HON’BLE SRI JUSTICE A. GOPAL REDDY AND HON’BLE SRI JUSTICE SAMUDRALA GOVINDA RAJULU WRIT PETITION NO.7512 OF 2009 Date: .11.2009 Between: M/s. Castle Constructions, rep. By its Proprietor, Visakhapatnam. …..Petitioner And: The A.P. State Consumer Disputes Redressal Commission, rep. By its Registrar, Hyderabad and 2 others. …..Respondents. HON’BLE SRI JUSTICE A. GOPAL REDDY AND HON’BLE SRI JUSTICE SAMUDRALA GOVINDA RAJULU WRIT PETITION NO.7512 OF 2009 ORDER: (per Hon’ble Sri Justice Samudrala Govinda Rajulu) The petitioner is a builder running construction business under the name and style of M/s. Castle Constructions at Visakhapatnam. The petitioner seeks writ of CERTIORARI for quashing order dated 19.12.2008 in F.A.No.645 of 2007 passed by the A.P. State Consumer Disputes Redressal Commission, Hyderabad (1st respondent) (in short, State Commission) which was passed against order dated 28.03.2007 in C.D.No.682 of 2004 of the District Forum-II, Visakhapatnam (2nd respondent). The 3rd respondent who is a lady teacher entered into construction agreement dated 27.08.2002 with the petitioner in respect of residential flat No.13 in 3rd floor of the complex known as Mercury Castle in Chinnagadila of Visakhapatnam. As per clause (2) of the agreement, the petitioner undertook to complete construction of flat and hand over possession of the same to the 3rd respondent within 18 months thereof, by which time the 3rd respondent has to pay amounts under the agreement to the petitioner at specified stages as stipulated therein. As per construction agreement, the 3rd respondent has to pay Rs.2,10,000/- to the petitioner. Site cost of undivided share of 33 sq. yards relating to the flat was Rs.1,04,000/-. Alleging that the petitioner did not complete construction and hand over possession of the flat within the specified time, the 3rd respondent filed C.D.No.682 of 2004 before the 2nd respondent praying damages of Rs.332.33 ps., per day from 27.02.2004 till the date of delivery of possession of the flat and damages of Rs.70,000/- for deficiency in service and other ancillary reliefs. The petitioner opposed the said complaint before the 2nd respondent by filing counter contending that the 3rd respondent did not comply with her part of the agreement by paying all the amounts due to the petitioner under Construction agreement as well as under supplemental agreement dated 30.08.2002. According to the petitioner, the 3rd respondent has to pay Rs.66,200/- under supplemental agreement towards cost of additional amenities like mosaic flooring, best quality concealed copper electric works etc. The petitioner further contends that the petitioner agreed to pay Rs.60,000/- towards further additional works like marble flooring instead of mosaic flooring, ceramic tiles in toilets instead of mosaic tiles. Prior to the 3rd respondent filing C.D.No.682 of 2004, the petitioner filed O.S.No.414 of 2004 in Principal Junior Civil Judge Court, Visakhapatnam against the 3rd respondent for recovery of Rs.1,49,500/- from her as per agreement between them in respect of the same flat. The petitioner also filed IA No.591 of 2004 in that suit under Order XXXVIII Rule 5 of the Code of Civil Procedure and obtained attachment before judgment of flat No.13 of the 3rd respondent. After enquiry the District Forum-II, Viskahapatnam partly allowed CD No.682 of 2004 by the order dated 28.03.2007 directing the petitioner herein to pay Rs.2,000/- per month from 27.02.2004 to the 3rd respondent till the date of delivery of flat No.13 to her apart from costs of Rs.2,500/-. As against the said order, the petitioner preferred appeal in F.A.No.645 of 2007 before the 1st respondent. After hearing, the 1st respondent-Commission dismissed the appeal by the order dated 19.12.2008. The 3rd respondent filed counter in this Writ petition supporting orders of the respondents 1 and 2 and contending that the petitioner suppressed the judgment and decree passed in the suit O.S.No.414 of 2004 by the Principal Junior Civil Judge Court, Visakhapatnam. On contest, that suit was partly decreed by the judgment dated 9.2.2009 for Rs.950/- with future interest. The 3rd respondent paid decretal amount of Rs.950/- to the petitioner by way of demand draft. According to the 3rd respondent, she paid the entire amounts due to the petitioner and in spite of it, the petitioner did not complete construction of her flat and did not deliver possession of the same depriving her right of residence therein. At this stage, there is no dispute that the 3rd respondent paid total sum of Rs.4,29,050/- to the petitioner. According to the petitioner, total sum payable by the 3rd respondent is Rs.5,02,700/- and 3rd respondent has to pay balance amount of Rs.73,650/- to him. The 1st respondent in the order in F.A.No.645 of 2007 gave details of the amount of Rs.5,02,700/-. As per the petitioner's contention, it is only for recovery of balance amount of Rs.73,650/- together with subsequent