National Consumer Disputes Redressal
M/S. Ajara Design Lounge Pvt Ltd & 2 Ors. vs Ramesh Chandra Kapoor & Anr. on 18 January, 2024
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI FIRST APPEAL NO. 536 OF 2023 (Against the Order dated 07/03/2023 in Complaint No. 120/2017 of the State Commission Karnataka) 1. M/S. AJARA DESIGN LOUNGE PVT LTD & 2 ORS. M/S SLN SERVICE STATIOON NH-7, B.B. RAOD, CHIKKASANE DEVANHALLI TALUK BANGALORE-526 001 2. MS. ASHA PADASALLGI CHAIRMAN AND MANAGING DIRECTOR, M/S AJARA DESIGN LOUNGE PVT LTD M/S SLN SERVICE STATIOON NH-, B.B. ROAD, CHIKKASANE DEVANHALLI TALUK BENGALORE-526 001 3. SRI KRISHNA C KUMAR DIRECTOR M/S AJARA DESIGN LOUNGE PVT LTD M/S SLN SERVICE STATIOON NH-7, B.B. ROAD, CHIKKASANE DEVANHALLI TALUK BANGALORE-526 001 ...........Appellant(s) Versus 1. RAMESH CHANDRA KAPOOR & ANR. S/O LATE SHRI DINA KAPOOR RESIDING AT VILLA NO. 2 SOBHA LIFESYLE, IVC ROAD DEVANAHALLI, BANGALORE-562110 2. MRS. ANJANA KAPOOR W/O RAMESH CHANDRA KAPOOR RESIDING AT VILLA NO. 2 SOBHA LIFESYLE IVC ROAD BANGALORE-562110 ...........Respondent(s)
BEFORE: HON'BLE MR. JUSTICE RAM SURAT RAM MAURYA,PRESIDING MEMBER HON'BLE BHARATKUMAR PANDYA,MEMBER
FOR THE APPELLANT : MS. KIRAN SURI, SENIOR ADVOCATE
MS. AISHWARYA KUMAR, ADVOCATE FOR THE RESPONDENT : MR. ADITYA PAROLIA, ADVOCATE
MS. PRIYA, ADVOCATE
MS. SUMBUL ISMAIL, ADVOCATE
Dated : 18 January 2024 ORDER
1. Heard Ms. Kiran Suri, Senior Advocate, assisted by Ms. Aishwarya Kumar, Advocate, for the appellants and Mr. Aditya Parolia, Advocate, for the respondents.
2. The opposite parties have filed above appeal against the order of Karnataka State Consumer Disputes Redressal Commission, dated 07.03.2023, passed in CC/120/2017, allowing the complaint with cost of Rs.25000/- and directing the appellants to refund Rs.7000000/- with interest @9% per annum from the date of deposit till the date of refund and pay compensation of Rs.200000/- to the respondents.
3. Ramesh Chandra Kapoor and Mrs. Anjana Kapoor (the respondents) filed CC/120/2017 for directing the appellants to (a) refund Rs.7000000/- with interest @24% per annum from the date of deposit till the date of refund; (b) pay Rs.500000/-, as compensation for mental agony and harassment; (c) pay litigation costs; and (d) any other relief, which is deemed fit and proper in the facts of the case.
