is entitled to the relief prayed for in the complaint?

9. Our answers to the above points are:-

POINT No.1: IN THE AFFIRMATIVE

POINT No.2: PARTLY IN THE AFFIRMATIVE

for the following:

                            REASONS

POINT NO.1:

10.   Perused the complaint, affidavit evidence and the documents produced by the complainant from the documents it became clear that OP being a contractor and architect, as per the agreement agreed to execute the construction work of the house of the complainant and entered into agreement and further agreed for the cost of the project inclusive of all taxes @ Rs.1,09,81,905/-. The terms of payment has also been mentioned therein. Further op has undertaken to start the project 28/06/2019 and 12/09/2019 and project completion with 12 months and further three months grace period, i.e. till October 2020 was also obtained. The design document, the architectural plan, the estimate specifications is at the rate of 1550 sq.ft  and super built up area, 6780/- sq ft. Standard package was also entered into and  the estimate is also produced, wherein, including for the stilt floor as per drawing total amount of the project is Rs.1,09,81,905/-.

11.   Letter also written by OP to the complainant, stating that they understand the frustration of the complainant and expressed regrets regarding termination of the contract.  In the email dated 23.07.2021 it is mentioned that: “Please be apprised that unipartite cancellation is a subject to approval. We are discussing the matter internally and even the immediate refund at this point of time is not a feasible option. We are exploring the entire probabilities and will bet your know the refund regarding details in a day or two. Kindly bear with us till then.”

12.   When all these correspondences and documents are taken into consideration, it becomes clear that, OPs did not adhere to the time line with which it has agreed to complete the  construction of the residential house of the complainant, even though it has received Rs,16,80,000/-. Taking into consideration, the express admission of OPs that it has received 16,80,000/- and as OP not commenced and the construction work, we are of the opinion that OP is liable to refund the amount 16,80,000/-, along with interest 18% per annum, from 28/06/2021 the date on which the complainant expressed intention of terminating the agreement with OPs.

13.   In view of the OPs not commencing the construction of the building and not refunding the said amount and OPs are liable to compensate the complainant for the mental and physical sufferance by paying a sum of Rs.1,00,000/- as compensation and Rs,10,000/- towards litigation expenses. OP though served with notice both legal and issued from this commission has not appeared and filed version defending his action.  This observation we answer POINT NO 1 IN THE AFFIRMATIVE and answer POINT NO 2 PARTLY IN THE AFFIRMATIVE and pass the following:

ORDER

1. Complaint is allowed in part of cost.
2. OP-1 to 3 are jointly and severally hereby directed to pay Rs,16,80,000/- to the complainant along with interest at 18% per annum from 28/06/2021till payment of the entire amount.
3. OPs further directed to pay Rs.1,00,000/- as compensation and Rs.10.000/- towards litigation expenses to the complainant.
4. OPs are further directed comply the above order within 30 days from the days from the date of receipt of this order and submit the compliance report to this commission within 15 days thereafter.
5. Send a copy of this order to both parties free of cost.

Note:You are hereby directed to take back the extra copies of the Complaints/version, documents and records filed by you within one month from the date of receipt of this order.

(Dictated to the Stenographer over the computer, typed by him, corrected and then pronounced by us in the Open Commission on this 20^TH DAY OF JUNE 2022)

MEMBER                 MEMBER             PRESIDENT

ANNEXURES

1. Witness examined on behalf of the Complainant/s by way of affidavit:

Copies of Documents produced on behalf of Complainant/s:

Ex P1: Copy of the Sale Deed dtd: 07.12.2012.

Ex P2: Copy of the IRC booking agreement.

Ex. P3: Copy of the main booking agreement

Ex P4: Copy of the extract of the bank statement dtd:02.07.2019

Ex P5: copy of the extract of the email.

Ex P6: Copy of the extract of the bank statement dt:18.09.2019.

Ex P7: Copy of the extract of email dtd:13.09.2019.

Ex P8 & P9: Copy of the extract of the email dt:05.10.2019 & 23.09.2019.

Ex P10: Copy of the extract of the bank statement dtd:21.10.2019.

Ex P11, P12 and P13: Copy of the extract of the email dtd:21.10.2019, 05.03.2021 & 27.08.2021.

Ex P14: Copy of legal notice dtd:20.09.2021.

Ex P15 & 16: Postal receipt and Postal acknowledgement.

Ex P17: CD

Ex P18: Affidavit u/s 65-B of the Indian Evidence Act.

2. Witness examined on behalf of the Opposite party/s by way of affidavit:

-NIL-

Copies of Documents produced on behalf of Opposite Party/s

-NIL-

MEMBER                 MEMBER             PRESIDENT

RAK*