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Judgment
R.K. Agrawal, President Member
The present Revision Petition has been filed against the Impugned Order dated 27.08.2021 passed by the State Consumer Disputes Redressal Commission Maharashtra (hereinafter referred to as State Commission) in First Appeal No. A/19/1406, whereby the State Commission had allowed the Appeal filed by Rameshchandra Sadashiv Dimble and Mohan Chimalal Gujarathi, both Directors of Prabodh Artha Sanchay Private Limited (hereinafter referred to as the ‘Original Opposite Party Nos. 2 & 3 respectively) by setting aside the Order dated 30.09.2019 passed in Complaint No. 78 of 2018 by the Additional District Consumer Disputes Redressal Commission, Pune (for short “the District Commission”) against the Opposite Party No. 2 & 3 and modified as allowed only against Khushal Ratanshi Dharod (hereinafter referred to as the Original Opposite Party No.1). Vide Order dated 30.09.2019, the District Commission had partly allowed the Complaint and directed the Opposite Party Nos. 1, 2 & 3 to pay jointly and severally to the Complainant a sum of ₹2,03,235/- alongwith interest @12% p.a. from 14.07.2017 till realization, ₹25,000/- towards compensation for mental harassment together with ₹5,000/- as cost of litigation.
Succinctly put, the material facts arising out of the Complaint are that Geeta Kashyap Perty, Complainant/Respondent No. 3 herein, booked a Flat No. 101 in a Project previously known as Raindrops and presently known as Prabodh Divinity, located at Pisoli, Pune, to be developed by Khushal Ratanshi Dharod, Opposite Party No. 1. Agreement was executed between the Complainant and the Opposite Party No. 1 on 23.04.2012. As per terms of the Agreement the possession of the Flat was to be delivered by 23.04.2014 but the Opposite Party No. 1 could not complete the Project within stipulated period. On 11.02.2016, although the Flat was not in a habitable condition in the absence of drinking water and sewerage connection yet the Complainant took the physical possession of the Flat from the OP No.1 for carrying out the interior work in the Flat. The Complainant was making payment of the sale consideration to the Opposite Party No. 1 as and when demanded by it. On 13.03.2016, the Opposite Party No.1 called a meeting of the Flat purchasers and informed that some more work was pending and it would take some more time to complete the Project and sought balance amount alongwith maintenance and corpus fund. The Complainant paid ₹61,000/- as balance amount, ₹1,11,910/- towards Maintenance Charges and ₹1,00,000/- as Corpus fund to the Opposite Party No. 1 on 15.03.2016. The Opposite Party No. 1 transferred the ownership of the Project to Opposite Party Nos. 2 & 3 vide sale deed dated 24.03.2016. After transfer of ownership of the Project, the Opposite Party Nos. 2 & 3 demanded a sum of ₹3,03,235/- towards Maintenance Charges, Corpus Fund and MSEB charges on 31.01.2017. It was informed by the Complainant that the said charges she had already paid to the Opposite Party No. 1 and nothing is pending against her. But Opposite Party No. 2 & 3 informed her that the said amount has not been transferred to them by the Opposite Party No. 1 and she should approach the Opposite Party No. 1 for refund of the same. Ultimately, under duress, the Complainant had deposited ₹3,03,235/- towards Maintenance Charges, Corpus Fund and MSEB charges with the Opposite Party Nos. 2 & 3. Alleging deficiency in service on the part of the Opposite Parties, a Consumer Complaint was filed before the District Commission seeking refund of excess amount of ₹2,11,910/- paid towards maintenance charges and corpus fund, ₹62,219/- interest plus ₹4,49,683/- as reimbursement of HRA plus ₹25,000/- cost of suit, amounting to ₹7,48,812/- alongwith compensation of ₹1,00,000/- from Opposite Party No. 1, Mr. Khushal R. Rathod and seeking ₹25,000/- as cost of suit alongwith compensation of ₹20,000/- from Opposite Party Nos. 2 & 3, Mr. Ramchandra S. Dimble and Mr. Mohan C. Gujarati, Director and Chairman of Prabodh Artha Sanchay Pvt. Ltd.
Upon consideration of facts and circumstances of the case, the District Commission, vide Order dated 30.09.2019, partly allowed the Complaint and directed the Opposite Party Nos. 1, 2 & 3 to pay jointly and severally to the Complainant a sum of ₹2,03,235/- alongwith interest @12% p.a. from 14.07.2017 till realization, ₹25,000/- towards compensation for mental harassment together with ₹5,000/- as cost of litigation.
Assailing the Order dated 30.09.2019 passed by the District Commission, the Opposite Party Nos. 2 & 3, filed First Appeal before the State Commission. The State Commission vide Impugned Order dated 27.08.2021 allowed the Appeal in aforementioned terms by observing as under:-
“13. The Learned advocate bought before the commission that, the learned Additional District Consumer Disputes Redressal Forum (now commission) granted relief to the original complainant, which was not prayed for. Also, it was not legal to directly implead the directors of the company and holding them personally liable without impleading the company as party. The said submissions are accepted as per the ratio laid down by Hon’ble Supreme Court of India in, Sunil Bharti Mittal vs CBI, Criminal Appeal No. 34 of 2015 decided on 9 January 2015 and the three-bench laid down that “a director can only be prosecuted if there is sufficient evidence of his active role coupled with criminal intent or where the statutory regime itself attracts the doctrine of vicarious liability, by specifically incorporating such a provision”. What is observed in the present appeal and the complaint below before Additional District Forum, that in view of the financial inability of the promotor builder, the financer company took over and entered the shoes of the promotor to complete the incomplete project and thus it was only possible to deliver possession of flats to the member-residents of the scheme by the involvement of the financer company in the role of promotor. The learned advocate for appellants also invited the attention of the commission that none of the other residents of the scheme have filed similar complaints against the appellants. Similarly, the respondent no.2, the original opposite party no.1 did not prefer appeal against the impugned order.
