Chhattisgarh Grih Nirman Mandal vs Sunita Gupta

Subhash Chandra, Presiding Member

This revision petition under section 21 of the Consumer Protection Act, 1986 (in short, the ‘Act’) assails the order of the State Consumer Disputes Redressal Commission, Chhattisgarh, Raipur (in short, ‘State Commission’) in Appeal No. 341 of 2015 dated 16.02.2016 arising out of order dated 14.08.2014 of the District Consumer Disputes Redressal Forum, Durg (in short, ‘District Forum’) in Complaint No. 14/226.

Briefly stated, the facts of the case, as stated by the petitioner, are that it had advertised the sale of houses for Economically Weaker Sections (EWS) in World Bank Colony, Kurud at a price of Rs 3,50,000/-. A booking amount of Rs 200/- was prescribed. The respondent was allotted house no. EWS 1499 by draw of lots on payment of registration fees of Rs 35,000/-. A sum of  Rs 3,33,000/- including the registration amount was paid by respondent after taking a loan of Rs 2,88,000/- from the Bank. The balance of Rs 17,000/- was to be paid at the time of possession. However, as the construction was incomplete and alleged to be of poor quality, the respondent approached the District Forum and prayed that the necessary repairs be completed within 2 months and the possession be given by February 2012 along with compensation as interest at 18% till date of possession, Rs 50,000/- towards mental harassment and Rs 10,000/- for litigation cost. The complaint was resisted by the petitioner and it was stated that there were 100 houses to be constructed. On account of delays by the contractor entrusted with the work, the contract was cancelled and the process of appointing a fresh contractor had taken time as the rates quoted were high. It was stated that the work would be completed within 6 months but there was no provision for a boundary wall for the house. It was also stated that the final rate would be fixed and possession handed over on payment of the balance amount. It was denied that there was any deficiency in service or unfair trade practice.

The District Forum allowed the complaint filed by the respondents and held that:

The complaint has argued that he has paid all the instalments and reconstruction of the house was to be completed up to October 2012 but within the time period the construction of the house has not been done which is clear from Annexure A-1 that up to what should be the construction has been done and it seems that within time period after the construction the house will be completed but the OP has not done this and because of this the complainant has suffered mental harassment for which he has demanded Rs. 50,000 which is not excessive. From the perusal of the complaint it is clear that the OP has not completed the work in the time and house is not in the condition to reside in. In fact, as per Annexure 1 the fourth instalment was the last instalment and in the same way 29.02.2012 the construction should have been completed. Therefore we come to the conclusion that OP has not constructed the house of good quality nor has given the possession and has committed deficiency in service and unfair trade practice.

Therefore on the basis of the above discussion we allow the complaint of the complainant and direct the OP that within 2 months the following amount to be paid:

A.   The OP will give possession of the house to the complainant after repairing it and completing the construction work

B.   The OP if within the time February 2012 is not able to give the possession then the amount of Rs 2,88,000/- which is the loan amount is to be paid along with interest at 9%

C.  If the OP doesn’t pay the said amount within the time limit then he will pay interest at 9% from the date of order till the date of payment

D.  The OP will pay the amount of Rs.50,000/- for mental harassment

E.   Cost of the suit Rs 10,000/- will also be paid to the complainant by the OP.

The petitioner herein had approached the State Commission in Appeal No. 341 of 2015 which was decided on 16.02.20 and it was held that

In this case complainant has paid the entire amount and OP has taken the interest @ 10% from the complainant and he is stating that they are giving the interest @ 7.50% to the complainant and when OP is taking 10% interest annually from the complaint and delay in constructing the house is done by the OP then in this condition if complainant is demanding the amount back then on the said amount he is entitled for interest on the same rate on which the appellant has taken from the complaint. In this case District Forum has awarded the interest @ 9% on the loan which is correct in the circumstances of the case

In this case complainant has paid the amount which was demanded by the OP and the complainant has taken the loan and has paid to the OP. On the said loan the complainant is paying the interest to the bank. Looking to the condition the District Forum has paid the interest at 9% to the complainant which is totally correct. But District Forum has awarded the amount of compensation of Rs 50,000 which is not correct because District Forum has awarded the interest on the loan and looking to that the amount for mental harassment is not correct. In the same way the amount of cost of the case being awarded is Rs 10,000 which is excessive looking to the circumstances of the case. In our view cost of Rs 3000 is correct.

On the basis of above discussion the appeal filed by the OP, CG Housing Board is partly admitted and District Forum has awarded the amount of Rs 50,000 for mental harassment which is set aside. In the same way the amount of cost will be payable Rs 3000 in place of Rs 10,000. District Forum has awarded other relief in A, B and C which is maintained and cost of this appeal Rs 2000 will be payable to the complainant by the OP.