4. The complainants stated that M/s. Ajara Design Lounge Private Limited (OP-1) was a company, registered under the Companies Act, 2013, Ms. Asha Padasallgi (OP-2) was its Managing Director and Sri Krishna C Kumar (OP-3) was its Director. OP-2 and 3 were residing at Villa No.32, Shobha Lifestyle and neighbours of the complainants. The OPs were doing interior designing. In 4th week of September, 2016, the OPs represented the complainants that they had specialization in interior designing and executed various prestigious projects in Mumbai, Pune and Bangalore. The OPs proposed interior designing of Villa No.2, of the complainants. In first week of October, 2016, the OPs convinced the complainants for decoration of the Living room, Foyer and Dining room of their villa, with high end designer furniture, fixtures including rugs, painting, polishing and civil works on walls and floors, chandeliers and lighting fixtures for all the room; upholstery and home décor as well as garden patio furniture. The OPs told to provide the detailed drawings of design, layout, pictures of various types of wall and ceiling finishes, window covering civil work as well as furniture, light fixtures rugs etc. to the complainants for their approval and only after finalization/approval of the same, the OPs would proceed. On 13.10.2016, the OPs informed the complainants that they were going to China to procure furniture and fixtures for another client from Bombay and suggested to purchase furniture for the villa of the complainants also as it would be cheaper to buy furniture from China and also save travelling and staying expenses as it was already provided by the client from Bombay at that time. They would also be able to prorate the shipping by shearing container space. The OPs asked for payment of Rs.2000000/- by cheque at that time and Rs.3000000/- in cash to be paid on progress of the work. The complainants gave a cheque of Rs.2000000/- to the OPs on 13.10.2016, as demanded by them. On being asked for designs, the OPs assured that the detail drawing being prepared and no work would commenced or furniture/fixtures procured without their prior approval. On 15.10.2016, the OPs suggested the complainants to decorate their two bedrooms on the ground level, adjacent to the Living and Dining room also and gave glamorous pictures about their services and total cost of additional work of two bedroom was informed as Rs.5300000/- plus other statutory levies. The complainants were lured to increase the scope of work and include two bedrooms adjacent to the Living and Dining room. The complainants informed that their budget was only Rs.one crore and entire work of designing professional fee, expenses for purchase, transport including statutory taxes and levies would be within Rs.one crore, for which, the OPs agreed. At this time, the OPs demanded for further payment of Rs.3000000/- in cash as they had scheduled to go to China within two days and high end furniture and fittings had to be imported from China. The complainants paid Rs.3000000/- in cash to the OPs on 15.10.2016. The OPs sent a preliminary sample layout to the complainants on 16.10.2016 and vaguely explained the concept and theme of the interior design. They promised to provide detailed maps of the project along with 2D and 3D AutoCAD drawings, which would help the complainants to select the exact type of designs and decorations, based on which, the OPs would procure furniture, fixtures, accessories and do civil works on the walls. The OPs further demanded Rs.2000000/- on 17.10.2016, which was paid to them through cheque. The OPs allegedly left for China on 17.10.2016. Before leaving for China, the OPs gave a list of items, unilaterally prepared by them. The OPs did not give the materials for rug/carpet, material of make like wool/silk etc., its dimension, location in house and particularly the area of the room, painting on ceilings, motorized curtains, murals, decorative light fittings, chandelier etc. OP-2, vide email dated 17.10.2016 gave final quotation at Rs.one crore, including statutory taxes and levies, towards cost of execution of entire above works but demanded 10% extra on total costs towards professional fees. In this email, the OPs unilaterally included certain fresh arbitrary terms, which were never agreed earlier. The complainants, vide email dated 18.10.2016 refuted for fresh terms. The OPs, vide email dated 18.10.2016, revised their quotation for Rs.10300000/- as price plus statutory taxes and levies with 10% of flexibility over it and 10% of professional fee, which was again refuted by the complainants, vide email dated 18.10.2016. The OPs neither provided detailed maps of the project along with 2D and 3D AutoCAD drawings, for selecting the exact type of designs and decorations nor obtained approval of the complainants. Complainant-2 fell seriously ill on 18.10.2016 and diagnosed with Dengue and Chikangunia. The OPs started whatsapp chat from China to finalize furniture and fixtures by sending pictures. As the complainants were not in position to attend the OPs whatsapp, they requested their daughter Ms. Divya @ Payal Kapoor to co-ordinate with the OPs on whatsapp. The complainants and their daughter failed to agree for any items, which were shown on whatsapp. Due to lack of consensus, the complainants and their daughter repeatedly requested the OPs not to make any purchase. To disappointment, dismay and bewilderment of the complainants, the OPs allegedly placed the order for purchases of the furniture, fixtures and other items, ignoring instructions of the complainants for not purchasing any item. The OPs sent a list of purchases, which even does not match with the random pictures of furniture and fixtures shown on whatsapp. On their return from China, the OPs demanded additional Rs.33/- lacs along with 50% of the professional charges i.e. total Rs.3892250/- on 07.11.2016. The OPs refused to provide design and begin any work unless all the money is paid to them upfront. Even the OPs refused to give any documents relating to order/invoices/bills of the purchases and payments made of it. The OPs claimed the agreement to be a "turn-key" contract and they are entitled to decorate the villa of the complainants according to their own fancies without providing any documents and seeking approval of the complainants. The reckless actions of the OPs in purportedly purchasing the furniture/fixtures/other items in China without consent of the complainants further misrepresentation with regard to procurement of the same via some purported local third vendors and further unjust demands for the money in contravention of the agreed payment terms of progressive payment are material breach of the agreement between the parties and gross deficiency in service. The complainants repeatedly vide various emails, messages and oral communications sought for the documents relating to purchase order/invoices/bills of the purchases from China and payments made for it and also requested to commence the designing work but the OPs did not give any heed to their request. The OPs informed that furniture/fixtures/other items purchased in China, had to be imported, shipped, stored and any delay in payment, as demanded by them, would result in increase of further cost and damages to the complainants. Due to consistent threats of the OPs, the complainants were coerce to post an email dated 02.12.2016 that they did not want the purported furniture etc. ordered in China would be delivered to them and did not care for the loss. The complainants, vide email dated 09.12.2016, sought for refund of Rs.7000000/- to them. The OPs, vide legal notice dated 30.12.2016, demanded Rs.3300000/- as balance amount along with excise duty, VAT, cess etc. and Rs.10/- lacs as professional fee and they were willing to discharge their obligations. The complainants sent their reply notice dated 12.01.2017 and again sought for refund of their money with damages. In spite of service, the OPs did not respond, then, the complaint was filed on 07.03.2017.
