TUKARAM NINAJI WANARE vs NANDKISHOR SHIVNARAYAN DUBE

The present Revision Petition has been filed against the Order dated 21.09.2016 passed by State Consumer Disputes Redressal Commission, Maharashtra, Circuit Bench at Nagpur (for short, ''the State Commission'') in First Appeal No.660 of 2005.

The brief facts as per the Petitioner/Complainant are that the Petitioner had purchased a plot No.17 on 31.12.2002 from one Jagdish Bhatia for Rs.1,00,000/- and made a contract with the Respondent/Opposite Party in writing on a stamp paper of Rs.50/-for the construction of a house upon it. The Petitioner had paid cash of Rs.1,40,000/- to the Respondent and thereafter Rs.40,00,000/- for construction of house. However, the Respondent did not construct the house as per the sanctioned map and did not hand over the possession of it within six months. Hence, a consumer complaint was filed before the District Forum with the following prayers ; request to refund him the excess amount of Rs.1,54,963/- with interest @ 2% from 01.09.2003 till final payment, direct the Respondent to construct the stair case as per the map and to provide him the cost of digging a well after deciding the expenditure along with compensation of Rs.50,000/- with receipt of each payment, for not constructing the house in time as per the map, taking more amount than the contract and giving false notices and causing mental and physical harassment.

Respondent contested the Complaint by filing the written statement stating that establishing the allegations could not be adjudicated before the Forum as also the Petitioner is not a ''consumer'' and he has filed a false complaint. The amount of Rs. 1,00,000/- claimed to have been paid to Shri Bhatiya for purchase of plot was actually paid by the Respondent to Sh. Bhatiya. The payment of Rs.1,40,000/-in cash on 31.12.2002 was false. The contract had many blanks which were used by the Petitioner to make false entries to file the false Complaint. The Respondent further submitted that he had entered into contracts to construct houses with many more persons on the same day along with the Petitioner. In case of all such persons, he had paid the cost of the purchase of plots for them to Shri Bhatiya, owner of layout. He had contracted to construct the houses by taking a profit of 10% for supervision and engineering works. He constructed the house of the Petitioner within time and also constructed the additional structure as per the request of the Petitioner. The stair-case was changed as per the request of the Petitioner and an additional room was constructed below it. The Petitioner''s house was completed and he was required to pay him an additional sum of Rs.3,25,037/- which he should pay and take the possession of his house. Further, Respondent has constructed 20 such houses and of which possession has been taken and accounts settled. However, the Petitioner has filed a false complaint by supressing facts and by not taking possession by settling the account.

The District Consumer Disputes Redressal Forum, Budlana (For short, ''District Forum'') vide its order dated 24.02.2005 while dismissing the Complaint held as under; " In such circumstances, we are having no option but to give decision whether points raised in the complaint by applicant are proved within the diameter of law? And in said proceeding whether non-applicant committed deficiency in service. In the said matter it has been considered the application filed by applicant along with documents, evidence, documents filed by non-applicants, evidence so also written arguments filed by both the parties. We have also read the Judgments of various States Commissions given in the written arguments by applicant as a reference, however, though judgments are not applicable to the present proceeding. We ordered that, considering the complete situation non-applicant has not committed any deficiency in service. Therefore in such circumstances there is no other option before us that too dismiss the complaint of applicant ."

Aggrieved by the order of the District Forum, the Petitioner filed an Appeal before the State Commission. The State Commission while dismissing the Appeal of the Petitioner, vide their order dated 21.09.2016, observed as under ; " 15. We find that the complaint itself is not specific by the appellant who has made a prayer to provide him the extra paid amount of Rs.1,54,963/- with interest at the rate of 2% P.M. from the respondent but has not given the details of the amount till last rupee. He has made a unspecific request that the Forum should define the expenditure of digging the well and the respondent be directed to pay it to appellant with interest. He has not shown as to how the house was constructed differently than the approved plan.

We further find that appellant has filed an agreement claiming it to be the original copy of the agreement and claimed that he paid Rs.1,00,000/- for the purchase of plot from one Mr. Bhatiya by paying the amount independently. He also claimed to have paid Rs.1,40,000/- on the day of agreement by entering the amount in the open space. There is no receipt of the amount when the agreement makes a note that a regular receipt is given by the party No.1, the respondent to party No.2, the appellant. When a specific entry is made in the agreement such receipt should have been in existence with the appellant and the appellant should have submitted that. But all along the appellant has made the allegation of paying Rs.1,40,000/- by not submitting regular receipt and submitting an affidavit of witness whose only signature is on the agreement without any sign of second witness. We find that some places in the agreement are kept blank in which the entries are entered.

The conditions of the agreement, show that the appellant has purchased plot through the agent ship of the respondent. The agreement shows that the construction would be done only by the respondent and no one else would be given the contract. It also says that after the completion of the house the appellant has to pay the entire pending amount and then take the possession of the house when the respondent shall be free to claim interest at the rate of 2% per month from the appellant. The draft of the contract itself shows that the respondent had full control of the plot and the construction till its final. It shows that the plot was purchased by the respondent in the name of appellant and was to control entire construction till the settling the amount by the appellant. Had the appellant purchased the plot separately, he would never had accepted such an agreement. Also it appears there is an affidavit by the seller of plot to show that it was purchased for the appellant by the respondent by paying amount.

There is no clause to show that the respondent was to construct an independent well for the appellant. The clause is for the construction of well for the whole lay out from where a water pipe line was to be brought to the gate of the appellant.

