FA 832/2007 against P.P. No. 2/2007 in C. C. No. 16/2006 on the file of the District Forum, Mahabubnagar.

Between :

1.                  M/s. Padmaja Constructions

1-6-43/2, Station Road,

Mahabubnagar, rep. by its Managing Partner

2.                  C. Srinivas, S/o C. Dattathreya,

H.No. 1420, aged : Major, Occ : Mg. Partner of

M/s. Padmaja Constructions, 1-6-43/2,. Station Road,

Mahabubnagar, R/o Netaji Road,

Jedcherla, Mahabubnagar Dist.    Appellants/Respondents/OPs

And

Smt. Tandur Suguna, W/o T. Laxman,

Aged 44 years, occ : Household

R/o H.no. 1-2-28-B/1, Subash Nagar

Mahabubnagar                                … Respondent/Petitioner/Complainant

Counsel for the Appellants          :           M/s. M. Hari Babu

Counsel for the Respondent      :           M/s. K. Someswar Kumar.

Coram           :    

Sri Syed Abdullah              …        Hon’ble Member

And

                                                             Sri R. Lakshminarasimha Rao…      Hon’ble Member

Tuesday, the Twenty Nineth Day of June, Two Thousand Ten

Oral Order     :           ( As per Sri Syed Abdullah, Hon’ble Member )

*******

Being aggrieved by the order dated 12.06.2007 passed in PP 02/2007 in C.C. No. 16/2006 on the file of the District Forum, Mahabubnagar sentencing the respondent to undergo rigorous imprisonment for a period of one year.

The respondent/complainant in CC 16/2006 has filed PP 2/2007 alleging  that the appellants failed to comply with the directions to complete the works as per the agreement and hand over  the flat no. 306 in a living condition  on or before 18.12.2006 and  pay interest @ 8% on a sum of Rs.3,20,000/-  and at 18% pa on Rs.1,95,000/-  from 01.03.2006 till handing over the flat. Further directed to pay court expenses of Rs. 1000/-  and costs.

It is further stated by the respondent/complainant that he took possession of the flat no. 306 on 17.12.2006 and offered to pay a sum of Rs. 20,640/-  to the second opposite party but he refused to accept the same. Though the flat was delivered the main door was not fixed, so also, internal seven doors  and glasses to the shutters to the windows were not fixed.  The respondent/complainant filed a calculation memo stating that he is entitled for a sum of Rs.89,360/- towards interest  and if the said amount is adjusted from out of Rs.1,10,000/- payable by him  he had to pay only a sum of Rs.20,640/-  which amount was offered by issuing a cheque.  The respondent/complainant had requested  to complete the unfinished work  providing lift and drinking water supply etc.   Though notice was acknowledged, the second opposite party failed to comply  with the directions.  The opposite parties are  intentionally  dragging on the matter not complying with the orders. Hence they have to be punished  as per the provisions of the Consumer Protection Act.

The learned counsel for the has taken the stand that the appellants were not given an opportunity to explain as to why there was a delay in non-compliance of the order.  It is also contended that as per the directions of the District Forum, the respondent/complainant had to pay Rs.1,10,000/-  which amount was not paid and that the District Forum failed to consider that it was brought to the notice that the erection of the lift was in progress  which will be completed  within a short period  and without considering it  the impugned order  was passed erroneously. 

Point for consideration  is whether the impugned order suffers from any factual and legal infirmity for its interference ?

Along with the appeal, the complainant has filed a receipt  for Rs.80,000/-, transport receipt and also some photographs  of the flats that were  constructed.   The receipt dated 14.06.2007 for Rs.80,000/-  shows that  the appellants have paid a sum of Rs.80,000/-  to one Everest Engineering Corporation for erection of the lift  and its material was transported to Mahabubnagar  on the same date.

We have perused the record  from which we have observed  that complete docket orders of the P. P. proceedings  are not filed to have an idea  that before passing of the impugned order  whether the appellants were given an opportunity  or not .   It is also not clear whether the respondent/complainant had paid a sum of Rs.1,10,000/- as directed. Even as per the calculation made by the respondent/complainant  in his affidavit he has to pay a sum of Rs.20,640/- and there is no evidence on record to show that the said sum was paid by him.   The respondent/complainant alleged that the opposite parties have failed to complete the  masonry work and provide other amenities.  These aspects are to be verified  only by inspection  by an Advocate Commissioner.  There is no evidence on record to show that  whether the allegations made against the opposite parties are true or not.  Docket order shows that 2^nd respondent was produced on BWs and on that date without making any enquiry an order was passed.  It is pertinent to go through  the order which is as follows  : “Respondent  is produced on BWs. No sureties  produced.  Petitioner counsel filed memo stating that still lift work is not completed and they paid the amount to Respondent as directed by this Forum. The Respondent  in his written reply mentioned that the petitioner has not paid amount and lift work  is not completed “.

Without verifying the statements made by the respective parties the District Forum came to the conclusion that the respondent has not complied with the orders  in spite of  granting maximum opportunity and thereby sentenced to under go rigorous imprisonment  for a period of one year.

The impugned order was passed without proper appreciation of the evidence. When there is an assertion and denial  by the parties, the District Forum ought to have appointed an Advocate Commissioner to file his report and directed the respondent/complainant to produce payment receipts.  It is not known why payment receipts are not filed.  In view of the glaring mistake and error  the impugned order  is liable to be set aside.

In the result,  the appeal  is allowed setting aside  the order dated 12.06.2007 in PP 2/2007 in CC 16/2006 directing the District Forum to enquire into the matter  afresh and to pass orders according to law.  The parties to be given an opportunity  to apply for appointment of Commissioner and also to produce necessary evidence to appreciate their contentions. No costs.

                                                                                                                                                                                    Sd/- MEMBER

                                                                                                                                                                                    Sd/- MEMBER

                                                                                                                                                                                    DATED :        29.06.2010