DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, PALAKKAD

Dated this the 19^th day of July, 2023

Present : Sri.Vinay Menon V., President

            : Sri.Krishnankutty N.K., Member            Date of filing: 17/10/2022   

CC/192/2022

    R.G.Raveendran

    S/o Raman Gopalan

    House No: 16/5, Air Road

    Near Delanipur Masjid, Delanipur Post

    Haddo PS Chatham, Port Blair HO

Andaman & Nicobar Islands                                   -         Complainant

(By Adv. M/s Anoop Chempath & Vanitha G)

                                                           V/s

1. M/s Laura Ventures Pvt. Ltd.

    Rep. by its Director Devadethan

    50/566B, 1^st Floor, Above Sproutz Mini Mart

    NH-85, Petta, Poonithura

    Ernakulam – 682 038

2. Mr. Devadethan, Director

    M/s Laura Ventures Pvt. Ltd.

    50/566B, 1^st Floor, Above Sproutz Mini Mart

    NH-85, Petta, Poonithura

    Ernakulam – 682 038

3. Mr. Thomas, Director

    M/s Laura Ventures Pvt. Ltd.

    50/566B, 1^st Floor, Above Sproutz Mini Mart

    NH-85, Petta, Poonithura

Ernakulam – 682 038                                              -         Opposite parties

(Opposite parties 1 to 3 Ex-parte)

O R D E R

Prepared by Smt. Vidya.A, Member

1.  Pleadings of the complainant in brief

      As per the discussions between the complainant and opposite party 1 Represented by its directors, opposite party 2 & 3, the complainant entered into an oral agreement with the opposite parties on 09/11/2020 whereby they agreed to construct a villa in the complainant’s property.  Having an extent of 1400 sq. Ft. For a cost of Rs. 24,50,000/- under the brand name “DIMENSIONS”.

          Subsequently they entered to a written agreement on 29/04/2021.  As per the terms and conditions of the agreement, the opposite parties had promised to complete the work in 340 working days from 05/05/2021 and to hand over possession within 2 days after the completion.  Further, if there is any delay of more than 36 days from the agreed date, an interest @ 12% will be chargeable on the opposite parties for the amount advanced by the complainant.  As per the terms & conditions of the agreement, on 09/11/2020, the complainant transferred an amount of Rs. 3,67,500/- to the opposite parties for starting the work.  Thereafter on 28/01/2021, the opposite parties demanded to pay Rs.1,22,500/- as the excavation work was completed and accordingly the amount was transferred by the complainant.

          Since the complainant was not satisfied with the progress of the work, he entered into an agreement with the opposite parties on 29/04/2021 which described the work specifications and timeline for that.  On 03/05/2021, the complainant transferred an amount Rs. 46,250/- as per opposite parties request.  Another sum of Rs. 50,000/- was transferred by the complainant on 03/05/2022 for completion of foundation work.  In total the complainant had transferred an amount of Rs. 5,86,250/- to the opposite party’s account.  The complainant is working in Andaman & Nicobar Island and he entrusted the work with opposite parties and paid the amount under the belief that they will complete the work as the Terms & conditions of the agreement.  But when he visited the property on 04/06/2022, he found that the opposite parties had not even completed the foundation work or had taken any steps to start the construction as per the agreement.

          Thereafter, the complainant repeatedly contacted the opposite parties and tried to meet them to discuss about the progress of the work, but they were not ready to give any status update.  The opposite parties failed to fulfil the terms & conditions of the contract, even after receiving a major portion of the amount.  The Lawyer notices sent to the opposite parties in their official and residential address were returned with endorsement ‘closed/left’ and ‘unclaimed’ respectively.

          The conduct of the opposite parties amounts to deficiency in service and unfair trade practice.  The failure on the part of the opposite parties in starting the construction work on time and completing it as promised had caused great mental agony and inconvenience to the complainant.  Therefore he approached this Commission with this complaint for getting an order directing the opposite parties

1. To refund Rs. 5,86,250/-, being the advance amount paid by the complainant to the opposite parties together with 12% interest from the date of payment till realization.
2. To pay Rs. 3 lakh as compensation for their deficiency in service, unfair trade practice, mental agony, reputational damages and other losses suffered by the complainant together with cost of the litigation.
3. To grant such other reliefs as prayed from time to time and to hold that opposite parties are vicariously and personally liable to pay the amount.

2.   Notice issued to the opposite parties returned with endorsement ‘left’.  Later complainant produced e-mail ids of opposite parties and notice was delivered to 1^st & 2^nd opposite parties.  Notice not served on 3^rd opposite party, yet constructive notice is presumed.  Opposite parties did not appear before the Commission or file their version.  So they were set ex-parte.

3.   Along with the complaint, the complainant filed an application IA/488/22 for the appointment of an Advocate Commissioner to identify and note the physical features of the property in the present condition and it was.  Commissioner inspected the property and filed report which is marked as Ext. C1. Complainant filed proof affidavit and Exts. A1 to A6 were marked.  Evidence closed and heard the complainant.

