Dears Farm vs Harry Joseph

Subhash Chandra, J

This revision petition under section 21 of the Consumer Protection Act, 1986 (in short, the ‘Act’) assails order dated 12.10.2009 of the State Consumer Dispute Redressal Commission, Chattisgarh, Raipur (in short, ‘State Commission’) dismissing First Appeal No. 469 of 2008.

In brief, the facts of the case are that respondent in response to an advertisement by the petitioner, who is a colonizer and builder, booked a plot in Nehru Nagar, Rajnandgaon on 15.09.1999 by depositing Rs 5,000/-. He thereafter paid Rs 24,000/- through 12 monthly installments of Rs 2,000/- and another lumpsum installment of Rs 20,000/- on 20.04.2002. However, as no sale deed was executed, the respondent issued a legal notice and thereafter filed a complaint before the District Consumer Disputes Redressal Forum, Rajnandgaon (in short, ‘District Forum’). The petitioner contends that the respondent failed to comply with the conditions of the booking and defaulted in payment of installments resulting in the cancellation of booking on 26.05.2002 with forfeiture of deposited amount. The District Forum allowed the complaint of the respondent. The petitioner approached the State Commission in appeal which came to be dismissed. This order is impugned before us.

We have heard the submissions of both the learned counsels for the parties and perused the records carefully.

The learned counsel for the revision petitioner argued that the State Commission erred in overlooking the fact that the respondent had paid his last installment in 2002 and gave the legal notice in 2007 after 5 years. He has also argued that the complaint dated 08.02.2008 was also barred by limitation and the District Forum should not have allowed it. It was also argued that the State Commission erred in overlooking the fact that the issue of a legal notice does not create any fresh cause of action. It was argued that as the respondent’s allotment was cancelled on the ground of default in making payments, there was no deficiency in service and hence the orders of the fora below were illegal and liable to be dismissed as not maintainable.

The learned counsel for the respondent on the other hand argued that the petitioner had advertised the sale of plots measuring 1500 sq ft at a cost of Rs 60,000/- with a schedule of payment in installments. The petitioner allotted him plot no. C 34. The fixing of the price of the plot at a cost of Rs 1,20,000/- was not disclosed in the advertisement nor was a time limit prescribed for payment according to the respondent. It was stated that only a balance of Rs 11,000/- remained to be paid and the District Forum had ordered that this sum be deposited with interest at 9% p.a. from 20.04.2002, the date the last installment of Rs 20,000/- was paid. It is denied that any letter dated 26.05.2002 from the petitioner directing forfeiture and cancellation of booking on the ground of default in making 3 consecutive payments was received. It is also argued that there was no such condition for forfeiture. The respondent argued that he had taken action to pay the balance Rs 11,000/- with interest amounting to Rs 18,565/- by way of a Banker’s cheque dated 17.02.2010 which was refused by the petitioner who refunded it on 04.03.2010. Reliance is placed on judgment of the Hon’ble Supreme Court in Meerut Development Authority Vs. Mukesh Kumar Gupta IV (2012) CPJ 12 (SC) to argue that the cause of action is still continuing and on Premier Homes Vs. Oliver Archibald Aranha & Anr. (2010) CPJ 16 (NC) where this Commission held that the cause of action is from the date of issue of legal notice. It is contended that since the plot had been allotted to him and the petitioner refused to accept the payment, he would continue to be a ‘consumer’ under the Act as held by this Commission in Commissioner, Municipal Council, Aabu-Parvat & Ors., vs Himmat Mal Tailor II (2009) CPJ 218 (NC). On the issue of the price, it is argued per this Commission’s order in AP Housing Board & Anr. Vs. K. Sri Hari Reddy II (2008) CPJ 169 (NC) that if a specific statement is made by the builder regarding price, it would be binding upon the builder failing which it would amount to deficiency in service.

In this case the State Commission’s order dated 05.07.2008 held that:

“10.    The appellant is bound by its advertisement for sale of plot in pursuance of which amount was deposited  by the complainant/ respondent. Only Rs.11,000/- were remained to be deposited, as per the rate mentioned in the said advertisement and as that amount was not deposited by the complainant/ respondent therefore, it would be prudent to direct the complainant to deposit that amount along with interest @ 9% per annum from the date when it has become due, i.e., when the last payment of Rs.20,000/- was made on 20.04.2002. So far as direction of the District Forum in respect of transfer of plot to the respondent/ complainant is concerned, we are unable to trace any fault in such direction.

Therefore, the appeal does not have much substance and it disposed of with the direction that the respondent will pay, within one month Rs.11,000/- along with interest @ 9% per annum from 20.04.2002 till the date of payment to the appellant herein, then the appellant will transfer the questioned plot to the respondent/ complainant within next one month from the date of deposit. If he will fail in transferring that plot then the complainant/ respondent may seek further directions from the District Forum in this regard. Thus, the appeal is disposed of. No order as to cost”.

The District Forum had earlier held as below:

“Ït is directed that the OP shall give possession of a developed plot of 30x50 = 1500 square feet in his Nehru Nagar Residential Colony, in which facilities of electricity, water, road and drainage is available within one and half month to the complainant and shall execute the sale deed and registration in favour of the complainant within one and half month after receiving the value of plot Rs.11,000/-. The complainant is also directed to pay Rs.11,000/- to the opposite party within fifteen days. The OP is directed to bear his own costs along with payment Rs.700/- as the complainant cost of litigation”.

There are thus concurrent findings of the fora below on the issues that have been agitated. The review petition has urged the same facts and arguments.

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. Interference with concurrent findings of the fora below is justified only on grounds that findings are either perverse or that the fora below have acted without jurisdiction. Perversity can be concluded in findings when they are based on either evidence that has not been produced or on conjectures/ 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 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 - (2011) 11 SCC 269 (supra), 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 SCC 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.”

The lower fora have pronounced detailed and reasoned orders. 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. Learned counsel for the petitioner has failed to show that the findings in the impugned order are perverse. The present revision petition is therefore an attempt by the petitioner to urge this Commission to re-assess and re-appreciate the evidence which cannot be done in revisional jurisdiction.

In view of the settled proposition of law that where two interpretations 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. We therefore, find no illegality or infirmity or perversity in the impugned order. The present revision petition is therefore, found to be without merits and is accordingly dismissed.