Per Shri S.R. Khanzode – Hon’ble Presiding Judicial Member:

(1)          This appeal takes an exception to an order dated 31.03.2006 passed in Consumer Complaint No.652/2001, Shri Siddharth Chandrashekhar Bartakke V/s. Sharad Hari Deshpande, by Consumer Disputes Redressal Forum, District Kolhapur (‘Forum below’ in short).

(2)          The dispute appears to have been about the construction work entrusted to Appellant/Opposite Party (hereinafter referred to as the ‘Contractor’).  According to Respondent/original Complainant (hereafter referred to as the ‘Complainant), since the construction work of the factory was left incomplete he could not start the business as scheduled on Desera and therefore, suffered loss in business.  He, therefore, claimed compensation of `1,00,000/- for loss of business, `1,00,000/- towards compensation for mental torture, `10,000/- as travelling expenses and costs of `1,000/-. 

(3)          The contractor resisted the consumer complaint stating that he has executed work as per agreement.  He stated that he completed 60% of the work and also submitted the bills thereafter. According to Contractor, Complainant only paid `1,32,000/-.  When further bill of `33,923/- was submitted and demand was made, it was not paid.  Notice was sent to pay the amount of bill, but in vain.  Thereafter lawyer’s notice was sent which is falsely replied by the Complainant.    The amount of `2,60,629/- was never received by the Contractor.  Under those circumstances, the further construction work was required to be stopped.  There is no deficiency in service on its part.  However, upholding the contentions of the Complainant, Forum below directed Contractor to pay amount of `1,62,615/- along with interest, further compensation of `10,000/- and `5,000/- as costs.  Feeling aggrieved thereby the contractor preferred this appeal.

(4)          We heard Ld.Counsel for the Appellant/Contractor.  Respondent/Complainant preferred to remain absent though served.

(5)          We made enquiry from the Ld.Counsel appearing for the Appellant as to what sort of evidence u/sec. 13(4) of the Consumer Protection Act, 1986 was adduced in the instant case.  His answer is that there is no such evidence adduced.  Furthermore, whatever the documents placed on record shows that Complainant miserably failed to establish his case.  Once it is alleged that it is a case of breach of contract on the part of the Complainant who failed to make payment of the executed work, certainly, he cannot blame the contractor for leaving work incomplete.  Under the circumstances there cannot be any deficiency in service on the part of the Contractor.  Furthermore, it appears that Contractor has already filed Special Civil Suit No.34/2003 for recovery of the amount of unpaid bills before the Civil Judge, Senior Division, Kolhapur. and as submitted at Bar, hearing of said suit is going on and it is at the stage of recording evidence.  The issue involved related to leaving work incomplete or as to who owe to whom is the issue involved and it could be settled by Civil Court which is a Court of competent jurisdiction and such dispute needs to be settled by the Civil Suit rather than in the summary manner before the Consumer Fora.  Since Forum below  reached to the conclusion only on the hypothetical basis, has erred in law allowing the complaint and granting compensation by settling the accounts accordingly.  We hold according and pass the following order:

O  R  D  E  R

  (i)          Appeal is allowed.

(ii)          Impugned order passed by the Forum below dated 31.03.2006 is set aside.

(iii)          In the result, Consumer Complaint No.652/2001 stands dismissed.

(iv)          Parties to bear their own costs.