S.M. Eint (Brick) Udyog vs Sheoraj Singh

Karuna Nand Bajpayee, Presiding Member

This revision petition has been filed under section 58 (1)(b) of the Act 2019 in challenge to the Order dated 23.01.2023 of the State Commission in appeal no. 23 of 2022 arising out of the Order dated 24.12.2021 of the District Commission in complaint no. 11 of 2021.

We have heard the learned counsel of the petitioner and have perused the record including inter alia the Order dated 24.12.2021 of the District Commission, the impugned Order dated 23.01.2023 of the State Commission and the petition.

The Complainant has been filed with the grievance which appears to be like this. The Complainant (Respondent herein) required the bricks for construction of his house and in that connection had contacted the Opp. Party (Petitioner herein). The brick rate was settled at the rate of Rs 2600/- per thousand .The Complainant deposited Rs 21,000/- with the Opp. Party and in lieu of the same, the Opp. Party issued a challan/receipt in the form of acknowledgement which has been adduced in evidence and which contains the details of the transaction like the name of Complainant, village name, amount of money, rate of bricks, Tin and signature etc.

Without entering into the narration in any further details which have already been dealt with and enumerated in the orders passed by two fora below, the long and short of the grievance of the Complainant is that the bricks were never delivered to him and his money too has been unfairly and unduly retained by Petitioner / Opp. Party.

The Complainant kept asking and trying to get his money back but on that end also he got nothing save false promises and false assurances.

Finally when all hopes got lost and all the patience of Complainant got exhausted he decided to file the complaint. The district commission after hearing the parties allowed the Complaint and passed the following award which may be quoted hereinbelow:

Complaint Case No. 11 of 2011 is allowed. The proprietor of the Opp. Party S.M. Eint Udyog is directed to pay the amount of Rs.21,000/- (Twenty One Thousand) deposited by the complainant along with 6% of annual interest within two months from 17.10.2014 till the date of realisation. If the amount is not paid within the prescribed period, the rate of interest will be payable at the rate of 9%.

Apart from this, the Opp. Party will also pay Rs. 10,000/- (Ten Thousand) towards mental agony and financial loss to the complainant and Rs. 5,000/- (Five Thousand) towards litigation expenses.

Aggrieved by the said Order the Petitioner / Opp. Party approached the State Commission in appeal.  The State Commission vide its impugned Order modified the Order only to the extent that it set aside the direction of payment Rs.10,000/- towards mental agony and Rs. 5,000/- towards litigation expenses but affirmed the rest of the order of the District Forum and accepted the complainant’s version. The operative portion of the Order of the State Commission read as:-

The present appeal is allowed partly. The order and judgement passed by the Ld. District Forum is modified and the Opp. Party is directed to return Rs.21,000/-. The aforesaid amount is to be paid in terms of the order and judgement passed by the Ld. District Forum.

The ordered passed by the Ld. District Forum towards mental agony Rs. 10,000/- and litigation expenses Rs. 5000/- is set aside and rest order is confirmed.

The appellant is ordered to comply with the present order within two months.

Being aggrieved by the impugned order of the State Commission the Opp. Party is before this Commission through the present revision petition.

Heard the Learned Counsel for the Petitioner / Opp. Party. The defence pleaded on behalf of the Opp. Party is of plain denial. According to Learned Counsel neither any such transaction, as alleged by Complainant, ever took place, nor any order for bricks was placed nor the said money of Rs. 21,000/- was ever given to the Opp. Party in lieu of the bricks. The receipt produced in evidence, according to the learned Counsel, is fabricated. He further has tried to resort to the plea that the complaint was filed with delay and ought not to have been entertained on the ground of limitation.

Perused the record in the light of submissions made by the Learned Counsel.

Most of the contentions raised relate to purely factual aspects of the matter which have already been gone into by the fora below. So far as the point of limitation is concerned even in that regard it is clear from the allegations made in the Complaint that not only the bricks have remained unsupplied till date but the amount of money, which is only Rs. 21,000/- in the present case, has also been unduly retained by the petitioner. Whenever the complainant asked to return the money he was given not his money but only false promises which too were never kept.  In such a situation the cause of action never appears to have died and continued to exist.

The Bench is of the considered view that in the facts and circumstances of the present case the cause of action was subsisting on a continuing basis and there was no violation of the statutory period of two years provided under Section 69 of the Act 2019. The obligations and duties of the Opp. Party towards the Complainant never ceased to exist. The acts and omissions on the part of the Opp. Party which gives rise to the wrong extend beyond a single completed act or omission and were of a continuing nature concomitantly causing continual legal injury de die in diem.

The Bench may also observe that even the very fact that the Opp. Party was indefinitely retaining the Complainant’s deposited amount and was keeping him on the tenterhooks of false promises could in itself have been sufficient cause to justifiably condone the delay if needed under Section 69 of the Act 2019, anything otherwise would have been tantamount to a travesty of justice, leaving the Complainant helpless and remediless.

The two fora below have already weighed, appraised and appreciated the facts and the evidence adduced or brought on record. The factual version of the complainant has been accepted by two fora below. Adverse finding against the Petitioner have been returned concurrently. The Bench does not feel inclined to reopen and re-appreciate all the factual matrix of the case de-novo. The Revisional jurisdiction has its own ambit and circumference which there is no reason to breach.

The Bench does not notice any perversity in the Orders of the two fora below as may go to vitiate their findings. Nor does the Bench find any jurisdictional error or material irregularity as may occasion to call for interference in the exercise of the revisional jurisdiction of this Commission. (Refer Hon’ble Supreme Court in Rubi (Chandra) Dutta Vs. United India Insurance Co. Ltd. – (2011) 11 SCC 269). The award made by the District Commission as modified by the State Commission appears to be just and equitable in the facts of the case.

At any rate in a matter like this the bench is of the view that the Complainant has been harassed for a small amount enough and there is no good or persuasive ground to admit or allow the Revision Petition.

The Petition stands dismissed.

The Petitioner / Opp. Party is directed to comply with the impugned Order dated 23.01.2023 of the State Commission within six weeks from today failing which the complainant would be at liberty to approach the executing court for compliance of this award. On receipt of such an execution application the District Forum shall undertake execution, for ‘enforcement’ and for ‘penalty’, as per the law.

The Registry is requested to send a copy each of this Order to the parties in the petition and to their learned counsel within three days.  The stenographer is requested to upload this Order on the website of this Commission immediately.  The Order be communicated to the fora below forthwith by fastest mode available.