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

DATED 26^TH DAY OF JULY 2023

COMPLAINT NO.315/2022

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.9,06,000/- with interest at 18%
2. Direct the Ops to pay the damages, labour cost and hardship.
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.7, Whispering Medows, Veera Sagar Village, Kerrpariahalli, Yelahanka, Bengaluru 560 064.  Complainant entered to construction agreement with the Ops on 05.08.2020 to renovation, construct additional floor with entire interiors for super builtup area of 2295.40. In total project cost of Rs.29,97,380.52 and the OP will hand over the house to the complainant within nine months i.e., start from August 2020 to May 2021 with grace period of three months, with renovation.

As per demand complainant has paid a sum of Rs.9,06,000/- to the Ops. The complainant approached the Ops to execute Main Agreement as per the oral discussion, but the Ops were dragging the matter for one or the other pretext with lame excuses, never turned up nor refunded the money. 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.9,06,000/-.  Thereafter the Ops in order to drag the matter in question for refund of legal dues of Rs.9,06,000/- 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.

3. Complainant further submits that they got issued legal notice dated 20.09.2022, 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 This OP has 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 complainant is not intentional because of the circumstances and nonpayment by the complainant as well as impacts of covid-19 and related regulatory responses.

6. The OP1 further states that they are not liable to pay the said amount to the complainant, as they have completed the work to the extent of amount received and the complainant has stopped paying to the OP1, instead her husband started buying the materials on his own without checking the rate and approval from them. As per the BOQ it is the OP1 responsibility to complete the project, but the complainant’s husband was adamant and started purchasing the materials on his own. Now the complainant has spent more than the agreed project value and is expecting the OP1 to refund the said amount which is totally unjustified. 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 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 a Construction agreement on 05.08.2020. The complainant has paid the advance of Rs.9,06,000/- towards the construction work. As per the Construction agreement the total cost of the project was Rs.29,97,380.52ps., and out of that the complainant has paid Rs.9,06,000/-.  After that the complainant has stopped the payment since the OP have not at all commenced and completed the construction of the building as per the Construction agreement.

13. In support of their 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 six documents. Document No.1 is the Board resolution for appointing Mr.Rahul R Patel as authorized representative in this case and details of labour payment as per document No.2, email communications as document No.3.

15. The only contention taken by the OP is that they are unable to complete the project due to covid-19 and non-co-operation and nonpayment by the complainant and intense impact of covid 19.  The complainant stopped paying to the OP1 instead her husband started buying materials on his own without checking the rates and approval from them.  As per the BOQ it is the OP1 companies responsibility to complete the project but the complainant husband was adamant.  The complainant has spent more than the agreed project value and his expecting this OP1 to refund the said amount which is totally unjustified.

16. The project will commenced in the month of August 2020 and shall be completed before May 2021 with grace period of three months.  As per the receipt produced by the complainant, the complainant has paid total amount of Rs.9,06,000/-.  

17. When the Ops have failed to commence the construction work properly the complainants have lost hope and they stopped giving payment to the OP after visiting the spot.  If the OP is not able to start the work he would have clearly inform the complainants 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.9,06,000/- from the complainant and not even started the construction work.

18. They have invested their hard earned money with a fond hope that their house will be constructed within stipulated period 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 complainants have 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.

19. Point No.3:- In view the discussion referred above the complainant is entitled for refund of the amount from the OP Rs.9,06,000/- 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.9,06,000/- 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.9,06,000/- 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;