CC: 286/2021

   Date of Filing: 15.04.2021

                                                  Date of Disposal: 05.06.2023

BEFORE THE III ADDITIONAL BANGALORE URBAN

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION,

BENGALURU – 560 027.

DATED THIS THE 5^th DAY OF JUNE 2023  

CONSUMER COMPLAINT NO. 286/2021     

                                      PRESENT:               

SRI.RAJU K.S,

SMT.REKHA SAYANNAVAR,:MEMBER                                          

1. . Sri. Amith Guptha. H.A

S/o. H.S. Ananda Rama Guptha

Aged about 41 years R/at No.03,

Guptha’s, 1^st Cross

Kumaraswamy Layout

2. . Smt. Sowmya Guptha H.A

W/o. Amith Guptha. H.A

Aged about 36 years R/at No.03,

Guptha’s, 1^st Cross

Kumaraswamy Layout

(Rep. by S.R. Muralidhar, Advocate)

1.The President – C.E.O,

House Joy, Sarvaloka Services On

Call Pvt.Ltd., No.L-371,

Sector-6, HSR Layout

Bengaluru – 560102.

2.Sarvaloka Services On Call Pvt Ltd.,

No.L-371, 5^th Main Road,

Opp.Liss Arcade,

Sector-6,HSR Layout,

Bengaluru – 560102.

(Rep. by Smt.Swati Singh, Advocate)                    ... OPPOSITE PARTIES

//JUDGEMENT//

BY SMT. REKHA SAYANNAVAR, MEMBER

1. The present complaint is filed under section 35 of CP Act 2019 with a prayer to direct the opposite parties to return  the booking  cum  advance amount of Rs.3,00,000/- [Rupees Three Lakhs only] with interest at the rate of 18% per annum from the date of payment till realization. Further to pay damages of Rs.5, 000/- per month from 04.05.2020 till realization and to grant such other relief as this commission deems fit in the interest of justice and equity.

Brief facts of the complaint.

2. The counsel for complainants submits that opposite parties are engaged in the business of construction of all kinds of buildings from the small domestic dwelling house to big buildings in and around Bangalore city. The complainant approached the opposite parties over phone and later during March 2020 personally approached the opposite parties.  After getting induced by the words of opposite parties about their profile and made initial advance payment of Rs.3, 00,000/- to proceed with the construction work of the house of complainants in their site. 

3. The complainant  insisted for an agreement to enter into before proceedings with the payment of the advance amount from their side whereas the opposite party induced the complainant to make IRC booking by filling up a form of booking and to pay the booking amount of Rs.3,00,000/- This being the fact of the complainant the opposite parties had not taken up the construction work of the complainants and not visited the site also even after the lapse of 12 months after making the advance amount to the opposite parties. The opposite parties kept on procrastinating on one another excuses like Covid-19 Pandemic etc. The complainants sent one E-mail on 17^th June 2022 to the opposite parties claimed refund of the booking advance amount paid by them. The acts of the opposite parties made the complainants to suffer mentally and financially during the Covid-19 pandemic. Complainants were constrained to issue legal notice on 03.03.2021.  The said legal notice was duly served upon opposite parties but there is no reply and response from them. The complainants left with no other alternatives to approach this Commission for their grievances under the Consumer Protection Act, 2019 for deficiency of service and unfair trade practice of opposite parties.  Hence, this complaint.  

4. The notice of this complaint was duly served upon the opposite   parties. The opposite parties remained absent,   placed EX-parte. Later on 06.10.2022 Counsel for opposite parties filed Vakalath. On 29.11.2022 filed version for opposite party No.1 & 2 On perusal of the order sheet it appears that opposite parties No.1 & 2 were served on 17.07.2021 and the version was filed on 29.11.2022. Hence the version was filed beyond the statutory period, the version is rejected.

5.  The counsel for the complainant had filed affidavit in the form of evidence in chief.   EX-P1 to Ex-P5 are marked.

6. Counsel for both the parties had filed their respective written arguments. 

 7. The points that would arise for consideration are as under:-

  (1) Whether there is deficiency of service and unfair trade practice on the part of the opposite parties?

  (2) Whether the complainant is entitle for the 

      Relief as sought?

      (3) What order?

 8. Our findings on the aforesaid points are as follows:

POINT NO.1 :  In Affirmative.

POINT NO.2 :  Partly in Affirmative.

POINT NO.3 :  As per the final order for the following;

REASONS

9. To avoid the repetition of facts, we have discussed both points together. The PW1 had reiterated the facts. The complainants have filed an application U/S 35 (1)(c) of CP Act, 2019 to file this  joint complaint. It is the case of the complainants who had assigned the construction of their dwelling house in their site to the opposite parties by making the advance amount of Rs.3,00,000/o on 04.05.2020.  To substantiate their claim they have produced bank statement which is marked as EX.P1.  The opposite parties are the construction company. The claim of the complainants is that even after receiving the advance payment of Rs.3, 00,000/- the opposite parties had not visited the site and not even started any kind of  construction  work as assigned and as promised. This being the facts the opposite parties kept on procrastination  on one and another  excuses. 

