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

DATED 26^TH DAY OF JULY 2023

COMPLAINT NO.313/2022

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.3,25,000/-
2. To pay cost of litigation of Rs.25,000/-.
3. To award cost to this complaint.
4. 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.34, Ramadevra Devastana Rasthe, Agalakuppe, Sompura gram Panchayat, Nelmangala, Bengaluru Rural 562 114. Complainant entered to booking agreement with the Ops on 14.02.2022 to construct a house with entire interiors i.e., whole interiors for a super built up area of 40X42 sq feet and received an advance amount of Rs.3,25,000/- from the complainant. Where after the Ops have failed to enter into main Construction Agreement even after sufficient time, and were dragging the matter on one or the other pretext with lame excuses. Hence complainant asked for refund of money of Rs.3,25,000/- but no response till date.  Thereafter the complainant seeing malicious intention of the Ops, have done email correspondence to refund the amount of Rs.3,25,000/- and also issued legal notice to the Ops on 11.07.2022 praying for refunding of the said amount, but the Ops have not refunded the amount. Hence the complainant has filed this complaint.

3. 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.
4. The OP1 further states that they are not liable to pay the said amount to the complainant, as it is non refundable as per the agreement. The project was stopped and further delayed due to non co-operation by the complainant himself.  Hence the complainant is not entitled for refund of the amount, since the project was cancelled by the complainant himself and hence the amount is non refundable as per the agreement. Hence OP1 prayed to dismiss the complaint.
5. The complainant in support of her contention has filed affidavit evidence and relies on 6 documents.  Affidavit evidence of official of OP has been filed and OP relies on 01 document.
6. Heard the arguments of advocate for both the parties.  Perused the written arguments filed by both the parties.
7. 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?

8. 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

9. 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.
10. It is clear from the evidence and the documents that OP is engaged in construction and interior work.  The complainant and the OP have entered into a Booking agreement on 14.02.2022. The complainant has paid a sum of Rs.3,25,000/- towards the construction and interior work. After that the complainant has stopped the payment since the OP have not at all entered into main construction agreement even after sufficient time and they were dragging the matter for one or the other pretext and they have never turned up.
11. In support of their 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 transaction, copy of the email correspondence between the parties, copy of the legal notice, and postal receipt and acknowledgement.
12. On the other hand, in order to prove their contention one of the official of the OP has filed his affidavit evidence relied on one document i.e., the Board resolution for appointing Mr.Rahul R Patel as authorized representative in this case.
13. The only contention taken by the OP is that they have failed to complete the said construction work on the given time due to cancellation of the project by the complainant himself.  These Ops are not aware of the reasons of the cancellation of the project and they are not liable to refund the amount to the complainant as it is non refundable as per the agreement.  
14. As per the bank statement produced by the complainant in Ex.P3, the complainant has paid total amount of Rs.3,25,000/- and the Ops have acknowledged for the same.
15. When the Ops have failed to enter into main agreement even after received the advance amount of Rs.3,25,000/- and failed to commence the construction work the complainant has lost hope and he demanded the Ops to refund the amount by cancelling the project. It is the duty of the Ops to enter into main agreement with the complainant in order to commence the project after they have received the advance amount of Rs.3,25,000/-. Instead of entering into main agreement they have simply dragged the matter for the reasons best known to them.
16. When the OP has failed to enter into the main agreement after received the advance amount and entered into booking agreement.  The complainant has lost hope in continuing with the project and cancelled the project. The Ops cannot retain the amount without commencing the construction work and without entering into main agreement with the complainant.
17. In view of the not commencing of the work, 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.  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.
18. Point No.3:- In view the discussion referred above the complainant is entitled for refund of the amount from the OP Rs.3,25,000/- with interest at 10% p.a., from the date of respective payment till realization and the complainant is also entitled for Rs.50,000/- 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.3,25,000/- 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.50,000/- 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.3,25,000/- 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;