Manager Marketing And Service vs T.J. Ravikumar

There is a delay of 26 days in filing the present revision petition.

Heard. For the reasons disclosed in the application, delay is hereby condoned.

REVISION PETITION NO.596 OF 2019

ORAL ORDER

The present revision petition has been filed against the order dated 11.9.2018 in FA/39/2017 of the petitioner against the order dated 21.12.2016 in CC/ 136/2015 of District Forum, Chennai, the complaint of the respondent.

Undisputed facts are that the petitioner had floated a scheme and the respondent had applied for a flat under that scheme and he had paid 5% of the cost at the time of booking. He participated in the allotment process and he was successful and was allotted flat No.H-4/76, 3rd Floor having plinth area of 90.3 sq. meters with approximate cost of Rs.35 lakhs. He was informed that the allotment letter would be received by him within a week. For three years, however, there was no communication from the petitioner and ultimately he received letter dated 26.2.2014 informing him that the petitioner had decided to construct only 92 flats and the cost had also been increased. The complainant/respondent, however, informed the petitioner that he did not want to pay the increased cost and the flat which was booked by him should be allotted to him at the original cost. His consent was again sought by the petitioner vide letter a letter which he again declined and requested that the flat be allotted to him at the original cost. Vide letter dated 17.6.2015, he was again asked to give his final approval for the revised cost which he replied and declined. Thereafter, he did not receive any communication from the opposite party for four years. His case was that this amounted to deficiency in service and he filed the complaint.

In the written version plea taken by the respondent was that due to some unavoidable circumstances, i.e. litigation with a third party, the scheme could not be implemented in its original form and therefore the Scheme had to be revised and accordingly the respondent was informed of the revised scheme seeking his approval for the enhanced/revised cost, which he did not reply. Parties led their evidence before the District Forum.

After considering the evidences of the parties and the documents filed by them and hearing the learned counsels for the partiers, the District Forum reached to the conclusion that there was deficiency in service on the part of the petitioner. Following are the findings of fact of the District Forum.

"7. The complainant was allotted a flat No.H4/76 in the 3rd floor measuring the plinth area 90.3 sq. which costs Rs.35,00,000/- approximately in the lot conducted on 17.11.2011 at 11.00 am. The opposite party informed that he will get a provisional allotment letter within a week. However, the complainant did not get any letter from the opposite party for nearly 3 years either for provisional allotment or in respect of any other further prospects of the said scheme. Only after 2 years, the opposite party sent Ex.A4 letter requiring the consent of the complainant for the revised rate in the revised scheme of 92 flats. According to the opposite party after getting approval of the board for the construction of the 104 flat as per the CMDA norms and after allotment of the flats through lot, M/s Jain Housing Ltd. filed O.S. No.774/2011 at District Munsif, Ambattur and obtained interim injunction and in view of that the opposite party could not proceed the project in the year 2011 itself. If it is so, the opposite party could have informed the above said fact immediately even during the year 2011 itself to the complainant and other allottees for their inability to proceed with the above scheme. But the opposite party failed to do so. In fact, the complainant was only informed in the year 2014 regarding the revised rate and scheme and sought f or the consent of the complainant.

At this point of time, it is pertinent to note that in order to provide access to M/s Jain Housing Ltd. through the opposite party projects to an extent of 5 meter width in their project as per the instruction given by the CMDA, the opposite party executed a gift deed for the said width to the total extent 3.1 acres to the CMDA. The above attitude clearly shows that the opposite party has shown very much interest to facilitate a private builder M/s Jain Housing Ltd. to have such a larger extent of land as access for the sole benefit of the private builder by dispensing the public project nearly for three years and thereby pave way for the enhancement of the cost price of the flat in the revised scheme, the opposite party gave the gift deed that too without informing the said developments to its allottees in time, that they could not proceed the project for construction of 104 flats as per Ext.A1.

