ORDER:
(PER SMT. J.SHYAMALA, MEMBER, ON BEHALF OF THE BENCH)
1. This complaint is filed by the complainant under Section 35 of Consumer Protection Act, 2019 praying to direct the Opposite Parties jointly and severally:
a). To pay an amount of Rs.54,05,691/- towards refund (of consideration amount and interest at 18% per annum) along with interest at 18% per annum until disposal of the present case:
b). To pay an amount of Rs.80,000/- for the amounts paid to the opposite parties' suppliers along with interest at 18% per annum until disposal of the present case:
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c). To pay penalty amount of Rs.5,60,000/- as per Clause 4.2 of the Agreement of the complainant until date of filing of the present complaint, along with interest at 18% per annum until disposal of the present case, and additionally Rs.20,000/- per month thereafter until disposal of the present complaint. d). To pay damages of Rs.35,00,000/- towards damages and costs borne by the complainant for undertaking construction work by himself along with interest at 18% per annum until disposal of the present complaint.
e). To pay Rs.50,00,000/- for mental trauma and agony and harassment (both physical and mental) to the complainant along with interest at 18% per annum until disposal of the present case and to pass such other order or orders as deem fit and proper in the circumstances of the case and interest of justice.
2. The case of the complainant is that, he is owner and possessor of plot number 522, northern part in survey number 74 part admeasuring 204.84 sq.yds situated at journalist colony phase 3, Gopanpalli village, Gachibowli and had acquired the ownership in the said land by virtue of a registered gift deed. The complainant was planning to construct a house in the scheduled property and because he is a private employee and would not find time to personally undertake construction activity, he decided to appoint a contractor or service provider for construction of his own residential house in the scheduled property. The opposite parties approached complainant through a customer care executive where the opposite parties assured the complainant to undertake the construction activity and induced complainant to associate with them for the construction work and accordingly, the complainant and opposite parties entered into a construction agreement dt. 13/09/2019. The opposite parties explained their experience in providing civil work services and are professionals in delivering services such as interiors, renovation, construction services, home cleaning, painting, beauty services at home etc. and also convinced the complainant by stating that they have wide presence and reputation at various places such as Bangalore, Hyderabad, Chennai, Delhi, Mumbai, Gurgaon, Pune, Coimbatore, Vijayawada, Surat, Baroda and Ahmedabad.
2.a) The complainant accordingly obtained necessary approvals from GHMC authorities for construction permission and obtained the same on 26-07-2019. During negotiations, the opposite parties inspected the scheduled land and were apprised of sanction plan and accordingly they
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gave a quote of Rs. 51,40,083.65 for undertaking and completing the construction of the house which consists of super built-up area of 3780 sq. ft., 3515 usable space and 265 sq. ft. for parking area as per the approved plan by GHMC which is calculated at Rs. 1,350 per sq. ft. and agreed to construct the scheduled property as per the specification and plan as attached in the agreement, and the construction should be completed on or before 16-06-2020 within tentatively 9 months from the date of agreement and the set date of 16-06-2020 is the completion date as per the agreement. The complainant immediately handed over the physical possession of the scheduled land to the opposite parties for commencement of construction work and the opposite parties under one pretext or the other had obtained substantial amount of Rs. 39,45,708/- before the onset of COVID-19 pandemic i.e., 77% of the total consideration under the agreement was received by the opposite parties. However, to the utter shock and dismay of the complainant, the opposite parties could not complete even 20-30% of the construction work before the onset of COVID-19 lockdown and in fact the work undertaken by the opposite parties was also of substandard quality and not in compliance with the approved sanction plan. At this stage, the complainant had paid consideration as per the agreement by taking home loan of Rs. 30 lakhs from Indian Overseas Bank in September 2019. As such, out of total paid consideration Rs. 47,58,531/-, the complainant paid an amount of Rs. 30 lakhs by obtaining home loan and rest of Rs. 17,58,531 from the complainant's life savings with a fond hope and dream of building a home. However, the opposite parties turned the entire construction activity into a disaster and gave horrific experience by looting the complainant's money and by not delivering the services as promised under the agreement.
2.b). Though in May 2020, the Government had relaxed construction activities, and also in spite of several follow-ups by the complainants, the opposite parties failed to perform and resorted to evasive tactics by giving vague and petty excuses and caused inordinate delay in the work. The opposite parties have breached the agreement as well and deviated from the building plan and layout and undertook the construction work as per their whims and fancies in a defective manner and in violation of the agreement. As such, the conduct of opposite parties amounts to gross negligence and willful omission of the services. It is submitted that, the complainant had suffered immensely between July 2020 and January
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2021 where the supplier attacked the complainant for money because the opposite parties failed to clear their payments and dues of construction material. The complainant left with unwarranted risk and trauma and the same got worse with each passing day as the opposite parties failed to resolve the complainant concerns. The complainant in the month of October 2020, being vexed and disappointed with the opposite parties, requested for refund of consideration, writing to Sanchit Gaurav, CEO. Later in December 2020, one of the vendors of the opposite parties had taken away the bike of the complainant, hence the complainant suffered severe mental trauma and harassment because of the opposite party's negligence and fraudulent business operations and conduct. At this stage, the opposite parties again claimed for further consideration of Rs. 5,12,796 by making the complainant believe that all the issues will be resolved and the construction work will be expedited. On 28-04-2021, the complainant sent an email terminating the agreement on account of non-performance of services and for breach of agreement terms and conditions.