5. The opposite parties filed their written reply and stated that the OPs were in the business of interior designing and gained goodwill and reputations in their work. The complainants approached the OPs for interior designing of Living room, Foyer and Dining room of Villa No.2. In pursuance thereof, the OPs visited Villa No.2 and suggested theme and concept of interior designing, in tune with the requirement of the complainants and suggested some required civil work and alteration. Thereafter, several meetings were held between them. After examining the drawing prepared for Living room, Foyer and Dining room, the complainants were impressed with their expertise and understanding of the client's need and decided for interior designing of their two bedrooms on the ground floor also and entrusted the project of interior designing of their villa to the OPs. The OPs described the complainants about placements, colour coordination theme, look of the house, comfort levels and gave live demonstrations and detail maps. The OPs also insisted on 2D and 3D AutoCAD drawing, which would incur an extra expenses @Rs.200/- per sq.ft., which was rejected by the complainants. After series of discussions and negotiations, the OPs gave the estimate of Rs.one crore (exclusive of applicable taxes, levies and professional fees amounting to 10% of total cost) towards costs involved in purchase of the items of interior designing; inter alia, furniture, electrical fitting and work, floor polishing, carpentry, wall painting, wardrobes, artefacts, soft furnishing, wall panelling, lighting, plaster of Paris etc. The OPs also informed that final cost could escalate by another 10% to 15% above the estimated cost. The OPs informed that most of the materials being high end luxury products would be required to be imported from China. Despite repeated discussions, the complainants insisted that entire cost of the project would be Rs.one crore only. Owing to the fact that the complainants were neighbourers of OP-2 and 3, they pressurized the OPs to agree to their terms and proposal with regard to the cost and made initial payment of Rs.2000000/- through cheque dated 13.10.2016. While the negotiations pertaining to the final cost prevailed, the complainants hastily paid another sum of Rs.3000000/- in cash, on 15.10.2016, even without furnishing their PAN card details, which was required for accounting purposes to the OPs. OP-3, vide email dated 17.10.2016, re-conveyed the final cost quotation of Rs.one crore for execution of the project, which was exclusive of the professional fee, taxes and levies. The complainants again met with the OPs and paid Rs.2000000/- through cheque on 17.10.2016 and sought for some more additions i.e. two glass door and other interior items. Complainant-2, vide email dated 18.10.2016, confirmed cost of Rs.103/- lacs towards execution of the project (exclusive of applicable taxes and levies) and Rs.10/- lacs as professional fee for the Italian Chandelier. The OPs, again vide whatsapp message, reminded for payment towards VAT and Service tax on 22.10.2016. Prior to departure to China, the OPs, vide email dated 17.10.2016, supplied the list of items to be purchased from China to the complainants and a whatsapp group was created with the complainants, in order to enable convenience for purchase as per choice of the complainants. Initially the complainants instructed for not to add their daughter Ms. Divya @ Payal Kapoor, saying that she would create lot of confusion but later on complainant-2 instructed OP-3 to add her daughter in whatsapp group, who was also added subsequently. OP-2 and 3 travelled to China for the purposes of purchasing the items relating to interior design and spent ten days in purchases. Ms. Divya @ Payal Kapoor, who was unaware of the theme and design finalized by the complainants, began to bombard upon OP-2 and 3 with continuous calls and messages and sought changes in the items to be purchased. Ms. Divya @ Payal Kapoor started demanding purchases based on images, which she had selected on Google search. OP-2 and 3 dealt with her with utmost patience and went out of their way to accommodate her wishes. OP-2 and 3 sent her a series of revised options on whatsapp while they tried to make her understand that they were purchasing finished furniture and hence would not be able to customize or tailor the details demanded by her. There was no unanimity between the complainants and their daughter and each of them made different demands, disregarding previous agreement on the designs. The vivid and weird combinations sought for by the complainants and their daughter was resulting in whole theme becoming awkward and unprofessional, putting reputation of the OPs at stake. The circumstances thus