Per Shri P.N. Kashalkar – Hon’ble Presiding Judicial Member:

(1)                This is an appeal filed by the original Opponent No.1 against the judgement and award passed by the Consumer Disputes Redressal Forum, District Kolhapur in Consumer Complaint No.547/2007 directing Opponent Nos.1(a) and 1(b) to procure completion certificate from the Kolhapur Municipal Corporation and to execute Sale Deed in favour of the Complainants.  The Forum below also directed Opponent 1(a) and 1(b) to remove the defects noticed by the Court Commissioner or alternatively they should refund amount of `14,00,000/- to the Complainant with interest @9% per annum and to pay to the Complainant `5,000/- for mental harassment and `1,000/- towards costs.  Being aggrieved thereby Opponent No.1(a) and 1(b) filed this appeal.

(2)                Facts to the extent material may be stated as under:

The Complainant Kailash Dalvi had filed Consumer complaint against Opponent nos.1 to 4 alleging deficiency in service on the part of builder developer.  According to Complainant opponent nos.1(a) and 1(b) had developed property and constructed apartments on city survey no.574  (e), (f), (g), (h) in ward ‘C’ of Kolhapur Municipal Corporation.  He constructed Gajanan Maharaj Apartment on the said city survey plot.  The Complainant pleaded that he had purchased Flat nos. F1 and F2 in the said apartment and agreement of sale was executed and registered between the parties on 22.03.2007.  According to Complainant the construction made by the Opponent was substandard.  It was having a lot of defects and deficiencies.  Kitchen flooring was not having level.  He mentioned so many grievances in his complaint and he also complained that electricity was discontinued because of non-payment of charges of M.S.E.B. by the Builder developer.  He alleged that he had taken bank loan.  Builder had not procured completion certificate and had not executed sale deed in his favour.  He also alleged that the staircase and lift was installed by encroaching upon property the other adjoining owner.  The Complainant pleaded that he had paid total amount of `17,24,846/- and still the flats constructed by the Opponent No. 1(a) and 1(b) were not perfect in all respects and construction was substandard one and therefore, he filed consumer complaint for claiming various reliefs.  Before filing complaint he had issued notice to the Opponents.

(3)                Opponents filed written statement and denied the allegations made by the Complainant.  Opponent no.1(a) denied that he had used substandard material for construction of apartment.  Walls were properly plastered, kitchen flooring was proper.  The doors were properly installed.  He had however admitted that Corporation had not provided water tap connection to this apartment.  He asserted that Complainant had taken water connection for this apartment unauthorisedly.  He also stated that the Complainant had made some material alterations without taking permission from the Corporation.  The Opponents pleaded that tiles and wash basin were provided by Opponent, plumbing work was also done by the opponent.  However, Opponent Nos.1(a) and 1(b) admitted that outer colour has not been given to the apartment.  The Opponent also admitted that building is not provided with any water.  As regards lift is concerned Opponent pleaded that Opponent was not under obligation to provide lift.  Opponent also admitted that M.S.E.D.C. Ltd. had given electricity connection to this apartment and Complainant was consuming electricity from the meter provided by M.S.E.D.C. Ltd. for himself and they were taking electricity unauthorisedly.  He pleaded that Opponent nos.1(a) and 1(b) had to recover `6,60,000/- being the consideration of this flat from the Complainant.  They specifically pleaded that the receipt on record of the said amount produced by the Complainant dated 15.03.2007 is bogus one.  The Complainant had not given this amount either by cheque or in cash, but, Complainant committed theft of this receipt and got prepared forged document and under bogus receipt he filed false case.  Opponent pleaded that he demanded remaining amount of `6,60,000/- from the Complainant, but Complainant is setting up false defence by showing receipt dated 15.03.2007.  The Opponent also pleaded that the case involved complicated questions of facts and law and therefore, Consumer Forum should not decide this complaint and should direct parties to approach Civil Court.  The Opponent therefore pleaded that complaint should be dismissed with costs.

