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

DATED 26^TH DAY OF JULY 2023

COMPLAINT NO.316/2022

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.7,40,113/- 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.40, Venus County Phase 6, Haragadde Village, Jigani Hobli, Anekal Taluk, Bengaluru 562 105. Complainant entered to booking and construction agreement with the Ops on 06.01.2022 for a super build-up area of 2577.46 sq. feet in total project cost of Rs.38,93,027.53 and the OP will hand over the house to the complainant within six months and agreement was start from February 2022 and same has been completed June 2022 with a grace period of three months.  

3. As per demand complainant has paid a sum of Rs.7,40,113/- to the Ops. But the Ops have failed to start the work even after sufficient time. Thereafter the Ops in order to drag the matter in question for refund of legal dues of Rs.7,40,113/- towards the complainant, 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. Complainant further submits that they got issued legal notice dated 15.09.2022, 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. OP further states that the complainant has deliberately conceived the material facts. These Ops have completed the work to the extent of the amount received. They have done the work at the site like survey, soil testing, labour shed, excavation and PCC. They have asked the complainant for four weeks time to resolve the issue permanently related to steel and footing concreting but the complainant is not ready and was adamant in view of this the complainant project is stopped on halt and the delay is caused by this OP1. The delay is not intention and it is for the aforesaid reasons. Hence OP1 prayed to dismiss the complaint.

7. The complainant in support of his 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 Booking agreement on 16.12.2021 by paying an advance amount of Rs.3,00,000/- and further entered into service agreement and paid an amount of Rs.2,61,143/- and again paid Rs.1,57,470/- towards RAI(POA) and Rs.21,500/- for labour shed and totally paid Rs.7,40,113/-.  The OP has received the amount as per Ex.P2.  The total cost of the project as per the service agreement is Rs.38,93,027.53ps. The OP has to start the project from February 2022 and complete the project within November 2022 with three months grace period till February 2023.   After that the OP have not at all commenced the work even though he has received more than 20% of the project cost.  The complainant after seeing the negligence and lackcity and deficiency on the part of the OP services in not complying with the terms and conditions of the booking and construction agreement got issued a legal notice on 15.09.2022, when the OP have failed to refund the amount. The OP has instituted a suit in OS No.1733/2022 before the City Civil Judge for seeking relief of injunction to grant time to return the dues to the complainant and other customers who are trapped by the OP. 

13.    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 Service Agreement, Copy of the payment receipt, copy of the email correspondence between the parties, copy of the legal notice, and copy of the 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 Board resolution for appointing Mr.Rahul R Patel as authorized representative in this case, email communications as document No.2 and true copy of the soil test report, which is marked as document No.4,

15.    The OP1 has clearly stated that they have completed the work to the extent of amount received and done the work at the site like survey, soil testing, labourship, excavation and PCC.  When this OP1 has requested the complainant four weeks time to resolve the issue related to steel and footing concreting, but the complainant was not ready and was adamant for cancellation of agreement. Hence they have stopped the work.  The Ops have stopped the work due to non-co-operation of the complainant himself.  The complainant is not entitled for any refund.

16.    When the Ops have failed to commence the construction work properly 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.7,40,113/- from the complainant and done some work like survey, soil testing, labour shed, excavation and PCC.  The OP has not even started the construction work.

17.    The complainant invested his hard earned money with a fond hope that their house will be constructed within June 2022 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 complete the construction work has entered into the service 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.

18.    Point No.3:- In view the discussion referred above the complainant is entitled for refund of the amount from the OP Rs.7,40,113/- 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.7,40,113/- 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.7,40,113/- 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;