demanded OP-2 and 3 to take a professional call on important matters and required them to invest time and patience amongst other things which included coordinating with the complainants and their daughter till the wee hours of the morning on calls and messages. Finally most of the items of interior design were purchased on approval given by the complainants and their daughter. Daughter of the complainants for the reasons best known to her, stopped further purchase. This was again surpassed by complainant-1, who instructed to proceed with the purchase. At this juncture, the daughter of the complainants was made aware that the items, which were not available in China, could be purchased in Mumbai or Bangalore and upon her approval remaining few items were also purchased. Total purchases worth 492980/- Chinese Yuan (equivalent to Rs.5569957/-) was done by OP-2 and 3 for the complainants and payment was made. Additional expenses and taxes were also payable on it. OP-2 and 3 incurred Rs.500000/- on their travel to China. The complainants reverted to the OPs, vide email dated 02.11.2016 to begin with the work on the foyer, living and dining area but to reserve commencing work on the bedrooms and further sought for the work schedule. The OPs informed the complainants that they would commence work immediately but the complainants asked to postpone till 15.11.2016, in view of ill health of complainant-2. Prior to departure for China, the complainants agreed to pay balance amount of Rs.33/- lacs till 05.11.2016. The OPs communicated a series of emails on 07.11.2016, providing a list of purchases for the project and requested for balance payment, giving a detail work schedule. But the complainants, vide email dated 18.11.2016, backtracked and informed that they would pay progressively. The OPs secured their staff from Bombay to carry out the civil works such as floor polishing, painting, electrical and carpentry work, dismantling existing furniture and plaster of Paris incurring Rs.35000/-. But the complainants, vide email dated 24.11.2016, informed that they would execute the civil works at their end. The complainants did not make payment of balance amount, which was required for payment of freight, custom duty, cost of supporting materials of electrical fittings, paints, polishing, wall papers, plaster of Paris, manufacture of wardrobes and 50% of professional fee. The OPs again, vide email dated 27.11.2016, reminded for balance payment as for export of the items from China, freight, custom duty, VAT, Service tax were payable. The OPs informed that consignment from China would be ready for dispatch and would not hold the items for long without payment; in consequence, the complainants would be liable for further consequential loss. The complainants arrogantly responded and said the OPs not to bother for getting the items of interior design from China that they were least bothered of losses caused to them and refused to pay balance amount. Complainant-2 told that she did not want delivery of items from China. Subsequently, vide email dated 02.12.2016, the complainants started demanding refund of their money. On account of inability to arrive at a unanimous decision as regards the items of interior design, the complainants chose to pull out from the contract by making false and baseless allegations against the OPs and seek refund of their money, which had already been paid in purchasing the items of interior design, which were earlier finalized by them. The complainants committed breach of the contract by withholding balance payment. The OPs are reputed interior designer and they cannot afford to breach the trust reposed in them by their business associates based in India and abroad. In consequence, the OPs had to put their reputation at stake in not receiving the consignments from China. Failure to take delivery posed potential threats on extreme consequences like demurrages. The OPs, in their reply notice dated 30.12.2016, conveyed their grievances and consequences to be faced by them. The OPs again informed that they were willing to execute the project. The OPs, at no stage, denied to provide the designs, till full payment is made. The OPs promised to provide the Invoices at the closing of the accounts, on payment of balance amount including VAT and professional fees. Upon the agreement with the complainants, the OPs made alliances with third parties. It has been denied that the OPs made any illegitimate demand or have committed gross deficiency in service. As the complainants committed breach in payment of the balance amount, the items purchased from China could not be imported to Bangalore, which resulted in stopping work of interior designing. The complaint has no merit and is liable to be dismissed.
