State Consumer Disputes Redressal Commission
Abhishek Rathore vs Shri A.H.Khan on 26 March, 2014
CHHATTISGARH STATE
CONSUMER DISPUTES REDRESSAL COMMISSION
PANDRI, RAIPUR(C.G.)
Appeal No.FA/13/405
Instituted on : 21.06.2013
Abhishek Rathore, S/o Late Shri O.P. Rathroe,
Resident of Rathore Mansion,
Sector - 6, Gurgaon (Haryana) ... Appellant.
Vs.
Shri A.H. Khan, S/o Shri M.R. Khan,
Resident of Flat No.301, Greenland, Vishal Nagar,
Raipur (C.G.) ... Respondent.
PRESENT: -
HON'BLE JUSTICE SHRI R.S. SHARMA, PRESIDENT
HON'BLE MISS HEENA THAKKAR, MEMBER
COUNSEL FOR THE PARTIES: -
Shri Mohit Diwan, for appellant.
Respondent present in person.
ORAL ORDER DATED : 26/03/2014 PER :- HON'BLE SHRI JUSTICE R.S. SHARMA, PRESIDENT. This appeal is directed against the order dated 30.04.2013, passed District Consumer Disputes Redressal Forum, Raipur (C.G.) (henceforth "District Forum") in Complaint Case No.49/2009. By the impugned order the learned District Forum, has partly allowed the complaint of the respondent/complainant and directed the appellant/O.P. to pay within a month a sum of Rs.7,00,000/- to the respondent/complainant, along with interest @ 9% p.a. from the date of filing of the complaint i.e. 14.11.2008 till date of payment. The // 2 // District Forum has further directed the appellant/O.P. to pay a sum of Rs.25,000/-, which is the amount of lucky draw as well as Rs.30,000/- as compensation for mental agony and Rs.2,000/- as advocate fees and cost of litigation to the respondent/complainant.
2. Briefly stated, the facts of the complaint of the respondent/complainant before the District Forum are : that the respondent/complainant had booked a Farm House in Saloni Farm House Scheme of Sun India Enterprises having area of 0.116 hectares of Rs.9,50,000/- (Rupees Nine Lakhs Fifty Thousand only) after going through the paper advertisement and brochures and other literature and has also paid a sum of Rs.1,00,000/- (Rupees One lakh only) at the time of booking. An agreement dated 22/12/2005 was also executed between the parties in this regard in which it is alleged that construction of Two Bedrooms having pillars was also included. It is also alleged that the agreement was executed between complainant and Sun India Enterprises in which the opposite party had signed as partner. It is further alleged that the Saloni Farm House Scheme included fully developing the Farm House including two bedrooms with pillars cottage, electricity, 24 hours water facility, garden, fencing, drip irrigation, sprinkler and floriculture along with other facilities like badminton court, table tennis, swimming pool, restaurant, indoor theater, outdoor slage and roadside drainage etc. which were // 3 // mentioned in the brochure. Furthermore it is alleged that till 23.12.2006 two bed room having pillars, tree garden facility along with the facilities mentioned in the agreement and brochure, the complainant was to be given a cottage having built up area 970/- sq. ft., balcony 250 sq. ft. whose construction cost was Rs.7,50,000/- (Rupees Seven Lakh Fifty thousand only). It is alleged in the complaint that the complainant from the execution of the agreement till 23.12.2005 had paid the required sum of Rs.9,50,000/- (Rupees Nine Lakh Fifty Thousand only) to the partnership firm Sun India Enterprises. It is also alleged that in the Saloni Farm Lucky draw held in January, 2006 the complainant had received reward of Rs.25,000/- (Rupees Twenty Five thousand only),which was not given to the complainant. It is further alleged that registered deed dated 31.3.2006 in respect of the agricultural land has been executed between the complainant and O.P. The complainant further alleged that under the Saloni Farm Scheme Two Bed Room cottage with pillars along with the facilities aforementioned were not complainant and given to the complainant. The complainant further alleged that he tried to get his money refunded, but when he did not get it, he initiated legal proceedings through legal notices and finally filed complaint before the District Forum seeking compensation of Rs.18,15,000/- along with interest.
