RAMESH DANI Vs. SUNIT ENTERPRISES

JUDGEMENT

(1.) This Revision Petition, by the Complainant, under Section 21 (b) of the Consumer Protection Act, 1986 (for short "the Act") calls in question the correctness of order dated 20.06.2014 passed by the State Consumer Disputes Redressal Commission, Maharashtra at Mumbai (for short 'the State Commission') in a Miscellaneous Application filed by him in Consumer Case no.CC-08/108, praying for taking on record a fresh second affidavit by way of evidence, in lieu of oral evidence of another eye witness. The State Commission has dismissed the application observing that though while explaining the delay in filing affidavit it is urged on behalf of the Complainant that eye witness was not available in Mumbai for giving evidence as he was out of Mumbai frequently for his business activities, in the complaint it is nowhere pleaded that Complainant Ramesh Dani had paid cash of Rs.20,00,000/- being full and final payment to Haresh Mohanlal Joshi and Haresh Mohanlal Joshi issued receipt for the same in presence of the said eye witness. Therefore, the Complainant would have exercised due diligence and could have found out alleged eye-witness and could have tendered his affidavit of evidence at the proper stage. It is further observed that the alleged eye-witness Shailesh P. Jogi is resident of Kandivali (West), Mumbai; he is Estate Consultant; the Complainant is also resident of Bhoiwada, Bhuleshwar, Mumbai and thus, the Complainant could have found out the material witness earlier after due diligence was exercised as witness was not out of Mumbai continuously. Accordingly, the State Commission has held that the reason that the witness was not available at Mumbai cannot be accepted at this stage, more so when the evidence was closed by the Opponent on 18th March, 2013; the Complainant has filed synopsis of written arguments on 20th June, 2013 and even oral argument were partly heard on the application for permission to file affidavit of witness.

(2.) Having heard learned Counsel for the Petitioner, we are of the view that the Revision Petition is utterly misconceived.

(3.) At the outset, we may note that the Opposite Party had also filed an application praying for a direction to the Complainant to place on record the original receipt in question, alleged to have been issued by the Opposite Party while receiving, in cash, a sum of Rs.20 Lacs from the Complainant and to refer the same to an handwriting expert for opinion. The said application was also dismissed by the State Commission by the same order, under challenge in this Petition, inter-alia observing that the original receipt having already been filed by the Complainant on 28.12.2012, at that stage it was open to the Opposite Party to move for sending the same to a handwriting expert but no such prayer had been made at that stage. The application was dismissed on the ground that entertaining the application at such a belated stage, when final arguments were being heard, it would unnecessarily delay the disposal of the Complaint. The Revision Petition filed against the said order was dismissed by the Commission on 26.08.2014.