6. The complainants filed Rejoinder Reply and stated that in email dated 18.10.2016, sent at 8:29:05 AM, complainant-2 had stated that they would pay Rs.one crore, inclusive of professional fee and balance amount would be payable as the work progresses. In email dated 18.10.2016 sent at 07:35:42 PM, complainant-1 stated that total cost of Rs.103/- lacs towards execution of the project and balance amount would be paid progressively as the work progresses. The OPs, vide email dated 07.11.2016, demanded balance amount of Rs.33/- lacs even without supplying the Invoices of purchased items. It has been denied that the OPs had insisted on 2D and 3D AutoCAD drawing but the complainants had denied it as it would incur an extra expenses @Rs.200/- per sq.ft. Such allegation is highly improbable as if a person is investing Rs.103/- lacs in interior design, it would not incur few thousand in 2D and 3D AutoCAD drawing, which would give actual picture of interior design. The OPs booked their air ticket for China trip on 10.10.2016 and started journey on 17.10.2016, while the complainants made first payment on 13.10.2016 and finalized the estimate on 15.10.2016 or 18.10.2016, as such, allegation that the OPs incurred Rs.500000/- towards travelling China for the complainants, is incorrect. Document No.7, message time 12:05:58 PM dated 23.10.2016 and message time 4:53:31 PM dated 23.10.2016 prove that the OPs went to China for the purchases of their Bombay client. On 13.10.2016, the OPs informed the complainants that they were going to China to procure furniture and fixtures for another client from Bombay and suggested to purchase furniture fixture for the villa of the complainants also as it would be cheaper to buy furniture from China and also save travelling and staying expenses as it was already provided by the client from Bombay at that time and they would also be able to prorate the shipping by shearing container space. On these representations of the OPs, the complainants paid Rs.20/- lacs through cheque on 13.10.2016, Rs.30/- lacs cash on 15.10.2016 and Rs.20/- lacs through cheque of 17.10.2016. The OPs failed to prove that they had purchased various items worth Rs.5569957/- for the complainants by producing its Invoices and bills and proof of payment by producing their statement of account of the bank. The OPs could not reach consensus with the daughter of the complainants on whatsapp as such, they were not expected to purchase any items. The OPs have produced some documents in Chinese language without producing its translation alleging purchase documents, which bear the dates from 24.10.2016 to 28.10.2016. In whatsapp message dated 24.10.2016, the OPs stated that they had made payment in previous night although at that time there was no consensus with the daughter of the complainants. These are blatant attempt of the OPs to mislead the court. The OPs without showing any documents relating to purchases for the complainants, required for payment of freight, custom duty, cost of supporting materials of electrical fittings, paints, polishing, wall papers, plaster of Paris, manufacture of wardrobes and 50% of professional fee. Realizing it was a further attempt to extract money from the complainants, they stated that the loss would be borne by them and they did not bother for it. The OPs committed breach and deficiency in service as such they are liable to refund the entire amount deposited by them with interest.
7. The complainants filed Affidavit of Evidence and an Additional Affidavit of Ramesh Kapoor and documentary evidence. The OPs filed Affidavit of Evidence of Krishna C Kumar and documentary evidence. Both the parties filed their written arguments. After hearing the parties State Commission, vide order dated 07.03.2023, held that the OPs had gone to China, for purchasing furniture etc. for their client from Mumbai. The OPs sent some pictures of the furniture on whatsapp to the daughter of the complainants but the furniture were not as per the requirements of the complainants. Hence the complainants and their daughter rejected the same and sent message to the OPs for not purchasing the same. However, the OPs allegedly made purchases. But the OPs did not provide Invoices/bills of the purchases and the furniture to the complainants as such, they committed deficiency in service. The OPs cannot install any furniture and fixture against the choice of the complainants in their villa. On these findings, the complaint was allowed with cost of Rs.25000/-and the OPs were directed to refund entire amount deposited by the complainants with interest @9% per annum from the date of deposit till the date of refund and pay compensation of Rs.200000/-. Hence the OPs have filed this appeal.
8. The appellants filed IA/12997/2023, for filing Additional documentary evidence i.e. (i) their statement of account of HDFC Bank, showing that they had transferred Rs.2569957/- on 27.10.2016 and Rs.2775605/- on 14.01.2017 to M/s. Empire Furniture, Bhiwandi City, through whom they used to import their interior designing materials from China, (ii) Certificate dated 22.08.2023, issued by M/s. Empire Furniture, Bhiwandi City, certifying receiving of above amounts, (iii) Copies of pass-port of appellants- 2 and 3 of the relevant period to prove their journey to China on 17.10.2016 and return from China on 28.10.2016, (iv) the credit card of appellant-2 and (v) statement of account showing that credit card was used for making payment in China on 28.10.2016.
