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Kalva Praveen Kumar v/s M. Andalamma & Others


Company & Directors' Information:- PRAVEEN INDIA LTD . [Active] CIN = L21029WB1983PLC036326

Company & Directors' Information:- PRAVEEN & COMPANY PRIVATE LIMITED [Strike Off] CIN = U99999DL1999PTC098397

    FA 202 of 2017 Against EA No. 8 of 2011 in CC 201 of 2009

    Decided On, 11 October 2017

    At, Telangana State Consumer Disputes Redressal Commission Hyderabad

    By, THE HONOURABLE MR. JUSTICE B.N. RAO NALLA
    By, PRESIDENT & THE HONOURABLE MR. PATIL VITHAL RAO
    By, JUDICIAL MEMBER

    For the Appellant: Pradip Tornekar, Advocate. For the Respondents: Set exparte.



Judgment Text

Oral Order: (B.N. Rao Nalla, President)

1) This is an appeal filed under Section 15 of the Consumer Protection Act by the respondent/opposite party to set aside the impugned order dated 05.05.2017 made in EA 8 of 2011 in CC 201 of 2009 on the file of the District Forum II, Hyderabad and allow the appeal.

2) For the sake of convenience, the parties are described as arrayed in the complaint before the District Forum.

3). The case of the Respondents/Petitioners/complainants is that the District Forum passed orders in CC 201 of 2009 on 25.06.2010 directing the appellant/respondent/opposite party to hand over two residential flats and two shop rooms or in the alternative to pay present market value thereof and further directed to pay a sum of Rs.10,000/-towards compensation for the delay caused and costs of Rs.2,000/- within six months. But, the Appellant/respondent/ opposite party neither preferred any appeal against the said orders nor complied with the same. They argued that after passing of the orders, the Appellant/respondent/opposite party intentionally failed to comply with the impugned orders. Hence they filed EA U/s. 27 of C. P. Act

4) Sworn Statements of 2nd respondent/petitioner/complainant was recorded and the appellant/respondent/opposite party was examined, who, pleaded not guilty and stated that he paid Rs.12,000/- to the respondents/petitioners/ complainants and when he went to the apartments along with the materials, the respondents/petitioners /complainants and their men objected for completing the work, hence he returned without executing the work and he has no intention to violate the impugned orders.

5) During the course of enquiry before the District Forum, in order to prove their case, PW 1 and 2 were examined and Ex. P1 was marked and they also filed written arguments. The appellant/respondent/opposite party was examined and he pleaded not guilty.

6) The District Forum, after considering the material available on record, came to the conclusion that the appellant/respondent/opposite party was found guilty and hence he is convicted U/s.255(2) Cr. P. C. for the offence under Sec. 27 C P Act and he was sentenced to simple imprisonment of six months and fine of Rs.2,500/-, in default, simple imprisonment for one month. The sentence if any undergone by him shall be set off against the term of imprisonment imposed on him. U/s. 428 Cr.P.C. and the sentence of imprisonment already awarded on 27th April, 2017 against him in EA 10/2014 in CC 644/2009, EA 23/2012 in CC 689/2009, EA 24/2012 in CC 690/2009 and EA 25/2012 in CC 691/2009 shall run concurrently as per Sec. 427 Cr.P.C.

7) Aggrieved by the said order, the Appellant/respondent/opposite party preferred this appeal before this Commission.

8) Heard the counsel for the appellant/respondent/opposite party and he also filed written arguments. There has been no representation on behalf of the respondents/petitioners/complainants and at least they did not choose to file their written arguments despite service of notice and being given many opportunities. Therefore, they were set exparte and hence the matter was reserved for orders.

9) The points that arise for consideration are,

(i) Whether the impugned order as passed by the District Forum suffers from any error or irregularity or whether it is liable to be set aside, modified or interfered with, in any manner?

(ii) To what relief ?

10). Point No.1 :

There is no dispute that the District Forum passed orders on 25.06.2010 directing the appellant /Respondent/opposite party to hand over two residential flats and two shop rooms or in the alternative to pay present market value thereof and further directed to pay a sum of Rs.10,000/-towards compensation for the delay caused and costs of Rs.2,000/- within six months. There is also no dispute that appellant /Respondent/opposite party did not prefer any appeal against the said orders.

11). The depositions of PW.1 and 2 reveal that the appellant /Respondent/opposite party did not construct any flats/shops subsequent to the impugned order and the appellant /Respondent/opposite party failed to comply with the impugned order. On the other hand, counsel for the appellant /Respondent/opposite party argued that as per the development agreement, he agreed to construct ground + 3 floors but the Corporation gave permission for construction of ground + 2 floors and hence the impugned order to hand over two residential flats in the 3rd floor and two shop rooms in the cellar is not possible and the cellar is intended only for parking but not construction of the shops and hence the District Forum has no power to direct them and they are not in a position to comply with the impugned orders.

12) The evidence on record discloses that the appellant /Respondent/ opposite party did not prefer any appeal against the impugned order dated 05.05.2017 nor complied with the same. When he is aggrieved by the impugned order he ought to have preferred an appeal but he did not do so. The District Forum observed that the appellant /Respondent/opposite party did not appear except after issuing NBWs on 26.09.2013, he paid Rs.12,000/- as per the impugned order during the course of EA proceedings. The lame excuse of appellant /Respondent/opposite party is that there is no permission from the Corporation for construction of 3rd floor and Cellar is intended for parking only. But, the District Forum directed him to pay the market value in the alternative. Counsel for the appellant/respondent/ opposite party further argued that because of the order of the General Officer, Commanding-in-Chief regarding restrictions on the construction of Buildings, Secunderabad cantonment, the appellant could not construct 3rd floor but he has delivered the unfinished flat to the respondents 3 and 5 and paid Rs.80,000/- and Rs.50,000/- towards completion of the unfinished flat and for 2 shops respectively and in support of his contention he filed Photostat copies of receipts. We have perused the same. But the appellant did not file receipts in a similar way with regard to other respondents/petitioners/complainants. The appellant /respondent/ opposite party did not file the statistics of the amounts to be paid towards the semi-finished works to know whether the he had complied with the impugned order. Payment of Rs.12,000/- does not indicate compliance of the order. The District Forum after considering all the aspects came to the conclusion that there is deficiency in service and ordered to comply with the impugned order. The appellant/respondent/ opposite party also did not come forward, at least, at this appellate stage also, to pay the market value as ordered by the District Forum if it is not possible to complete the construction. The matter pertains to the year 2009 and the appellant/respondent/ opposite party dragging on the matter on some pretext or the other. The respondents/ petitioners/complainants did not choose to present their version for the reasons best known to them. However, there is no evidence on record before us to show that the impugned order

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was complied with by the appellant/respondent/opposite party. 13). After considering the foregoing facts and circumstances and also having regard to the contentions raised on behalf of the appellant/Respondent/opposite party and the respondents/ Petitioners/ complainants, this Commission is of the view that there are no infirmities or irregularities in the order passed by the District Forum in imposing the sentence on the appellant/respondent/opposite party and there are no merits in the appeal and hence the appeal is liable to be dismissed. 14). Point No. 2 : In the result, the appeal is dismissed confirming the impugned order passed by the District Forum in EA 8 of 2011 dated 05.05.2017. There shall be no order as to costs. Time for compliance four weeks.
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