PER JUSTICE J.M. MALIK

1.      Counsel for the petitioner heard.  It is strange that after accepting Rs. 10,000/- as litigation charges, the respondent has not turned up.  Proof of payment of Rs. 10,000/- submitted.  Same be taken on record. He be proceeded against ex-parte. Counsel for the petitioner submits that they have produced the original documents before the District Forum but the District Forum wrongly assumed that those were the copies of the originals.  She submits that her case is very strong and the respondent/complainant is harassing them on one pretext or the other. 

2.      Mr. Bhagwat S.Raut booked a flat with petitioner/respondent  for a consideration of Rs. 5.00 lac.  The complainant paid to the OP M.Kumar Builders, Amravati Road, Nagpur a sum of Rs. 25,000/-, Rs. 4,15,000/- and Rs. 50,000/- on 05.10.2000, 17.10.2000 and 23.10.2000 respectively.   Although, the complainant paid the entire amount, yet, he was not handed over the flat. 

3.      Counsel for the petitioner submits that there was no question of handing over the flat to the complainant as the scheme itself was cancelled in 2001.  The case of the OP is that the entire amount was paid back to the complainant.  They have put up the original receipts before the District Forum.  The District Forum passed the order in favour of the petitioner/OP. 

4.      Aggrieved by that order, the complainant filed an appeal before the State Commission.  The State Commission accepted the appeal and directed the OP/respondent to refund the entire amount of consideration of Rs. 5,00,000/- to the appellant with interest @ 9% per annum from the date of the filing of complaint i.e. 10.10.2003 till its realization.

5.      Counsel for the petitioner submits that the receipts are genuine and the complainant has falsely denied having executed those receipts. The evidence adduced by the OP hinges upon its affidavit only which stands rebutted by the affidavit of the complainant.  The petitioner/OP has failed to produce solid and unflappable evidence to show that these receipts are signed by the complainant himself.  No other evidence was produced.  In such like circumstances, the petitioner should have produced a hand-writing expert, but no effort was made to prove the same from the hand-writing expert. No other evidence of any kind saw the light of the day.

6.      The second important factor is that the legal notice was issued by the respondent on 19.09.2003.  It did not invoke any response from the petitioner/OP.  The OP kept quite till the complaint was filed before the District Forum.  It is not understandable as to what is the use of burrying one’s head in the sand, one should come out with clear facts.  Petitioner has kept the facts under the hat. 

7.      The third important issue is that the OP has failed to produce books of accounts.  The production of books of accounts before the District Forum would have gone a long way to elicit the real position.  This is not the District Forum, which will suggest the Opposite Party to produce such and such evidence.  It is the bounden duty of the parties to produce the evidence which favours them.

8.  It is also interesting to note that the complainant has been paying the installments through cheques.  It is, however, strange that the money was paid back in cash.  This further goes to cast a flim of doubt on the bonafides of the OP.

9.      The State Commission has been asking that some concrete and convincing evidence should be led but without paying heed to its observations this frivolous revision petition has been filed.  We dismiss the revision petition as it has no merits.  Agreement was entered into between the parties in the year 2000.  13 years have elapsed but the respondent/complainant has not got his flat after paying the whole of the amount, therefore, we impose costs in the sum of Rs. 1,00,000/- upon the petitioner/OP which may be paid to the complainant, within 45 days as we have informed the counsel for the petitioner, who is present, otherwise, it will carry interest at the rate  of 9%.  If the petitioner is unable to allot the flat, the order passed by the State Commission be complied with.

10.      The revision petition stands disposed of.