AMRUTA BUILDERS vs MULEHAND B.JAIN

THIS revision is directed against the order dated 28.1.2004 of Consumer Disputes Redressal Commission Maharashtra State partly allowing appeal against the order dated 23.9.2002 of a District Forum and reducing the rate of interest from 18% to 9% p.a. District Forum had directed the petitioner /opposite party to pay amount of Rs. 1,80,000 along with interest @ 18% from 22.2.1995, Rs. 73,366 towards amount of interest paid to the bank and Rs. 25,000 towards the mental agony etc. to the respondent/complainant.

UNDER an agreement dated 10.8.1993, respondent awarded the work of construction of building on S.No. 42A, 1A and 1C in village Utekhol to the petitioner. The rate of construction was agreed at Rs. 250 per sq. ft. and total area of construction was estimated to be 1295 sq. ft. Amount of Rs. 90,000 was paid towards the existing construction at the site by the respondent to the petitioner. After execution of agreement, amounts of Rs. 50,000 on 9.10.1993, Rs. 35,000 on 17.1.1994, Rs. 15,000 on 17.1.1994, Rs. 40,000 on 30.1.1994, Rs. 5,000 on 19.2.1994, Rs. 20,000 on 26.3.1994, Rs. 5,000 on 10.5.1994, Rs. 40,000 on 10.5.1994, Rs. 30,000 on 16.5.1994, Rs. 3,000 on 10.12.1994, Rs. 2,000 on 15.12.1994, Rs. 5,000 on 3.2.1995, Rs. 5,000 on 5.2.1994 and Rs. 15,000 on 22.2.1995 were further paid by the respondent to the petitioner. Respondent alleged that despite payment of total amount of Rs. 2,70,000 including Rs. 90,000 the petitioner did not proceed with the construction work and for payment of aforesaid amounts, he had to take loan of Rs. 1,95,000 @ 18% from Goregaon Co-operative Bank. Respondent further alleged that he had to take on lease alternate shop to start cloth business on monthly rent of Rs. 10,000. Alleging deficiency in service, respondent filed complaint seeking certain reliefs which was contested by the petitioner by filing written version. The main defence taken in written version was that the respondent did not make payment as per the terms of agreement and petitioner was, therefore, not responsible for delay in construction. Complaint was allowed by the District Forum and appeal by the petitioner was disposed of in the manner noticed above. Submission advanced by Mr. Shivaji M. Jadhav for petitioner is mainly three fold: (i) petitioner was not served with the notice in the complaint, (ii) petitioner should have been allowed deduction of Rs. 64,750 on basis of the report dated 24.2.2001 of C.I. Shastry, Local Commissioner appointed by the District Forum and (iii) petitioner cannot be asked to pay amount of Rs. 73,366 paid as interest by the respondent en the loan taken from the bank nor can it be made liable to pay both the interest and compensation for mental agony, etc.

IT is not in dispute that petitioner did file written version to the complaint filed by the respondent. Order of District Forum notices that after filing of written version the petitioner remained absent on 17.6.2002 and 22.7.2002 and also at the time of final hearing. It is, thus, not a case of non-service of notice as contended.

COMING to the second limb of argument referred to above, copy of Memo of Appeal filed by the petitioner is at pages 23-29. Bare reading of the grounds taken would show that deduction of Rs. 64,750 as per said Local Commissioner''s report was not claimed therien nor this plea seem to have been raised in appeal at the time of argument as is manifest from the order of State Commission dated 28.1.2004. Therefore, petitioner cannot be permitted to claim deduction of the said amount for the first time in this revision. Moreover, the Commissioner''s report reflected the work for which Rs. 90,000 only had been paid by the respondent to the petitioner at the time of the execution of the agreement dated 10.8.1993. This takes us to the last limb of argument. The District Forum had allowed interest on Rs. 1,80,000 from 22.2.1995 when payment of Rs. 15,000 out of the said amount, was lastly made to the petitioner. Fora below were of the view that respondent is entitled to the amount paid as interest on the loan raised for making payment to the petitioner. Presumably, amount of Rs. 73,366 pertains to the period prior to 22.2.1995. It being a case where no further construction was made after the execution of agreement dated 10.8.1993 despite receipt of amount of Rs. 1,80,000 by the petitioner, no fault can be found in the orders of Fora below in ordering payment to the respondent of the interest amount on loan taken from the bank. Further, rate of interest as awarded by the District Forum was reduced to 9% by the State Commission. Respondent alleged that for failure to construct shops he had to take alternative shop on rent at Rs. 10,000 per month. In this backdrop, no fault can be found with the orders passed by Fora below in awarding compensation in addition to interst to the respondent. There is, thus, no illegality or jurisdictional error in the order passed by State Commission on any of the said counts calling for interference in revisional jurisdiction under Section21(b) of Consumer Protection Act, 1986.

ACCORDINGLY , revision petition is dismissed with Rs. 10,000 as cost to the respondent.