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3. The appellant/O.P. filed written statement before the District and denied all the averments made by the complainant from para 1 to 7 except of receipt of Rs.1,00,000/-. The appellant/O.P. specifically denied that as per agreement dated 23.12.2005 the respondent/complainant has given to him nor to the firms the amount of Rs.9,50,000/-. It has been specifically averred that maximum receipts are forged and somebody else has signed on those receipts but those receipts are wrongly being shown as signed by appellant/O.P. which is specifically and categorically denied by the appellant/O.P. The respondent/complainant has not made payment of full amount and due to this initially the development work which are done by the appellant/O.P. are out of his own funds and due to non-payment further development work has stopped. The appellant/O.P. averred that since the complainant has not paid the full amount, and as such he is not entitled to receive interest.
4. Earlier vide order dated 08.06.2010 the District Forum has partly allowed the complaint of the respondent/complainant and directed the appellant/O.P. to pay within a month a sum of Rs.7,00,000/- to the respondent/complainant, along with interest @ 9% p.a. from the date of filing of the complaint i.e. 14.11.2008 till date of payment. The District Forum has further directed the appellant/O.P. to pay a sum of Rs.25,000/- which is amount of lucky draw as well as Rs.30,000/- as // 5 // compensation for mental agony and Rs.2,000/- as advocate fees and cost of litigation.
5. The appellant / O.P. filed appeal No.422/2010 before this Commission against that order of the District Forum. This Commission vide order dated 29.09.2010 allowed the appeal and set aside that order and remanded back the matter to the District Forum with direction to provide an opportunity of cross examination of the expert either by way of delivery of questionnaire to her, to be answered on oath, or in person. If any report of Civil Engineer has been filed by the respondent/complainant before the District Forum, then the same be also considered. If after cross-examination of the expert, some substance is found in the application of the appellant/O.P. for referring the matter to other expert, then such prayer may be considered. After doing this exercise, the case be decided afresh on merits.
6. Learned District Forum after remand of the matter, again partly allowed the complaint of the respondent/complainant by the impugned order dated 30.04.2013.
7. Shri Mohit Diwan, learned counsel for the appellant/O.P. argued that the impugned order passed by the District Forum is not sustainable and is liable to be set aside. He further argued that the // 6 // appellant/O.P. has also filed report of handwriting expert namely Shri Ulhas Athale and Shri Ulhas Athale has clearly expressed his opinion and gave sound and reasonable reasons that the disputed and comparative signatures have different authorship. The handwriting expert has clearly opined that no significant similarities suggesting common authorship are found in the disputed and comparative signature. He further argued that the respondent/complainant has not challenged the report of handwriting and finger print expert Ulhas Athale. The District Forum has wrongly conclude that the disputed signatures are of appellant/O.P. on the basis of opinion of Handwriting Expert Dr. Sunanda Dhenge is based on original signatures and original documents and the report of handwriting expert Ulhas Athale is based on photocopy of documents and signatures. He further argued that the instant case itself is not maintainable for non-joinder of parties to the transaction i.e. the partnership firm and the partners of the firm, necessary for proper adjudication of the case. The appellant/O.P. has been individually made a party but no consumer complaint is maintainable against him individually. He further argued that the complaint has been filed against the appellant/O.P. but transaction has taken place between the respondent/complainant and the partnership firm and as such the complained filed against the appellant/O.P. as an individual is not maintainable. He further argued that the appellant/O.P. had already // 7 // filed an application before the District Forum for obtaining expert report from the handwriting expert, but learned District Forum, did not pass any order on said application and even after direction given by this Commission, the District Forum did not appreciate the report of handwriting expert submitted by the appellant/O.P. He further argued that the appellant/O.P. had already moved an application before the District Forum for obtaining expert report from an handwriting expert, but in stead of allowing the application, this Commission observed in para 6 of order dated 29.09.2010 passed in Appeal bearing No.422/2010 that "it will be helpful to the District Forum also in reaching to a right conclusion and if after cross- examination of the expert, the appellant succeeds to establish that expert is not reliable, then of course District Forum may consider the prayer for examination of the document by some other expert."
