SILVER OAKS HEALTH AND TOURIST RESORT (P) LTD. vs JASBEEN K.GREWAL

WE have heard Mr. Rajinder Goyal, Advocate for the appellant and have perused the impugned order passed by the District Consumer Disputes Redressal Forum-I, U.T., Chandigarh (for short hereinafter referred to as the District Forum-I) vide which the complaint of the respondent Ms. Jasbeen Kaur Grewal has been allowed and a direction has been issued to the appellant to refund to the respondent/complainant a sum of Rs. 1,65,000/- along with interest @ 9% per annum from the respective dates of deposit till its payment and awarded a sum of Rs. 1,000/- as costs.

THE respondent/complainant hired services of the appellant regarding the construction of one cottage at Jabli, Himachal Pradesh. As per the terms of the agreement, the appellant on receipt of the amount will construct the cottage to the extent of 40% and possession would be given in 12 calendar months. A sum of Rs. 1,65,000/- was remitted by the complainant to the appellant out of the total amount of Rs. 3,17,910/-. THE balance amount of Rs. 1,52,910/- was sought to be paid by the complainant at the instance of the appellant. THE respondent/complainant approached the appellant for the completion of the construction of the cottage as per the terms of the agreement but the appellant failed to complete the super structure of the cottage which was to be completed as 40% of the total construction. Since the appellant failed to complete the construction to the extent of 40% upto the level of super structure, the respondent filed the complaint. Notice of the complaint was served on the appellant who filed written statement wherein the execution of the agreement entered into between the parties was admitted. It was contended that the total costs of the cottage and also the land was Rs. 7,94,218/-. The complainant through her father had paid a sum of Rs. 1,65,000/- whereas as per the schedule vide Clause 3 of the agreement i.e. Progress Linked instalment plan-B, the complainant was required to pay a sum of Rs. 3,17,910/- after completion of 40% construction i.e. after construction of super structure. A notice was issued by the appellant on 10.5.1994 to the complainant informing to the complainant regarding the stoppage of the construction of the cottage after completion of 40% of the super structure due to non payment of the remaining instalments as per schedule. The allegations of deficiency in service on the part of the appellant/O.P. were denied.

The complainant filed her affidavit whereas the O.P. filed affidavit of Shri V.K. Gargi, Director, Silver Oak Cottages. The District Forum held that the appellant/O.P. did not produce any document/evidence to prove that the construction was completed upto the level of super structure. The photographs placed by the O.P. on record did not depict correct position about the identity and accurate location of the cottage.

THE contention of the learned Counsel for the appellant/O.P. that in case the respondent/complainant paid the remaining costs as per schedule, the construction would be completed was repelled. On behalf of the complainant it was submitted that the property in question could not be transferred in the name of the complainant as according to the policy of the State Government, the complainant being non-resident of the State of Himachal Pradesh was not entitled for the transfer of the aforesaid property. Hence, she prayed for refund of the amount together with interest paid by her. In view of these findings, the District Forum directed the O.P./appellant to refund a sum of Rs. 1,65,000/- to the complainant with interest @ 9% per annum and also awarded costs as mentioned above. The learned Counsel for the appellant contended that the evidence led by the appellant was not properly appreciated by the District Forum and the District Forum committed an error in holding that the appellant did not lead evidence, documentary or otherwise to prove about the construction work being completed upto the level of super structure. The burden of proving the completion of the cottage up to the extent of 40% i.e. at the level of super structure was on the O.P./appellant who relied on the affidavit of the Director Shri V.K. Gargi who himself did not supervise the construction and took part in the completion of the cottage up to the extent of 40%. Apart from it, no other evidence in the shape of document or affidavit was placed on record to discharge the burden and to prove the completion of the cottage upto the extent of 40% i.e. at super structure''s level. The evidence in the shape of photographs was not quite reliable as its identity was also not fixed and the District Forum has given a finding that these photographs were not reliable as they did not depict the correct position about the identity and accurate location of the cottage.

THE learned Counsel for the appellant next submitted that the complainant/respondent did not send any reply to the notice sent by the appellant and an inference should be drawn in favour of the appellant that the contents of the notice were correct in which it was clearly stated that the construction of the cottage to the extent of 40% was completed. We are unable to accept this contention. THE appellant has to discharge the burden by leading positive proof to establish the fact regarding the completion of the cottage upto the level of super structure and it cannot rely on inferences and presumptions for discharging the burden. In our considered opinion, the District Forum has rightly allowed the complaint by fastening liability on the O.P. Resultantly, the appeal lacks merit and is dismissed in limine. Copies of this order be sent to the parties free of charge. Appeal dismissed in limine.