Gopikishan vs Rajesh

Dr. Inder Jit Singh, Presiding Member

The present Revision Petition (RP) has been filed by the Petitioner against Respondent as detailed above, under section 21 (b) of Consumer Protection Act 1986, against the order dated 30.09.2019 of the State Consumer Disputes Redressal Commission Maharashtra (hereinafter referred to as the ‘State Commission’), in First Appeal (FA) No.320 of 2019 in which order dated 09.01.2019 of Aurangabad District Consumer Disputes Redressal Forum (hereinafter referred to as District Forum) in Consumer Complaint (CC) no. 433 of 2018 was challenged, inter alia praying for setting aside the order dated 30.09.2019 of the State Commission.

While the Revision Petitioner (hereinafter also referred to as Complainant) was Respondent and the Respondent (hereinafter also referred to as OP) was Appellant in the said FA No. 320/2019 before the State Commission, the Revision Petitioner was Complainant and Respondent was OP before the District Forum in the CC no. 433 of 2018. Notice was issued to the Respondent on  05.03.2020.  RP has been filed with a delay of 57 days.  Delay in filing the RP is condoned after considering the reasons for delay / grounds of condonation stated in condonation of delay application.

Brief facts of the case, as emerged from the RP, Order of the State Commission, Order of the District Forum and other case records are that complainant sold his old house of his village and deposited that amount with the bank in fixed deposit.  The complainant purchased two plots of 600 sq.ft. area in Mukundwadi area for building of house and enquired with Dipak Patni, owner of his house regarding a builder for construction of house.  He introduced the complainant with his friend Rajesh Shashikant Trivedi, the OP.  There was meeting with OP and in the said meeting, there was a contract between the parties for building of two houses for consideration of Rs.5,51,000/-.  As per the said contract, OP agreed to build two houses with basic amenities within two months.  Complainant was required to pay the amount in instalments.  The OP carried out construction of the slab and brick construction work and suddenly stopped construction work.  When the complainant enquired, the OP replied that due to rainy season, there is no road for approaching to labor and work would be commenced in few days.  Even after few days, the OP did not commence work of house and despite making several requests, the OP did not complete the construction work  Even the OP has not maintained the quality of construction and expenditure of Rs.2 to 2.25 lacs has been incurred upon it.  The OP has taken excess amount of Rs.4.25 lacs from the complainant.  The complainant spent all the available amount with him.  Being aggrieved of the said act of the OP, the complainant filed CC before the District Forum and District Forum vide order dated 09.10.2019 partly allowed the complaint.  Being aggrieved, the OP filed an Appeal before the State Commission and the State Commission vide order dated 30.09.2019 partly allowed the Appeal.  Therefore, the Complainant is before the Commission now in the present RP.

Petitioner has challenged the said Order dated 30.09.2019 of the State Commission mainly on following grounds:

i. The State Commission did not take into consideration the complaint, construction agreement, evidence affidavit, reply in Appeal and documents filed on record by the Petitioner.

ii. The State Commission without quoting any justifiable reason decreased the compensation awarded by the District Forum.

iii. The Fora below failed to understand that incomplete construction with poor quality of material used needs even extra expenditure for making the premises inhabitable.

Vide application dated 26.09.2023, Mr. Kailas Gopikishan Darak, son / one of the Legal Heir of Petitioner Gopikishan Darak informed that Petitioner died on 17.04.2020 and following are the Legal Heirs of the deceased Petitioner:

a.  Asha w/o Gopalkishan Darak died on 19.12.2022

b.  Mrs. Sangeeta Suresh Mundada died on 16.07.2020

c.  Kailas s/o Gopikishan Darak ( son)

d.  Nilesh s/o Gopalkishan Darak ( son)

Vide said application, it was requested to implead the LRs of Petitioner by condoning the delay in filing application for impleadment.  After considering the said application, the request is allowed and the above stated LRs of deceased Petitioner are impleaded as Petitioners in the present RP.