I have heard the learned counsels for both the parties and perused the material on record carefully.

From the record it is evident that the petitioner has collected Rs 3,33,000/- towards the house which it allotted to the respondent and has failed to hand over possession in the time frame promised. The petitioner admits that the quality of construction was poor which is why he had terminated the contractor constructing the houses and has undertaken to rectify the errors. The State Commission in appeal has already set aside the amount awarded for mental harassment and reduced the litigation cost awarded by the District Forum. During arguments, the learned counsel for the petitioner limited his arguments to the rate of interest awarded by the fora below and argued that the rate of interest be reduced from 9% awarded to 7.50%. The learned counsel for the respondent contested this on the ground that the order of the State Commission was well reasoned and did not warrant any further interference by this Commission in view of the fact that the respondent was a member of the EWS.

This Commission, in exercise of its revisional jurisdiction, is not required to re-assess and re-appreciate the evidence on record when the findings of the lower fora are concurrent on facts. It can interfere with the concurrent findings of the fora below only on the grounds that the findings are either perverse or that the fora below have acted without jurisdiction. Findings can be concluded to be perverse only when they are based on either evidence that have not been produced or based on conjecture or surmises i.e. evidence which are either not part of the record or when material evidence on record is not considered. The power of this Commission to review under section 21 of the Act is therefore, limited to cases where some prima facie error appears in the impugned order. Different interpretation of same sets of facts has been held to be not permissible by the Hon’ble Supreme Court.

The Hon’ble Supreme Court in Rubi (Chandra) Dutta vs United India Insurance Company (2011) 11 SCC 269 has held that:

“23. Also, it is to be noted that the revisional powers of the National Commission are derived from Section 21 (b) of the Act, under which the said power can be exercised only if there is some prima facie jurisdictional error appearing in the impugned order, and only then, may the same be set aside. In our considered opinion there was no jurisdictional error or miscarriage of justice, which could have warranted the National Commission to have taken a different view than what was taken by the two Forums. The decision of the National Commission rests not on the basis of some legal principle that was ignored by the Courts below, but on a different (and in our opinion, an erroneous) interpretation of the same set of facts. This is not the manner in which revisional powers should be invoked. In this view of the matter, we are of the considered opinion that the jurisdiction conferred on the National Commission under Section 21 (b) of the Act has been transgressed. It was not a case where such a view could have been taken by setting aside the concurrent findings of two Fora.”

Reiterating this principle, the Hon’ble Supreme Court in Lourdes Society Snehanjali Girls Hostel and Ors vs H & R Johnson (India) Ltd., and Ors  (2016) 8 Supreme Court Case 286 held:

“17. The National Commission has to exercise the jurisdiction vested in it only if the State Commission or the District Forum has either failed to exercise their jurisdiction or exercised when the same was not vested in them or exceeded their jurisdiction by acting illegally or with material irregularity. In the instant case, the National Commission has certainly exceeded its jurisdiction by setting aside the concurrent finding of fact recorded in the order passed by the State Commission which is based upon valid and cogent reasons.”

Again, the Hon’ble Supreme Court in T Ramalingeswara Rao (Dead) Through LRs and Ors vs N Madhava Rao and Ors, dated 05.04.2019 held as under:

“12. When the two Courts below have recorded concurrent findings of fact against the Plaintiffs, which are based on appreciation of facts and evidence, in our view, such findings being concurrent in nature are binding on the High court. It is only when such findings are found to be against any provision of law or against the pleading or evidence or are found to be perverse, a case for interference may call for by the High Court in its second appellate jurisdiction.”

From the records it is apparent that the petitioner has challenged the impugned order on the very same grounds which were raised before the District Forum as well as the State Commission in appeal. The concurrent findings on facts of these two foras are based on evidences led by the parties and documents on record. The present revision petition is therefore an attempt by the petitioner to urge this Commission to re-assess, re-appreciate the evidence which cannot be done in revisional jurisdiction. Learned counsel for the petitioner has failed to show that the findings in the impugned order are perverse.

The foras below have pronounced orders which are detailed and have dealt with all the contentions of the petitioner. It is seen that the orders of these fora are based on evidence on record.  In view of the settled proposition of law that where two interpretation of evidence are possible, concurrent findings based on evidence have to be accepted and such findings cannot be substituted in revisional jurisdiction, this petition is liable to fail.

I, therefore, find no illegality or infirmity or perversity in the impugned order warranting any interference of this Commission. The present revision petition is, therefore, found to be without merits and is accordingly dismissed. The order of the State Commission is affirmed.