2.c) The opposite parties and their team are a group of habitual fraudsters, especially their CEO, namely Mr. Sanjit Gaurav, and his team had played a very active role in misleading and distracting the complainant by giving false promises and assurances time and again. The complainant has adequate evidence to prove his case against Sanjit Gaurav because he had siphoned money from normal public like complainant and made unjust enrichment by committing fraud. The complainant was not eligible for another home loan again as he paid total loan amount to opposite parties and at this stage, the complainant was constrained to obtain personal and hand loans to complete the construction in the scheduled property as per the sanctioned plan. It is crucial to mention that apart from Rs. 47,58,531 already paid to the opposite parties, the complainant had taken another Rs. 26,80,524 of loans in order to correct the construction and further complete the construction. 2.c) As the opposite parties have been actively ignoring mails, calls and messages of complainant by also giving evasive, frivolous and untenable responses, complainant was constrained to file a criminal complaint on the file of PS Gachibowli, Hyderabad. After lodging the said complaint, the opposite party's team approached the complainant with a settlement proposal, but again tried to mislead him and delayed payments and mislead the complainant from initiating legal proceedings. The complainant got issued a legal notice dated 19-3-22 to opposite
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parties. The opposite parties acknowledged to the said legal notice, but not given any reply. The opposite parties are liable to return, hence this complaint.
3. The opposite parties filed written version denying the submissions made in the complaint as the complaint itself is a distortion of facts. The opposite parties further denies that they could not complete even 20-30% of construction work before the onset of COVID-19 lockdown and further work undertaken by the opposite party were substandard quality, not in compliance with the approved construction plan and had illegally obtained the amounts by inducing the complainant with false promises and assurances and the complainant is put to strict proof of the same. In this regard, it is submitted that the opposite parties had done the work as per the evaluation report dated 17-01-2022 and the complainant is not agreed with the same and an afterthought he filed the present complaint which is false and frivolous.
3.a) The opposite parties admits that they failed to complete the said project work on the given time due to the impacts of the COVID-19 pandemic. At that time, the pandemic continued to expand and the labours were not keeping well and was suffering from COVID due to which work was getting affected, hence it was becoming difficult for the opposite parties to arrange for alternative labours and was beyond the control of the opposite parties. The opposite parties were not able to promise the finished timeline and states that they have completed the work as per the evaluation report dated 17-01-2022 and thereafter the construction work was stalled as the complainant was non-cooperating. The opposite parties denies that they never violated and never deviated from the building plan and layout and undertook the construction work as per their whims and fancies. The opposite parties are not aware of the alleged attacks by suppliers and they never fled away with construction material and they deny that, due to non-payments the suppliers had taken away bike of the complainant for want of money and all other allegations herein made by the complainant against the opposite parties do not call for any reply. The opposite parties are not aware of the home loan as well as personal loan taken by the complainant hence do not reply. The opposite parties deny the contents of the complaint as they are wrong, incorrect and frivolous hence denied in total and put the complainant to the strict proof of the same. Therefore, it is evident from
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the sequence of events that the opposite parties have not indulged in any unethical trade practices or unfair trade practices that have caused the complainant resulting looting, hardship, torture, humiliation, harassment, financial loss or mental agony. The complainant has deliberately concealed the material facts on record at the time of filing the present complainant and maliciously suppressed. The delay in construction work was not intentional but due to the non-payment, non- cooperation by the complainant and the impacts of the novel corona virus pandemic. Hence, it is prayed that the complainant is not entitled for any reliefs prayed in the complaint. In fact, the complainant is guilty of committing perjury by giving false representations and concealment of true facts and the suit is misconceived and devoid of any merits. Hence, prayed to dismiss the complaint with exemplary costs.
4) During the course of trial, the complainant got examined as PW1 marked Exs.A1 to A10. Even after providing sufficient time, the Opposite parties did not filed evidence affidavit hence, right to file evidence affidavit by Opposite Parties is forfeited. Heard complainant.
