(Delivered on 22/02/2021)

PER SHRI A. Z. KHWAJA, HON’BLE PRESIDING MEMBER.

1.         Appellant-  Suresh Laxman Sarkar has preferred   the present  appeal  under Section 15 of the Consumer Protection Act, 1986, feeling aggrieved by the impugned judgment and  order dated 05/10/2017  passed by the  learned District Consumer Forum, Chandrapur  in Consumer Complaint No. 173/2012 by which  the complaint filed by the  respondent /complainant came to be partly  allowed  and appellant  was directed to  pay a sum of Rs. 2,46,760/- along with interest at the rate  of 12% p.a. till its realisation.     (Appellant hereinafter shall be referred as O.P. and respondent as complainant for the sake of convenience)

2.         Short facts leading to the filing of the present appeal may be narrated as under:-

            Complainant – Smt. Vaishali Gopalsingh Bais claims to be  the owner of the plot No. 16, Mouza  Chanda, admeasuring 2115 sq. fts.  On 06/02/2012  the O.P./appellant - Suresh Laxman Sarkar had entered into an agreement  to carry  out  construction  of house  consisting  of six  rooms, one kitchen  and other  amenities  for the sum of Rs. 10,00,000/-.  The complainant  also paid  an amount of Rs. 1,00,000/-  on 07/02/2012 and thereafter  from time to time  the complainant   paid  a sum of Rs. 5,60,000/-.  The complainant  had alleged that  despite  an agreement  dated 06/02/2012  the O.P. did not carry  out the Construction  as assured and only an amount of Rs.3,13,240/- was spent.  The complainant  therefore  demanded  the refund  of Rs. 2,46,760/- but the O.P. failed to repay the same  and also  did not carry out the construction as per  the  term of  agreement  dated 06/02/2012.  The complainant  was therefore  compelled    to file  the complaint  claiming  sum of Rs. 3,96,360/- along with interest  at the rate of 18% and also compensation  towards  mental  harassment  as well as cost of litigation.

3.         O.P.  has appeared  and  resisted  the claim  by filing its  written statement.  The O.P. has denied all the allegations made in the complaint but has admitted that an agreement has taken place on 06/02/2012. The O.P. has   taken the stand  that  after  the construction  was carried out  the present  complainant  had sold out  the said house  to a third  party as she was dealing in the  business  of sale  and  purchase  of the houses. The O.P. has  also contended  that  there was  a high  tension   electric line passing over the plot and complainant  had  agreed  to  shift the same but said condition was not complied  by the complainant.  The O.P. has contended that unless the said electric line was shifted   to some other place further construction   could not be carried out. The O.P.  has categorically  denied that  the  complainant  was  entitled  for any refund as claimed  and so  complaint  deserves to be dismissed with cost.

4.         The learned District Consumer Forum, Chandrapur  thereafter went through the evidence adduced  on record by both the parties.  The learned District Consumer Forum, Chandrapur  also went through written notes of argument filed by  both the parties. After appreciating the  evidence  adduced by both  the parties on record , the  learned District Consumer Forum, Chandrapur  came to the conclusion  that the O.P. had not placed on record  any material  which  could go to show  that  the complainant  was dealing  in the business  of sale  and purchase of houses or was making profits. The learned District Consumer Forum, Chandrapur  also came to the  conclusion  that  the O.P. has not  placed on record  any documents   so as to  substantiate its plea regarding  high tension  electric  line passing  through  the plot of the complainant.  Accordingly, the  learned District Consumer Forum, Chandrapur  partly  allowed the  complaint  and directed the O.P./appellant  to pay a  sum of Rs. 2,46,760/- along with  interest  at the rate of 12% p.a.  and also  Rs. 50,000/- by way of  compensation  towards mental  and physical  harassment. Against this judgment and order dated 05/10/2017 passed by the learned District Consumer Forum, Chandrapur the present appellant/O.P. has come up in appeal.

5.         After filing of the appeal  notices  were  issued  to the respondent /complainant  but respondent  has failed  to appear and so  appeal  proceeded exprate  against the  respondent/complainant.

