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

DATED 26^TH DAY OF JULY 2023

COMPLAINT NO.191/2022

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.6,50,000/- 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.49, 3^rd cross, Pratisena Enclave, Opp.to Bhoo-Shresta Layout, Maragondanahalli, T.C.Palya, Bengaluru 560 036.  Complainant entered to booking agreement  on 25.12.2021 with the Ops with total cost of tax among others in whole for project A Rs.91,00,000/- and for project B Rs.6,00,000/- clearly mentioning that the OP will enter into main construction agreement of project A and main interior agreement of project B between 15 to 20^th January 2022. But till date he has not entered into the main construction agreement with the complainant. As per the demands raised by Ops, complainant has paid Rs.5,00,000/- for project A and Rs.1,50,000/- for project B to the Ops.  Where after the Ops till date have not yet entered into Main Agreement of either project A or B nor started any primary work and never turned up towards the said project. Hence complainant approached the Ops to execute main contracts, but the Ops have dragged the matter on one or the other pretext with lame excuses for more than seven months.

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.6,50,000/-.  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.

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 complainants 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.6,50,000/- since these Ops have made the payment of Rs.6,50,000/- in cash to the complainant. Hence OP1 prayed to dismiss the complaint.

7. The complainant in support of her contention has filed affidavit evidence and relies on 5 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 25.12.2021 to construct the house with entire interiors and the total cost of the whole project for construction of house is Rs.91,00,000/- and the interior is Rs.6,00,000/-.  They have clearly mentioned in the booking agreement the OP will enter into main construction agreement and main interior agreement of the project between 15 to 20th January 2021, but they failed to enter into the agreement with the complainant. The complainant has paid totally Rs.6,50,000/- towards both the project A and B on 25.12.2021 itself. But the Ops have not come forward to enter into main agreement even after lapse of six months.  During this time, the complainant’s wife was diagnosed with nephrological issues in pursuance of which the complainant requested the Ops for refund of the amount as he was not in a position to continue with the project. The Ops have failed to refund the amount.  They have also filed a suit for injunction against the complainant and others in OS No.1733/2022 which is pending before the City Civil Judge, Bangalore.

13.  On the other hand the only contention taken by the OP is that they have paid the entire amount in cash to the complainant and still he is claiming Rs.78,000/- extra expenditure incurred by him, which the OP1 is not entitle to reimburse.  In support of their contention they have produced only the email dated 08.02.2022 as Ex.R3.  We have verified the Ex.R3.  It is clear from Ex.R.3 that the complainant has requested the Ops to refund of Rs.78,000/- only towards the extra expenditure incurred over and above the final amount he has paid for the construction of his house.

14. It is pertinent to note here that there is no dispute that the complainant has paid Rs.6,50,000/- to the Ops towards advance amount as per Ex.P2.  If the Ops have return the amount in cash there is no document placed before this Commission to show that they have paid Rs.6,50,000/- in cash to the complainant. The Ops are Real Estate Business Company and they will maintain records for each and every money transactions took place in their company. Except the email sent by the complainant for demanding them to pay Rs.78,000/- over and above the final amount, he has paid for the construction they have not produced any other document. If really the Ops have refund the amount of Rs.6,50,000/- the complainant would not have approached this commission by taking the risk of filing this complaint.
15. Under these circumstances the complainant has clearly established the non refund of the amount by the Ops and on the other hand, the Ops have failed to establish that they have already paid the amount in cash to the complainant. Hence we answer point No.1 in affirmative and point No.2 partly in affirmative.

16. Point No.3:- In view the discussion referred above the complainant is entitled for refund of the amount from the OP Rs.6,50,000/- with interest at 10% p.a., from the date of respective payment till realization and 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.6,50,000/- 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.6,50,000/- 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;