- (1.) THE District Forum, North 24 Parganas in its order dated 28.5.2009 passed in case No. 172 of 2006 allowed the complaint in part on contest with cost. The OP who is the respondent before us was directed to refund an amount of Rs. 50,348 with interest @ 10 % p.a from 26.9.2006 till realization to the Complainant. The OP was further directed to pay Rs. 1,000 towards cost of litigation. A period of 30 days was allowed for payment of the decretal amounts. It appears that a counter appeal has been filed by the Respondent, Mrs. Rita Bhattacyaryya who was the Complainant before the Forum below against the same order dated 28.5.2009 passed in case No. 172 of 2006 by the District Forum, North 24 Parganas. We have heard both the cases together as they originated from the same order of the Forum below. The instant judgment shall govern both the cases.
(2.) THE case in brief was that the husband of the Complainant, Mrs. Rita Bhattacharyya engaged the OP/Appellant for supplying building materials for construction work of her house. One labour contractor of local area, Md. Ismail was also appointed through an agreement. The Complainant's husband, on the basis of a verbal agreement, paid Rs. 1,03,000 to the OP by instalments through cheques and Rs. 44,862 by cash totalling an amount of Rs. 1,47,862 for supplying building materials and also for construction of the proposed building with promise to pay further amount of money when required. The OP supplied building materials for construction to the tune of Rs. 37,790 + 27,862 totalling Rs. 65,652. It was also stated by the Complainant that the building materials were of sub -standard quality. The OP could not subsequently supply further building materials for which construction work had to be kept suspended. The Complainant procured building materials from other sources and engaged other working persons. The OP neither supplied the building materials nor refunded the money paid to him by the Complainant. Hence the case praying for a direction upon the OP to refund the balance part of the advance money of Rs. 82,210 with interest along with compensation and cost.
(3.) THE case was contested by the OP by filing WV denying all the material allegations and claimed that the Complainant was required to pay Rs. 12,542 with interest as the same amount remained unpaid to the OP. It was further mentioned by the OP that every time during supply of building materials, the husband of the Complainant never made any objection for quality and quantity of the materials. He signed the challans without making any objections. The OP/Respondent herein admitted that an amount of Rs. 1,16,000 was paid to him by the Complainant's husband for supplying construction materials and not Rs. 1,47,000 as claimed by the Complainant. In his deposition the OP also admitted that he did not send any reply to the notice from the Complainant's Advocate as he did not feel it necessary. In support of his claim that an amount of Rs. 12,542 was still lying unpaid by the Complainant he could not produce any authentic documents like bills, vouchers and signed challans, etc. He however filed a Khata which was his personal note book which contained notings of some materials delivered to the Complainant's husband. But the said notings in the khata did not contain any signature by the husband of the Complainant. Authenticity of the same was, therefore, doubtful. In his W.V. filed before the Forum below the OP/ Present Appellant also stated that the Petitioner's husband falsely sent an Advocate's notice so that he could file the complaint case before the Forum below. No reply was sent to that notice of the Advocate. As a result, the contention of the Complainant/ Respondent remained unchallenged. It appears that in her amendment petition before the Forum below the Complainant stated that a total amount of Rs. 41,862had been paid in cash on five different dates and a total amount of Rs. 1,03,000 had also been paid through several cheques. Thus the total amount paid was Rs. 1,44,862. Hence, her prayer concerning refund also stood reduced to Rs. 79,210. But she singularly failed to substantiate her above claim by production of appropriate documents. The OP also denied the fact of receiving the amounts aforesaid. In his memo of appeal he has categorically mentioned that he had received Rs. 1,16,800 from the Complainant / Respondent towards supply of building materials. He claimed that he had supplied materials worth Rs. 1,29,617, whereas in his W.V he stated in para -12 that an amount of Rs. 12,542 remained unpaid by the Complainant against supply of building materials. Obviously, the claim in the memo of appeal and that of the W.V were at variance with each other. The Appellant/ OP obviously failed to prove by production of suitable documents that he had supplied building materials worth more than the amount of Rs. 65,652 as claimed by the Complainant. The Appellant relied on his 'Khata' as his book of account. But as the same was not authenticated by the Complainant / or her husband, it is difficult for us to accept the same to be genuine or authentic. We have carefully considered the minutes of the meeting held to resolve the issue between the parties on 14.8.2005 by the concerned Housing Society Ltd. The meeting remained inconclusive. So resolution of the aforesaid meeting did not come to the rescue of either party. In the given circumstances, we have to accept the admitted amounts Rs. 1,16,800 received by the Appellant Mr. Mintu Barua Chowdhury and Rs. 65,652 admitted by the Complainant/Respondent Mrs. Rita Bhattacharya . Thus the amount of Rs. 51,148 was due from the Appellant herein. We are not however agreeable to the interest component which should not be more than 8%. The appeal, therefore, fails to succeed in full.;