BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION AT BANGALORE (URBAN)

DATED 22^ND DAY OF MAY 2023

ORDER

SMT.M.SHOBHA, PRESIDENT

1. The complaint has been filed under Section 35 of C.P.Act (hereinafter referred as an Act) against the OP for the following reliefs against the OP:-

1. Direct the OPs to pay to the complainants a sum of Rs.49,74,064/- with interest at 24% p.a., toward compensation for loss etc.,
2. Pass such other direction that this Hon’ble Commission deems fit to grant in the interest of justice and equity.

2. The case set up by the complainant in brief is as under:-
3. Complainant No.3 is the owner of the property bearing No.947, 1^st Main, 6^th Cross, Opp IIFL, Kengeri Satellite town, Bengaluru, due to his illness he authorized Complainant No. 1 and 2 to look after the property and to construct a house.
4. Complainant availed services of Ops for construction of a residential building in the said property as per the plans and paid Rs.3,00,000/- during January 2020 as advance amount. Further in the month of November and December 2020 paid further advance amount of Rs.10,20,000/- to the OPs. Ops have entered into service Agreement dated 02.12.2020 with the OP1 and 2 for construction of a residential building and the project will commence in the month of December 2020 and will be completed before March 2022 with grace period of three months. As per demand complainant No.1 and 2 have paid a sum of Rs.4,40,950/- to the Ops. Totally complainants have paid a sum of Rs.17,78,450/- to the Ops in different dates.  Believing the words of the Ops complainants waited for the report regarding the progress of the project.  However the Ops have not furnished the report instead they have been giving them the working detailed report.  OP informed that the construction work has been hampered due to the covid-19 and once impositions were relaxed the work will be commenced in full swing. Complainant enquired about the restrictions imposed by the government, it was informed that there is no restrictions imposed for construction activities. Hence complainant No.1 enquired about the progress of the project with the OP, but none have gave her any specific reply. Hence complainant sent emails to OP office, for which no response from the OP.  Complainant also written a letter dated 22.04.2021 enumerating all the aforesaid aspects, which they have received with demur. During July 2021 complainant NO.1 visited the site, there was no work done at the site. Hence complainant NO.1 and 2 visited the Office of the OP, but the OP personnel have threatened the complainants. Complainants are paying electricity connection to the site and spent Rs.72,000/- towards electricity and Rs.10,000/- towards water connection.
5. Hence complainant got issued legal notice dated 09.08.2021 demanding the OP to complete the construction as per plan, but the OP did not care to even commence the construction work.  OP replied to the notice through email dated 23.08.2021. Hence this complaint.

6. In response to the notice, OP appears and files version and submits that the complainants have filed this complaint with ulterior motive to gain at the cost of the Ops. Complainants have concealed the material facts and they have not come before this Commission with clean hand which is nothing but pure abuse of the process of law. Ops have admitted that the complainants have paid Rs.16,66,469/- only till June 2021 and have denied that they have paid Rs.17,78,450/- to the Ops.
7. It is also the case of the OP that the complainant No.1 and 2 have made the payment of Rs.3,00,000/- towards booking amount which is nonrefundable and further an amount of Rs.10,20,000/- was paid through online payment after execution of Service agreement dated 02.12.2020 as per the service agreement it was agreed between both the parties that the total cost of the project will amount to Rs.61,80,331.95 ps. Out of the total consideration amount only an amount of Rs.16,66,469/- was paid till June 2021 as per the payment schedule annexure 3 annexed by the complainant.  The construction work started from the month of December 2020 itself after execution of the service agreement and payment of continuation work was being demanded from the complainants.  This OP has failed to complete the said construction work on the given time due to nonpayment of construction cost as per the agreed terms of the service agreement.  In addition to this, due to impacts of covid-19 pandemic the cost of the materials had escalated and the complainants did not make any further payment for the stalled work due to which the project got delayed.   Due to the nonpayment of construction cost as agreed by the complainant, the work was getting affected, hence it was becoming difficult for the OP to arrange for alternative labours.  The delay by the OP to complete the project of the complainants are not intentional because of the circumstances and nonpayment by the complainants as well as impacts of covid-19 and related regulatory responses.
8. It is further case of the OP that they have utilized the amount paid by the complainant for purchasing various construction materials which are still lying at the construction site due to halt of the work  due to further non payments. This OP is ready to complete the project even today if the cost is paid by the complainant. Hence the OP prays for rejection of the complaint.
9. The complainant No.2 in support of their contention has filed affidavit evidence and relies on 10 documents.  Affidavit evidence of official of OP has been filed and OP relies on 03 documents.

10. Heard the arguments of advocate for the complainant.  Counsel for OP filed written arguments.  Perused the written arguments.

11. The following points arise for our consideration as are:-

1. Whether the complainant proves deficiency of service on the part of OP?
2. Whether the complainant is entitled to relief mentioned in the complaint?
3. What order?

