State Consumer Disputes Redressal Commission
Bhagwat S/O Shamrao Raut vs M. Kumar Builders on 17 September, 2012
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, MAHARASHTRA, CIRCUIT BENCH AT NAGPUR STATE CONSUMER DISPUTES REDRESSAL COMMISSION, MAHARASHTRA, CIRCUIT BENCH AT NAGPUR 5 TH FLOOR, ADMINISTRATIVE BUILDING NO. 1 CIVIL LINES, NAGPUR-440 001 First Appeal No. A/07/353 (Arisen out of Order Dated 06/02/2007 in Case No. CC/06/267-A of District Forum, Nagpur) Bhagwat s/o Shamrao Raut Civil lines, Ward No.6 Khaparkheda, Dist.Nagpur ...........Appellant(s) Versus M. Kumar Builders Through its Proprietor Shri Manish Jaiswal R/o of Priyadarshani Colony Behind RTO Office, Amravati Road, Nagpur. ...........Respondent(s) BEFORE: Hon'ble Mr.S.M. Shembole Presiding Member Hon'ble Smt.Jayshree Yengal Member Hon'ble Mr.N. Arumugam Member PRESENT: Adv. Mr S B Solat ......for the Appellant Adv. Mr M G Wagh ......for the Respondent JUDGEMENT
(Passed on 17.09.2012) Per Mr S M Shembole, Honble Presiding Member This appeal is directed against the judgement & order dtd.06.02.2007 passed by District Consumer Forum, Nagpur in Consumer Complaint No.CC/06/267-A dismissing the complaint.
Brief facts giving rise to this appeal are that:-
1. Respondent - M Kumar Builders & Developers is original o.p. and appellant Mr Bhagwat S Raut is original complainant.
(For the sake brevity sake, the appellant hereinafter is referred as the complainant and respondent as the o.p.) The complainant had booked a flat with respondent for a consideration of Rs.5.00 Lac. The complainant paid to the olp. Rs.25,000/-, Rs.4,15,000/- and Rs.50,000/- on 05.10.2000, 17.10.200 and 23.10.2000 respectively. Thus, though the complainant paid the entire amount of consideration, o.p. failed to allot the flat to the complainant by executing the sale-deed in his favour. Therefore, on 16.06.2002 the complainant made Police complaint against the o.p. and lastly on 19.09.2003 served notice through Adv. Mr Nair, asking the o.p. to allot the flat by executing the sale-deed or refund the amount of consideration. But o.p. failed to comply with the notice. Therefore, the complainant was constrained to file the consumer complaint, claiming possession of the flat or in alternatively to repay the amount of consideration and further compensation at Rs.1.00 Lac, etc.
2. The o.p. resisted the complaint by his Written Version on the following among the grounds:-
It is not disputed that the complainant had booked a flat with it and he had received the amount of consideration as averred by the complainant. However, it is contended that on the request of the complainant himself, the agreement is already cancelled and he also repaid the amount of consideration to the complainant from time to time. It is submitted that the complainant has filed false complaint though he repaid the amount by cancelling the agreement. It is submitted to dismiss the complaint.
3. On hearing both the sides and considering the documents on record, the District Consumer Forum held that without recording the evidence it is difficult to prove the receipts of refund of amount by the o.p. to the complainant and therefore, the complaint is being beyond its jurisdiction, is not maintainable. In keeping with this finding the forum dismissed the complaint with liberty to file complaint before the Court having jurisdiction.
4. Feeling aggrieved by this judgement & order the complainant has preferred this appeal.
5. We heard counsel for both the sides, perused the copy of impugned judgement & order and copies of complaint, Written Version and copies of receipts of refund of amount, allegedly made by the o.p. to the complainant and also the copies of other documents.
6. Undisputed facts are that the o.p. is a builder and developer. In the year 2000 the complainant had booked a flat with the o.p. There was oral agreement between the parties. Further, it is an admitted fact that the complainant paid entire consideration of Rs.5.00 Lac to the o.p. from time to time as averred by the complainant.
