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

DATED 26^TH DAY OF JULY 2023

COMPLAINT NO.186/2022

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.3,02,500/- 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.37, Gantiganahalli Village, Yelahanka Hobli, Bangalore Taluk. Complainant entered to oral booking agreement with the Ops for construction of the house with entire interiors for a super built-up area of 1200 sq. feet in total project cost of Rs.29,00,000/- and the OP will handover the house to the complainant within six months and in failure with a grace period one month.

3. As per demand complainant has paid a sum of Rs.3,02,500/- to the Ops. After that the Ops have neither executed booked agreement nor construction agreement even though Ops have received more than 10% of the project cost. Even after lapse of two years Ops never turned up towards the complainant to execute the agreement and commence the construction work. Hence the complainant approached the Ops to execute and complete the work, but the Ops were dragging the matter for one or the other pretext with lame excuses, never turned up, hence the complainant asked for refund of his money in excess of i.e., Rs.3,02,500/- as no work has been completed, but no response from the OP. 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.3,02,500/-.  The Ops have instituted an injunction suit vide O.S.No.1733/2022 which is pending before the City Civil Judge, Bengaluru, seeking injunction to grant time to return the due against complainant and other customers trapped by Ops.

4. The complainant got issued legal notice dated 16.06.2022, but the Ops have not refunded the amount. Hence the complainant has filed this complaint.

5. 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.

6. The OPs further states that they are not liable to pay the said amount to the complainant.  They have failed to complete the construction work on the given time due to the impacts of covid 19 pandemic as that time the pandemic continued to expand and labours were not keeping well and they were suffering from covid due to which work was getting affected, hence it has become difficult for the Ops to arrange for alternative labours and it was beyond the control of the OP1.  The delay by the OP to complete the project of the complainant are not intentional because of the circumstances and nonpayment by the complainant as well as impacts of covid-19 and related regulatory responses.

7. The OPs further states that they are not liable to pay the said amount to the complainant, as they have not completed the work to the extent of amount received and the complainant has stopped paying to the OP1. The non co-operation and non payment for the increased prices of all materials labours cost and this OP have done the work to the extent of amount received and the problems and challenges faced by the OP1 in continuing the project when the covid-19 pandemic was in its peak.

8. It is further case of the OPs that the workers assigned by them were falling ill due to the covid 19 pandemic and hence they have decided to shut the work for a while taking care of the health of the workers.  They have informed the complainant, they are unable to complete the interior work on time because of covid 19 cases and therefore they are ready to return the said amount and they are arranging funds for the same.  This OP company has not indulged in any unethical trade practices that has caused the complainant resulting hardship harassment of the complainant. The complainant has maliciously suppressed the facts.  Thereafter in view of the covid 19 the prices of all materials and labours cost has increased enormously and the complainant is not willing to pay the increased rate of materials and labour costs. For these reasons the complainant’s project is on halt and the delay caused by this OP and it is not intentional. But due to covid 19 and labourer and economic factors and psychological facts. OP1 have never denied the fact that the work was delayed but always requested the complainant to provide some time for completion of the project. Hence OPs prayed to dismiss the complaint.

9. The complainant in support of his contention has filed affidavit evidence and relies on 5 documents.  Affidavit evidence of official of OP has been filed and OP relies on 01 documents.

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

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 entered into oral booking agreement with the OPs by paying an advance amount of Rs.3,02,500/-. The total cost of the project is Rs.29,00,000/-. The OP has to complete the project within six months.   After that the OP have not at all turned up and they have neither executed booking agreement nor construction agreement and not even commence the work, even though he has received more than 10% of the project cost.  The complainant after seeing the negligence and lackcity and deficiency on the part of the OP services in not entered into any agreement, hence got issued a legal notice on 16.06.2022, when the OP have failed to refund the amount.

15. In support of his contention the complainant has filed her 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.

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.

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 booking agreement was entered between the parties on 17.01.2022. As per the transaction details produced by the complainant, the complainant has paid total amount of Rs.3,02,500/-. Even though the OP has taken more than two years’ time, he has never turned up towards site to commence the work and to execute the main agreement, even though he has received a substantial 10% of the amount of Rs.3,02,500/-.

19. When the Ops have failed to commence the construction work and entered into main agreement, the complainant has lost hope and they stopped giving payment to the OP after visiting the spot.  If the OP is not able to commence 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.3,02,500/-, from the complainant and not completed the construction work.

20. 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 commence the construction work has entered into the Booking 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.

21. Point No.3:- In view the discussion referred above the complainant is entitled for refund of the amount from the OP Rs.3,02,500/-, 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.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.3,02,500/- 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.3,02,500/- 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;