(4)                On the basis of affidavits and documents placed on record the District Forum gave finding that the present dispute is consumer dispute and complainant is a consumer of Opponent Nos.1(a) and 1(b) and therefore, this dispute can be taken cognizance of by the District Forum.  The District Forum also noted in its order that there has been deficiency in service on the part of Opponent Nos.1(a) and 1(b) because building is not properly constructed and there were many defects in the apartments which are in possession of Complainants and Court Commissioner had recorded those defects and based on the Commissioner’s Report the District Forum allowed the  complaint and directed the builder to procure certificate from the Kolhapur Municipal Corporation in respect of flats in question and also directed to execute sale deed in favour of Complainants.  The District Forum also directed that as per Commissioner’s report the Opponent Nos.1(a) and 1(b) should make good the deficiencies or alternatively they should refund amount of `14,00,000/- to the Complainant with interest @9% per annum.  The District Forum also directed to pay amount of `5,000/- to the Complainant towards mental harassment and `1,000/- towards costs.  As such original Opponents have filed this appeal.  Basically this appeal is confined to original Opponent Nos.1(a) and 1(b) and Respondent alone.  All other Opponents are joined with Opponents, but no order is passed against them.

(5)                Heard Mr.Abhijit Adgule, Advocate for the Appellant and  Mr.Umesh Mangave, Advocate for the Respondent.

(6)                We are finding that the order passed by the District Forum is appearing to be just and proper and it is sustainable in law.  Mr.Abhijit Adgule, Advocate for the Appellant submitted that District Forum should not have taken cognizance of this complaint because complaint involved complicated questions of law and facts and District Forum Kolhapur should have directed the parties to appear before the Civil Court.  However we are of the view that there is no complicated question of law and facts involved in this complaint.  This dispute is simply between builder developer on the one hand and purchaser on the other.  There is registered agreement between the parties and as per registered agreement builder is supposed to give possession of the flats to the Complainant on receipt of the consideration amount. So, first challenge to the award passed by District Forum is appearing to be without any substance and it is meaningless.  Secondly it is contended on behalf of the Appellant by Advocate Mr.Adgule that his client had not received amount of `6,60,000/- as per receipt dated 15.03.2007.  However, we are finding that the receipt on record is appearing to have been issued by builder developer under his own signature on receiving sum.  It was contention of Advocate for the Appellant that this was forged and fabricated receipt.  However, no immediate F.I.R. was lodged after alleged theft of receipt from the office of builder developer.  It is true that some criminal complaint has been filed by the builder developer against Respondent pertaining offence under section 420 and other Sections of  I.P.C., but nowhere the charge framed reveals that the Appellant had lodged complaint in police station referring to the theft of receipt by the Complainant from the office of the builder developer.  The office of the builder developer is always manned by security guards and it is not isolated one.  So, it is not possible for any poor flat purchaser to commit theft of receipt.

(7)                It was tried to be contended by Advocate Mr.Adgule for the Appellant that in the registered agreement executed between the parties the amount of `6,60,000/-  as evidenced by receipt dated 15.03.2007 is not reflected.  It may be so, but that does not prevent us from relying upon the receipt produced by Respondent dated 15.03.2007 which clearly mentions that he has received amount of `6,60,000/- from the respondent herein.  What is pertinent to note is the fact that this amount was paid in cash and Respondent had adduced affidavits of two persons to substantiate that he had collected this amount from various sources and he had paid this amount to the Appellant herein.  In the circumstances, when there was enough evidence on record, it was just and proper on the part of Ld.District Forum to hold that Respondent had in fact paid total consideration of `14,00,000/- inclusive of the disputed receipt for the sum of `6,60,000/-.  We are therefore finding that on the whole the award passed by the District Forum is appearing to be just and proper.  There cannot be valid challenge to the award passed by the District Forum in the circumstances obtainable.  The said order in our view is surely sustainable and there is no reason for us to interfere with the judgment and award passed by the District Forum, which is well reasoned supported by evidence on record.  In the circumstances, at the stage of admission itself , we pass the following order:

O  R  D  E  R

         (i)          Appeal stands dismissed.

       (ii)          No order as to costs.

  (iii)  Inform the parties accordingly.