The respondents in paragraphs-17 and 19 of the complaint stated that they had repeatedly, vide emails, messages and orally sought for the documents relating to purchase order/invoices/bills of the purchases from China and proof payments made for it but the OPs did not give any heed to their request. Before State Commission, the appellants filed some bills of the purchases in Mandarin language. These bills bear the seal of "Paid". The documents sought to be filed as additional evidence showing that payment was done to M/s. Empire Furniture, Bhiwandi City on 27.10.2016 and 14.01.2017. It does not appear to be probable that M/s. Empire Furniture, Bhiwandi, who had made payment before 27.10.2016 will give time to the appellants for making that payment after about three months, particularly when the appellants had already realized money from the respondents. Admittedly the appellants made purchases for their Bombay client also in this trip. In the absence of bills relating to the purchases made for Bombay client and its payments, these bill and payments are vague. The appellants in their email dated 07.11.2016, informed that they had to purchase all the required materials and make payments for various departments. But contrary to it, in written reply took plea that all the items were purchased. These documents were in possession of the appellants but they failed to file it. No reason has been shown for not filing these documents before State Commission. Additional Evidence to fill in the lacuna in evidence cannot be filed in appeal. IA/12997/2023 is rejected.
9. We have considered the arguments of the counsel for the parties and examined the record. The counsel for the appellants, relying upon judgment of Supreme Court in Chairman & Managing Director, City Union Bank Ltd. Vs. R. Chandramohan, 2023 SCC OnLine SC 241, submitted that in summary proceeding under the Consumer Protection Act, complicated issue like fraud and cheating cannot be decided.
The Consumer Protection Act, 1986 (hereinafter referred to as the Act) was enacted with an object to provide for better protection of the interests of the consumers and for that purpose, consumer council and other authorities for settlement of consumer disputes have been established. Section 13 (4) confers same powers for trial of the dispute upon the authorities under the Act, which are vested in Civil Court under Code of Civil Procedure, 1908, while trying a suit in respect of (i) the summoning and enforcing the attendance of any defendant or witness and examining the witness on oath, (ii) the discovery and production of any document or other material object producible as evidence, (iii) the reception of evidence on affidavits, (iv) the requisitioning of the report of the concerned analysis or test the appropriate laboratory or from other relevant source, (v) issuing of any commission for the examination of any witness and (vi) any other matter which may be prescribed. Although under the Act, the jurisdiction of the authorities is limited to consumer dispute, but while deciding such dispute no limit has been fixed for adjudicatory power. The authorities are conferred with jurisdiction to decide the issue of "unfair trade practice" which has been defined under Section 2 (r) of the Act. This definition is similar to the definition of "fraud" as given under Section 17 of Indian Contract Act, 1872. A Consumer Commission can hold a full trail as held by civil court or adopt summary procedure for decision of any complaint. In the present case, none of the parties has demanded for full trial as held by civil court and both the parties have adduced their evidence in the shape of affidavit and documentary evidence. None of them sought for cross examination of the deponents of the affidavit or for summoning of any other witness. A Bench of three Judges of Supreme Court in Dr. J.J. Merchant Vs. Shrinath Chaturvedi, (2002) 6 SCC 635, (paragraph-7) held that the object and purpose of the Act is to render simple, inexpensive and speedy remedy to the consumer with complaint against defective goods and deficient services, it being a benevolent piece of legislation, intended to protect a large body of consumer from exploitation. Consumer Forum is an alternate Forum, established under the Act, to discharge the function of Civil Court. The argument that the complicated question of fact cannot be decided by the Forum, has been specifically rejected (in paragraph-12). Similar view has been taken in Amar Jwala Paper Mills Vs. State Bank of India, (1998) 8 SCC 387, CCI Chambers Coop. Hsg. Society Ltd. Development Credit Bank Ltd. (2003) 7 SCC 233. This view has been reaffirmed by three Judges Bench of Supreme Court, in Nizam Institute of Medical Sciences Vs. Prasanth S. Dhananka, (2009) 6 SCC 1. Again a three Judges Bench of Supreme Court in IFFCO TOKIYO General Insurance Company Ltd. Vs. Pearl Beverages Ltd., (2021) 7 SCC 704, held that cross examination of the witnesses on interrogatory can always be permitted.
So far as the liability of the managing director/director of the company is concerned, this issue was not raised by the appellants before State Commission. The directors are promoters of the company. Under Order 29 C.P.C., the director of a corporate body can be impleaded as the defendant and can be summoned at any stage.
10. First issue arises for consideration is as to what was agreed cost of the project of interior designing in the villa of the respondents? The appellants took plea that despite repeated discussions, the complainants insisted that entire cost of the project would be Rs.one crore only. Owing to the fact that the complainants were neighbourers of OP-2 and 3, they pressurized the OPs to agree to their terms and proposal with regard to the cost and made initial payment of Rs.2000000/- through cheque dated 13.10.2016. While the negotiations pertaining to the final cost prevailed, the complainants hastily paid another sum of Rs.3000000/- in cash, on 15.10.2016, even without furnishing their PAN card details, which was required for accounting purposes to the OPs. OP-3, vide email dated 17.10.2016, re-conveyed the final cost quotation of Rs.one crore for execution of the project, which was exclusive of the professional fee, taxes and levies. The complainants again met with the OPs and paid Rs.2000000/- through cheque on 17.10.2016 and sought for some more additions i.e. two glass door and other interior items.
