w w w . L a w y e r S e r v i c e s . i n



Kalva Praveen Kumar v/s N. Surendra Kalyan


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

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

Company & Directors' Information:- KALYAN CORPORATION PRIVATE LIMITED [Strike Off] CIN = U65991TN1947PTC001239

Company & Directors' Information:- SURENDRA COMPANY PRIVATE LIMITED [Dissolved] CIN = U74900KL1950PTC001099

    F.A.No. 201 of 2017 Against E.A.No. 10 of 2014 In C.C.No. 644 of 2009

    Decided On, 16 November 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 Respondent: PVSK Chakravarthy, Advocate.



Judgment Text

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

This appeal has been filed by the appellant / opposite party/Judgment Debtor under Section 27A of the Consumer Protection Act, 1986 against the order dated 27.04.2017, passed by the District Consumer Disputes Redressal Forum-II Hyderabad in E.A.No.10 of 2014. By the impugned order, the District Forum has convicted the appellant/opposite party under Section 27 (1) of the Consumer Protection Act, 1986 and sentenced to undergo simple imprisonment for six months and to pay fine of Rs.2,500/-.

2. The respondent/complainant/DHR filed complaint C.C.No.644 of 2009 against the appellant/JDR before the District Forum. Vide order dated 15.12.2010, the District Forum has allowed the complaint and directed the appellant/opposite party to complete the works i.e., 1) Lift, 2) Marble flooring, 3) Teak Doors, 4) Generator, 5) Walls etc., at his own costs or in the alternative, pay the complainant a sum of Rs.20,000/- towards plastering in duct and boundary walls plastering etc., Rs.50,000/- towards lift, compound wall, terrace, water proofing and electrical transfer and Rs.10,000/- for mental agony totaling to Rs.90,000/- with interest @ 9% per annum from the date of registered sale deed till date of realization. The appellant/opposite party/JDR preferred appeal before this Commission with a delay petition and the Commission dismissed the petition while rejecting the appeal.

3. The respondent/complainant/DHR filed E.A.No.10 of 2014 against the appellant/opposite party/JDR and the District Forum recorded sworn statement of the complainant u/s 200 CrPC by taking cognizance u/s 190 CrPC for the offene u/s 27 of CP Act. After issuing NBWs in the year 2013 the appellant/opposite party/JDr appeared before the District Forum and pleaded not guilty and stated that he paid Rs.10,000/- to the petitioner/.complainant. He, further stated that when the appellant/opposite party/JDr visited the apartments along with the materials then the respondent/complainant/JDR and their men objected for completing the work and hence he returned without executing the work. He further stated that he has no intention to violate the orders passed by the district Forum. The parties were afforded opportunity to adduce evidence. The appellant/opposite party/JDR was examined by the District Forum like examination of accused and thereafter the appellant/opposite party/JDR entered into defence. PWs 1 and 2 were examined on behalf of the complainants. PW1 deposed in his evidence that he purchased flat no.102 situated at Seetaramapuram, Bowenpally, Secunderabad in the year 2007 under the registered sale deed and at the time of purchase the respondent agreed to complete the unfinished works but the appellant/opposite party/JDR failed to complete the unfinished works. Therefore, he filed the complaint C.C.No.644 of 2009.

4. PW2, L.Anasuya deposed that her house is nearer to the house of the respondent/complainant/DHR and she knew about the construction of the apartment where the complainant is residing. The appellant/opposite party/JDR did not complete the construction of the apartment and left the construction in midway.

5. During cross examination of PW1 the respondent/complainant/DHR denied the suggestions put-forth by the appellant/opposite party/JDR. As per the evidence of PW2 who is a neighbor house owner of the respondent/complainant/JDR, the appellant/opposite party/JDr never stored sand, stones as suggested by him. After the examination of PWs1 and 2 and the appellant/opposite party/JDr , the matter was heard on 06.04.2017 and 07.04.2017 and the District Forum after considering the material available on record came to the conclusion that the appellant/opposite party/JDr was found guilty and he is convicted u/s 255(2) Cr.P.C. for the offence u/s 27 of CP Act and he was sentenced to simple imprisonment of six months and a fine of Rs.2,500/- in default, simple imprisonment for one month. The sentence if any undergone by the respondent shall be set off against the term of imprisonment imposed on the appellant/opposite party/JDr. Under sec.428 Cr.PC and the sentence of imprisonment already awarded on 27.04.2017 against the appellant/opposite party/JDr in EA 10 of 2014 in CC 644 of 2009, EA 24 of 2012 in CC 690 of 2009, EA 25 of 2012 in CC 691 of 2009 shall run concurrently u/s 427 of Cr.P.C. Hence, the appellant/opposite party/JDr filed the instant appeal before this Commission.