Heard Mr. Kailash Gopikishan Darak, Legal Heir of the Petitioner.  The respondent was proceeded ex parte since he failed to appear on many dates.  The Legal Heir of the Petitioner argued that as per the contract, the OP agreed to build two houses with basic amenities within two months and complainant under the agreement was under obligation to pay the amount in instalments.  The complainant has paid total amount of Rs. 4.25 lacs to the OP on various dates but OP did not perform the work as per the contract and has not completed the construction work.  Even the OP did not maintain the quality in construction.

District Forum has partly allowed the complaint, directing the OP to pay an amount of Rs.2.70 lacs from 15.03.2018 alongwith interest @ 9% and compensation of Rs.40,000/- towards mental agony and litigation cost of Rs.5000/-. State Commission partly allowing the appeal filed by the OP, modified the order of District Forum by directing the OP to refund amount of Rs.1.44 lacs to Complainant with interest @ 9% p.a. from the date of filing the Consumer Complaint i.e. 19.09.2018, keeping the remaining part of the order of District Forum i.e. with respect to compensation and litigation cost intact.  In this regard, the relevant paras of order of State Commission are reproduced below :

“23.    The District Forum concluded that there is deficiency in service on the part of opponent and allowed the complaint, thereby directing the opponent to pay Rs.2,70,000/-. The District Forum has arrived to this amount on the  basis of the report of Yashodhan Pathak an architect who estimated amount which is required to complete the structure. The complaint had demanded the difference amount i.e. amount he paid   (Rs.4,25,000) deducting the valuation of the work done, from the evidence adduced by the complainant, the valuation of work done come to Rs.2,25,000/-.  However, the District Forum failed to appreciate  that, the complainant was to pay total amount of Rs.5,51,000/- towards the estimated construction cost to opponent.  To complete the work requires Rs.2,70,000/-.  More precisely, it can be said that, the complainant has got the work done of Rs.2,81,000/-. Therefore, the complainant is entitled for the difference amount i.e. the amount which he has actually paid to opponent i.e. Rs.4,25,000/- on deducting the cost of work done of Rs.2,81,000/- which will come to Rs.1,44,000/-.

24) The District Forum further directed to pay interest on the amount to be returned by the opponent as 9% from date of contract i.e. 15/03/2018. However, the District Forum has not specifically clarified as to whether, interest is payable per annum or per month. It reveals from the pleadings in the complaint that the contact was executed on 15/03/2018 and opponent was to complete the work within two months. Therefore it is not justifiable to award interest from the date of contract itself. Instead it is justifiable to award the interest from the date of filing of the complaint, that it is the point when complainant has presented his case for adjudication. We therefore require to clarify that the opponent is required to pay the 9% interest per annum from the date of filing the complaint. We do not found necessity to interfere with the directions of the District Forum on the point of compensation awarded for mental agony and litigation cost. We therefore, answer the points accordingly and we pass following order.”

We have carefully gone through the orders of the State Commission.  It has given a well-reasoned order.  In this case, there are concurrent findings of both the Fora below.  As was held by the Hon’ble Supreme Court in Rubi Chandra Dutta Vs. United India Insurance Co. Ltd. [(2011) 11 SCC 269] that the scope in a Revision Petition is limited. Such powers can be exercised only if there is some prima facie jurisdictional error appearing in the impugned order. In Sunil Kumar Maity Vs. State Bank of India & Ors. [AIR (2022) SC 577]  held that “the revisional jurisdiction of the National Commission under Section 21(b) of the said Act is extremely limited. It should be exercised only in case as contemplated within the parameters specified in the said provision, namely when it appears to the National Commission that the State Commission had exercised a jurisdiction not vested in it by law, or had failed to exercise jurisdiction so vested, or had acted in the exercise of its jurisdiction illegally or with material irregularity.” We find no illegality or material irregularity or jurisdictional error in the order of the State Commission, hence the same is upheld.  Accordingly, the Revision Petition is dismissed.

The pending IAs in the case, if any, also stand disposed off.