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M/s. Shree Shridharkrupa Builders vs. Mrs. Kamal Shrawan Rajguru dated 2012-09-20

 

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION
NEW DELHI
 
 
REVISION PETITION NO. 3702 OF 2010
In
I.A./5/2012
(From the order dated 08.07.2010 in M.A. in C/164/2008 of the Maharashtra State Consumer Disputes Redressal Commission, Mumbai)
 
 
1. M/s. Shree Shridharkrupa Builders
    & Realtors Pvt. Ltd.
2. Mr. Ashish Shardchandra Kulkarni
3. Mr. Sharadchandra Kulkarni
 
     All have their address at
Ground Floor, Building No. 1,
Chamber Shri Siddhi Vinayak CHS Ltd.
Tilak Nagar,
Mumbai 400 089                                                          … Petitioners-Opposite Parties
 
         Versus
 
1. Mrs. Kamal Shrawan Rajguru
    R/o at D-37, Dindayal Nagar,
    Mulund, Mumbai 400 081
 
2. Mr. Mahen Jaywant Dholam
    R/o at 1/602, ‘B’ Wing,
    Neel Ganga CHS Ltd.
    Matulya Mills Compound
    S.M. Path, Lower Parel,
    Mumbai 400 013                                                  … Respondents-Complainants
 
BEFORE
 
HON’BLE MR. JUSTICE K.S. CHAUDHARI,
PRESIDING MEMBER
HON’BLE MR. SURESH CHANDRA, MEMBER
 
            For the Petitioners               : Mr. S.K. Sharma, Advocate
            For the Respondent                        : Mr. Mahaling Pandarge, Advocate
                                                             
PRONOUNCED ON 20th SEPTEMBER, 2012
 
O R D E R
 
 PER JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER
 
This revision petition has been filed against the order dated 08.07.2010 passed by the learned State Consumer Disputes Redressal Commission, Delhi (in short, ‘the State Commission’) in M.A. under section 34 of the C.P. Act in Complaint No. C/164/2008 – Kamal Shrawan Rajguru Vs. M/s. Shree Shridharkrupa Builders & Realtors Pvt. Ltd. & 2 Ors. by which the application was dismissed.
 
2.       Brief facts of the case are that complainant filed complaint against the opposite parties and prayed for possession of flat along with compensation.  OPs filed their reply and resisted claim.
 
3.       Opposite party Nos. 1 to 3 moved application under Section 13 (4) of the C.P. Act and alleged that they denied 4 receipts of cash, namely:
 
          Date of Receipt              Amount                Page No. of complaint
          1.11.2005                        Rs.50,000/-                     171
          21.11.2005                      Rs.50,000/-                     170
          1.4.2006                          Rs.1,05,000/-                  164
          13.11.2005                      Rs.70,000/-                     159   
It was further alleged that receipts are forged, hence, prayed for an expert opinion at the expenses of opposite party.  Learned State Commission vide impugned order dismissed application and observed as under:
“As far as referring the matter to hand writing opinion, parties have already made their respective submissions and evidence covering the same is also led.  One has to appreciate that evidence is a different issue.  It is also to be noted that even ignoring the payment as witnessed by these receipts complainant showed his willingness to deposit and pay the money if so ordered or direction is given. We find this application is misconceived.  Accordingly this application stands rejected.
 
 
4.       Heard the learned Counsel for the parties and perused record.
 
5.       No reasons have been assigned for dismissing application and further recorded that payment of these receipts may be ignored and complainant will be willing to deposit aforesaid money, if so, directed meaning thereby complainant is hesitating in proving cash payment by these receipts.  OP Nos. 1 to 3 vide letter dated 9.9.2008 before institution of complaint asked the complainant to issue certified copy of the receipts and further asked to preserve originals if the same are required for any evidence.  Again by notice dated 20.10.2008, receipt of payments was denied.  In the written statement OP Nos. 1 to 3 denied receipt of payment in para 19 (iii).  OP No. 4 also denied receipt of payment in para 14 of his  written statement.  Thus, it becomes clear that OPs denied receipt of payment from very beginning and as per impugned order complainant is willing to make payment of aforesaid amounts again if so directed by the Commission.  It becomes necessary to find out truth whether complainant made payment of aforesaid amount by the receipts as shown in the application. Complainant has so far not submitted original receipts before the State Commission.
 
6.       Genuineness of receipts can be ascertained only with the help of handwriting expert and learned State Commission ought to have allowed the application and sent original receipts to the handwriting expert at the cost of the opposite parties.  There was no reason to disallow this application only on the pretext that complainant was willing to make again aforesaid payments if asked.
 
7.       Consequently, the revision petition is allowed and impugned order dated 8.9.2010 passed by the learned State Commission in M.A. under section 34 of the C.P. Act in Complaint No. C/164/2008 – Kamal Shrawan Rajguru Vs. M/s. Shree Shridharkrupa Builders & Realtors Pvt. Ltd. & 2 Ors. is set aside and learned State Commission is directed to obtain original receipts of aforesaid 4 payments and send them to handwriting expert for opinion at the cost of the opposite parties.
 
8.       I.A. No. 5 of 2012 regarding maintainability of the complaint is not in issue before this Commission and this point is to be decided by the State Commission, hence, I.A. No. 5 of 2012 stands disposed of with the revision petition.
                                                                                Sd/-
     .……………………………
( K.S. CHAUDHARI, J)
PRESIDING MEMBER
 
                                                                                                      Sd/-
                        ..……………………………
(  SURESH CHANDRA )
MEMBER
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