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

DATED 26^TH DAY OF JULY 2023

COMPLAINT NO.193/2022

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 the claimed amount of Rs.25,00,000/- with interest at 18%.
2. Direct the Ops to pay the damages, labour cost.
3.  To pay cost of litigation of Rs.25,000/-.
4. To award cost to this complaint.
5. 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:-

Complainant is the owner of the property bearing No.#51/107, Ganapa, Doddabettahalli Layout, Vidyaranyapura, Bengaluru 560 097. Complainant entered to booking agreement on November 2019 and in pursuance of the same main construction agreement was executed on 09.01.2020 with the Ops to renovate, additional one floor construction with entire interiors and entire refurbishment, with total cost to whole for project of Rs.42,28,726.14Ps., for total built up area of 1996 sq. feet. As per the demands raised by Ops, complainant has paid Rs.40,00,000/-.  Thereafter the Ops left the site without even completing 35% of the work as per the plan. Hence complainant approached the Ops to complete the project or to refund the amount of Rs.25,00,000/- but the Ops have dragged the matter on one or the other pretext with lame excuses for more than two years.

3. Complainant tried to reach the Ops, and made many calls to Ops office, but Ops were not receiving phone calls, if received too once they promised to set right the issue, later the Ops started to give evasive replies. Hence complainant requested the Ops for refund of Rs.25,00,000/-.  The complainant got issued legal notice dated 14.06.2022, but the Ops have not refunded the amount. Hence the complainant has filed this complaint.

4. In response to the notice, OP1 appears and files version and submits that the complainant has filed this complaint with ulterior motive to gain at the cost of the Ops. Complainant has 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.

5. It is the specific case of the OP that  they failed to complete the said construction work on the given time due to impacts of covid-19 pandemic the cost of the materials had escalated and the labours were not keeping well and were suffering from covid due to which 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 complainant as well as impacts of covid-19 and related regulatory responses.

6. The complainant has deliberately concealed the material facts.  The complainant is not entitle for Rs.25,00,000/- since these Ops have completed the work for the given amount. Hence OP1 prayed to dismiss the complaint.

7. The complainant in support of his 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.

8. Heard the arguments of advocate for both the parties.  Perused the written arguments filed by both the parties.

9. 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?

10. 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

11. 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.

12. It is clear from the evidence and the documents that OP is engaged in construction work.  The complainant and the OP have entered into booking agreement on November 2019 and in pursuance of the same they have entered into construction agreement on 09.01.2020 to construct the addition one floor of house with entire interiors and the total cost of the whole project for construction is Rs.42,28,726.14ps., for the super built up area of 1996 sq.feet and the commencement of the project from January 2020 to July 2020 with one month grace period. The complainant has paid totally Rs.40,00,000/- towards the project.  After that the OP have not even completed 35% of the work and not at all turned up and they have never completed the remaining work as per the agreement, even though he has received more than 90% of the project cost.  The complainant after seeing the negligence and lackcity and deficiency on the part of the OP services, has requested to refund the amount.  When they failed to refund the amount he got issued a legal notice on 14.06.2022.

13. In support of his contention the complainant has filed his affidavit evidence, reiterated all the allegations made in the complaint and produced the copy of the booking Agreement, Copy of the Main agreement, Copy of the email correspondence between the parties, Copy of the payment schedule for renovation work, copy of the payment bill transaction through online and cash received photos, copy of the photographs for unfinished work, copy of the email correspondence, copy of the construction photographs, copy of the legal notice, and postal receipt and acknowledgement.

14. 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, copy of the email communication.

15. 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.

16. It is further case of the OP that they are not liable to pay the amount of Rs.3,10,000/- as it is the initial non refundable amount as per the agreement.

17. As per document Ex.P.2 the booking agreement was entered between the parties on November 2019 and main agreement was entered on 09.01.2020. As per the transaction details produced by the complainant, the complainant has paid total amount of Rs.40,00,000/-. Even though the OP has taken more than two years’ time, he has never turned up towards site to complete the remaining work even though he has received a substantial 95% of the amount of Rs.40,00,000/-.

18. When the Ops have failed to complete the construction work the complainant has 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 complainant 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.40,00,000/-, from the complainant and not completed the 65% of the construction work.

19. The complainant has invested their hard earned money with a fond hope that their construction and interior work of the house will be completed within six months 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 Booking Agreement and main agreement with the complainant and received part payment and abandoned the work. Now the complainant has 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.

20. Point No.3:- In view the discussion referred above the complainant is entitled for refund of the amount from the OP Rs.25,00,000/-, with interest at 10% p.a., from the date of respective payment till realization. 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.25,00,000/- with interest at 10% p.a., from the date of respective payment till realization
3. 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.
4. 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.25,00,000/- till final payment.
5. 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 26^TH day of JULY, 2023)

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

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