From above admission of the appellants, it is clear that the respondents, from very beginning insisted the appellants to confine total cost of the work within Rs.one crore, which was agreed on 15.10.2016. After taking Rs.70/- lacs, the appellants, vide email dated 17.10.2016 at 11:14 PM conveyed the final cost quotation of Rs.one crore for execution of the project, mentioning therein to keep a buffer of 10-15% and 10% professional fee + service tax. Complainant-2, vide email dated 18.10.2016 at 08:29:05, stated that they would pay Rs.one crore lump sum that includes professional fee. The appellants sent another email dated 18.10.2016 at 01:25 PM and revised the quotation stating that "estimate for the work is Rs.103/- lacs; as this is a rough estimate of the purchases and civil work, we would like to inform you to keep a buffer if need be of 10% on above estimate. Applicable VAT of the purchases @14.5% will be borne by you additionally. Professional fee will be 10% + service tax (15%) on the total cost of entire project additionally; 100% payment along with the order placement". The appellants required for sending a confirmation email of above estimate. Then Complainant-2, vide email dated 18.10.2016 at 07:35:42 PM, stated that "what we discussed this morning was Rs.103/- lacs for entire scope. Please do not keep flexibility of 10% over it, Fee of Rs.10/- lacs + tax. Rs.30/- to be progressively paid as work progresses". This mail was not accepted by the appellants and they proceeded on it, as such it is proved that total agreed cost was Rs.103/- lacs towards execution of the project (exclusive of applicable taxes and levies and Rs.10/- lacs as professional fee) for the Italian Chandelier and Rs.30/- lacs was payable progressively on progresses of the work. The contention of the appellants that complainant-2 had agreed for Rs.103/- lacs towards execution of the project (exclusive of applicable taxes and levies and Rs.10/- lacs as professional fee) for the Italian Chandelier, is not proved.
11. The appellants took plea that it was a turnkey contract. In turnkey contract, a contractor designs the project, provides all materials and labour and does all the work necessary to complete the project within fixed price and within fix time and takes performance guarantee. In case of escalation in price and for additional work, the contractor can demand additional amount. In the present case, under the mode of payment, the appellants had received Rs.70/- lacs till 17.10.2016 and Rs.30/- lacs was payable, progressively on progresses of the work. But the appellants, in email dated 07.11.2016 (pg. 130 of the appeal), stated that "we have to purchase all the required materials and payment for various departments (customs & freight, electrical, hardware, painting, floor polish, glass doors, wallpapers, POP, carpentry, tailoring, dismantling of existing furniture and transportation & labour for the same). The wardrobes order has to be placed in the factory. We hereby request you to transfer the balance payment of Rs.33/- lakhs and 50% of our professional fees INR 515000/- + service tax (15%) (Rs.77250/-. Hence the total amount which has to be transferred to our company's account is Rs.3892250/-. Kindly make the payment on or before November, 12th, 2016 so that we can call our team from Mumbai and commence the work. The balance 50% of our professional fees + service tax and VAT applicable has to be cleared before the furniture is delivered to you".
From the email dated 07.11.2016, the appellants informed that all the required materials had to be purchased by them. For that purpose, they demanded Rs.3892250/- to be paid before 12.11.2016 and balance 50% of their professional fees + service tax and VAT applicable to be paid before the furniture is delivered to the respondents. The appellants, in email dated 02.12.2016, clearly stated that "if payments are not released, we shall hold no further responsibility for the damages/loss to your furniture in China". The appellants, in their written reply has stated that as the complainants had committed breach in payment of the balance amount, as such the items purchased from China could not be imported to Bangalore, which resulted in stopping work.
12. The appellants have stated that there was no unanimity between the complainants and their daughter and each of them made different demands, disregarding previous agreement on the designs. The vivid and weird combinations sought for by the complainants and their daughter was resulting in whole theme becoming awkward and unprofessional, putting reputation of the OPs at stake. The circumstances thus demanded OP-2 and 3 to take a professional call on important matters and required them to invest time and patience amongst other things which included coordinating with the complainants and their daughter till the wee hours of the morning on calls and messages. Finally most of the items of interior design were purchased on approval given by the complainants and their daughter.