4.   The main points to be considered in this case are

1. Whether the opposite parties had complied the terms and conditions as per the agreement entered into between both parties?
2. Whether there is any deficiency in service/unfair trade practice on the part of opposite parties?
3. Whether the complainant is entitled to the reliefs claimed?
4. Reliefs if any, as cost and compensation.

5.  Points 1 & 2

      As per the complaint, the complainant and opposite parties entered into an agreement for the construction of a villa having an extent of 1400 sq. ft. for a cost of Rs. 24,50,000/-  As per the terms and conditions of the agreement, the opposite parties had promised to complete the work in 340 working days from 05/05/2021 and agreed to hand over possession within 2 days after completion.

          In pursuance of the terms of agreement, the complainant transferred a total amount of Rs. 5,86,250/- to the account of M/s DIMENSIONS maintained in South Indian Bank, Maradu Branch on different occasions.

          But when he visited the property on 04/06/2022, he found that the opposite parties had not started the work on the site and not even completed the foundation work; nor taken any steps to start the construction of villa as per the agreement.

6.   Complainant produced the ‘Agreement of construction’ dated 29/04/2021 entered into between M/s Laura Ventures Pvt. Ltd. With an independent Brand name ‘DIMENSIONS’ and Mr. R.G.Raveendran (complainant) which is marked as Ext. A1.  As per that the firts party agreed to construct the villa same according to the quotation for a total construction of 1400 sq. ft. at a cost of Rs. 24,50,000/- and the period needed for construction and other terms for completion of work and handing over possession are same as stated by the complainant.

7.   Inorder to ascertain the present condition of the property, a Commissioner was appointed and he filed a report after inspecting the property which is marked as Ext. C1.

          The Commissioner identified the property with the help of the complainant and the boundaries he observed that “the land in which the property is located was drowned in water and that is the part wherein which the foundation was built up by the opposite party”.  He also found some stones are stocked inside the property which are covered up by the grass.  He saw the initial phases of development of the foundation pit in which water was clogged. 

          So on inspection, the Commissioner could not see any construction work done by the opposite parties other than the foundation pit.       

8.   Complainant produced 2 photographs which were marked as Ext. A6.  1^st show the construction site and 2^nd photograph shows the area covered with grass and water logged.

9.   So the complainant had proved a prima facie case that the opposite parties did not do the work as per their agreement.  It is a clear deficiency in service and unfair trade practice on their part.

10.    Points 3 & 4

      Since the opposite parties remained ex-parte, the evidence adduced by the complainant stands unchallenged.  Complainant had stated that he had transferred a total amount of Rs. 5,86,250/- to the opposite parties account and prayed for the refund of that amount with 12% interest. Exhibit A7 & A10 proves that the complainant had transferred various amounts to opposite parties on 4 different occasions summing  up to Rs.5,86,250/-

      In the result, complaint is allowed.

      Opposite party 1 is vicariously liable for the acts of 2^nd and 3^rd opposite parties.  Hence we direct the opposite parties jointly and severally to pay

1. Rs. 5,86,000/- to the complainant with interest @ 10% per annum for 17/10/22 till the date of  the payment.
2. Rs. 1 lakh as compensation for their deficiency in service and unfair trade practice.
3.  Rs. 50,000/- for the mental agony and financial loss suffered by the complainant and
4. Rs. 20,000/- as cost of this proceedings.

The opposite parties shall comply with the directions in this order within 45 days of receipt of this order, failing which opposite party shall pay to the complainant Rs. 500/- per month or part thereof until the date of payment in full and final settlement of this order.

Order Pronounced in abstentia of the author concerned on 19^th day July 2023; concurred by President & Member who conducted the proceedings.

Sd/-

                                                                                  Vinay Menon V

                                                                              President                                              

                                                                   Sd/-                                                                                                                                                                                  

                                                                                     Krishnankutty N.K.

                                                                                             Member

APPENDIX

Documents marked from the side of the complainant:

Ext. A1: Construction agreement dated 29/04/2021 (Photocopy).

Ext. A2: Legal notice dated 14/07/2022 issued to the opposite party.

Ext. A3: Legal notice to 2^nd opposite party at residential address dated

              15/09/2022.

Ext. A4: Unopened returned notice (3 nos)

Ext. A5: Unopened returned notice sent to 2^nd opposite party in residential

              address.

Ext. A6: Photograph of the subject matter property in the present condition.

Ext. A7: ICICI Bank Account summary (31.3.2021, 31.5.2021)

Ext. A8: Copy of payment Rs.3,67,000/-through UTR by M/s. Dimensions 

             dated 9/11/2020.

Ext. A9: Copy of payment Rs.1,22,500/- through UTR by M/s. Dimensions 

             dated 28/01/2021

Ext.A10: Copy of  Savings Bank Account Pass book.

Ext. C1: Commission Report filed by the Advocate Commissioner Surjith.A.V

Documents marked from the side of opposite parties: Nil

Witness examined from the complainant’s side: Nil

Witness examined from the opposite parties side: Nil

Cost- Rs. 20,000/-

NB: Parties are directed to take back all extra set of documents submitted in the proceedings in accordance with Regulation 20(5) of the Consumer Protection (Consumer Commission Procedure) Regulations, 2020 failing which they will be weeded out.