G.S. Solanki vs Mahesh Kumar Mishra

This revision petition has been filed by the petitioner G.S.Solanki against the order dated 17.04.2015 of the State Consumer Disputes Redressal Commission, Chhattisgarh, (in short 'the State Commission') passed in FA/14/441.

Brief facts of the case are that the respondent/complainant booked a residential unit with the petitioner/opposite party, G.S.Solanki by paying Rs.50,000/- as the booking amount for the flat. It was alleged by the complainant that there was no progress in construction and there was no response from the opposite party, hence, the complainant asked for refund of his booking amount of Rs.50,000/-. However, opposite party did not refund the amount. Complainant filed a consumer complaint bearing No.18 of 2014 before the District Consumer Disputes Redressal Forum, Raipur, (in short 'the District Forum'), which was allowed by the District Forum vide its order dated 29.05.2014 as under:-

"16. Therefore, on the basis of above discussion, the complaint of the complainant submitted u/s 12 of Consumer Protection Act, 1986 is accepted and it is ordered that the following amount should be paid within one month of the date of order:-

(a) The opposite party shall pay Rs.50,000/- (Fifty thousand rupees) to the complainant along with simple annual interest of 12 percent from 26.10.2011 upto the date of payment.

(b) The opposite party shall pay Rs.20,000/- (Twenty thousand rupees) to the complainant for the mental agony due to above deed.

(c) The opposite party shall pay Rs.2,000/- (Two thousand rupees) to the complainant as a fee for counsel and suit-cost."

Aggrieved by the above order of the District Forum, the opposite party preferred an appeal before the State Commission bearing No.FA/14/441 and the same was dismissed vide order dated 17.04.2015 of the State Commission.

Hence the present revision petition.

Heard the learned counsel for both the parties and perused the record.

Learned counsel for the petitioner stated that complainant asked for refund after six months from the date of payment of the booking amount. There was an agreement between the parties and according to this agreement if three instalments are not paid by the complainant, an amount of Rs.20,000/- shall be forfeited from his deposit. It was argued by the learned counsel that both the fora below have ignored this agreement and ordered the refund of total booking amount. Moreover, a compensation of Rs.20,000/- has also been awarded in favour of the complainant though he was a defaulter by not paying three instalments.

On the other hand, learned counsel for the respondent/complainant stated that there was no builder-buyers agreement signed between the parties and the complainant had only filled the application form for the unit. It was clearly stated in the application form itself that the opposite party has not received the permission of municipal authority and the building shall be constructed after receiving permission from the municipal authority. As there was no progress, the complainant then sought refund of the booking amount because the complainant was not sure how much time is it going to take for construction. As there was no builder-buyers agreement signed between the parties, the opposite party is not entitled to forfeit any amount from the booking amount and the complainant is entitled to receive the full booking amount. For a refund of Rs.50,000/-, the complainant is being harassed for 7-8 years and both the fora below have given concurrent finding in favour of the complainant. The opposite party is still trying to stretch the litigation and has filed the present revision petition without any basis. The scope under the revision petition is very limited when the fora below have given concurrent finding.

I have considered the arguments advanced by both the learned counsel for the parties and have examined the material on record. The agreement being referred to by the learned counsel for the petitioner is not available on record. Learned counsel for the petitioner stated that this agreement was filed before the District Forum. There are clear instructions that when revision petition is filed before this Commission, all the relevant documents are required to be filed along with revision petition. If this agreement was the sole basis for filing the present revision petition, its copy should have been filed by the learned counsel for the petitioner. In the absence of the copy of the alleged agreement on record, the same cannot be considered and particularly when the complainant is denying the existence of any such agreement.

Both the fora below have given concurrent finding of facts that Rs.50,000/- was paid by the complainant to the opposite party/petitioner and before paying any instalments he asked for refund of the booking amount. No question of law seems to be involved in the matter because only point of law that could have arisen was relating to the clause of forfeiture in the agreement. As the agreement is not on record, assertion of the learned counsel for the petitioner cannot be accepted. In such situation, the scope under the revision petition is very limited for reassessing the facts as held by the Hon'ble Supreme Court in the following cases:-

(1) Mrs. Rubi (Chandra) Dutta vs. United India Insurance Company, 2011 (3) Scale 654, wherein the following has been observed:-

"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 that 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 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 finding of two fora."

(2) Lourdes Society Snehanjali Girls Hostel and Ors. Vs. H&R Johnson (India) Ltd. and others, (2016) 8 Supreme Court Cases 286, wherein, the Hon'ble Supreme Court has held the following:

"23. 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."

Both the authoritative judgments of Hon'ble Supreme Court clearly place restriction on this Commission to reassess the facts as confirmed by the fora below. In this situation the scope under the revision petition is quite limited and the petitioner has failed to prove any miscarriage of justice against the petitioner by the orders of the fora below except for the order regarding compensation. The fora below have ordered to pay a compensation of Rs.20,000/- over and above 12% p.a. interest which is also a form of compensation. Therefore, I deem it appropriate to reduce the compensation from Rs.20,000/- to Rs.8,000/- (rupees eight thousand only).

Based on the above discussion, the revision petition is partly allowed to the extent that the compensation of Rs.20,000/- as awarded by the District Forum, shall be reduced to Rs.8,000/- only. Rest of the order of the District Forum regarding refund of Rs.50,000/- along with 12% p.a. interest and cost of Rs.2,000/- remains unchanged. Petitioner/opposite party to comply with this order within a period of 45 days, failing which, an additional interest of 3% p.a. shall be payable by the opposite party/petitioner on the total amount payable to the complainant from the date of this order till actual payment.