interest at 24% p.a. totalling Rs.1,49,500/-, the petitioner filed suit in O.S.No.414 of 2004 against the 3rd respondent. After full trial, the Civil Court decreed that suit for Rs.950/- and the said sum was duly paid by the 3rd respondent to the petitioner. In spite of the 3rd respondent paying total sum of Rs.4,29,050/- apart from balance of Rs.950/- as per the Civil Court's decree, the petitioner was adamant in not completing construction of residential flat No.13 and delivering the same to the 3rd respondent for her occupation within the specified period under the construction agreement. The petitioner was multiplying figures one after the other without any basis and without any documents except construction agreement for Rs.2,10,000/- and supplemental agreement for Rs.66,200/-. In spite of it, the 3rd respondent who is a lady teacher has been paying the amounts to the petitioner as and when demanded to a total tune of Rs.4,29,050/-. But, the petitioner was avaricious in extracting further amounts from the 3rd respondent and approached Civil Court for huge claim of Rs.1,49,500/-. The petitioner failed in his claim before the civil court which directed the 3rd respondent to pay only Rs.950/- to the petitioner and it was duly paid by the 3rd respondent to the petitioner. There was no justification for the petitioner for postponing construction of flat No.13 and delivering the same to the 3rd respondent for her occupation. It is contended by the petitioner's counsel that the 2nd respondent- Forum did not give sufficient opportunity to the petitioner to lead his evidence and that though the petitioner filed IA No.3 of 2004 in C.D.No.682 of 2004 for summons to third respondent's banker to produce the 3rd respondent’s account showing dates of various payments made by her, the 2nd respondent Forum did not pass any order on that petition even after hearing the same and passed order in main C.D and that it amounts to denial of principles of natural justice to the petitioner. Except filing IA No.3 of 2004, the petitioner did not pursue the same till disposal of main C.D in the year 2007 after three years. According to the 3rd respondent, the 2nd respondent-Forum passed order in IA No.3 of 2004 and the petitioner should have filed appeal against the said order in case he was aggrieved of the same. The petitioner filed copy of affidavit and petition which are stated to be in IA No.3 of 2004. The said affidavit and petition show that they were filed on 28.6.2005 before the District Forum. They read that when the matter was posted to 17.6.2005 for arguments on behalf of the opposite party/petitioner herein, his counsel requested time for arguments and in spite of it, the Forum closed arguments of the opposite party. Therefore, the petitioner requested for reopening the matter for the purpose of hearing arguments on his side. The petitioner did not pray in that petition for any permission to lead further evidence on his behalf. Even though the said petition was filed in June, 2005, CD No.682 of 2004 has been pending before the Forum till 28.03.2007 when it was disposed of. It is not the petitioner's case that the Forum passed the order without hearing his arguments. The order dated 28.03.2007 was passed by the Forum after hearing arguments of both the counsel. Therefore, there is no question of the Forum violating principles of natural justice. The Forum gave full opportunity to the petitioner who is the opposite party to produce his evidence by way of affidavits and documents as well as hearing of arguments on his behalf. In fact, the 3rd respondent who is the complainant before the Forum, filed all documents and receipts leaving no documents to be filed by the opposite party/petitioner herein. Apart from the petitioner filing a petition on 28.6.2005 for reopening the case for the purpose of hearing arguments, there is nothing to show that the petitioner prayed for issue of summons to banker of the 3rd respondent for production of her account copy. In any event, production of account copy of the 3rd respondent is totally irrelevant having regard to admission of the petitioner that the 3rd respondent made total payments amounting to Rs.4,29,050/-. Therefore, we are of the opinion that the petitioner was given ample opportunity by the respondents No.1 and 2 to adduce his evidence and to address his arguments and that there is no violation of principles of natural justice in this matter. The petitioner could not make out any valid grounds for issuing writ of Certiorari in this case in respect of the orders passed by the respondents No.1 and 2. In the result, the writ petition is dismissed. ____________________ A. GOPAL REDDY,J ____________________________________ SAMUDRALA GOVINDA RAJULU,J. Date: .11.2009. Gk. HON’BLE SRI JUSTICE A.GOPAL REDDY AND HON’BLE SRI JUSTICE SAMUDRALA GOVINDA RAJULU WRIT PETITION NO.7512 OF 2009 (per Hon’ble Sri Justice Samudrala Govinda Rajulu) Date: .11.2009 Gk.