It is further noticed that only in the year 2014, Ex. B3 resolution dated 15.12.2014 was p assed by the opposite party board for construction of 92 flats means of revised scheme, through the complainant deposited a sum Rs.1,87,000/- through Ex.B2 demand draft alongwtih Ex.B1 application and the opposite party also issued Ex.A2 receipt for such amount from the complainant even in the year 2011. It is the fact that the complainant has not given the consent for the revised scheme and the opposite party also not included his name in the draw of lot for the revised scheme. When the fact stood like this, the opposite party could not have very well at least refunded the deposit amount of Rs.1,87,000/- to the complainant. While so, the opposite party merely stated in Ex.B5 dated 20.1.2015 that if the complainant did not give consent steps will be taken to refund the amount deposited by him. However, even though revised lot was conducted, no communication was sent by the opposite party to complainant with regard to refund of the amount or refunded the amount by way of cheque or demand draft to him as per E x.B5. Therefore from the above discussion it is crystal clear that the opposite party even after allotting the flat to the complainant did not send any provisional allotment letter within week as assured by him. The opposite party was kept quiet for more than 3 years without any communication to the complainant about the said fact why the provisional allotment letter was not sent to the complainant has not been explained properly. Moreover, the opposite party has not come forward at least to refund the deposit amount with reasonable rate of interest to the complainant within the reasonable time."

This order was impugned by the petitioner before the State Commission and similar contentions have been raised as were raised before the District Forum. After re-assessing and re-appreciating the evidences on record, the State Commission reached to the following conclusion:

"7. It is an undisputed fact that the respondent/ complainant had paid Rs.1,87,000/- as 5% cost of flat, towards booking of the flat. The cost price of the flat was informed approximately @ 35 lakhs. Subsequently, without the consent of the respondent/complainant, the cost of the flat was enhanced. Since the complainant was not interesting in paying the enhanced cost, he requested the opposite party to cancel the booking and refund the amount paid. In the aforesaid circumstances, the appellant/opposite party ought to have refunded the amount deposited by the complainant. But as was held by the Learned District Forum that the appellant/opposite party did not even send any provisional allotment letter as assured by them. Even after more than 3 years the opposite party had not taken any steps to inform the complainant about the refund of the amount. Even during the pendency of the case before the District Forum, the amount was not paid, for the reasons best known to the appellant. Therefore, we are of the considered opinion that the there is no error in the order passed by the District Forum. The compensation awarded at Rs.2 lakhs and Rs.5000/- towards litigation expenses are quite reasonable, for the deficiency committed by the opposite parties, which needs no interference. In the aforesaid circumstances, we find it just and reasonable to confirm the order of the District Forum.

This order is impugned before us. It is argued that the petitioner was always ready to refund the deposited amount to the respondent. It was he who did not submit the requisite voucher and therefore the levy of 9% interest and grant of compensation is illegal order and liable to be set aside. It is further submitted that the necessity of revising the cost of the flat offered arose because of unavoidable circumstances like they had to face civil litigation in the hands of third party.

We have heard the arguments of learned counsel for the petitioner and have perused the relevant record. Jurisdiction of this Commission under Section 21 (b) of the Consumer Protection Act, 1986 is very limited. The Commission is not required to re-assess or re-appreciate the evidences and reach to its own opinion on the facts of the case.

Hon'ble Supreme Court in Mrs. Rubi (Chandra) Dutta Vs. M/s United India Insurance Co. Ltd. 2011 (3) Scale 654 has held 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 than 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 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 findings of two fora."

There is a concurrent finding of the fact that that there is a deficiency in service on the part of the petitioner. The petitioner has failed to point out any piece of evidence which can suggest that such finding is contrary to the evidence on record. Finding is based and supported by the evidence on record.

It is also a fact that although the petitioner submits that he was always ready and willing to refund the money deposited by the respondent but neither during the pendency of the proceedings before the District Forum nor in appeal, he made any effort to deposit or pay the money deposited by the petitioner to him. It is also a fact that now the execution petition is pending whereby the respondent is seeking execution of the impugned order which had directed refund of the money with interest and today again in the revision petition the petitioner has moved an application for stay of the execution petition. There is no offer that the petitioner is ready to deposit or refund the money paid by the respondent to him. This conduct of the petitioner clearly shows that although there is a plea that they are ready and willing to refund the money to the respondent but they were not serious about this. In view of this fact, we found no illegality or infirmity in the impugned order whereby the compensation, cost of litigation and the interest at the deposited amount has been granted. No grounds to interfere with the impugned order. The revision petition has no merit and the same is dismissed.