RAJENDRA MANMOHAN BARTAKE Vs. H G ABHAYANKAR

JUDGEMENT

(1.) This is an application filed by original opposite party to quash and set aside the order of this Commission dated 5.11.92 passed in Complaint No.252/91. The applicant contended that written statement/reply in answer to the allegations of complainant Dr. H. G. Abhyankar presently, non-applicant, was sent to this Commission on 10.3.1992 by registered post with acknowledgement due and it was received in the Office of the State Commission on 6.3.1992. The applicant further contended that despite the said reply of applicant, this Commission proceeded exparte against him. The complainant further contended mat there was no deficiency in his service as he has completed the construction as per the second agreement dated 22.6.91. It is further submitted that complainant Dr. H. G. Abhyankar had filed a Civil Suit No.1413/91 in the Court of Civil Judge, Sr. Division, Pune on 15.11.91 against the applicant inter alia praying for specific performance of the aforesaid agreement. It is further contended that Dr. Abhyankar prayed for a decree for specific performance of agreement or in the alternative claimed the reliefs of Rs.2,00,000/- towards the cost of incomplete construction. It is also alleged that the Civil Court was moved by Dr. Abhyanakar for grants of injunction against this applicant. It is also stated that in the suit Dr. Abhayankar also applied for appointment of a Court Receiver. The applicant, therefore, submitted in this proceeding that being fully aware of the pendency of the civil suit and the prayers made therein, the Complaint No.252/91 was filed by the complainant on 11.11.91 before this Commission and thus misled the State Commission. It is, therefore, prayed that the order passed by this Commission mentioned above dated 5.11.1992 be set aside.

(2.) On receipt of the aforesaid application, we issued notice to Dr. H. G. Abhyankar and heard Shri Surana learned Advocate for the present applicant, Shri Rajendra Bartakke and Shri Pradhan, Advocate; and Shri Abhayankar in person.

(3.) In the mean time, the complainant Dr. Abhyankar had approached this Commission u/sec.27 of the Consumer Protection Act, 1986 for action against the opposite patty in Misc.18/ 92. Shri Abhyankar had also started execution proceedings before the Civil Court at Pune against the present applicant and the Civil Court had proceeded for the attachment of the applicant's property and, therefore, considering the emergency, we also heard Misc. Application No.18/93 together with Misc. Application No.49/93.