The learned Additional District Consumer Disputes Redressal Forum erred in allowing the directors as opposite parties in personal capacity. Also, the learned District Forum granted relief to the complainant which was not prayed for. Hence the order passed by the forum is not just and legal liable to set aside. The commission thinks it proper to exonerate the appellants from the complaint before the Additional District Forum. Considering the discussion above, the appeal filed by the appellants is allowed and the order against the appellants is set aside; modified as allowed against respondent no.2 only.”
Being aggrieved, challenging the Impugned Order dated 27.08.2021 passed by the State Commission, the Petitioner/Opposite Party No. 1, Khushal ratanshi Dharod, has filed the present Revision Petitions before this Commission.
Mr. Rishabh Jain, learned Counsel appearing on behalf of the Petitioner / Opposite Party No. 1, submitted that State Commission had failed to appreciate that the Respondent No. 1 & 2 had taken over the entire housing Project launched by the Petitioner by sale deed on as is where is basis. It was abundantly clear from the sale-deed that there was no outstanding balance amount from the Complainant/Respondent No. 3 and this fact was within the knowledge of the Respondent No.1 & 2. Despite that Respondent No. 1 & 2 had received the excess amount from the Complainant/Respondent No. 3, therefore, Petitioner is not liable to refund the amount to the Complainant / Respondent No.3 rather, Respondent Nos.1 & 2 are liable to pay the amount awarded by the District Commission. The contract between the Petitioner and the Respondent No.3/Complainant has come to end after transferring the assets and liabilities of the housing Project in favour of the Respondent 1 & 2 by way of executing sale-deed dated 24.05.2016. The Respondent No. 3 / Complainant had paid the excess amount demanded by the Respondent No.1 & 2 under protest. The State Commission has erred while absolving the Respondent No.1 & 2 from paying the amount awarded by the District Commission and saddled the Petitioner to pay the amount awarded by the District Commission.
Per contra, Mr. Sushil Nimbkar, learned Counsel appearing on behalf of the Opposite Party No. 2 & 3/Respondent No. 1 & 2 herein, supported the Impugned Order 27.08.2021 passed by the State Commission as according to him the State Commission has passed a well-reasoned order which is based on a correct and rightful appreciation of evidence and material available on record and does not call for any interference.
I have heard Mr. Rishabh Jain, learned Counsel appearing on behalf of the Opposite Party No.3/Petitioner herein, Mr. Sushil Nimbkar, learned Counsel appearing on behalf of the Opposite Party Nos. 2 & 3/Respondent No.1 & 2, perused the material available on record and have given a thoughtful consideration to the various pleas raised by them.
The submissions made by Mr. Rishabh Jain, learned Counsel for the Petitioner, cannot be accepted for the simple reason that the State Commission after applying the ratio of the Judgment passed by the Hon’ble Supreme Court in ‘Sunil Bharti Mittal vs CBI, [Criminal Appeal No. 34 of 2015 decided on 9 January 2015] wherein it has been laid down that “a director can only be prosecuted if there is sufficient evidence of his active role coupled with criminal intent or where the statutory regime itself attracts the doctrine of vicarious liability, by specifically incorporating such a provision”.’ had rightly observed that the Additional District Consumer Disputes Redressal Forum erred in allowing the Directors as Opposite Parties in personal capacity and also the District Forum granted the relief to the Complainant which was not prayed for. I do not find any ground to interfere with the well-reasoned order passed by the State Commission. Even otherwise, it is well settled by the Hon’ble Supreme Court in ‘Sunil Kumar Maity vs. State Bank of India & Anr.’ [Civil Appeal No. 432 / 2022 Order dated 21.01.2022] that the Revisional Jurisdiction of this Commission under section 21(b) of the Consumer Protection Act, 1986 (under section 58(b) of the Consumer Protection Act, 2019) is extremely limited and this Commission cannot set aside the Order passed by the State Commission in Revisional Jurisdiction until and unless there is any illegality, material irregularity or jurisdictional error in the Order passed by the State Commission. For ready reference, relevant paragraph of the Judgment passed by the Hon’ble Supreme Court in ‘Sunil Kumar Maity vs. State Bank of India & Anr.’ [supra] is reproduced as under:-
“9. It is needless to say 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. In the instant case, the National Commission itself had exceeded its revisional jurisdiction by calling for the report from the respondent-bank and solely relying upon such report, had come to the conclusion that the two fora below had erred in not undertaking the requisite in-depth appraisal of the case that was required. .....”
For the reasons stated hereinabove, I do not find any good ground to interfere with the well-reasoned Order passed by the State Commission. Consequently, the Revision Petition fails and is hereby dismissed. Keeping in view the facts and circumstances of the case, there shall be no Order as to costs.