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Judgment
Dinesh Singh, Member
We heard the learned Counsel for the Complainant, the Respondent herein, and the learned Counsel for the Opposite Party, the Petitioner herein.
We perused the material on record including inter alia specifically the Order dated 06.08.2013 of the District Forum and the impugned Order dated 23.06.2017 of the State Commission.
The brief facts of the case have been succinctly articulated by the State Commission in its Order dated 23.06.2017, which are as below:
The relevant facts of the case in brief are that the respondent / complaint had contacted the Opp. Party or purchasing 60000/- bricks for his home construction. The Opp. Party has told the rate of brick at 2350.00 per thousand. The complainant had deposited Rs.1,41,000.00 with the Opposite Party. It was agreed between the respondent/appellant and Opposite Party that the bricks will be delivered at the house of respondent -complainant in piece meal quantity. The Opposite Party had delivered 14,600 bricks at the house of the Respondent /Complainant on various dates, thereafter due to increase in the rates of bricks, he refused to give the bricks on the old rates and did not refund his amount. The Respondent/complainant has also gave legal notice to the Opposites party in this regard, for which the Opposite Party did not give any reply, aggrieved from the same the complainant had filed the complaint before the District Forum. On the basis of the evidence and pleading of the parties, the District Forum has allowed the complaint of the complainant, and passed the order to pay Rs.1,06,923.00 with simple interest from 13.02.2012. Aggrieved from the same the present appeal has been filed.
(extract from the State Commission's impugned Order dated 23.06.2017)
(as per the translated copy furnished by the Opposite Party, the Petitioner herein)
The District Forum heard both sides, appraised the evidence, and, vide its Order dated 06.08.2013, allowed the Complaint.
We note the Award made by the District Forum, which is as below:
Thus the complainant is entitled to get the amount of Rs.106925/- of the price of his balance 45500 bricks. The OP had got this amount in cash for his business from the complainant. Therefore he is entitled to get simple interest at the rate of 8% per annum under section 34 CPC and provisions of Interest Act from the date of payment 13.2.2012 till the date of actual payment. He is also entitled to get Rs.2000/- as cost of the complaint. The complainant is not entitled to get any other compensation.
ORDER
The Opposite party is ordered to pay Rs. 106925/- and simple interest thereon at the rate of 8 percent per annum from the date 13.2.2012 till its actual payment and cost of Rs. 2000/- within a period of one month to the complainant.
(extract from the District Forum's Order dated 06.08.2013)
(as per the translated copy furnished by the Opposite Party, the Petitioner herein)
The Opposite Party filed Appeal under Section 17(1)(a)(ii) of the Act 1986 before the State Commission, being F.A. No. 2462 of 2013.
The State Commission heard both sides, appraised the evidence, and, vide its Order dated 23.06.2017, dismissed the Appeal.
We note the appraisal made, and the order passed, by the State Commission, which are as below:
From the perusal of the case file it becomes clear that the respondent / complainant had contacted the Opp. Party / appellant for purchasing 60000/- bricks for his home construction. The Opp. Party / appellant had told the rate of brick at Rs.2350.00 per thousand. The Respondent / complainant had deposited Rs.1,41,000.00 with the Opposite Party / appellant. The Opposite party/appellant had delivered 14,600 bricks at the house of the Respondent / Complainant on various dates, thereafter due to increase in the rate of bricks, he refused to give the bricks on the old rates and did not refund his amount.