6.         We have heard Mr. Kharkate, learned advocate for the appellant. The learned  advocate for the appellant  has strenuously  submitted before us that  the learned District Consumer Forum, Chandrapur  had not  taken  into consideration  material aspects namely  that  the  complainant  was doing  a commercial  business  of  sale and purchase  of houses  and making profits. It is submitted by Mr. Kharkate, learned advocate for the appellant that  though  the appellant  had carried out construction of house  as  per the agreement   dated 06/02/2012. The respondent /complainant  had sold  out the said house to  third  party  but this fact was not taken  into consideration . Mr. Kharkate, learned advocate for the appellant  has also  drawn our attention  to various  papers  on record. If we go through  the papers  one find  that  the present  appellant /O.P. has not placed  on record  a single document  which  could go to show that  the respondent /complainant  was dealing  in the business of  sale  and purchase  of houses after construction.  It was easily  open to the  appellant  to  place  such  documents on record before  the learned  District Consumer Forum, Chandrapur  but the same  are not filed.

7.         Coming now to the second contention which is raised  in the appeal as well as  the written statement,  it is contended that  one high  tension  electric wire  was passing  over the plot of the complainant  and the complainant   had agreed  in  the terms of  agreement  dated 06/02/2012 to get the same  shifted but  no such steps  were taken.  For this purpose we have gone through the copy of   agreement dated 06/02/2012 entered into between the complainant and O.P.  However,  there  is  no mention  at all  in the agreement  dated 06/02/2012  that any high  tension  line was passing  over the plot  or that  the complainant  had undertaken  to shift the same. On the other  hand,  the agreement  shows that  the O.P. had undertaken  to construct six rooms along with  kitchen  and bathroom  for a sum of  Rs.10,00,000/-. We find  that there  was also exchange of  notices  between  the parties  but  there is absolutely  no material  to show that  the agreement  dated 06/02/2012  was a conditional  one  or that  same  conditions  were satisfied  by the complainant. As such this contention of the learned advocate for the appellant cannot be accepted

8.         The appellant  has also  taken  a plea  that  subsequently also the respondent  had asked  the appellant  to carry  out  the repair  work of the  flat Kalash Apartment  and accordingly the  appellant  carried out the repairs  and then  the respondent  had sold out  the  said  property.  According to the appellant he had not received an amount of  Rs.10,00,000/- from the respondent.  In this context we have also gone through the written statement filed by the appellant on record. We find   that  the appellant  has  also filed  one valuation  certificate  regarding the  construction  carried out but  except  this document  no material  has been placed  on record which could  go to show that  the appellant  had spent  an amount of Rs. 10,00,000/- and was to  recover  the same from the respondent.  On the other hand,  the respondent  has  alleged that  since the appellant  had not completed the construction work  he had suffered  huge monetary  loss. We find  that  the learned District Consumer Forum, Chandrapur  has  also gone in this aspect and has come  to the conclusion  that the appellant  was liable  to pay a sum of Rs. 2,46,760/- along with interest. We do not see any error in this findings recorded by the learned District Consumer Forum, Chandrapur in the absence of material documents on record.

9.         Lastly,  appellant has  also taken  a plea  that  since  the  entire case of the  complainant  was based on alleged  agreement dated 06/02/2012, detailed  examination   of evidence was required  and so the   respondent /complainant  should  approach  the Civil Court  and learned District Consumer Forum, Chandrapur  has no jurisdiction  to  deal with this aspect. On this aspect  the learned advocate for the appellant has placed  reliance  upon  one  judgment  of Uttar Pradesh State  Consumer  Disputes Redressal Commission  in the case of Shiva Kant Upadhyaya Vs. Rama Shankar Upadhyaya, reported in IV (2005) CPJ 640. Further  during the course of  argument  the learned  advocate  for the appellant  has also relied  upon  the judgment  of Rajasthan State  Consumer  Disputes  Redressal Commission in the case  of  Pushpa Meena Vs. Shah Enterprises (Rajasthan) Ltd.  reported  in  I(1992) CPJ 271.  We have gone through  these judgments  on which  reliance  has been placed  on record.  However,  we are of the view that  these  judgments  do not  apply to the facts in the  present  appeal and so cannot be taken into consideration. We also do not find any material error or perversity in the findings given by the learned District Consumer Forum, Chandrapur. As such we hold that the appeal is devoid of any substance and so we pass the following order. 

ORDER

i.          Appeal is hereby dismissed.  

ii.          Appellant and respondent shall bear their own costs

iii.         Copy of order be furnished to both the parties free of cost.