Per Shri Dhanraj Khamatkar – Hon’ble Member

(1)          This appeal takes an exception to an order passed by District Consumer Disputes Redressal Forum, Raigad on 18.01.2010.

(2)          Facts of the case in brief are that, Appellant/Complainant had booked Shop No.12 in Mahavir Vastu, Plot No.9, Sector-8, Kamothe, Taluka: Panvel, District Raigad for a consideration of Rs.3,90,000/-.  Accordingly, the Appellant/original Complainant had paid to the Opposite Party/Respondent Rs.2,56,000/- from December, 2004 to January, 2005 in five installments.  The original Opposite Party/Respondent had given an Allotment letter dated 09.01.2005 to the Appellant.  The Appellant had further stated that the original Opposite Party/Respondent had not given her possession despite of oral request as well as the legal notice.  The Appellant/Original Complainant was ready to pay Rs.34,000/- the remaining amount of the consideration.  As the opposite Party failed to handover possession, it amounts to deficiency in service.  Hence, the Appellant had filed consumer complaint praying to handover possession of Shop No.12 and to pay compensation of Rs.30,000/- for mental agony and costs.

(3)          As the original Opposite Party/Respondent had not appeared before the Forum, the case was decided ex-parte in favour of the Appellant.  There was an appeal before the State Commission and the matter was remanded back to the District Forum, setting aside the earlier order dated 02.12.2008.  After the remand, the District Forum had dismissed the complaint vide order dated 18.01.2010.  It is against the order dated 18.01.2010, the present appeal is preferred.

(4)          On behalf of the Appellant, Ld. Counsel Mr.Anand Patwardhan, argued the case.  He has pointed out that the Appellant had booked the Shop No.12 for consideration of Rs.3,90,000/- and paid Rs.2,56,000/-.  The original Opposite Party/present Respondent has issued receipt of the payment.  Similarly, he has issued allotment letter in favour of the Appellant for the Shop No.12 on 09.01.2005.  Despite of paying 66% of the amount out of consideration of Rs.3,90,000/-, the Opposite Party/Respondent had not handed over possession and this amounts to deficiency in service.  He further stated that the Opposite Party/Respondent had filed Affidavit of Chartered Accountant which does not have any evidentiary value.  He further contended that the Forum below had failed to take into consideration the facts of the case and arrived at erroneous conclusion, therefore, he requested that the appeal may please be allowed, the order of the Forum below may please be set aside and the Opposite Party/Respondent may please be directed to handover possession of the Shop No.12.

(5)          The Ld. Counsel for the Opposite Party/Respondent stated that, initially the Appellant had booked three shops, i.e. Shop Nos.10, 11 and 12 and the possession of Shop Nos.10 and 11 have been handed over to the Appellant and her Authorised Representative.  The Counsel further contended that the amount paid for the Shop No.12 has been adjusted in Shop Nos.10 and 11 and the Appellants have not denied that the original transaction was in respect of three Shops.  Similarly, they have not denied that the transaction in respect of Shop Nos.10 and 11 has been completed and they have received the possession.  The Appellant could not produce receipt in respect of Shop No.10.  It is the contention of the Respondent that the money received for Shop No.12 is adjusted in Shop No.10.  The Appellant is silent about this fact.  The Opposite Party has produced the receipts in respect of Shop No.10, so, from the aforesaid facts, the Ld. District Forum came to the conclusion that the receipts given for Shop No.12 have been adjusted in Shop No.10 and we do not find any reason to disbelieve the same.  In support of this contention, the Opposite Party has filed an Affidavit of Chartered Accountant and the affidavit corroborates to the fact that the receipts given for Shop No.12 have been adjusted in Shop No.10.  The Appellant is trying to take an advantage of the receipts which the Opposite Party has issued in respect of Shop No.12.  The Forum below has passed order after going through the evidence filed by both the parties and we do not find any reason to interfere in the same.  In view of the aforesaid facts and circumstances of the case, we pass the following order:

O  R  D  E  R

     (i)       Appeal is dismissed.

    (ii)       The order of the Forum below dated 18.01.2010 is hereby confirmed.

  (iii)       No order as to costs.