Delhi

East Delhi

EA/75/2017

SUDHIR KR. VARSHNEY - Complainant(s)

Versus

VIKRAM KHARBANDA - Opp.Party(s)

17 Feb 2023

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION (EAST)

GOVT. OF NCT OF DELHI

CONVENIENT SHOPPING CENTRE, FIRST FLOOR,

SAINI ENCLAVE, DELHI – 110 092

 

C.C. No. CC/333/2015

 

	SHRI SUDHIR VARSHNEY, S/O LATE SHRI HARISH CHAND, R/O A-65, PRIYA DARSHNI VIHAR, DELHI-110092.	….Complainant
Versus
	SHRI VIKRAM KHARBANDA, PROPRIETOR OF CREATICA BUD, C/O U-112, VIDHATA HOUSE, IIIRD FLOOR, NEAR LAXHMI NAGAR METRO STATION, VIKAS MARG, DELHI-110092.	……OP

 

Date of Institution: 11.05.2015

Judgment Reserved on: 14.02.2023

Judgment Passed on: 17.02.2023

QUORUM:

 

Sh. S.S. Malhotra (President)

Ms. Rashmi Bansal (Member)

Sh. Ravi Kumar (Member)

 

Order By: Ms. Rashmi Bansal (Member)

 

JUDGEMENT    

The complaint is filed by the complainant against OP for being deficient in service in installing modular kitchen despite payment of the agreed consideration of Rs. 2,50,000/- and prayed for refund of the said amount along with interest and compensation of Rs. 50,000/- for the mental torture, agony and harassment and Rs. 50,000/- as litigation cost.