10. As the counsel for opposite parties had filed their version beyond the statutory period of 45 days as contemplated in the CP Act, 2019.  Their version is taken as nil.    They have filed their written arguments. In their written arguments they have contended that they are not liable to repay the said amount as it is initial non-refundable amount as per the booking agreement.  After Covid-19 Pandemic the prices of all materials and labor cost have increased enormously and the complainants not willing to pay the rate of materials and labor cost.  Therefore, the project got delayed and is not yet started.   

11. By considering the averments made by the counsel for opposite parties in their written arguments they have not produced the ``terms and conditions of the booking agreement`` and other related document to support their averments.

12. The complainants approached the opposite parties many times to start their project but of no use. Finally on 17.06.2020 sent one E-mail requested for the refund of  advance amount of Rs.3,00,000/-. The  opposite parties neither commenced the construction work nor refunded the advance amount of the complainants. All these acts of the opposite parties made the complainant to suffer mentally and financially. It amounts to deficiency of service as enumerated U/S 2 (11) of CP Act, 2019 and unfair trade practice as enumerated U/S 2 (47) of CP Act, 2019.  On perusal of EX.P4 i.e. E-mail communication,  in one of the E-mail stated 03.05.2020 the opposite parties have clearly mentioned under the heading ``additional benefits offered ``, at offer No.11 `` 100% refund on 3,00,000/-  booking amount if the lockdown increases for a month or more.  The point to be noted here is that the payment of advance amount was made on 04.05.2020,  during the period of complete national lockdown. The national lockdown was released with certain exemptions from 31.05.2020 onwards. The complainants to substantiate their payment have produced EX.P1 i.e. Bank statement of complainants and EX.P5 i.e. E-mail communication dated 09.05.2020 which is the acknowledgement of the receipt of payment by the opposite parties. Therefore, we consider the complainants are entitled for the refund of Rs.3, 00,000/- with interest at the rate of 9% per annum from the date of payment on 4.5.2020. In addition the opposite parties directed to pay the compensation of Rs.20,000/- towards mental agony and financial hardship and to pay Rs.10,000/- towards the litigations  cost. Hence, we answer point No.1 in Affirmative and point No.2 partly in Affirmative.

POINT NO.3 :- In the result, for the foregoing reasons, we proceed to pass the following.

ORDER

The complaint is allowed in part.

The Opposite parties  are directed to refund the advance amount paid  of Rs.3,00,000/- with interest at the rate of  9 % from the date of payment on 04.05.2020  till realization to the complainants.

In addition to the complainant is entitled for compensation of Rs.20,000/- towards mental agony and financial hardship and  RS.10,000/- towards cost of the litigation from opposite party No.1.

Supply free copy of this order to both the parties.  

Opposite parties shall comply the order within 30 days? In case, if it fails to comply the order within the said period, the above said amount of Rs.30,000/-  carries interest at the rate of 9% per annum from the date of order till realization.

Applications pending, if any, stands disposed of in terms of the aforesaid judgment.

(Dictated to the Stenographer, typed by her, the transcript corrected, revised and then pronounced in the open commission on 5^th  day of  June 2023).

• REKHA SAYANNAVAR)      (RAJU K.S)            (SHIVARAMA. K)    
•  

//ANNEXURE//

Witness examined for the complainant side:

Sri. Amith Guptha. H.A Complainant [PW-1] has filed the affidavit in the form of his evidence in chef.

Documents marked for the complainant side:

1. Copy of Bank statement of complainant (ICICI). EX.P1.
2. Legal notice dt. 3.3.2021 EX.P2.
3. Original 2 postal receipts  EX.P2(a) & EX.P2(b).
4. Two postal acknowledgements EX.P2(c) & EX. P2 (d).
5. Certificate U/s 65(b) of Evidence Act EX.P3.
6. E-mail communication b/n complainant & opposite party

dt. 12.02.2021 (3 sheets) EX.P4.

7. Anther E-mail communication b/n complainant & opposite party

    dt. 28.09.2021 (3 sheets) EX.P5.

Witness examined for the opposite parties side: 

-  Nil  -

Documents marked for the Opposite Parties side:

        -  Nil  -

•  REKHA SAYANNAVAR)        (RAJU K.S)          (SHIVARAMA. K)    
•  

ORDER

The complaint is allowed in part.

The Opposite parties are directed to refund the advance amount paid  of Rs.3,00,000/- with interest at the rate of  9 % from the date of payment on 04.05.2020  till realization to the complainants.

In addition to the complainant is entitled for compensation of Rs.20,000/- towards mental agony and financial hardship and  RS.10,000/- towards cost of the litigation from opposite party No.1.

Supply free copy of this order to both the parties. 

Opposite parties shall comply the order within 30 days? In case, if it fails to comply the order within the said period, the above said amount of Rs.30, 000/- carries interest at the rate of 9% per annum from the date of order till realization.

Applications pending, if any, stands disposed of in terms of the aforesaid judgment.

(Pronounced in the open commission on 5^th day of June 2023).

• REKHA SAYANNAVAR)      (RAJU K.S)            (SHIVARAMA. K)    
•