6. The point that arises for consideration is whether the impugned orders as passed by the District Forum suffer from any error or irregularity or whether it is liable to be set aside, modified or interfered with, in any manner? To what relief.

7. The appellant/opposite party/JDR in its grounds of appeal stated that that the District Forum ought to have relied upon the evidence of the appellant that he has dumped the material to take up the civil work but the respondent/complainant has not allowed the appellant/opposite party/JDR to carryout internal works. With great difficulty the appellant has completed the external works and has furnished the receipts issued by the Civil Contractors but without considering the same the District forum has passed the impugned orders. The District forum failed to see the police complaint though the appellant had filed the same. The District Forum dismissed the petition for the recall of complainant for further cross examination to elicit the actual facts.

8. On the other hand the respondent/complainant/DHR resisted the case of the appellant and stated that the appellant has not filed any proof to show that he has complied the orders passed by the District Forum that he himself has admitted that he has not complied the order due to non-forming of association. The appellant is challenging the orders of the District Forum in CC though he failed to prefer any appeal within time against the orders of the District Forum. The appellant/opposite party/JDR instead of complying the orders of the District Forum unnecessarily dragging the matter by filing appeal, petitions, etc., to escape from his liability. The District Forum has rightly proceeded against the appellant/opposite party/JDR under Section 27 (1) of the Consumer Protection Act, 1986. The District Forum has followed the procedure in correct view and has rightly convicted the appellant under Section 27 (1) of the Consumer Protection Act, 1986 and sentenced him to undergo simple imprisonment for six months and to pay fine of Rs.2,500/-. The impugned order passed by the District Forum, is just and proper and does not call for any interference by this Commission.

9. We have heard learned counsel appearing for both the parties and have also perused the record of Execution Application No.10/2014.

10. During the pendency of the appeal, the appellant/opposite party/JDr filed an application before this Commission for suspending the sentence awarded against them. This Commission suspended the sentence from time to time and till the date of disposal of the appeal. It is pertinent to note that during the pendency of the appeal the appellant/opposite party/JDr claimed that he has done the work as per the order of the District Forum and to that effect he filed some photographs. But the respondent/complainant/DHR disputed the same and requested the Commission to appoint an Advocate Commission to find the truth by visiting the site. Accordingly, this Commission appointed Mr.Naveen Kumar, Advocate Commissioner to inspect the physical features of the property as to the compliance of the impugned orders of the District Forum. The Advocate Commissioner submitted his report which is as follows:

1. Lift is installed but it is not in working condition

2. Marble flooring was done

3. The appellant stated that there is a door fixed at the main entrance is a teak door however, the respondent/complainant/JDR disputed the same.

4. There is no generator but found inverter

5. There is a compound wall erected around the building however there is a opening in the compound wall above the cellar portion. It is claimed by the appellant that such openings were made by the flat owners themselves.

I found that the stair case is covered, however I found that the parapet wall constructed in the terrace is not having sufficient height.

I also found that the flooring in the terrace is damaged due to which there is seepage of water into the walls of the flats

It is agreed by both the parties that at the time of handing over building/flats a borewell was installed by the appellant however it is not found.

The appellant however has informed that there is no association of the flat owners and nobody is bothering about the maintenance of the building.

To the said report of the Advocate Commissioner, the respondent/complainant/DHR filed objection which as follows:

The learned Advocate Commissioner did not take any photographs to show the present condition of all the fixtures, walls, etc., despite the respondent specifically requested through the work memo, one copy served for all the four appeals, submitted to the Advocate Commissioner at the time of executing the warrant.

2. The Advocate Commissioner report is brisk and in abbreviated form instead of the factual finding.

3. The Advocate Commissioner has not explained clearly as to know make of the lift and that the cable are not connected and the lift shaft doors and other fixtures are missing.

4. The learned Advocate Commissioner did not address the condition of the marble flooring and the present status; he also failed to know the condition of the flooring in common areas and the walls which were not plastered.