12. Our answers to the above points are as under:

Point No.1:  Affirmative

Point No.2: Affirmative in part

Point No.3: As per final orders

REASONS

13. Point No.1 AND 2: These two points are inter related and hence they have taken for common discussion.  We have perused the allegations made in the complaint, version, evidence, and documents filed by both the parties and the written arguments filed by the Ops.
14. It is clear from the evidence and the documents that OP is engaged in construction work.  The complainant and the OP have entered into a service agreement on 02.12.2020. The complainant has paid Rs.3,00,000/- towards booking amount and Rs.10,20,000/- towards the construction work. As per the Service agreement the total cost of the project was Rs.61,80,331.95 ps., and out of that the complainant has paid Rs.17,78,450/-.  After that the complainant has stopped the payment since the OP have not at all commenced and completed the construction of the building as per the service agreement. In view of this the complainants were forced to stay in a rented home, even though they have taken electricity connection as per the commercial rate for construction purpose and also obtained water supper to the site as per the assurance given by the OP. the OP has not at all completed the construction work. At last they have issued a detailed letter to the OP on 22.04.2021, the OP neither replied to the letter nor complied the request of the complainant.  The complainants have to pay Rs.72,000/- towards electricity charges and Rs.10,000/- towards water supply and they have paying rent of Rs.28,600/- per month from March 2022 which was the date fixed for completion of the construction by the OP as per the service agreement.
15. In support of their contention the second complainant has filed his affidavit evidence, reiterated all the allegations made in the complaint and produced service agreement as per document No.2 and construction booking agreement document No.3, payment email with receipt details, document No.4, office copy of the legal notice document No.5, response email dated 23.08.2021 issued by OP and various email correspondences as per document No.7 and 8 and original five acknowledgement as document No.9 and original returned articles as per document No.10.  
16. On the other hand, in order to prove their contention one of the official of the OP has filed his affidavit evidence relied on three documents. Document No.1 is the Board resolution for appointing Mr.Rahul R Patel as authorized representative in this case and details of labour payment as per document No.2, email communications as document No.3.
17. The only contention taken by the OP is that they are unable to complete the project due to covid-19 and labour problem and nonpayment of the amount by the complainant for continuation of the project work.
18. As per document Ex.P.2 the service agreement was entered between the parties on 02.12.2020. As per the agreement, the project will commenced in the month of December 2020 and shall be completed before March 2022 with grace period of three months. As per the bank statement produced by the complainant, the complainant has paid total amount of Rs.17,78,450/-.  Master project schedule issued by the OP himself they have done only the preliminary works, like site cleaning and footing marking and further substructure works namely excavation for footing and some trimming work for footing, PCC for footing, column position marking, bar bending work for footing, shuttering work for footing, footing concrete, column marking and starter concrete, column concrete, sump work, back filling/consolidation work/compaction. Except this the OP has not done any other work in the site.  Admittedly all these works are preliminary work.  Even though the OP has taken more than three years’ time, he has not even started the project work even though they have received more than 17 lakhs from the complainant.  
19. When the Ops have failed to commence the construction work properly the complainants have lost hope and they stopped giving payment to the OP after visiting the spot.  If the OP is not able to complete the work he would have clearly inform the complainants about his inability to continue the work.  Instead of disclosing the true facts to the complainant, the OP has collected the initial amount of more than Rs.17 lakhs from the complainant and not even started the construction work.
20. It is clear from the documents produced by the complainants that as per the commitment and the service agreement entered between them the complainant has also taken the electricity connection to the site by paying commercial rate to the residential site and paid more than Rs72,000/- and also paid Rs.10,000/- for having taken the water supply to the site for construction purpose.  
21. When the OP has failed to commence the construction work the complainants have to continue in the rented building by paying more than Rs.28,600/- per month.  
22. It is also clear from the evidence and documents that all the three complainants are aged and they are suffering from so many illness. The complainant No.1 is a disabled person and she is moving with the help of wheel chair. The second complainant is also suffering from serious disease and the third complainant is a aged person. They have invested their hard earned money with a fond hope that their house will be constructed within March 2022 and they will occupy the house and they will reside in their own house. In view of the non-completion of the project, the complainant has suffered mentally and also financially. Under these circumstances the complainant has clearly established the deficiency of service and also the unfair trade practice on the part of the OP.  Even though the OP is not having sufficient laborers to complete the construction work has entered into the service agreement with the complainant and received part payment and abandoned the work. Now the complainants have to get the work done through other persons by paying the extra amount. Hence we answer point No.1 in affirmative and point No.2 partly in affirmative.
23. Point No.3:- In view the discussion referred above the complainant is entitled for refund of the amount from the OP Rs.17,78,450/- with interest at 10% p.a., from the date of respective payment till realization and also the temporary electricity connection charges of Rs72,000/- and water facility charges of Rs.10,000/- and rent paid by the complainant calculated from March 2022 Rs.28,600/- in addition to this the complainant is also entitled for Rs.1,00,000/- towards mental agony and financial loss and Rs.10,000/- towards litigation expenses to the complainant and we proceed to pass the following;

O R D E R

1. The complaint is allowed in part.
2. Ops are directed to refund Rs.17,78,450/- with interest at 10% p.a., from the date of respective payment till realization
3. Ops are also directed to pay the temporary electricity connection charges of Rs.72,000/- and water facility charges of Rs.10,000/- and rent paid by the complainant calculated from March 2022 Rs.28,600/- to the complainant.
4. Ops are further directed to pay a sum of Rs.1,00,000/- towards mental agony and financial loss along with litigation expenses of Rs.10,000/- to the complainant.
5. The OPs shall comply this order within 60 days from this date, failing which the OP shall pay interest at 12% p.a. after expiry of 60 days on Rs.17,78,450/- till final payment.
6. Furnish the copy of this order and return the extra pleadings and documents to the parties.

(Dictated to the Stenographer, got it transcribed and corrected, pronounced in the Open Commission on this 22^nd day of MAY, 2023)

Documents produced by the Complainant-P.W.1 are as follows:

Documents produced by the representative of opposite party – R.W.1;