7. The crux in this matter is as to whether the agreement was cancelled on the say of complainant and if yes, whether o.p. repaid the amount as per the receipts produced by the o.p.
8. Mr S B Solat Ld. Counsel for the complainant submitted that the complainant never requested the o.p. to cancel the agreement. However, as o.p. failed to allot the flat by executing the sale deed, the complainant insisted the o.p. either to allot the flat or refund the money. Accordingly, Police complaint was also made and legal notice was also issued. On perusal of copies of Police complaint & notice dtd.19.09.2003 issued by the complainant to o.p. through Adv. Mr Nair, we find much force in the submission of Adv. Mr Solat. Copy of notice is also not denied by the o.p.
9. However, Mr Wagh, Ld. Counsel for the o.p. submitted that the complainant received the entire amount and issued receipts to that effect. But the complainant has falsely denied those receipts. It is submitted that those receipts are required to be proved by leading cogent evidence and therefore, the Forum has rightly held that the complaint is not within the jurisdiction of the Forum and therefore, rightly dismissed the complaint, etc.
10. But we find little force in the submission of Adv. Mr Wagh for the o.p.
Because, though it is the contention of o.p. that he refunded the entire consideration of flat to the complainant as per the receipts, he has not made any attempt to prove those receipts by leading any evidence. If really the o.p. would have refunded the entire amount of consideration to the complainant, he would have produced the record to that effect. When the o.p. is a builder, he must have maintained the account of his business. But he has not made any attempt to prove the payment by producing his account of business. If he would have produced the same, it would be easy for the Forum to verify whether such payment was made to the complainant or not. Though the complainant has denied his signature on those receipts, his signature would have compared by the Forum as per the provision of Sec. 173 of Evidence Act. Therefore, it is not necessary to call the experts opinion to prove the signatures.
But it appears from the impugned judgement & order that the Forum without applying its mind committed error in holding that complicated questions are involved in the matter and therefore, the complaint is not maintainable for want of jurisdiction.
11. However, it is significant to note here that though the o.p. has averred that he repaid the amount of entire consideration to the complainant from time to time as shown in the receipts, no explanation is given as to why the receipts are not obtained on each date when he made the payment. Though as per the copies of receipts, the payment is shown to be made for 16 times, only three receipts are obtained. No explanation also tendered on behalf o.p. as to why only three receipts are obtained. In our view, no builder or any businessman would make any payment without obtaining receipts. Therefore, there cannot be any other reasonable inference except that the copies of receipts produced by the o.p. are fake.
12. Apart from the above facts, no original receipts are produced by the o.p. Further, if really the o.p. would have made such repayment to the complainant he would have immediately replied the notice which was issued by the complainant on 19.09.2003. He would not have remained silent till the filing of the Consumer Complaint by the complainant.
13. Further, in our view, if the complainant would have received the entire amount of consideration as alleged by the o.p., there could be no reason for him to again claim refund of amount by filing such complaint.
14. Thus, on any count, the defence of the o.p. is being false and concocted cannot be accepted. However, without appreciating the evidence on record properly, the Forum wrongly held that it involved complicated questions and it is beyond its jurisdiction, etc. Such findings are being erroneous cannot be sustained.
15. In the result, the complainant / appellant herein succeeds and appeal deserves to be allowed.
Hence, we pass the following order:-
ORDER i. Appeal is allowed.
ii. The impugned judgement & order is set aside.
iii. The complaint is allowed.
iv. The o.p. / respondent is directed to refund the entire amount of consideration Rs.5.00 Lacs to the complainant with interest @ 9% p.a. from the date of filing the complaint i.e. 10.10.2003 till its realization.
v. The o.p. / respondent is further directed to pay Rs.25,000/- to the complainant by way of compensation for causing mental & physical harassment to the complainant and further Rs.5,000/- towards cost of proceedings.
vi. Copies of this order be supplied to the parties.
[ S. M. SHEMBOLE ] PRESIDING MEMBER [ SMT.JAYSHREE YENGAL] MEMBER [ N. ARUMUGAM] MEMBER sj