AI Structured Summary
Not yet generated for this judgment
Judgment
Subhash Chandra, Presiding Member
This revision petition under section 21(b) of the Consumer Protection Act, 1986 (in short, the ‘Act’) assails the order dated 26.10.2016 in First Appeal No. 1149 of 2013 of the State Consumer Disputes Redressal Commission, Delhi (in short, the ‘State Commission’) dismissing the appeal filed by the petitioner against order dated 13.02.2013 of the District Consumer Disputes Redressal Forum (East), Delhi (in short, the ‘District Forum’). It also challenges Modification Order dated 13.09.2013 in CC no.333 and 338 of 2013 passed in Execution Application filed by the respondent.
The facts, in brief, according to the revision petitioner, are that the respondent/complainant had applied for membership of the holiday scheme of the petitioner/opposite party on 26.12.2004 and opted for the apartment type “Red Studio Apartment” category and submitted application form based on payment plan of 10% down payment with balance in 12 EMIs (total Rs 1,69,500/-). Membership certificate was issued on 12.01.2005 (Membership No. 40570) which mentioned the Apartment Type as “One Bed Room”. According to the petitioner, this was an inadvertent mistake as is evident from the fact that the membership rate for Red One Bed Room Apartment was Rs 2,23,500/-. The respondent/complainant made 6 EMI payments (Rs 93,228/- apart from the down payment of Rs 16,950/- (total Rs 76,278/-) but thereafter failed to pay the balance despite notices, all of which mentioned allotment type to be “Red Studio Apartment”. In March 2005, respondent/complainant raised the issue of the complimentary gift promised while booking which had not been provided. The petitioner offered adjustment of Rs 20,000/- and respondent undertook to pay the balance Rs 56,272/-.
Consumer complaint no. 133 of 2010 was filed before the District Forum by the respondent seeking restoration of original membership for Red One Bed Room Apartment and Rs 60,000/- spent on holidays along with Rs 1.07,500/-towards compensation and litigation costs. On 23.11.2012 the District Forum allowed the complaint on contest considering the settlement terms offered by the petitioner/opposite party incorporating reinstatement of Red Studio membership prospectively for 25 years along with complimentary stay in White and Blue seasons, food voucher for Rs 8,000/- and interest @ 9% on Rs 93,228/- from date of deposit to date of restoration of membership and compensation of Rs 30,000/-. After reinstatement of membership and repayment of Rs.93,228/- by the petitioner/opposite party as per this order, the District Forum, without notice, issued a Modification Order date 13.02.2013 allowing modification of the order of the District Forum and amended the order dated 23.11.2012 changing the apartment type to “One Bed Room Accommodation.”
The modification/corrigendum dated 13.02.2013 is alleged to be an order which was not in the scope and power of the District Forum and in clear violation of the judgment of the Hon’ble Supreme Court in LDA Vs. Shyam Kapoor, (2013) 2 SCC 754 dated 05.02.2013. It was submitted that the Hon’ble Supreme Court had held in Rajeev Hitendra Pathak Vs. Achyut Kashinath Karekar, (2011) 9 SCC 541 and Jyotsna Arvind Kumar Shah Vs. Bombay Hospital Trust, (1999) 4 SCC 325 that District Forum had no right to review its own orders.
Respondent/complainant filed an execution petition in Execution Case No. 333 of 2013 before the District Forum seeking compliance of orders dated 23.11.2012. On 18.04.2013 Execution Case No. 338/2013 was filed by respondent seeking compliance of modified/corrigendum order dated 13.09.2013. Petitioner/opposite party also filed First Appeal No. 1149/2013 before the State Commission against order dated 13.02.2013 and order dated 13.09.2013 in Execution Application Nos. 333/2013 and 338/2013. The FA was dismissed vide order dated 26.10.2016 holding that the main order dated 23.11.2012 in CC No. 133/2010 was not challenged, that order dated 13.02.2013 was a modification order which corrected a typographical error and that in an Execution Application the District Forum could not have gone into the merits of the main matter.
The petitioner’s case is that the respondent failed to pay the requisite installments under the Red Studio Membership scheme entered into by him leading to cancellation of the same by the petitioner. Before the District Forum, in CC No. 133 of 2010 a consent award was passed based on settlement terms offered by it. It is argued that the State Commission erred in not adjudicating on the appeal on technical grounds and in not holding the modification to be incorrect as ‘modification’ in effect changed the very basis of the consent settlement by changing the category of apartment under the agreement. The District Forum could not have modified its own order in view of Hon’ble Supreme Court’s orders in (a) LDA Vs. Shyam Kapoor, (b) Rajeev Hitendra Pathak and (c) Jyotsna Arvind Kumar Shah (supra). It is averred that the order was without notice to him which was a violation of natural justice. It is also averred that since the order dated 23.11.2012 that was sought to be modified was a consent order based on the petitioner/opposite party’s proposal, it could not have been modified without opportunity to him. It is argued that the State Commission erred in not applying the Doctrine of Merger as held by the Hon’ble Supreme Court in Prem Chandra Agarwal Vs. Uttar Pradesh Financial Corporation (2009) 11 SCC 479 as per which there was no need to impugn order dated 13.02.2013. Lastly, since all case records of CC No. 133/2010 had been summoned by the State Commission, it erred in not deciding the matter on merits and limiting itself to mere technicalities.
