Kanayo Parmanand Merani vs M/S. Pediyar Associates And 5 Ors.

This revision petition has been filed by the petitioner/complainant Kanayo Parmanand Merani challenging the order dated 26.08.2015 passed by the State Consumer Disputes Redressal Commission, Maharashtra, (in short 'the State Commission') in FA Nos.A/13/355 & A/13/388..

Brief facts of the case are that respondent No.2/opposite party Society entered into an agreement with respondent No.1/opposite party no.1 Builder Developer for development of land. As per the development agreement Opposite party No.1 was entitled to construct 17 flats & stilt for parking by utilising TDR, FSI available. Opposite party No.1 was legally authorised to enter into an agreement with new purchasers as per the terms and conditions arrived at between opposite party no.1 and opposite party no.2. Complainant and OP No.1 entered into agreement to sell dated 30.5.2007 with respect to flat No.504 on 5th floor in additional floors constructed on existing building of said society. Complainant has paid entire consideration of flat i.e. Rs.52 lakhs and Possession has also been delivered to complainant. But opposite party No.1 failed to give the possession of stilt parking since the same was not ready. Opposite party No.1 had allowed complainant to use one stilt parking but opposite party no.1 in collusion with opposite party No.4 removed and damaged the car of complainant that was parked in allotted B wing stilt car parking. Opposite party No.1 has not handed over stilt parking. Opposite party No.1 has not obtained occupation certificate. Opposite party No.2 has not made complainant member of the society and has not issued Share Certificate in respect of the said flat despite complainant having paid the membership fee.

The complainant filed a consumer complaint before the District Forum at Bandra, which was allowed vide its order dated 07.10.2013 as under:-

"1. The complaint is partly allowed.

The service provided by the opposite party no.1 are declared deficient.

The Forum orders the OP No.1 to compensate the complainant to the tune of Rs.5 lakhs within three months if not then 9% interest will be charged on defaulted amount.

The opposite party no.1 to pay Rs.25,000/- towards cost of the suit.

All the other allegations against the OPs shall stand cancelled."

Aggrieved with the above order of the District Forum, the complainant /petitioner filed an appeal bearing no.A/13/355 & A/13/388 before the State Commission, which was dismissed vide its order dated 26.08.2015.

Hence the present revision petition.

Heard the leaned counsel for the parties and perused the record. None appeared for respondent no.3 even after service of notice.

Learned counsel for the petitioner/complainant stated that even though the State Commission has found that allotment of stilt parking was the part of the agreement, but the State Commission has not passed the order for allotting the stilt parking to the complainant. The State Commission has also not passed any order for making the complainant as member of the society. It was stated by the learned counsel for the petitioner that the District Forum has found as per the provisions of the Development Rules for the Brahain Mumbai, Municipal Corporation that there is a provision to provide the car parking for the flat having an area more than 70 sq. mt. and under this Rule, the complainant is entitled to get the car parking. However, the opposite party has not provided the same. Thus, clearly the complainant deserved order that a car parking be provided to the complainant.

On the other hand, learned counsel for the respondent No.1 stated that both the fora below have given concurrent findings and therefore, the scope under the revision petition is quite limited. The State Commission has recorded the following in its order:-

"18. During the course of hearing, learned counsel for the builder developer has stated that builder developer is ready and willing to pay the amount of Rs.5,00,000/- to the complainant. Now the complainant is ready to accept the awarded amount for the parking space. However, learned counsel for the builder developer stated that they are ready to pay the amount but in instalments."

Learned counsel argued that it is very clear from the above recording of the State Commission that the complainant had also agreed to take the compensation of Rs.5,00,000/- for the parking space. Thus, the complainant now cannot again revert back to demand of his stilt parking.

Learned counsel for respondent Nos.2, 4 to 6 also stated and agreed with the arguments of the learned counsel for respondent No.1. It was also stated that the complaint was highly time barred, however, both the fora below have not considered this aspect. It was also stated that the matter relating to his membership of the society was already decided by the Registrar Co-operative Societies and therefore, this matter cannot be raised in the revision petition.

I have carefully considered the arguments advanced by the learned counsel for the parties and examined the record. Both the fora below have given concurrent finding regarding non-availability of parking space and have ordered concurrently that complainant needs to be compensated for car parking by awarding a compensation of Rs.5,00,000/-. This Commission cannot reassess the fact against the concurrent finding given by the fora below as held by the Hon'ble Supreme court in Mrs. Rubi (Chandra) Dutta vs. United India Insurance Company, 2011 (3) Scale 654 as under:-

"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."

Moreover, it is seen from the observation of the State Commission (as mentioned above) that the opposite party was willing to pay Rs.5,00,000/- to the complainant and the complainant was also willing to accept that amount for car parking. However, the agreement could not materialise because the builder/developer wanted to pay in instalments and that is why the State Commission dismissed both appeals, one filed by the complainant and other filed by the opposite party no.1. In these circumstances, I do not find any illegality, material irregularity or jurisdictional error in the order dated 26.08.2015 of the State Commission which calls for any interference from this Commission. Accordingly, the revision petition No. 2793 of 2015 is dismissed.