ORDER

(Per: Mr. D.K. Tyagi, Member):

This is an appeal under Section 15 of the Consumer Protection Act, 1986, filed by the appellant-opposite party against the order dated 04.02.2009 passed by the District Forum, Dehradun in consumer complaint No. 94 of 2006.  By the impugned order, the District Forum has allowed the consumer complaint ex-parte against the appellant-opposite party and directed the appellant-opposite party to pay to the complainant a sum of Rs. 60,000/- within one month (30 days) from the date of order, failing which the opposite party shall fix the doors and windows of good quality of wood in the house of complainant. In addition of this, the complainant is entitled to get Rs. 5,000/- towards mental agony and litigation expenses.  

2.       Briefly stated the facts of the case, as mentioned in the consumer complaint, are that the complainant–Sh. Bhupinder Singh has constructed his house No. 1/11/2 Prem Nagar, Dehradun.  He placed an order for making doors and windows of his house on 20.02.2004 to the opposite party-Sh. Navin Joshi a Timber Merchant at Prem Nagar, who works with the help of labours. The complainant settled the cost of wood and labour charges.  The opposite party started work on 20.04.2004. The opposite party made the doors and windows at his Ara Machine and fixed at complainant’s house. The complainant paid          Rs. 60,000/- in total through cheques and cash.  The complainant requested the opposite party to use fine quality of wood, but in a sort duration of one year of fixing the doors and windows twisted, for which the complainant informed the opposite party.  The opposite party assured him that he will rectify/correct all the defective doors and windows and will change the doors and windows, which are completely defective. But the opposite party did not fulfil his commitment.  Alleging deficiency in service on the part of the opposite party, the complainant has filed the consumer complaint before the District Forum.

3.       The opposite party was served through publication in District Forum. The case was proceeded ex-parte before the District Forum.  Now the opposite party-appellant has filed the written statement before this Commission on 06.04.2011.  In the written statement, the opposite party has denied all the allegations made by the complainant.  The opposite party has stated that he is a social worker and belongs to a political party.  He has further stated that his father Sh. Mathura Dutt Joshi, who was the owner of the Ara Machine at Prem Nagar had expired on 17.12.2008.  After the death of Sh. Mathura Dutt Joshi, his elder brother,           Sh. Ravindra Dutt Joshi is the owner and license holder of said Ara Machine.  It is wrong to say that the opposite party is contractor or he is the owner of the said Ara Machine.  He had never took the order to prepare the doors and windows of complainant’s house.  It is wrongly alleged that the opposite party had received the amount of Rs. 60,000/- through cheques from the complainant. No agreement had been signed for the said work/contract. The opposite party had never provided any service to the complainant, therefore, the complainant is not a consumer of the opposite party.  The consumer complaint filed by the complainant is time barred and the same is liable to be dismissed.

4.       The complainant has also filed replication against the written statement filed by the opposite party in which he has pleaded that it is denied that the opposite party was not carrying the work contract for constructing doors and windows.  It is denied that because of any political animosity the complainant has filed the complaint.  It is reiterated that the complainant has made payment to the tune of Rs. 60,000/- and the contentions made in the reply are wrong and specifically denied.  It is denied that the consumer complaint is time barred or not maintainable. 

5.       During this appeal, the appellant-opposite party has filed a copy of consumer complaint alongwith a certificate/bank statement of Uttaranchal Gramin Bank (paper Nos. 13 to 14) and an affidavit of Sh. Navin Joshi (paper No. 46) as well as an affidavit of Sh. Navin Joshi in evidence (paper Nos. 48 to 51) alongwith copy of license of Ara Machine (paper Nos. 52 and 53) and a copy of death certificate of Late Sh. Mathura Dutt Joshi (paper No. 54).  The appellant has also filed a photocopy of license of Ara Machine (paper No. 35) and photocopy of letter dated 26.08.2005 of Uttaranchal Shashan (Uttarakhand Govt.) (paper No. 36).

6.       During the appeal, the respondent-complainant has filed an affidavit of      S. Harbans Singh (paper No. 40) and an affidavit of S. Manmeet Singh (paper No. 41).

7.       The District Forum on an appreciation of the material on record, has allowed the consumer complaint No. 94 of 2006 vide order dated 04.02.2009 in the above manner. Aggrieved by the said order, the opposite party has filed the present appeal.

