DOROTHY PEARSON, HOTEL ALDEA ABELO vs VILBUR FREDERICK SOUZA TICLO

THIS revision petition has been filed by the complainant against the order of State Commission setting aside the order of the District Forum which had allowed the complaint filed by the petitoner company.

FACTS necessary to appreciate the case are that the petitioner and one of her friends entered into an agreement for construction of a small flat for a consideration, possession of which was to be delivered in August, 1995. The possession of the flat was given in December, 1996. The main dispute revolved around the question of providing electricity and water connection and furnishing the flat for which additional Rs. 65,000/- were given to the respondent by the petitioner for which a receipt is on record and an outstanding amount of Rs. 54,475/- claimed by the respondent for extra work executed by him. On account of electricity and water connections not being given and deficiency in furnishing the house to the extent of Rs. 65,000/- the petitioner moved the District Forum who after hearing both the parties directed the opposite party/respondent to give the occupancy certificate, electricity test reports and plumber certificate within seven days in order to enable the complainants to take these connections, furnishing the flat to the extent of Rs. 65,000/- and cost of Rs. 500/-. On an appeal being filed by the respondent, the State Commission set aside the order of the District Forum, hence this petition by the complainant. It is argued by the learned Counsel for the petitioner that the State Commission erred in not relying upon the affidavit of the complainant which gives full facts in detail. Receipt of Rs. 65,000/- being given by the complainant to the respondent is on record but there is nothing on record to show that respondent furnished the flat. The order of the District Forum was well founded and reasoned, hence need to be restored. On the other hand it was argued by the respondent himself that the petition is barred by limitation, there are no exhibits forming part of the affidavit filed by the complainant hence the allegations remain unsupported. The question of Rs. 65,000/- was not raised in the arbitration proceedings from which the complainant walked out, hence the allegation remains unsupported. On the other hand, it is the complainant who owe him Rs. 54,475/- for the extra work done. The order of the State Commission is as per law and need to be maintained. Petition need to be dismissed.

We have perused the material on record and heard the arguments on the question of limitation, law lays down time-limit for filing appeal. No time-limit is prescribed for filing Revision Petition but the Commission has generally set a limit of ninety days for entertaining a Revision Petition. Keeping in view the facts of the case, it was decided to admit the petition. This objection is not entertained. On merits of the case, we see that as per terms of agreement, necessary certificates have been made available to the petitioner to obtain the electricity/water connection. We see no merit in the contention of the petitioner that it was incumbent upon the respondent to provide these facilities. Clause XII of the Agreement sets this controversy at rest. It reads : "XII. The flat owners shall obtain his permanent electric connection from the department of electricity with the test report provided by the Developers. Similarly, the direct individual water connection shall be obtained by the individual flat owners with the plumbers. Certificate issued by the Developers."

THE only controversy left, relates to furnishing the flat for which Rs. 65,000/- was paid and for which receipt is on record and the demand of Rs. 54,475/- being asked for by the respondent for extra work. THE factum of extra work being done and Rs. 10,000/- been paid for by the complainant is not denied. This means that extra work was done. THE complainant says no more on the subject in her affidavits but this affidavit filed by the respondents contains a copy of final Bill sent on 10.1.1997. Suggested changes in the plan involving additions/alternations dated 22.1.1995 were also filed by the respondent as ''Exhibits'' forming part of the affidavit. THEy were neither rebutted nor challenged. Thus we are of the view, that the amount was due from the complainant to the respondent. At the same time we also see on record Rs. 65,000/- having been paid by the complainant to the respondent. Receipt for this is signed by the respondent. Nothing is brought on record to suggest or prove that any furnishing of the flat was done. THE plea that this disputed amount was not referred to in the incomplete arbitration proceedings does not help the respondent. He cannot run away from the receipt signed by him for Rs. 65,000/- for furnishing flat AG-5 of Gleenic/Residency Candolin Goa i.e. the flat in question. THEre is not a word as to how the money was used against the purpose for which it was given. We are satisfied that the money was given to the respondent for a specific purpose i.e. furnishing the flat which was not honoured. As a result of the discussions above we find that Rs. 9,525/- is due to the petitioner after setting off his claim of Rs. 55,475/- from Rs. 65,000/- given to the respondent for furnishing the flat which was not done. Respondent is, therefore, directed to refund this amount to the complainant with interest @ 18% from 10.1.1997 the date of filing his final bill for having done additions/alternations to the flat. The order of the State Commission is set aside and the petition is allowed only to the extent. No costs. Revision Petition disposed of.