5) After perusal of pleadings and documents, the following points are raised for consideration:
1. Whether there is any deficiency in service on the part of the Opposite Parties?
2. Whether the complainant is entitled for the reliefs prayed for?
3. To what extent?
6).Point No.1 & 2:
6.(a). As per Ex.A1, there is no dispute that, the complainant and opposite parties entered into construction agreement dt. 13/09/2019 for construction of a house in the plot belongs to complainant vide plot No. 522, admeasuring 204.84 sq.yds situated at journalist colony phase-3, Gopanpalli village, Gachibowli. On 26-07-2019 itself, the complainant obtained necessary approvals from GHMC authorities and opposite parties gave a quote of Rs. 51,40,083.65 for undertaking and completing the construction of the house as per the approved plan by GHMC which is calculated at Rs. 1,350 per sq. ft. and the construction should be completed on or before 16-06-2020 within tentatively 9 months from the date of agreement and the set date of 16-06-2020 is the completion date as per the agreement. The opposite parties took physical possession of the scheduled land commenced the construction work and had obtained
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substantial amount of Rs. 39,45,708/-before the onset of COVID-19 pandemic i.e. 77% of the total consideration under the agreement was received by the opposite parties. However, to the utter shock and dismay of the complainant, the opposite parties could not completed within specified time and as per complainant, the work done by opposite parties was of substandard quality and not in compliance with the approved sanction plan. As per Ex A4 to A8, the complainant had paid part of consideration by taking home loan of Rs. 30 lakhs from Indian Overseas Bank in September 2019 and rest of Rs. 17,58,531/- from the complainant's life savings and as per Ex. A9, the total paid consideration was Rs. 47,58,531/- The version of complainant is that, the entire construction activity gave him a horrific experience as the opposite parties have breached the agreement and deviated from the building plan and layout and undertook the construction work as per their whims and fancies in a defective manner and in violation of the agreement and as they left half constructed property got sent email terminating the contract as per Ex.A3 dated 28.04.2021 hence seeks refund of Rs.54,05,691/-with interest and compensation.
6.b) But the complainant though mentioned about pending works in his email to opposite parties as per Ex.A10 dated 02.09.2020 neither submitted the details of the unfinished work with photographs in the complaint, measurements and the cost of the material, required labour works for completion of pending works nor any expert witness examined to prove on record the details there of the unfinished works, hence, this commission cannot grant the relief of refund and compensation without sufficient evidence. Complainant could have supported his case by filing photographs of pending works and a inspection report by competent civil engineer and would have produced a report of incomplete works by opposite parties and the amounts and works he spend for completion of pending works. Complainant also stated that, he was constrained to file a criminal complaint on the file of PS Gachibowli, Hyderabad against opposite parties, but did not state the status of the case. The opposite parties only filed written version denying the allegations of complainant but did not produce any evidence or documents to prove his case but stated that, they had done the work as per the evaluation report dated 17-01-2022 and the same is not filed before this commission. The proceedings before this Commission being summary in nature, the complaint involving highly disputed questions of facts and accounts cannot be decided by this Commission under the said Act. The burden of
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proving the deficiency in service would always be upon the person alleging it. Hence, this commission is of considered view that, under summary trial, the disputed documents and accounts cannot be considered and the parties can approach competent court of Law to resolve their dispute availing Section 14 of the Limitation Act, period spent before this Commission as held by Hon'ble Supreme Court TRAI Food Ltd., Vs. National Insurance Co., Ltd. Therefore, this case stands dismissed without costs.
In view of our above discussion the complainant is not entitled for the reliefs prayed and the complaint is liable to be Dismissed.
7). Point No.3 :- In the result, the complaint is dismissed. Typed to my dictation and pronounced in the Open court on this the 3rdday of November' 2023.
Sd/- Sd/- Sd/-
MEMBER MEMBER PRESIDENT
APPENDIX OF EVIDENCE
WITNESSES EXAMINED
For Complainant:
PW1 - Mr. Sandeep Boini.
For Opposite Parties:
NIL.
DOCUMENTS MARKED
For Complainant:
Ex.A1 -is the copy of Main Booking Agreement along with Permission Permit Plan dt.13.09.2019.
Ex.A2 - is the copy of Home Loan.
Ex.A3 - Email of Termination dt.28.04.2021.
Ex.A4 - is the copy of PayU Finance - Personal Loan dt.30.06.2021. Ex.A5 - is the copy of Fullerton India - Personal Loan dt.21.07.2021. Ex.A6- is the copy of Insta Jumbo Loan - HDFC -Personal Loan dt.29.09.2021.
Ex.A7- is the copy of Insta Jumbo Loan - HDFC -Personal Loan dt.14.09.2021.
Ex.A8 - is the copy of Credit Card Loan dt.16.11.2021. Ex.A9- is the copy of Acknowledgment of receipt of payments by the Respondent dt.22.01.2021.
Ex.A10-is the copy of Email correspondences between the complainant and opposite party between 2019-2022.
For Opposite Parties :
Nil. Sd/- Sd/- Sd/-
MEMBER MEMBER PRESIDENT
kps
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