Per Shri Dhanraj Khamatkar – Hon’ble Member:
(1) This appeal takes an exception to an order dated 30/10/2003 passed by the District Consumer Disputes Redressal Forum, Nashik in Consumer Complaint No.257/2000.
(2) Facts leading to this appeal can be summarized as under:
Shri Shriram Motiram Borse, had filed consumer complaint contending that he had booked a tenement no.5 on 21.09.1993 to be constructed by he Opponents and paid the advance of `7,000/- and the Opponents had issued him the receipt. Thereafter the Complainant had paid an amount of `13,000/- on 23.03.1993 and `10,000/- on 19.05.1994. It is further contended that the total consideration of the tenement was fixed at `1,60,000/- and it was to be paid in five installments of `20,000/- each as per the progress of the construction and remaining amount was to be raised by taking loan of `60,000/- from the financial institution. The Complainant further stated that the Opponent has neither entered into an agreement nor started the construction and hence, the Complainant had requested for return of the amount paid. However, the Opponent had not returned the amount and hence, Complainant had filed the consumer complaint praying that the amount paid to Opponent be returned along with interest @24% per annum, `1,00,000/- as compensation and `25,000/- as compensation for mental torture along with costs of the complaint.
(3) The Opponents have filed written version stating that, initially, the Ashish Construction i.e. Opponent No.1 was a partnership firm and subsequently it was dissolved and new firm ‘Ashish Shelters and Developers Pvt. Ltd.’ has been formed as a proprietary firm and the new firm had accepted the liabilities of the old firm. The new firm had informed the Complainant for executing the agreement, however, the Complainant had not registered the agreement. They further stated that there is no deficiency in service on their part and hence, complaint be dismissed.
(4) The District Forum, after considering the written version filed by the Opponents, the evidence filed on Affidavit by both the parties and pleadings of their Counsels have allowed the complaint directing the Opponents to pay an amount of `30,000/- along with interest @18% per annum from 19.05.1994 and the costs of `1,000/-. Aggrieved by this order the original Opponents have filed this appeal.
(5) Matter was lying unattended. It was placed before us on 22.09.2011. We directed the office to issue intimation to both the parties. Accordingly intimation was issued fixing the date of hearing as 09.12.2011. On the date of hearing both parties remained absent. The matter being an old one, we decided to proceed with the matter on merit.
(6) Admittedly, there is delay of 50 days in filing the appeal. Appellant has filed delay condonation application. The reasons given for the delay are not convincing. The Appellant tried to justify the delay on the ground that they came to know the impugned order when they have received the copy of an order passed in Consumer Complaint Nos.35/1999, 36/1999 and 41/1999 dated 04.01.2004 passed by the District Forum. On perusal of the certified copy of the order filed by the Appellant, it is seen that he has applied for the certified copy on 30.12.2003. The copy was ready on 31.12.2003 and he had received the copy on 02.01.2004. On the copy, there is an endorsement that the copies of the order were dispatched on 04.11.2003 to both the parties. This fact goes against the justification given by the Appellant for the condonation of delay.
(7) On merit also, we observe that the Appellants have admitted that they have received the amount from the Respondent. It is also on record that they have not started the construction as agreed and hence, it amounts to deficiency in service on the part of the Appellants. The District Forum after considering the evidence had only ordered to return the amount which the Appellants have agreed that they have received along with interest @18% per annum and costs of `1,000/-. Looking into the facts and circumstances of the case, we observe that the order passed by the District Forum is just and proper and we do not find any merit in the appeal. We hold accordingly and pass the following order:
O R D E R
(i) Appeal is dismissed.
(ii) The order of the District forum is hereby confirmed.
(iii) No order as to costs.
(iv) Inform the parties accordingly.
Pronounced on 9th December, 2011.
