Nizam Engineers vs AKHIL BHARATIYA GRAHAK PANCHAYAT

THIS Appeal is directed against the Order of the Consumer Disputes Redressal Commission, Maharashtra State, by which the opposite party No. 1 was directed to refund to the complainant Rs. 65.000/ - together with interest at the rate of 18% per annum from the date of payment of respective amount till realisation. It further directed the opposite party No. 1 to render the account of Rs. 90,000/ - to the complainant within 30 days from the receipt of the Order and return the unspent amount to the complainant.

THE facts giving rise to this Appeal are that the complainant made a complaint against the opposite parties alleging deficiencies in their services. It was alleged that the complainant had by an agreement dated the 7th January, 1988 booked a flat with the opposite party No. 1, M/s. Nizam Engineers, for a consideration of Rs. 2,38,000/ -. By another agreement dated 26th January, 1988 the complainant purchased the parking slot in the premises of the flat in question. The case as disclosed by the complainant was that he had made negotiations in the parking slot through 2nd opposite party, Mr. Azhar Hussain. It was alleged that upto August, 1988, he paid total amount of Rs. 2,09,500/ - towards the consideration of flat and Rs. 1,500/ - for the record. It was further stated that the complainant had paid Rs. 90,000/ - in cash to the opposite party No. 2 for the purchase of marble, granite, steel wash basin etc. who passed on three Kachha receipts for the aforesaid payment made on 5th December, 1988, 23rd December, 1988 and 1st January, 1989. It was also the case of the complainant, that under the agreement, the possession of the flat was to be given on 1st June, 1989 and in turn the complainant was to pay Rs. 30,000/ - at the time of delivery of possession. It was also alleged that despite having paid huge amount on 7th February, 1989, the opposite party had sent a threatening letter of termination of the agreement and further demanded a balance of Rs. 30,000/ - and Rs. 10,000/ - towards interest. The complainant alleged that the opposite party No. 1 insisted on the payment of these two amounts although he made excess payment of Rs. 90/000/ -. The possession was delivered on 26th January, 1990 as against the agreed date of 1st June, 1989. According to the complainant, there had been a delay of 8 months to deliver the possession. The opposite party No. 1 contested the case on the plea that the opposite party No. 2 had been unnecessarily joined in the complaint as he had nothing to do with the transaction. The complainant was required to pay an additional amount of Rs. 86,949.96 towards the extra work and professional fees of the Architect. But, out of the said amount, the complainant had paid only Rs. 65,000/ - leaving the balance of Rs. 21,949.96. The opposite party No. 1 denied having received Rs. 90,000/ - from the complainant. It was admitted that possession was to be delivered to the complainant on 1st June 1989, but it was subject to certain other conditions. The claim of the claimant was repudiated.

AFTER perusing the material placed on the record and after considering the contentions of the parties, the State Commission returned the finding that the opposite party had been deficient on 2 counts: (1) for extracting more consideration than the agreed amount, and (2) for delay in handing over the possession. The complainant has been obviously put to loss because of the delay of 8 months. It was proved on the record that the complainant paid Rs. 65,000/ - an additional amount beside Rs. 90,000/ - cash payment to opposite party No. 2 and as against the agreed amount of Rs. 2,38,000/ - and Rs. 15,000/ - for the parking slot. Under these premises, the State Commission directed the opposite party No. 1 to refund to the complainant Rs. 65,000/ - together with interest at the rate of 18% per annum from the date of payment of the respective amount till realisation. The opposite party No. 1 was further directed to render account of Rs. 90,000/ - to the complainant within 30 days from the date of receipt of the Order and return the unspent amount to the complainant.

BEING dissatisfied with the order of the State Commission, the respondent No. 1 i.e., the Nizam Engineers, has preferred this appeal assailing the Order of the State Commission. The only point that was canvassed before us by the Counsel appearing for the appellant was that the amount of Rs. 90,000/ - was not paid by the complainants and the finding of the State Commission on that aspect of the case was wrong and was not borne out by record. The learned Counsel elaborated the arguments by urging that the amount of Rs. 90,000/ - is stated to have been paid to one Azhar Hussain N. Shaikh, opposite party No. 2 in the complaint. He had no authority to accept any amount on behalf of the appellants as he has nothing to do with the project. On the other hand, respondent Nos. 1 and 2 contended that Azhar Hussain was the husband of Mrs. Nargis Bano, one of the partners of M/s. Nizam Engineers, the appellants. He was an employee in the Bombay Corporation and he was the person who was supervising the construction at the site. The amount of Rs. 90,000/ - was given in cash to Azhar Hussain who passed on three Kachha receipts on 5.12.88, 23.12.88 and 1.6.89.

WE have considered the relevant contentions of the parties and have perused the record very carefully. In our opinion, the contention raised on behalf of the appellant has no merit. The complainant has impleaded Mr. Azhar Hussain, opposite party No. 2 in the case. Admittedly, he is the husband of Nargis Bano who is one of the partners in the Nizam Engineers, the builders. The complainants alleged in the complaint that they had paid the amount of Rs. 90,000/ - to Azhar Hussain, opposite party No. 2. Azhar Hussain did not file any written version controverting the allegations of the complainant. Even, no steps were taken by the opposite party No. 1 i.e., M/s. Nizam Engineers to examine Azhar Hussain in the case so as to rebut the version of the complainant that they had paid Rs. 90,000/ - by way of three receipts to Azhar Hussain. Nargis Bano was one of the partners of the Nizam Engineers. The complainant could not examine Azhar Hussain as he was a person interested in M/s. Nizam Engineers because his wife being the partner. It was for M/s. Nizam Engineers to examine Azhar Hussain, the best evidence, to rebut the version of the complainants. They withheld Azar Hussain without assigning any reason. In these circumstances, it is safe to draw a presumption against the appellant that in case they had examined Azhar Hussain, he would have not supported their case.

IN view of this, we are of the considered opinion that the case pleaded and put forward by the complainant stood fully established that they had paid the amount of Rs. 90,000/ - to Nizam Engineers through Azhar Hussain. We find no merit in the contention raised on behalf of the appellant and it is rejected. In the result, the appeal fails and it is dismissed with costs which are quantified at Rs. l.000/ -. Appeal dismissed.