Appellants-2 and 3 booked their air ticket for China trip on 10.10.2016 and started journey on 17.10.2016, while the respondents made first payment on 13.10.2016 and finalized the estimate on 15.10.2016 or 18.10.2016 as such it is proved that appellants-2 and 3 had gone to China for purchases of a third party of Bombay. If there was no unanimity between the respondents and their daughter and each of them made different demands, disregarding previous agreement on the designs; vivid and weird combinations sought for by them was resulting in whole theme becoming awkward and unprofessional, putting reputation of the OPs at stake, appellants-2 and 3, should not have insisted the respondents to finalize the items on whatsapp chat and to plan next trip as desired by the daughter of the respondents, who had stated to accompany also or if their reputation was on stake in doing the works as asked by the respondents they would have returned money.
13. Appellants-2 and 3 started whatsapp chat on 23.10.2016 at 9:15:52 AM and continued till 4:50:16 PM. Krishna C Kumar, in his call on 23.10.2016 at 4:53:31 told "We are settling all bills and purchases for our Mumbai client. We shall talk you once free." Ms. Asha Padasallgi in her call on 23.10.2016 at 6:14:07 PM told "Hi Payal please resend me the pictures of what you have finally selected". Again talks started on whatsapp on 24.10.2016 at 9:47:08 AM. Only some items were agreed but Payal Kapoor in her call on 24.10.2016 at 4:15:50 PM told "If we cannot find what we are looking for, let's avoid the dining area for now."
The appellants have relied upon the call of Payal Kapoor dated 24.10.2016 at 5:07:07 PM but thereafter at 7:23:55 PM Payal Kapoor told "Please do let me know what's going on. I just do not like those chairs and feels so compelled". Ms. Asha Padasallgi in her call on 24.10.2016 at 7:26:20 PM told "I am done for today. Totally exhausted. You can call me in morning" and on 24.10.2016 at 8:16:22 PM told "I will not shop anything tomorrow onwards. Good night".
Payal Kapoor told on 25.10.2016 at 6:36:46 AM "Asha please do not purchase anything without approval. If you have not bought any piece till now. Please let it be. May be I can come along with you on your next trip and choose. Thank so much." Then Krishna Kumar told on 25.10.2016 at 6:58:57 AM "Payal we are not doing any other purchases today. The list of things which are remaining are 8 dining chairs, lamps & chandeliers, bar unit, trolleys, patio furniture, table runner, table mats, wall papers, curtain fabrics, lights, artifacts'.
The appellants have relied upon whatsapp chat of Ramesh Kapoor dated 25.10.2016 at 9:41:32 AM. But from the chat of Ms. Asha Padasallgi dated 25.10.2016 at 11:05:40 AM, it is proved that above remaining items were not purchased. Payal Kapoor again on 25.10.2016 at 11:06:16 AM stopped purchase. The appellants have produced the purchases bills dated 24.10.2016, 25.10.2016, 26.10.2016, 27.10.2016 and 28.10.2016. These bills are not in the names of the respondents and the appellants have not produced the purchase bills of their Bombay client. As such on the basis of these purchase bills no inference can be drawn that these bills related to the items purchased for the respondents. The appellants have filed various telephone call details between the parties. But on the basis of these calls neither waiver nor settlement can be inferred as such we do not deal with these calls.
14. In view of aforesaid discussions, it is proved that total agreed cost of the work was Rs.103/- lacs (exclusive of applicable taxes and levies and Rs.10/- lacs as professional fee) for the Italian Chandelier and Rs.30/- lacs was payable progressively on progresses of the work. Demand of Rs.3892250/- to be paid before 12.11.2016, vide email dated 07.11.2016 was contrary to the contract between the parties. If there was no unanimity between the respondents and their daughter and each of them made different demands, disregarding previous agreement on the designs, the appellants should not have purchased the items and postponed for next trip. The appellants failed to produce the purchase bills of their Bombay client as such the bills, which were not in the names of the respondents cannot be relied as the bills relating to purchase of their items. Admittedly due to non-payment of Rs.3892250/-, the appellants did not proceed with the work of interior designing. As such, the appellants have committed breach of contract and deficiency in service. We do not find any merit in this appeal and the appeal deserves to be dismissed.
ORDER
In view of the aforesaid discussions, the appeal is dismissed with cost of Rs.one lac. The cost can be realized in the execution proceeding.
..................................................J RAM SURAT RAM MAURYA PRESIDING MEMBER ............................................. BHARATKUMAR PANDYA MEMBER