8.      We have heard learned counsel for the parties and perused the material on record.

9.      Learned counsel for the appellant has submitted before this Commission that according to the pleadings some oral agreement was made for making wooden doors and windows between the parties on 20.02.2004 and the consumer complaint was filed by the complainant on 03.05.2006, therefore, the consumer complaint is barred by time under Section 24 of Consumer Protection Act, 1986. Learned counsel has argued that there is no Ara machine in the name of            Sh. Navin Joshi-appellant.  The respondent has not filed any bill or receipt on the record to show that there was any agreement of making doors and windows between the parties. Learned counsel also argued that the appellant had never supplied anything to the respondent. There is no evidence filed by the respondent against the appellant.

10.    Per contra, learned counsel for respondent has submitted that there is only one Ara machine in Prem Nagar, Dehradun and there is no other Ara machine in Prem Nagar area or its surroundings.  During the appeal, the respondent has filed affidavits of S. Harbans Singh (paper No. 40) and an affidavit of S. Manmeet Singh (paper No. 41) to show that there is only one Ara machine in the name of Joshi Ara Machine in Wing No. 2, Prem Nagar, Dehradun and there is no other Ara machine in the area of Prem Nagar or its surroundings. Learned counsel has also argued that the respondent has paid Rs. 60,000/- to the appellant in which Rs. 40,000/- were paid through cheques and Rs. 20,000/- were paid in cash.  Evidence regarding payment of money through cheques has been filed by the respondent on the District Forum’s record which clearly indicates that money was transferred from the respondent’s account to the appellant’s account, which is never controverted specifically by Sh. Navin Joshi in his affidavit. 

11.    There is no dispute that there is an Ara machine situated at Wing No. 2 Prem Nagar, Dehradun, whose proprietor was Sh. Mathura Dutt Joshi, father of the appellant who had died in the year 2008 and Sh. Ravindra Dutt Joshi, the brother of appellant, is working as proprietor since mutation of his name on 25.03.2010.  The name of Sh. Ravindra Dutt Joshi was mutated by an order of D.F.O., Dehradun dated 25.03.2010 as shown on license (paper No. 53).   So far the payment of money by the respondent to the appellant by cheque or cash is concerned, the appellant has stated in his written statement as well as in the affidavit (paper Nos. 48 to 51) that he had never provided any receipt or bill to the respondent and there was no agreement regarding wooden work between the appellant and respondent and to provide photographs and diary, the burden to prove is on the respondent.  The respondent has filed an affidavit in support of his complaint in which he has specifically deposed that he had constructed a new house No. 1/11/2, Prem Nagar, Dehradun and contacted the appellant for making the wooden doors and windows for his house.  It was agreed that the wooden doors and windows shall be prepared by the contractor Sh. Navin Joshi with the help of labours and carpenters and started doing work for the same on 20.04.2004.  The respondent paid Rs. 60,000/- to the appellant for consideration of wooden work.  The respondent has filed certain cheque books (paper No. 19ka/3 to 19ka/13 in the District Forum’s record) and a diary (paper No. 19ka/14 in the District Forum’s record), which clearly indicates that a cheque of             Rs. 5,000/- was given to one Mr. Joshi; a cheque of Rs. 10,000/- was given to Mr. Navin Joshi on 20.08.2004 vide cheque No. 573465; an endorsement of Rs. 15,000/- in the name of Mr. Navin Joshi is also there on the back side of 14ka/10 and again a cheque of Rs. 10,000/- was paid to Mr. Navin Joshi on 01.08.2004 vide cheque No. 572026.  As cheque No. 572026 was paid by the respondent to the appellant on 01.08.2004, therefore, it cannot be said that the consumer complaint was time barred. From the perusal of the entry in the cheque book dated 01.08.2004, it is clear that the consumer complaint was not time barred.  The appellant has never explained as to how these entries are made in the cheque books and the diary of the respondent.  Therefore, it clearly indicates that the appellant had taken money from the respondent with regard to the making of wooden doors and windows for a newly constructed house of respondent.  Being the younger son of Late Sh. Mathura Dutt Joshi, proprietor of the only Ara machine in Prem Nagar, Dehradun, the appellant received amount from the respondent in consideration of making wooden doors and windows. 

12.    The District Forum has considered all the facts and circumstances of the case and has passed a reasoned order, which does not call for any interference and the appeal being devoid of any merit, is liable to be dismissed.

13.     For the reasons aforesaid, the appeal is dismissed.  The impugned judgment and order dated 04.02.2009 passed by the District Forum, Dehradun in consumer complaint No. 94 of 2006 is hereby confirmed.   No order as to costs.