WILBUR FREDERICK SOUZA TICLO vs DOROTHY PEARSON

THE challenge in this appeal is the order of the District Forum, North Goa, dated 18.10.1999, in Complaint No. 187/1999, whereby the respondent''s complaint was partly allowed. By the aforesaid order the appellant was directed to give to the respondent the Occupancy Certificate, Electricity Test Report and the Plumber Certificate within seven days from the date of the receipt of the order so as to enable the respondent to obtain electricity and water connections to her flat. A further direction was made to the appellant to furnish the requisite flat to the extent of Rs. 65,000/- within 15 days from the receipt of the order, failing which the said amount would carry interest @ 18% per annum.

THE complaint was lodged by the respondent on the ground that by an Agreement, dated 9th February, 1994, signed by her and her friend, one Mr. Joseph A. D''Souza, resident of London, it was agreed to purchase from the appellant a flat bearing No. AG-5 in the Project named "Glenwil Residency", located at Candolim, for a consideration of Rs. 2,92,000/- which amount was fully paid. THEreupon, a further sum of Rs. 65,000/- was also paid on 16.8.1993 to the appellant for the purpose of furnishing the flat with beds, tables and chairs, which the appellant did not furnish till the filing of the complaint. THE flat had to be delivered by 1.4.1995. However, possession of the flat was given by the appellant only in the month of December, 1996, without provision of water and regular electricity connections. THE appellant denied that possession of the flat had been even given to the respondent since she has failed to pay to him the amount of Rs. 54,475/- still due for the extra work done at her request. So far the electricity and water connections, it was his case that the same had to be secured by the respondent herself. With regard to the furnishing of the flat, it was stated that he had done it on her behalf and the bills have been passed to her. Further, he had also supplied to the respondent the Test Electricity Report and the Plumber Certificate as well as the Occupancy Certificate to enable the respondent to obtain the necessary connections. We have gone through the records and considered the submissions of both the learned Counsel. We are, however, of the view that the perusal of the impugned order reveals non-application of mind on the part of the learned Forum which seems to have grossly overlooked the available evidence on record.

So far prayers (a) and (b) of the complaint and to the extent the Forum has allowed it, by directing the appellant to give to the respondent the aforesaid Certificate and Test Report within seven days, we fail to appreciate on what ground such direction could have been given when the record shows that all the Certificates are very well available in the file and in his affidavit-in evidence, the appellant has stated that these Certificates had already been delivered to the respondent at appropriate time. In this regard, we must observe that, in the absence of any valid affidavit in evidence of the complainant/respondent worth its name, it was not open to the learned Forum to accept whatever statements are contained in her complaint as legally proved on record. Admittedly the so called affidavit in evidence produced by the complainant before the learned Forum has not been duly verified, which fact appears to have been totally overlooked by the learned Forum. Being so, it is obvious that such affidavit could not be considered as an affidavit in the eye of law. As such the documentary evidence made available by the appellant with regard to the Occupancy Certificate, Electricity Test Report and the Plumber Certificate are to be held as valid and timely supplied by the appellant to the respondent. Hence prayers (a) and (b) were not and need not be unnecessarily allowed by the learned Forum against the appellant. With regard to the furnishing of the flat, although the appellant has admitted having received an amount of Rs. 65,000/-, from the respondent, in his affidavit he has stated that such amount was utilised by him to furnish the respondent''s flat on her behalf. Admittedly, there was no privity of contract between the appellant and the respondent for the purpose of furnishing the flat. Throughout the proceedings and the documentary evidence produced by the appellant so indicates, the question of furnishing of the respondent''s flat was not at all an issue raised by her either in the correspondence exchanged with the appellant or in the Arbitration proceedings purportedly held between the parties in connection with the suit flat, during which the respondent never indicated that in the Agreement dated 9.2.1994, was there any reference to an obligation on the part of the appellant to furnish her flat. Thus, the observations made by the learned Forum that the appellant had not produced any evidence that the flat was furnished and that he has failed to produce the purchase receipts in this regard are obviously irrelevant and misconceived. Indeed, once the respondent herself had not been able to establish, through competent and reliable material and details, that her flat was required to be furnished by the appellant, on her behalf, for the amount of Rs. 65,000/- given to him for that purpose, no burden of proving that such furnishing had been actually done by the appellant would arise for him beyond what the appellant has stated on oath that the flat was duly furnished with the amount received from the respondent and that all the receipts were passed on her, which fact has been unfairly omitted to be disclosed by the said respondent. This statement remained unrebutted and we have no reasons to disbelieve it in the special circumstances of this case.

WE are, therefore, satisfied that the learned Forum has failed to properly assess the factual and legal position of the dispute and went on granting reliefs which were not available to the respondent, either in facts or in law, in excess of jurisdiction or in the improper exercise of jurisdiction vested on it. In this view of the matter, we allow this appeal and quash and set aside the impugned order of the Forum. The complaint stands dismissed with, however, no order as to costs. Order accordingly. Appeal allowed.