The Appellant / OP has also mentioned in the grounds of appeal that the sale agreement between the parties was executed for 60000 bricks in Rs. 1,41,000.00 at the rate of Rs. 2350.00 per thousand. It is contended by the complainant that he had deposited Rs. 1,41,00,000/- price of 60000 bricks with the Opposite party whereas the OP / appellant contends that he does not issue any receipt to the customer. The complainant had deposited only Rs. 1,00,000/- on 20.02.2012, which he had entered in his Daily Dairy. The complainant had told to give the balance amount later on and the receipt which has been field in this regard, the same is fabricated. The complainant has stated before the District Forum that the OP/appellant has not supplied the bricks to him in time for this reason, he had to purchase the bricks from other Brick Kiln, whereas the brick kiln from which the complainant has stated purchasef of bricks, in these Shakti Brick Industry Chhaprauli Road, Malakpur, District Baghpat and bill has been made available on the file to this effect of the Proprietor Brick Filed Village Jalalpur (Baghpat) that he has never sold bricks to the complainant but the letter which has been filed by the Prop. of the above said Brick kiln to this effect that, the same appears written in the hand writing of only one person, apart from this the appellant has filed the affidavits of Sonu son of Durga and Taimur son of Nasibuddin to this effect that they have delivered the bricks at the house of the complainant but from the perusal of the file it is clear that all these persons are the employees of the appellant. The appellant has mentioned in his appeal that he does not issue receipt to any one from which creation of suspicion is natural. There is no force in this contention of the appellant that complainant / Respondent has not got appointed any Commission from which it may be revealed that from which of the brick kilns the bricks have been used in his house. When the complainant has filed the receipts of the bricks purchased from the Brick Kilns, then no justification seems to get the survey of brick by demolishing the constructed house.
After careful perusal of the evidence available on the file and record, we find that the District Forum has fully discussed the evidence and has passed the impugned order in the complaint in question, which is as per law and there is no need to interfere in it. Accordingly the present appeal is liable to be dismissed.
ORDER
The present appeal is dismissed.
The parties will bear their own respective costs in the appeal.
(extract from the State Commission's impugned Order dated 23.06.2017)
(as per the translated copy furnished by the Opposite Party, the Petitioner herein)
[N.B.: Evidently, Rs. 1,41,00,000/-, at one place above (highlighted), is a typographical error; the correct figure is Rs.1,41,000/-.]
The Opposite Party filed the instant Revision Petition under Section 21(b) of the Act 1986 challenging the said Order dated 23.06.2017 of the State Commission.
We find the impugned Order of the State Commission to be well-appraised and well-reasoned.
The State Commission has concurred with the findings of the District Forum.
Within the ambit and scope of section 21(b), we find no crucial error in appreciating the evidence by the two Fora below, as may cause to require de novo re-appreciation of the evidence in revision.
The short point in this case is that the Complainant had deposited Rs.1,41,000/- with the Opposite Party for 60,000 bricks at the rate of Rs.2350/- per thousand bricks; the Opposite Party delivered bricks piecemeal, 14,600 bricks in total; thereafter, as the rate of the bricks had increased, he refused to give the balance number of bricks at the old rate and also did not refund the balance proportionate amount.
The facts of the case have been appraised by the two Fora below. The case of the Complainant has been established, the defence made by the Opposite Party has been determined to be untenable.
We note that the total consideration amount of Rs.1,41,000/- was paid in advance for purchasing 60,000 bricks at the rate of Rs.2350/- per thousand bricks, the three essential ingredients of contract, offer, acceptance and consideration, were met, the contract was duly made. The Opposite Party was under obligation to perform its part of the contract. Non-performance constitutes deficiency.
In respect of the Award made by the District Forum, which has been affirmed by the State Commission, we note that refund of Rs.1,06,925/-, being the balance proportionate amount in respect of the balance number of bricks left undelivered, to be just and equitable. We also note the rate of interest of 8 % p.a. from the date of deposit till its realisation to be just and appropriate. We further note the cost of litigation of Rs.2000/- to be just and reasonable.
On the face of it, we find no jurisdictional error, or a legal principle ignored, or miscarriage of justice, as may require interference in exercise of our revisional jurisdiction under Section 21(b).
With the above discussion, the Revision Petition is dismissed, being bereft of merit. The Order dated 23.06.2017 of the State Commission is confirmed.
The Opposite Party is directed to forthwith comply with the Award made by the District Forum, failing which the District Forum shall undertake execution, both for 'Enforcement' under Section 25(3) and for 'Penalties' under Section 27 of the Act 1986, as per the law.
A copy each of this Order be sent to the District Forum and to the Complainant, the Respondent herein, by the Registry within three days of its pronouncement.