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

DATED 26^TH DAY OF JULY 2023

COMPLAINT NO.183/2022

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.157, 1^st cross, BCMC Layout, Raghubanahalli, Bengaluru.  Complainant entered to booking agreement with the Ops on 22.11.2018 to construct a house comprising stilt, ground, first, second floor and entire interiors etc., i.e., whole interiors for a super built-up area of 3365.65 sq. feet and in pursuance of the same the main construction agreement was executed on 22.11.2018 between the parties in total project cost of Rs.70,00,000/- and the OP will handover the house to the complainant within one year and in failure with a grace period three months, which commences from 03.10.2018 to 03.12.2019.

3. As per demand complainant has paid a sum of Rs.70,00,000/- to the Ops. After that the Ops have not even completed 45% of work.  Even after lapse of two and half years Ops never turned up towards the site to complete the pending 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.25,00,000/- 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.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 also the case of the OP that during the construction work, one of the employee namely Mr.Vasudev died to some accident occurred on the site and the Ops have paid Rs.4,50,000/- to the workers wife namely Kempamma.  The Ops did not charge a single paise from the complainant for this accident which is further a financial loss to the Ops.
6. It is further case of the Ops that they have handed over the possession of the house to the complainant.  Inspite of that the complainant keeps on coming to the office of the Ops and harassing the employees of the Ops creating nuisance in the office. Abuses the female employees of the Ops, for which the Ops have also filed a police complaint before the HSR Police Station.  The complainant has deliberately concealed the facts that the Ops have completed the said construction work and handed over possession of house comprising of stilt, ground, first and second floor and entire interiors for a super built up area of 3365.65 sq.feet of the immoveable property.  These Ops have not caused any hardship to the complainant. The complainant has not come to the court with clean hands. The complainant is not entitled for any reliefs.  Hence OP1 prayed to dismiss the complaint.
7. 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 04 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 a Construction agreement on 22.11.2018. The complainant has paid the advance of Rs.70,00,000/- towards the construction work as and when demanded. As per the Construction agreement the total cost of the project was Rs.70,00,000/-.  After that the OPs have not at all completed the construction of the building as per the Construction agreement even after lapse of 2½ years, by leaving the complainant and his family members in the street.

13. 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 Construction agreement, Copy of the payment receipt, copy of the email correspondence between the parties, 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 four documents. Document No.1 is the Copy of the Authorization letter, Document No.2 is the consent letter, Document No.3 is the reply to legal notice.

15. The only contention taken by the OP is that they have completed the construction and handed over the possession of the house comprising of stilt, ground, first and second floor and entire interiors for a super built up area of 3365.65 sq.feet.  Inspite of that the complainant is coming to their office and harassing the staffs and creating the nuisance.  They have also filed a police complaint against the complainant.

16. It is also the contention taken by the OP that during the construction work in the complainant’s site one employee Mr.Vasudev died due to some accident on the site for which the OP1 company have paid Rs.4,50,000/- to the workers wife namely Kempamma.  The complainant has not paid a single paise for this accident and it is also a financial loss to this OP1 company. In support of their contention the OP have also produced the consent letter given by the wife of the deceased Vasudev as document No.2 and also produced the copy of the legal notice as Ex.R3.

17. It is undisputed fact that the complainant has made entire payment of Rs.70,00,000/- to the OP for the construction of his house and for also interiors.  As per the complainant the OP have completed only 45% of the work. When the Ops have failed to complete the remaining work even after lapse of 2 ½ years, the complainant has demanded the Ops to refund Rs.25,00,000/-.

18. According to the complainant out of Rs.70,00,000/- he has demanding refund of Rs.25,00,000/-.  He has claimed Rs.2,00,000/- towards labour charges and Rs.10,00,000/- towards damages and hardship and harassment caused to him Rs.5,00,000/-, loss of reputationRs.50,000/- and legal notice charges Rs.20,000/-.

19. Except the obstruct of the estimation copy the OP has not produced any other document for having spent Rs.70,00,000/- paid by the complainant.  On the other hand the complainant has produced the entire bank statement issued by HDFC Bank for having paid the amount as and when demanded by the Ops. When the Ops have received the total amount of Rs.70,00,000/- they have also issued payment receipt, as per copy of transaction. Even though the OP had not produced any document to show that they have completed the project and handed over possession of the house to the complainant they have only relied on one consent letter given by the wife of the deceased employee namely Vasudev. Even though they have taken the contention that they have not charged any amount from the complainant for the death of their employee Mr.Vasudev in the site of the complainant.  They have also filed another suit before the City Civil Judge, Bangalore in OS No.1733/2022, which is still pending before the city Civil Court, restraining the complainant from demanding the OP.  If really the Ops have completed the construction and handed over the house to the complainant nothing prevented them from producing the documents relating to the completion of the work.  The Ops are simply harassing the complainant without refunding the amount for one or the other reason. If any of the employee of the Ops died in the work spot it is the responsibilities of the Ops to compensate their employee and the complainant is in no way concerned with the said employee since he has not engaged him personally and he is not liable to compensate the said employee. If the wife of the deceased employee was aggrieved for any compensation received by the Ops it is her right to agitate the matter before the competent labour court and this Commission is not at all having any jurisdiction to entertain the said allegations made by the Ops against the complainant.

20. The complainant seeking relief of refund of Rs.25,00,000/- from the Ops on the ground that they have not completed the work after receiving the entire consideration amount of Rs.70,00,000/- as per the agreement entered between them.  When the Ops have completed 45% of the work and left the schedule property without completing the remaining work the burden shifts on the complainant to get the work done for completing his construction work by engaging some other employees by paying exorbitant amount demanding by the new labourers.  If the Ops are not in a position to complete the work they would have inform the complainant about their inability to complete the work.
21. 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. Hence we answer point No.1 in affirmative and point No.2 partly in affirmative.

22. 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;