1. The background of the case is that the complainant initially has filed complaint case bearing number 333/2015 in which final order dated 17.05.2017, has been passed by District Consumers Redressal Forum, East, whereby the OP was proceeded ex parte, and was held responsible for deficiency in service and was directed to refund Rs.1,94,000/- along with 25,000/- as compensation, including the cost of litigation. It was further directed that if the said order is not complied with in 30 days from the date of receipt of this order, then the respondent shall be liable to pay 9% interest on Rs. 2,19,000/- from the date of filing complaint till realization. The OP then preferred an appeal bearing number FA - 151/18 before Hon'ble State Commission whereby the execution of the order was stayed subject to deposit of 50% of the amount within four weeks, which was deposited by OP.  Further, vide order dated 05.02.2020, the Hon'ble State Commission after noting that the appellant (OP herein) was proceeded ex-parte and has disputed the service of summon upon him, has allowed the appeal and remanded back the matter to district forum to decide the same on merit after giving opportunity to a appellant (OP herein) to contest the matter and to file WS on the date of appearance i.e. 28.02.2020, along with the cost of Rs.5000/-. In view of the order of the Hon'ble state Commission, the execution no. 75/2017, filed by the DH (complainant herein) was dismissed having become infructous vide order dated 08.02.2021 and a court notice was issued to the OP for 03.03.2021, on which date OP did not appear and the next date was fixed as 24.03.2021 on which date OP appeared, but did not file WS and next 30 days were granted to him to file Written Statement subject to the cost of Rs.5000/- payable to complainant and matter was fixed for 23.04.2021. The court file reveals that OP did not file a WS till 22.09.2022, i.e. beyond the period granted by the Commission and since the same was not filed by OP within period of 30 days as per order dated 24.03.2021, it was ordered that the same would not be read for the purpose of the defence of OP. The complainant has already filed his evidence by way of affidavit, and wanted to retain the same.
2. On merit, shorn of unnecessary details, the crux of the case is that the complainant has taken services of OP, who deals in providing services for installation of modular kitchen, for installation of the same at his residence. OP has sent Quotation cum offer dated 01.12.2014. The said quotation cum offer letter had specification of material, quantity and brand name of the material to be used along with terms and conditions for installation. The total cost of the proposed modular kitchen was quoted Rs. 2,25,000/-. The complainant paid advance of Rs. 75,000/- on 27.12.2014 and the OP has started assembling material and installation of modular kitchen as per terms and conditions. The complainant has paid the remaining amount to the OP and also paid Rs. 25,000/- , an additional amount as demanded by OP on account of tax applicable on relevant terms and conditions, thus the total amount paid by the complainant is of  Rs.2,50,000/- even before the completion of the above said work, as per terms and conditions of the OP.
3. Based on the assurances and representations made by the OP, the complainant put his faith and trust in the services of OP but OP has failed to keep his promise to provide the service as per his promises and failed to complete the work in a stipulated time which was agreed to be completed within 30 days from the start of installation of modular kitchen. The work was started on 15.01.2015, and the same is still incomplete (till the filing of the complaint). The OP has also not provided the agreed quality and complete quantity in consonance of the quotation and even did not stick to the offer given by the OP and has rendered deficient services to the complainant. The OP has altered the agreed design and drawing of the fitting of the modular kitchen and deviated from the agreed terms and conditions.
4. Thereafter, the complainant requested OP several times personally as well as through emails to complete the installation and rectify the deficiencies left in modular kitchen, which was incompletely installed by the OP, but OP did not pay any heed to the requests of complainant, and failed to complete work in time and rectify the deficiencies from the modular kitchen. A legal notice dated 01.04.2015 to OP through speed post and email dated 09.05.2015, was not replied  by the OP. The complainant submits that one Mr. Manish Verma from OP office has called complainant telephonically but nothing was done by OP.
5. In support of his case, the complainant has filed :-
   1. Quotation dated 01.12.2015 sent by OP through email as Ex. CW1/1 with two photographs, CW1/3;
   2. Receipt dated 27.12.2014 showing payment of amount of Rs.75,000/-, Ex. CW1/4;
   3. List dated 30.01.2015 of the material delivered by OP Ex. CW1/5;
   4. Receipt dated 30.01.2015 of payment of total amount of Rs. 2,25,000/- including earlier payment of 75,000/- Ex. CW1/6;
   5. List dated 11.02.2015 of material return to OP being defective Ex. CW1/7;
   6. Emails sent by complainant to OP for completion of the work Ex. CW1/8 (colly);
   7. Copy of legal notice dated 01.04.2015, Ex. CW1/9 along with postal receipts and envelopes Ex. CW1/10 – Ex. CW1/13; tracking report, Ex. CW1/14 and email dated19.04.2015, Ex. CW1/15 and dated 28.04.2015 Ex. CW1/16.
6. Since, the version of OP has not been allowed to be taken on record, the complainant was directed to file CE which was filed.  The Commission has heard the counsel for the complainant and have perused carefully the material placed on record. As the WS of OP was not taken on record in terms of the order dated 22.09.2022 of this Commission, all the averments put forth in the complaint are deemed to have been admitted by OP and the evidence led by the complainant stands unrebutted.    
7. The quotation Ex. CW1/1, mentions an estimated cost of Rs.2,25,000/- for installation of the modular kitchen and below that, under the heading ‘Terms and Conditions’ ‘payment’ clause clearly mentions that “50% advance/ 30% on installation of boxes ballast / 20% before installation and delivery of material”, which establishes that the OP had the condition for the payment of the complete amount of Rs. 2,25,000/- before completion of the work. The other clause mentions cartridge and taxes will be charged extra as applicable. Ex. CW1/4 shows the total cost of the kitchen installation as Rs.2,50,000/- and an advance of Rs. 75,000/- was received by OP on dated 27.12.2014 and for the payment of the balance amount of Rs. 1.75 lakhs, a note was written on the document itself that the balance to be paid before delivery and installation. This note further confirms that in view of OP’s condition to receive the entire amount in advance before installation OP had received the entire amount in advance from complainant. The email dated 25.02.2015, 09.03.2015, 10.03.2015, and 27.04.2015 addressed to the OP clearly mentioned that complainant has paid Rs. 2,50,000/- for installation of modular kitchen to OP and the work is still incomplete and rectification of fittings has to be done. OP did not reply the above stated emails nor has denied the receipt of Rs.2,50,000/- from the complainant, which pertains to the admission on the part of the OP and establishing that OP is in receipt of Rs.2,50,000/- from the complainant. The document and photographs on record also show that work is left midway unfinished. The amount of work done by OP is of no use for complainant till it is completed and ready to use by the complainant. It is as futile as nothing is done.
8. Thus, after considering the facts and circumstances of the present case, this commission is of the view that complainant has proved the payment for the installation of the kitchen to the OP and material alteration in the specification has been made by the OP which led to the deficient and unfinished work for which complainant has been calling the OP again and again to complete the work. We find OP deficient in its services and hereby direct him to pay 2,50,000/- to the complainant along with interest @6% from the date of the filing of the complaint 29.08.2017 till its realization by the complainant along with compensation of Rs. 30,000/- for mental agony and harassment and Rs. 15,000/- towards litigation cost. The OP may take back all his material from complainant house on ‘as is where is’ basis at his own cost and he would do this within a period of 30 days of having received the copy of the Order, failing which the complainant may take service of someone to remove all such system/articles.  The above stated order be complied with by the OP within one month from the date of receiving the order, failing with OP shall be liable to pay an interest @9% p.a. on the entire amount.   
9. The file be consigned to Record room after providing the copy of the complainant to the parties as per CPA rules 1986 and the order be uploaded on the web site.
10. The complaint could not be decided within statutory period due to heavy pendency of the cases.
11. The order contains 08 pages each bears our signature.

Announced on 17.02.2023.