C. Venkata Rani vs B.S. Uma Maheswara Rao

This revision has been filed under section 21(b) of the Act 1986 in challenge to the Order dated 31.01.2010 in appeal no. 679 of 2010 and appeal no. 681 of 2010 and the Order dated 15.04.2011 in appeal no. 509 of 2010 passed by the State Commission arising out of the Order dated 26.03.2010 in complaint no. 637 of 2008 of the District Commission.

We have heard the learned counsel and have perused the material on record including inter alia the Order dated 26.03.2010 of the District Commission, the impugned Orders dated 31.01.2011 and dated 15.04.2011 of the State Commission and the petition.

The dispute relates to a flat bought by the complainant (the petitioner herein) from the opposite party (the respondent herein).

The District Commission partially allowed the complaint and directed the opposite party to complete the balance works and hand over the subject flat to the complainant within three months on receipt of Rs.63,450/- being half of the balance amount payable by the complainant. It further directed the complainant to deposit the other half of the balance amount of Rs.63,450/- with the District Commission within one month, for the opposite party to withdraw the same after delivery of possession of the flat to the complainant. It also directed the opposite party to pay the complainant Rs.4,000/- per month w.e.f. October 2008 till the handing over of possession of the flat towards loss of rent along with lumpsum compensation of Rs.50,000/- and cost of litigation of Rs.10,000/-.

The complainant filed appeal before the State Commission, being appeal no. 509 of 2010. The opposite party also filed appeal before the State Commission, being appeal no. 681 of 2010.

Another complaint against the same opposite party, being complaint no. 635 of 2008, was filed by the husband of the complaint herein. The Order of the District Commission in the said complaint no. 635 of 2008 was challenged by the opposite party before the State Commission by way of appeal no. 679 of 2010.

As such two appeals of the opposite party, one being appeal no. 681 of 2010 arising out of the District Commission's Order in complaint no. 637 of 2008 of the complaint herein and another being appeal no. 679 of 2010 arising out of the District Commission's Order in complaint no. 635 of 2008 of another complainant (the husband of the complainant herein), were filed before the State Commission, together with the complainant's appeal, being appeal no. 509 of 2010 arising out of the District Commission's Order in complaint no. 637 of 2008.

The learned counsel for both sides submit that the arguments on the said three appeals were heard by the State Commission together on the same date. The State Commission first pronounced its common Order in appeal no. 679 of 2010 and appeal no. 681 of 2010 on 31.01.2011. It then pronounced its Order in appeal no. 509 of 2010 subsequently on 15.04.2011. The complainant respondent in appeal no. 679 of 2010 (the husband of the complainant herein) as well as the opposite party appellant (the opposite party herein as well) are not agitating the matter further. The learned counsel submit that the matter between the two has been finally closed. The complainant in complaint no. 637 of 2008 (the appellant in appeal no. 509 of 2010) has filed the instant revision praying for setting aside the Order dated 31.01.2011 in appeal no. 679 of 2010 and appeal no. 681 of 2010 and the Order dated 15.04.2011 in appeal no. 509 of 2010.

Vide the operative portion of its common Order dated 31.01.2011 passed in appeal no. 679 of 2010 and appeal no. 681 of 2010 the State Commission had modified the award made by the District Commission to the extent of reducing the lumpsum compensation from Rs.50,000/- to Rs.25,000/-. The rest of the District Commission's Order had been confirmed. ("In the result, the appeals are allowed modifying the orders of the District Forum to the extent of relief of payment of Rs. 25,000/- to each of the complainants. The rest of the orders has been confirmed.")

The State Commission has subsequently passed its Order dated 15.04.2011 in appeal no. 509 of 2010. To appreciate the approach and manner in which the State Commission has passed the said Order, its relevant extract is quoted for perusal:

"Point for consideration is, whether the appeal has to be allowed by modifying the impugned order?