I have heard the learned counsels for both the parties and perused the record carefully.
On behalf of the petitioner/opposite party it is submitted that the respondent/complainant has already accepted the compensation. This is not denied by the respondent/complainant. Petitioner’s argument is that the respondent has thereafter sought to alter the very basis of the settlement behind his back through the order of the District Forum which the State Commission erroneously upheld on technical grounds.
Learned counsel for the respondent argued that the impugned order of the State Commission requires no interference since the appeal before it was against a modification order/corrigendum that only corrected a typographical error. It is also argued that the order of the District Forum has attained finality as it was not challenged and that no review or amendment was sought since it was a “modification/corrigendum”.
Admittedly, the issue between the parties relates to whether the membership is based on the category of accommodation under the agreement for “Red Studio Apartment” category or “One Bed Room” category. The order of the District Forum dated 23.11.2012 clearly notes that the “OP regretted the delay in responding to complainant and offered a settlement” (emphasis added) and states that:
“Taking into consideration the entire facts and settlement terms offered by OP we direct as under: -
OP shall forth with reinstate the “Red Studio Membership” of the complainant with prospective effect valid for 25 years with the following additional benefits:
One week free stay at Club Mahindra resorts in White and Blue season
Food voucher worth Rs 8,000/-
Shall pay interest @ 9% over the amount of Rs 93,228/- from the date of deposit and upto date of membership
OP shall also pay the compensation of Rs 30,000/- to the complainant for the harassment caused including litigation charges.
In compliance, within one month of restoration of membership the complainant shall pay OP Rs 56,272/- the balance payment after adjustment of Rs 20,000/- towards cost of Easy Cam as confirmed by OP in their letter dated 17.01.2007.
[emphasis supplied]
From the above, it is manifest that the order of the District Forum in CC No. 133 of 2010 was based upon a settlement between the contesting parties with regard to the category of membership which was agreed to be for Red Studio apartment category. Certain terms were proposed by the petitioner which were acceptable to the respondent and the District Forum pronounced an order clearly noting the terms of the settlement. Therefore, this order was evidently a consent order between the parties.
The respondent had admittedly approached the District Forum seeking a modification/corrigendum to correct its own order. Apart from the fact that in view of the catena of judgments of the Hon’ble Supreme Court that the District Forum cannot review its own orders, the fact that the modification/corrigendum order amounts to changing the apartment type from ‘Studio’ to ‘One Bed Room’, it cannot be interpreted to be a typographical error apparent on the face of the order since the order is based on the settlement arrived at between the parties before the District Forum which is clearly forthcoming from the order itself. Any corrigendum regarding the apartment type will alter the very basis of the order, i.e. reinstatement of membership not on Red Studio apartment basis but on One Bed Room basis. If the phrase Red Studio apartment is changed to One Bed Room, the order does not amount to correction of a typographical error. Such a change would amount to a substantive change in the order and cannot be considered to be correction of a typographical mistake. It would not be legally valid since it is both without notice to the respondent and also violative of the law laid down by the Hon’ble Supreme Court as stated in the foregoing paragraphs. This is clearly a jurisdictional error and a material irregularity on the part of the District Forum. The State Commission has acted perversely in not exercising its jurisdiction to set this error right.
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. However, it can interfere with the concurrent findings of the fora below on the grounds that the findings are either perverse or that the fora below have acted without jurisdiction or there is a material irregularity. Findings can be concluded to be perverse when they are based on either evidence that have not been produced or based on conjecture or surmises i.e. evidence which are either not part of the record or when material evidence on record is not considered. The Hon’ble Supreme Court in its judgment dated 05.04.2019 in the case of T Ramalingeswara Rao (Dead) Through LRs & Ors Vs. N Madhava Rao and Ors, Civil Appeal No. 3408 of 2019 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.”
In view of the foregoing reasons the revision petition is liable to succeed. The revision petition is accordingly allowed. The impugned order of the State Commission is set aside. Order dated 23.11.2012 of the District Forum in consumer complaint no. 133 of 2010 is affirmed. There shall be no order as to costs.