11. The appellant/opposite party/JDR in his written arguments stated that the lift is not working because there is nobody to take care of the lift. It is also stated that despite advice and insistence of the appellant the flat owners have not formed association as a result there is ‘zero’ maintenance of the complex. An inverter is provided instead of Generator which is sufficient to serve the purpose of the flat owners.

12. It is specifically submitted by the respondent/complainant/DHR that had the Advocate Commissioner taken the photos the real situation would have been come into light and in the absence of any photos it is not possible to find out the real situation. However, the respondent/complainant/DHR filed photographs which show that there are incomplete works left by the appellant/opposite party/JDR. Regarding installation of lift, as per the direction of the District forum it is the bounden duty of the appellant/opposite party/JDR to install the lift in working condition but instead of that as per his own version he has not provided the electrical connection because there is nobody to take care of the lift. It is not the concern of the appellant/opposite party/JDR whether the flat owners have formed association or not, he has to provide the lift in working condition. The Advocate Commissioner also reported that the terrace is damaged and due to that there is seepage of water into the walls of the flats. It shows that due to substandard quality of construction, the terrace was damaged as a result the seepage of water into the walls. It is also noticed by the Advocate Commissioner that the parapet wall constructed on the terrace is not having sufficient height.

13. Therefore, the above Advocate Commissioner’s report clearly shows that the appellant/opposite party/JDr has not complied the orders passed by the District Forum.

Section 27 of the Consumer Protection Act, 1986 runs thus :-

"27. Penalties. - (1) Where a trader or a person against whom a complaint is made or the complainant fails or omits to comply with any order made by the District Forum, the State Commission or the National Commission, as the case may be, such trader or person [or complainant] shall be punishable with imprisonment for a term which shall not be less than one month but which may extend to three years, or with fine which shall not be less than two thousand rupees but which may extend to ten thousand rupees, or with both.

(2) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), the District Forum or the State Commission or the National Commission, as the case may be, shall have the power of a Judicial Magistrate of the first class for the trial of offences under this Act, and on such conferment of powers, the District Forum or the State Commission or the National Commission, as the case may be, on whom the powers are so conferred, shall be deemed to be a Judicial Magistrate of the first class for the purpose of the Code of Criminal Procedure, 1973 (2) of 1974.

(3) All offences under this Act may be tried summarily by the District Forum or the State Commission or the National Commission, as the case may be.

27A. Appeal against order passed under Section 27 - (1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), an appeal under Section 27, both on facts and law, shall lie from -

(a) the order made by the District Forum to the State Commission;

(b) the order made by the State Commission to the National Commission; and

(c) the order made by the National Commission to the Supreme Court.

(2) Except as aforesaid, no appeal shall lie to any Court from any order of a District Forum or a State Commission or the National Commission. (3) Every appeal under this Section shall be preferred within a period of thirty days from the date of an order of a District Forum or a State Commission or, as the case may be, the National Commission.

Provided that the State Commission or the National Commission or the Supreme Court, as the case may be, may entertain an appeal after the expiry of the said period of thirty days, if, it is satisfied that the appellant had sufficient cause for not preferring the appeal within period of thirty days."

14. From bare perusal of the provisions of Section 27 of the Consumer Protection Act, 1986, it appears that no specific procedu

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re has been prescribed under Section 27 of the Consumer Protection Act, 1986. In the instant case, District Forum, has explained the particulars of offence to the appellant/opposite party/JDR and his pleas were recorded. After examination of the witnesses, the appellant/opposite party/JDr was examined as per procedure prescribed under Section 313 Cr.PC. It appears that the District Forum had followed proper procedure and sufficient opportunity was provided to the appellant/opposite party/JDr for compliance of the order of District Forum, but the appellant/opposite party/JDr did not comply the order passed by the District Forum. Even the appellant/opposite party/JDr cross- examined the respondent/complainant/DHR and the appellant/opposite party/JDr closed its defence and the case was fixed for final arguments. Final arguments were heard and District Forum passed the impugned order on 27.04.2017. 15. In view of the above discussion, it is to be held that the order passed by the District Forum, being based, on the correct appreciation of facts and circumstances of the case, as also the record, does not suffer from any illegality or perversity, warranting the interference from this Commission. The same is liable to be upheld. The point is answered accordingly. In the result the appeal is dismissed and the Order dated 27.04.2017 passed by the District Consumer Forum-II, Hyderabad in Execution Application No.10 of 2014 in C.C.No.644 of 2009 as regards conviction under Section-27 of the Consumer Protection Act, 1986 is confirmed. There is no order as to costs.
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