"Admittedly, the complainant had not filed her sale deed dated 04.02.2006 earlier and she filed a copy of the sale deed for the first time during the hearing of the appeal. No doubt, as per the recitals of the sale deed, out of the sale consideration of Rs.3,53,500/- a sum of Rs.1,10,000/- was paid and the remaining balance was agreed to be paid within three months from the date of sale deed. When the complainant failed to bring it to the notice except producing money receipts the District Forum could not consider the same. No doubt, out of a total sum of Rs.6,76,900/- towards the cost of the land and the construction cost of the flat, the complainant had paid a sum of Rs.6,60,000/- exclusive of the payments made for the transformer and solar equipment and the remaining balance by the complainant is only Rs.16,900/- as 13.07.2007. However, the respondent cannot be directed to receive only Rs.16,690/-. In the earlier appeals, FA 679/2010 and FA 681/2010, the evidence was re-appraised and found that the appellant/complainant has to pay a sum of Rs.63,450/-. In view of earlier orders, by means of separate order, the order cannot be revised. Any order passed subsequently amounts to review of the earlier order. It appears that the opposite party had collected the stamp duty and registration charges in advance for registering the sale deed and the amounts collected in advance were adjusted. After adjustment the appellant/complainant had to pay only Rs.16,690/-. Both sides have not filed any correct calculation either in the District Forum or in the State Commission during earlier appeals. It may be that the complainant had collected an excess amount of Rs.46,550/- from the appellant/complainant. We do not know whether the said amount was collected for providing extra amenities or facilities if at all the opposite parties had collected any excess amount. The appellant/complainant is at liberty to file a Civil Suit for recovery of the amount.

"The appeal is disposed of confirming the earlier order by making an observation that if the opposite parties have collected excess amount of Rs.46,550/- from the appellant, she may recover the same by filing a civil suit by invoking section 14 of the Limitation Act, 1963. Each party to bear its own cost."

The District Commission vide its Order dated 26.03.2010 had computed the balance amount payable by the complainant to be Rs.63,450/- + Rs.63,450/- = Rs.1,26,900/- (it had ordered that half thereof i.e. Rs.63,450/- be paid by the complainant to the opposite party and the balance half of Rs. 63,450/- be deposited with the District Commission).

The State Commission confirmed this computation while deciding the appeal no. 679 of 2010 and the appeal no. 681 of 2010 of the opposite party (the only modification made in the operative portion was to reduce the lumpsum compensation from Rs. 50,000/- to Rs. 25,000/-).

Then, in subsequently deciding appeal no. 509 of 2010 of the complainant, it made an observation that in the earlier appeals, i.e. appeal no. 679 of 2010 and appeal no. 681 of 2010, the evidence was re-appraised and it was found that the complainant had to pay a sum of Rs. 63,450/-. ("In the earlier appeals, FA 679/2010 and FA 681/2010, the evidence was re-appraised and found that the appellant/complainant has to pay a sum of Rs.63,450/-.") This is in contradiction to the operative portion of the Order dated 31.01.2011 in appeal no. 679 of 2010 and appeal no. 681 of 2010 wherein the District Commission's computation that the complainant herein had to pay Rs. 63,450/- + Rs. 63,450/- = Rs. 1,26,900/- was tacitly confirmed ("The rest of the orders has been confirmed."). It made an observation to the effect that the earlier Order cannot be revised. ("In view of earlier orders, by means of separate order, the order cannot be revised. Any order passed subsequently amounts to review of the earlier order."). It made another observation that the complainant had to pay only Rs.16,690/-. ("After adjustment the appellant/complainant had to pay only Rs.16,690/-.") It made a further observation that both sides had not filed correct calculation earlier in the District Forum or in the State Commission during the earlier appeals ("Both sides have not filed any correct calculation either in the District Forum or in the State Commission during earlier appeals."). And it disposed of the appeal by confirming its earlier Order in appeal no. 679 of 2010 and appeal no. 681 of 2010 with an observation that if the opposite party had collected excess amount of Rs. 46,550/- from the complainant, the complainant may recover the same by filing a civil suit by invoking Section 14 of The Limitation Act, 1963. ("The appeal is disposed of confirming the earlier order by making an observation that if the opposite parties have collected excess amount of Rs.46,550/- from the appellant, she may recover the same by filing a civil suit by invoking section 14 of the Limitation Act, 1963.").

It is quite evident that the State Commission's Order, in addition to being quite nebulously and somewhat incoherently articulated, suffers from manifest illogicalities and infirmities. Some of the concluding observations made by the State Commission betray out a kind of pathetic confusion for having drawn out two mutually inconsistent calculations regarding the outstanding balance amount payable by the complainant to the opposite party, one calculated in the earlier Order dated 31.01.2011 and the other in the later Order dated 15.04.2011. The expression of its inability to correct itself just because it had already made a mistake while passing the earlier Order was due to its own doing as the decision in the cross appeals (though heard together) was not pronounced together as it ought to have been. Rather than deciding the lis in its entirety, as it was required to do, it disposed it by confirming its self-admitted erroneous calculations in its earlier Order along with an observation that if an excess amount has been collected by the opposite party from the complainant, the complainant may recover the same by filing a civil suit by invoking Section 14 of The Limitation Act, 1963.

