.BEFORE THE KARNATAKA STATE CONSUMER DISPUTES
REDRESSAL COMMISSION, BENGALURU. (ADDL. BENCH)
DATED THIS THE 13th DAY OF SEPTEMBER, 2023
PRESENT
SRI RAVI SHANKAR, JUDICIAL MEMBER
SMT. SUNITA C.BAGEWADI, LADY MEMBER
COMPLAINT NO.444/2019
Mr.Hareesh
S/o A.S.Vijedra Rao,
Aged about 39 years ….Complainant/s
Residing at No.16/A,
Dwaraka, Eshwar Nagar,
1st Cross, BSK 2nd Stage,
Bengaluru – 560 070
(By Shri.Pritham.M, Advocate)
-Versus-
Mrs.Padmavathi.N,
Proprietrix,
Aged about 45 years,
Residing at No.B 301,
Sriram Symphony, … Opposite party/s
Mallasandra, Kumaran’s School Road,
Kanakapura Road, Bangalore-560 062
Also at: Deepu Associates,
No.640, 5th Cross,
Manandavadi Road, MP Layout,
Mysore-08
(By Smt.B.Lethif, Advocate)
O R D E R
BY SMT.SUNITA C.BAGEWADI, MEMBER
The complainant filed this complaint against the Opposite Party alleging deficiency in service and unfair Trade Practice and prays to direct the Opposite Parties to pay/refund a sum of Rs.24,95,951/-; damages of Rs.5,00,000/- and rents of Rs.25,500/-, total a sum of Rs.30,21,415/- with interest at 18% p.a. and grant such other relief, in the interest of justice and equity.
2. The brief facts of the complaint are that the complainant is the absolute owner of site no.251 of BDA approved layout formed by Bharat Housing Co-operative Society (hereinafter called as BHCS) measuring 30X40 (1200sq. ft.) at BHCS Turahalli village, Uttarahalli hobli, Bengaluru south taluk, Bangalore, now within the limits of BBMP, ward No.184 through a registered sale deed dated 26-2-2018 registered in the office of the sub-registrar, Basavanagudi as document No.BSK-1-13677-2017-18, stored in CD No.BSKD43.
The complainant further submitted that the complainant had approached Mrs.Padmavathi, Architect who happens to be the Proprietrix of Deepu Associates, Mysore and the Opposite Party after detailed discussion with complainant had agreed and quoted Rs.1,90,000/- per square as the final amount for construction. In terms of discussions held the complainant and the Opposite Party entered into an agreement dated 24-3-2018. The details of the service and the materials to be used were also narrated in the said agreement. The final amount fixed therein for the construction of the house and handing over the possession was Rs.48,00,000/- and it was specifically agreed that the entire construction would be completed within Nov.2018.
The complainant further submitted that the complainant with the intent to avail housing loan for the construction as above had requested the Opposite Party to give a detailed estimate and in the said estimate an amount of Rs.52,92,000/- was quoted by revising the earlier quote.
The complainant further submitted that the Opposite Party started construction work by receiving advance amount of Rs.8,00,000/-, soon after having started the construction work by laying foundation and at the time of the foundation requested the complainant to make an extra payment of Rs.2,30,000/- in addition to the advance amount that the Opposite Party had already received. In the circumstances the complainant requested to show some progress in the work at which time he was given hope of better management and services in future as it was the only the initial stages of construction.
The complainant further submitted that on the basis of the assurances the Opposite Party persuaded the complainant and wisely received a sum of Rs.73,80,000/- from him on various dates. Further the Opposite Party failed to provide proper services as agreed and complainant having no other option approached the jurisdictional police and there the Opposite Party on the advice had agreed to complete the work at the earliest. Thereafter the Opposite Party sent a legal notice dated 14-5-2019 making unreasonable demand of Rs.30,00,000/- for the incomplete work. The notice was met with a reply notice.
The complainant further submitted that the complainant having understood the intention of the Opposite Party got the work and building assessment/valuation done on the property belonging to him and it was learnt that the work and construction was below as per the standard and also does not commensurate the amount received by the Opposite Party. The report very categorically indicates that for the completion of the pending construction and finishing work as per the agreed terms and norms would require another Rs.14,00,000/-. It was also learnt that the Opposite Party has received a sum of Rs.24,95,915/- in excess of the work done and executed by her. The complainant having leant about the deficient service terminated the contract by an email communication/letter dated 12-6-2019.
The complainant further submitted that the complainant issued a legal notice dated 3-8-2019 to the Opposite Party seeking refund of the amount received by the Opposite Party in excess of work executed and other expenses incurred due to deficient service of the Opposite Party. The same is returned as addressee unclaimed, information delivered and door locked. In spite of assurances given by the Opposite Party neither the work as completed nor the quality is maintained as assured. The Opposite Party not only has failed to abide by the terms and conditions of the agreement but also has failed to provide proper service, which suffer financial losses owing to non-completion of building which the complainant is forced to occupy rented premises which accounts for Rs.8,500/- per month. The complainant on several occasions requested the Opposite Party to complete the work, instead of completing the construction work the Opposite Party unleashed her sinister design by completely ignoring and stopping the work in the last week of April 2019. Hence, this complaint is filed.
