Shri Durga Enterprises vs Malini Sakharam Swant

PETITIONER which was the opposite party before the District Form has filed this Revision Petition against the judgment and order dated 6.6.2007 passed in appeal No. 721/06 by the State Consumer Disputes Redressal Commission, Maharasthra (in short, the State Commission) whereby the State Commission has directed the Petitioner to pay Rs. 2,36,175 instead of Rs. 3,66,910 directed by the District Forum with interest @ 9% p.a. from the respective dates of deposit till realization along with Rs. 10,000 towards compensation and Rs. 3,000 as costs.

COMPLAINANT/Respondent approached the Petitioner builder for purchase of a residential flat measuring 425 sq. ft. in property No. 202 on 2nd Floor of Shant Durga Apartment, situated on plot No. 3. Hissa No. 31 (part) Mouje Majarli, Badlapur, Ta-Ulhansnagar on 16.9.1997. As per agreement. price of the flat was Rs. 2,35,875. Rs. 50,000 were paid through two cheques on 16.9.1997 and 17.9.1997 respectively. Thereafter, she paid Rs. 15,000 on 4.2.1998. Rs. 15,000 on 9.6.1998. Rs. 25,000 on 7.5.1999. Rs. 25,000 again on 7.5.1999. Rs. 32,000 on 11.8.1999, Rs. 3,000 on 17.12.1998. Rs. 8,000 on 24.10.1999, Rs. 10,000 on 5.1.2000 and Rs. 6,000 on 9.3.2000. At the time of registration of agreement, Respondent paid remaining amount of Rs. 47,175 to the Petitioner. Respondent paid in all Rs. 2,36,175. The aforesaid amounts were paid by the Respondent against receipts issued on the letter head of the builder. Receipts were duly stamped and signed by the Power of Attorney Holder of the builder. In spite of entire amount having been paid, Petitioner did not hand over the possession of the flat Respondent issued legal notices on 17.12.2003 and 20.1.2004 calling upon the Petitioner to hand over possession of the flat. Petitioner sent their reply taking the stand that they did not remember having received the payment from the Respondent. Being aggrieved, Respondent filed the complaint.

IN spite of due service, Petitioner did not put in appearance and was proceeded ex parte Respondent produced evidence in support of her claim. The District Forum taking the uncontroverted facts stated in the complaint supported by evidence produced by the Respondent to be correct allowed the complaint and directed the Petitioner to pay Rs. 3,66,910 to the complainant with interest @ 9% p.a. from 16.9.1997 till realization.

PETITIONER being aggrieved, filed an appeal before the State Commission. The State Commission relying upon the receipts produced by the sum of Rs. 2,36,175 only to the Petitioner and reduced the payable amount from Rs. 3,66,910 to Rs. 2,36,175. Rs. 10,000 were ordered to be paid by way of compensation and Rs. 3,000 as costs. Interest was made payable from the respective date of payments instead of 16.9.1997 ordered by the District Forum.

ADMITTEDLY, Petitioner did not put in appearance in spite of service. District Forum taking uncontroverted facts stated in the complaint along with evidence produced by the Respondent, allowed the complaint there was no rebuttal to the allegations made in the complaint or the evidence led by the Respondent. The District Forum was justified in taking the facts stated in the complaint to be correct. On the basis of the receipts produced by the Respondent, the State Commission came to the conclusion that the Respondent had paid Rs. 2,36,175 only and accordingly reduced the amount payable to Rs. 2,36,175.

LEARNED Counsel for the Petitioner contends that the Respondent had paid the sum of Rs. 47,175 only on the date of registration of the agreement and the amounts allegedly paid by the Respondent prior to registration of the agreement could not be taken into consideration. We do not find any merit in this submission. Respondent in her complaint has specifically stated that she had paid the various amounts against the stamped and signed receipts issued on the letter head of the Petitioner. Averments made in the complaint with regard to genuineness of the receipts were not challenged or controverted at any stage. As per agreement, last installment of Rs. 47,175 was to be made at the time of handing over the possession of flat. The sum of Rs. 47,175 was admittedly paid by the Petitioner to the Respondent at the time of execution of registered sale agreement which is acknowledged in the sale agreement. Payment of exact amount of Rs. 47,175 at the time of registration of sale agreement show that this payment was made towards the last installment due. An inference can be drawn that the respondent had paid earlier installments as per the averments made in the complaint.

THE fact stated in the complaint duly supported by the Respondent''s evidence remained unchallenged and unrebutted. The genuineness of the duly stamped and signed receipts has not been challenged by the Petitioner by filing the reply or leading any evidence. As such, the Fora below were justified in coming to the conclusion that the receipts were genuine.

FINDING no infirmity in the impugned order passed by the State Commission of Revision Petition is dismissed with costs which are assessed at Rs. 5,000. Revision Petition dismissed.