8. The respondent/complainant, who is present in person, supported the impugned order.
9. We have heard the arguments advanced by both parties and have also perused the record of the District Forum.
10. This Commission vide order dated 29.09.2010 passed in appeal baring No.422/2010 remanded the case back to District Forum with a direction to provide an opportunity of cross examination of the expert // 8 // either by way of delivery of questionnaire to her, to be answered on oath, or in person. If any report of Civil Engineer has been filed by the respondent/complainant before the District Forum, then the same be also considered. If after cross-examination of the expert, some substance is found in the application of the appellant/O.P. for referring the matter to other expert, then such prayer may be considered. After doing this exercise, the case be decided afresh on merits.
11. After remand of the case back to the District Forum, learned District Forum passed order on 30.04.2013.
12. Learned District Forum, did not appreciate the appellant/O.P. in its right perspective and the District Forum has not complied with the directions given by this Commission vide order dated 29.09.2010 passed in appeal No.422/2010. It is appropriate to remand back the matter to the District Forum, for fresh decision regarding the report of the handwriting expert filed by the appellant/O.P.
13. In para 7 of the impugned order, the District Forum observed that the appellant/O.P. has filed report of handwriting expert Ulhas S. Athale, wherein he opined that in both the disputed documents signature of the signature of the appellant/O.P. is not there. After comparing both the signatures, the District Forum found that the hand // 9 // writing expert of the respondent/complainant had examined the signature on the basis of original document/original signatures, whereas the handwriting expert of the appellant/O.P., namely Ulhas Athale, examined the handwriting on the basis of photocopy of the document/signature and the appellant/O.P. was having opportunity to cross-examine Sunanda Dhenge (Handwriting Expert) and the report of Sunanda Dhenge was unrebutted. But looking to the order of the District Forum, it appears that no opportunity was provided to the appellant/O.P. for cross-examination and the appellant/O.P. had not denied that opportunity.
14. It appears that learned District Forum on the ground that Ulhas Athale, submitted his report on the basis of photocopy of the documents, therefore, did not accept the report of Ulhas Athale and observed that the report submitted by Sunanda Dhenge, is reliable. 15 . According to the appellant/O.P., this Commission vide order dated 29.09.2010 passed in Appeal No.422/2010 observed in para 6 that "it will be helpful to the District Forum also in reaching to a right conclusion and if after cross-examination of the expert, the appellant succeeds to establish that expert is not reliable, then of course District Forum may consider the prayer for examination of the document by some other expert."
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16. The expert opinion given by Ulhas Athale has been rejected by the District Forum only on the ground that that the report was given by him on the basis of examination of photocopy of documents, therefore, it is necessary for proper adjudication that the appellant/O.P. may also be afforded an opportunity to obtain expert opinion from some other expert.
17. We have perused the order of the District Forum. It appears that learned District Forum did not appreciate the report of handwriting expert namely Shri Ulhas Athale in its right perspective. It also appears that the District Forum has not complied the directions given by this Commission vide order dated 29.09.2010 passed in Appeal No.422/2010. Therefore, it is appropriate to remand the matter back to the District Forum for fresh decision regarding the report of the handwriting expert filed by the appellant/O.P. before the District Forum.
18. Therefore, the appeal succeeds and is allowed, the impugned order is set aside and the case is remanded back to the District Forum with a direction that if the appellant/O.P. files application for obtaining expert opinion from some other expert, then an opportunity should be provided to the appellant/O.P. for obtaining expert opinion. If the appellant/OP. wishes to cross-examine the expert of the // 11 // respondent/complainant, then the District Forum may permit the appellant/O.P. If the respondent/complainant also wishes to cross examine the expert regarding the report submitted by the expert of the appellant/O.P., then the District Forum may provide opportunity to the respondent/complainant to cross-examine the expert of the appellant/O.P. and thereafter the learned District Forum should decide the matter afresh on merits. Parties are directed to appear before the District Forum on 07.04.2014. Office of this Commission is directed to sent back the record of the District Forum immediately.
(Justice R.S. Sharma) (Ms. Heena Thakkar)
President Member
/03/2014 /03/2014