3. After service of the notice, the Opposite Party has appeared through her counsel, but not filed version, in spite of granting sufficient opportunities.
4. The complainant filed affidavit evidence and marked documents at Exs.C1 to C23 and also filed notes of arguments. The Opposite Party not filed evidence affidavit.
5. Heard from complainant. The Opposite Party has not submitted her arguments, despite granting sufficient opportunities.
6. On perusal, the following points will arise for our consideration;
(1) Whether the complainant has proved the deficiency of service on the part of the Opposite Party?
(2) Whether the complainant is entitled for the reliefs as sought?
(3) What order?
7. The findings to the above points are;
(1) In the affirmative
(2) In the partly affirmative
(3) As per the final order
R E A S O N S
8. Point Nos.1 to 3:- Perused the contents of complaint, evidence affidavit of complainant and documents produced by the complainant, which are marked as Exs.C1 to C23.
9. On going through the documents, we noticed that the complainant has the absolute owner of site No.251 of BDA approved layout formed by Bharat Housing Co-operative Society (hereinafter called as BHCS) measuring 30X40 (1200sq. ft.) at BHCS Turahalli village, Uttarahalli hobli, Bengaluru South Taluk, Bangalore, now within the limits of BBMP, Ward No.184 through a registered sale deed dated 26-2-2018 registered in the office of the Sub-Registrar, Basavanagudi as document No.BSK-1-13677-2017-18, stored in CD No.BSKD43 as Ex.C1. The complainant approached the Opposite Party for construction of house had agreed and quoted Rs.1,90,000/- per square feet as the final amount and both parties have entered into an agreement dated 24-3-2018 as Ex.C2. As per Ex.C2 the Opposite Party agreed that the entire construction would be completed within Nov.2018. Further when the complainant intend to avail the housing loan for the construction, the Opposite Party has provided estimation of Rs.52,92,000/- as Ex.C3. It is also true that, the Opposite Party on the basis assurance, wisely received a sum of Rs.73,80,000/- from the complainant and agreed that the Opposite Party shall complete the construction and hand over the possession on or before April 2019. Even though receiving the amount of Rs.73,84,000/- the Opposite Party has not completed the construction work, but in spite of that she has sent legal notice to the complainant dated 14.5.2019 and demanded Rs.30,00,000/- for completion of works as Ex.C4 and C5 and the same was replied by the complainant as Ex.C6. Hence, the complainant had done the valuation of the building and the report of the valuation indicates that, for the completion of the pending construction and finishing work as per the agreed terms and norms would require another Rs.14,00,000/- It is also indicates that, the Opposite Party has received a sum of Rs.24,95,915/- in excess of the work done and executed by her as per Ex.C7. So that the complainant has sent an email dated 12.6.2019 as Ex.C8 to terminate the contract and issued legal notice dated 3-8-2019 seeking refund of the excess amount as Ex.C9 which was return back as unclaimed.
10. Perused the photographs as Ex.C14; we noticed that in spite of receiving excess amount, the Opposite Party neither completed the work nor hand over the possession as agreed in the agreement. There are so many works still pending, hence the allegations made by the complainant are true and believable, because after service of notice of this commission the Opposite Party appeared through counsel but not filed written version and also not filed evidence affidavit, also not argued the matter in spite of sufficient opportunity has been granted, hence the allegations of the complainant remains unchallenged.
11. It is well settled legal position that, initially the Opposite Party has agreed to complete the work at the cost of Rs.48,00,000/- as per the agreement dated 24-3-2018 and later an enlarged on estimate to Rs.52,92,000/- and wisely received a total of sum of Rs.73,80,000/- from the complainant. Hence it is well settled legal position that, in spite of receiving an amount of Rs.73,80,000/-, the Opposite Party has neither completed the work nor quality work was done and hand over the possession as per agreement, amounts to deficiency in service on the part of the Opposite Party.
12. Hence, considering the facts and discussion made here, we are of the opinion that, the complainant has proved deficiency in service on the part of the Opposite Party. Accordingly, the complaint is partly allowed.
13. Point No.3: In view of above discussion, we proceed to pass the following:-
O R D E R
The complaint filed by the complainant is partly allowed with litigation cost of Rs.25,000/- to the complainant.
The Opposite Party is directed to pay a sum of Rs.24,95,951/- the amount which has been received to excess in the work done by the Opposite Party along with interest @ 6% per annum from the date of stopped the work i.e. April, 2019.
Further, the Opposite Party is directed to pay compensation of Rs.2,00,000/- to the complainant for deficiency in service and mental agony.
Further the Opposite Party is directed to comply the above order within 30 days from the date of receipt of this order. Failing which, the payable amount shall carry interest @8% p.a. from the date of default till realization.
Send a copy of this order to both parties.
MEMBER JUDICIAL MEMBER
Jrk/