The affidavit of one Khiradkar, a well digging contractor does not evoke any ground to believe it. As normally a person would not take an unknown person to sign a contract of house. He would always take his friend or some senior person with him as a support to make an important deal. The affidavit appears to be unrealistic. Hence, cannot be believed.

This shows that the major four allegations of the appellant of paying Rs.1,40,000/- at the time of agreement, paying for the purchase of the plot of Rs.1,00,000/-, asking for the expenditure of construction of well and claiming to have paid extra amount of Rs. 1,54,000/- do not stand to be true on the believable evidence.

His allegations of changing stair case has no grounds as he has filed the reports to the bank as per the contentions of the respondent and secured successive instalments of loan for paying the respondent. The appellant would have positively raised his objection at the time of construction itself about misplacement of major structure in the house. But it appears that the appellant raised all the issues after complete construction of the house after the period of six months when he was paying the instalments to the respondent till 11.09.2013.

Thus, the minute evaluation of the allegations made by the appellant do not satisfy the judicious evaluation. The submissions made by the respondent are all on sound footings as they are supported by the agreement clauses and the affidavit of the owner. We also find that no other house owner of the Yeshoda Nagri has supported the contentions of the appellant who had allegdly taken the house along with his colleagues. We find the appeal and allegations to be unbelievable so as to allow it.

Hence, the present Revision Petition.

I have heard the learned Counsel for the Petitioner. His only contention is that while concluding that there is no evidence that the Petitioner had paid Rs.one lakh for the plot to the Respondent/Opposite Party, the State Commission had overlooked the recording of cross-examination of witness-Sh. Pravin Ramchandra Kshirsagar.

I have gone through the same and find that the witness did not support the allegations of the Petitioner. On answering almost every question during his cross-examination, witness-Sh. Paravin Ramachandra Kshirsagar had stated that he had no knowledge of the facts of the case or the consideration for the contract and its execution. Regarding the payment of Rs.1,00,000/- by the Petitioner to the Respondent, relevant translated version of his cross examination, reads as under; " After execution of sale deed of Shri Wanare, Shri Bhatiya, the executants of sale deed has paid the amount (The witness volunteers that, execution of sale deed of witness himself Shri Rakhonde and applicant Shri Wanare executed on same day and after execution sale deed we all three paid amount of plot to the non-applicant in the said proceeding and said amount was given by Shri Dube to Shri Bhatiya). I do not tell that, the amount of plot is outstanding is require to taken by Bhatiya from applicant Shri Wanare ."

In his affidavit, the witness has categorically stated that; " 2 . As per above Nandkishor Dube had purchased 20 different plots in survey No.35/1 and made agreement for making house construction over the plots. The sale deed was executed in my name of plot No.4 and on the same day as per the agreement sale deed of plot No.17 was executed in the name of Tukaram Ninaji Wanare. When the sale deed of plot No. 17 survey No.35/1 was made in the name of Tukaram Ninaji Wanare, the price of the said plot worth Rs.1,00,000/- paid by Nandkishor Dube to Shri Bhatiya. The amount of consideration of plot No.17 paid to Shri Bhatiya by Nandkishor Dube. The amount of consideration of plot No.17 would not paid by Tukaram Wanare to original owner Shri Bhatiya.

Field survey No. 35/1 in which the layout wherein the plots of proposed person who are intending to make construction of house, those, persons, Nandkishor Dube paid the price of said plot and thereby made expenditure of construction of house and for that, executed agreement with Nandkishor Dube by the said person. The house constructed in the area over different plot were purchased in the name of different persons by Nandkishor Dube and by paying the cost of plot to the original owner constructed residential houses ."

The counsel for the Petitioner while admitting that there was no receipt regarding the payment of Rs.1,54,000/- by the Petitioner to the Respondent contended that the fact that the Petitioner had withdrawn the said amount from his ''Provident Fund Account'' has been ignored by the State Commission.

I am not convinced with the arguments advanced by the counsel for the Petitioner. The Petitioner has failed to give any cogent reason to prove that there is any material irregularity in the impugned order of the State Commission. He had not produced any cogent convincing evidence before the District Forum and the State Commission to support his allegation and has failed to do the same before this Commission also.

It is well settled that under Section 21(b) of the Consumer Protection Act, 1986, scope of revisional jurisdiction is very limited. This Commission can interfere with the order of the State Commission only where such State Commission has exercised a jurisdiction not vested in it by law, or has failed to exercise jurisdiction so vested, or has acted in the exercise of its jurisdiction illegally or with material irregularity.

The Hon''ble Supreme Court in Mrs.Rubi (Chandra) Dutta Vs. M/s United India Insurance Co. Ltd. 2011 (3) Scale 654 has observed; " Also, it is to be noted that the revisional powers of the National Commission are derived from Section 21 (b) of the Act, under which the said power can be exercised only if there is some prima facie jurisdictional error appearing in the impugned order, and only then, may the same be set aside. In our considered opinion there was no jurisdictional error or miscarriage of justice, which could have warranted the National Commission to have taken a different view than what was taken by the two Forums. The decision of the National Commission rests not on the basis of some legal principle that was ignored by the Courts below, but on a different (and in our opinion, an erroneous) interpretation of the same set of facts. This is not the manner in which revisional powers should be invoked. In this view of the matter, we are of the considered opinion that the jurisdiction conferred on the National Commission under Section 21 (b) of the Act has been transgressed. It was not a case where such a view could have been taken by setting aside the concurrent findings of two Fora " .

In view of the concurrent finding of the facts given by both the Fora below, it is held that there is no infirmity or illegality in the impugned order. The present Revision Petition thus having no legal merit, is hereby dismissed. .

No order as to costs