The appeal no. 681 of 2010 and the appeal no. 509 of 2010 were cross appeals filed by the opposite party and by the complainant against the same Order dated 26.03.2010 of the District Commission in complaint no. 637 of 2008. They were heard together [along with another appeal no. 679 of 2010 which related to an Order of the District Commission in another complaint, being complaint no. 635 of 2008 (in which the complainant was the husband of the complainant herein)]. The two complaints were filed separately, they had separate numbers (no. 637 of 2008 and no. 635 of 2008). It was required of the State Commission to decide the cross appeals, appeal no. 681 of 2010 and the appeal no. 509 of 2010, together, and not to create a situation in which the Order in appeal no. 681 of 2010 filed by the opposite party was pronounced earlier and the Order in appeal no. 509 of 2010 filed by the complainant was pronounced later even though both appeals were heard together on the same date.

In its Order of 15.04.2011 in appeal no. 509 of 2010 the State Commission has inter alia made observations in respect of the gaps and lacunae in respect of its own appraisal which it had undertaken in the Order of 31.01.2011 in appeal no. 679 of 2010 and appeal no. 681 of 2010 that was pronounced earlier on 31.01.2011 ("Both sides have not filed any correct calculation either in the District Forum or in the State Commission during earlier appeals."). As submitted by the learned counsel the matter between the parties in appeal no. 679 of 2010 has been finally closed, neither has the said matter been brought before this Commission by either side, as such this Commission is not making any comments in respect of appeal no. 679 of 2010. But in respect of appeal no. 681 of 2010 such observations by the State Commission raise a question on the correctness itself of the earlier appraisal made by it.

Section 3 of the Act 1986 provides an additional alternative remedy to consumers. When a consumer avails such remedy, the lis has to be decided in its entirety. It cannot be that while deciding the lis an absurd untenable situation is created and an observation made that one party may take its residual grievance/s if and as any to a civil court ("if the opposite parties have collected excess amount of Rs.46,550/- from the appellant, she may recover the same by filing a civil suit by invoking section 14 of the Limitation Act, 1963."). This approach is legally untenable. The dispute before it had to be decided by the forum as a whole, an inseparable part thereof could not have been relegated to a civil court in the way and manner as has been done by the State Commission.

The two basic issues in this dispute were, one , the amount actually due from the complainant to the opposite party as balance consideration towards the subject flat and, two , the just and equitable compensation for delay in offering possession of the subject flat. These two issues were required to be duly examined and unequivocally (and correctly) determined by the State Commission while deciding the cross appeals filed by the rival sides, together, in the normal wont, without creating an absurd untenable situation.

We have no hesitation in holding that the State Commission has exercised its jurisdiction illegally as well as with material irregularity.

It is also relevant to record here that the learned counsel for the two sides submit on respective instructions that during the course of the revisional proceedings before this Commission (i) possession of the subject flat has been delivered by the opposite party to the complainant and (ii) the complainant has paid an amount of Rs.16,690/- to the opposite party.

In the obtaining facts and situation, we deem it just and appropriate to make the following directions:

(i) The common Order dated 31.01.2011 passed by the State Commission in appeal no. 679 of 2010 and appeal no. 681 of 2010, in so far as it relates to appeal no. 681 of 2010 arising out of the District Commission's Order in complaint no. 637 of 2008, is set aside.

(ii) The Order dated 15.04.2011 passed by the State Commission in appeal no. 509 of 2010 arising out of the District Commission's Order in complaint no. 637 of 2008 is set aside.

(iii) The State Commission is requested to hear and decide, afresh, the two cross appeals, appeal no. 681 of 2010 and appeal no. 509 of 2010, together, on merit, as per the law; it shall not be influenced by any observation or inference made by this Commission in its instant critique as might be construed to have bearing on the merits of the case.

(iv) The parties shall appear before the State Commission on 07.01.2022.

(v) The State Commission's common Order dated 31.01.2011 in appeal no. 679 of 2010 and appeal no. 681 of 2010, in so far as it relates to appeal no. 679 of 2010 arising out of the District Commission's Order in complaint no. 635 of 2008, remains undisturbed with no comments of this Commission.

The Registry is requested to send a copy each of this Order to the parties in the petition and to their learned counsel immediately. The stenographer is also requested to upload this Order on the website of this Commission immediately.