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Judgment
Dr. Inder Jit Singh, Presiding Member
The present Revision Petition (RP) has been filed by the Petitioner against Respondent as detailed above, under section 58(1)(b) of Consumer Protection Act, 2019, against the order dated 19.01.2023 of the State Consumer Disputes Redressal Commission, Haryana, Panchkula (hereinafter referred to as the ‘State Commission’), in First Appeal (FA) No.245of 2021 in which order dated 02.08.2021 of District Consumer Disputes Redressal Commission, Gurgaon (hereinafter referred to as District Commission) in Consumer Complaint (CC) No. 230 of 2020 was challenged, inter alia praying for staying order passed by the State commission in FA/245/2021 and execution of order dated 02.08.2021 passed by the District Commission in CC /230/2021.
While the Revision Petitioner (hereinafter also referred to as OP) was Appellant and the Respondent (hereinafter also referred to as Complainant) was Respondent in the said FA/245/2021 before the State Commission, the Revision Petitioner was OP and Respondent was Complainant before the District Commission in the CC No. 230/2020. Notice was issued to the Respondent on 27.06.2023.
The Revision Petition has been filed with a delay of 29 days (30 days as per Registry’s calculations). The Petitioner has filed IA/7963/2023 for condonation of delay. For the reasons explained in the application, the delay is condoned.
Brief facts of the case, as emerged from the RP, Order of the State Commission, Order of the District Commission and other case records are that:-
The respondent/complainant approached the petitioner/OP showing his interest in the project of the Petitioner and filed an application for registration of a plot of land admeasuring an area of 120.09 sq. yard. The respondent paid booking amount of Rs.1,80,000/- through a cheque dated 19.04.2014. The petitioner issued provisional Allotment Letter dated 29.05.2014 to the Respondent informing him that Plot No. 137 in the project namely, “Krish Seasons” has provisionally been allotted to him and accordingly, an allotment agreement was executed between the parties on 31.10.2014. The respondent/complainant paid Rs.16,79,661/- towards the allotted plot worth Rs.23,95,795/- between 19.04.2014 to 20.12.2016. On 18.07.2018, the completion certificate with respect to the said project was issued by the Unique Consultant, Chartered Engineers. The petitioner offered possession of the allotted plot of land to the respondent vide letter dated 20.07.2018 and asked the respondent to clear the outstanding instalments towards the cost of the plot of land in question so that the possession may be handed over to the respondent. However, the respondent paid no heed to the said letter and neither he made any payment towards the cost of his allotted plot nor did he send any reply to the said letter and filed a consumer complaint –CC/458/2019 before the District Commission, which was withdrawn by the respondent/complainant on technical grounds with the liberty to file afresh. The respondent again filed CC/230/2020 before the District Commission, Gurgaon.
Vide Order dated 02.08.2021, in the CC No. 230 of 2020 the District Commission has allowed the complaint and passed the following order:-
“Therefore, after considering all the facts and circumstances of the case, we direct the opposite parties to refund the deposited amount to the tune of Rs.16,79,661/- to the complainant along with interest @ 9% p.a. from the date of each deposit till realization. The complainant is also entitled to compensation for harassment and mental agony to the tune of Rs.11,000/- as well as litigation expenses to the tune of Rs. 11000/-. The opposite party shall make the compliance of the order within 30 days from the date of receipt of the copy of this order.”
Aggrieved by the said Order dated 02.08.2021 of District Commission, Petitioner appealed in State Commission and the State Commission vide order dated 19.01.2023 in FA No.245 of 2021 has dismissed the appeal.
Petitioner has challenged the said Order dated 19.01.2023 of the State Commission mainly on following grounds:
i. The State Commission has erroneously held that the project of the Petitioner was not completed within the stipulated period in terms of the Agreement. The project has been developed and completed within the stipulated period of time as mentioned in agreement and the petitioner has delivered the plotted developed project to the bona fide customers who had paid the entire amount towards the cost of the plot and same can be confirmed from the registered lease deed of those customers, which shows that the project has been completed and the petitioner has delivered the possession to the allottees. The State Commission has overlooked the terms and condition of the Agreement regarding completion of the project and has wrongly interpreted the completion of project clause of Agreement and calculated 24 months from the date of booking of Plot and not from the date when the construction of the project commenced as mentioned in the agreement and hence, the order passed by the State Commission is based on misconceived facts and wrong interpretation. The construction of project commenced on 04.09.2016 and as per the Agreement the said project was to be completed on or before 04.09.2018. The construction and development of the project was completed well before the due date and accordingly a provisional allotment letter dated 20.07.2018 was issued to the Respondent to take possession by settling the accounts but the Respondent did not bother to respond to the same and nor did he settle the accounts by making balance payment and thereby did not take the possession of his developed plot.
ii. The State Commission did not appreciate the fact that the possession was delivered in time. The State Commission has wrongly concluded that there is breach of terms and conditions of the Agreement, deficiency in service on the part of the Petitioner, which is totally a wrong finding contrary to the facts of the case and material documents placed on record. The State Commission overlooked the fact that provisional possession letter was issued well within time and the Respondent neither replied to the said letter nor took possession of his plot after settling the accounts. The Respondent is a chronic defaulter in making the payments of due instalments and that the entire amount towards the cost of the plot has not been paid by the Respondent.
iii. The State Commission did not consider the judgments passed by the Hon’ble Supreme Court in Ireo Grace Realtech Pvt. Ltd. Vs. Abhishek Khanna & Ors. Civil Appeal No. 5785 of 2019 decided on 11.01.2021 and in Prashant Kumar Shai Vs. Ghaziabad Development Authority (C.A. No. 5875 of 1999 decided on 03.04.2000) (Manu/SC/0233/2000) and the judgment passed by this Commission in S Kartar Singh Kochhar V Vatika Ltd. CC No. 242/2011 (NCDRC) decided on 11.01.2013.
(iv) The State Commission has not considered the fact that there is a specific provision in clause 21 of ‘Intent for Registration’ for the refund of the amount paid by the Respondent. The State Commission failed to go through the documents placed on record while making wrong observation in the impugned order that the Petitioner had not placed on record any Occupancy Certificate to prove its case while the fact was that project of the Petitioner is a plotted development project or plotted township, which has been exempted from registration in RERA as per Rule 4 Explanation (VI) of the Rajasthan Real Estate (Regulation and Development) Rules, 2017 and the same was informed to the Petitioner by the Rajasthan RERA Authority vide its letter dated 13.11.2017 and therefore, petitioner is also exempted from obtaining Occupancy Certificate from RERA as the project was not housing project but only a plotted development in which only amenities were to be constructed and developed and after that possession of plots were to be given to the allottees. The State Commission did not notice while passing the impugned order that builders only had obligation to give possession of the plot with all facilities including Road, electricity, STP, UG Tanks etc. and all these amenities are there in the project as per given time schedule.
Heard counsels of both sides. Contentions/pleas of the parties, on various issues raised in the RP, Written Arguments, and Oral Arguments advanced during the hearing, are summed up below.
8.1 It is contended by the Petitioner that the Respondent/complainant has not paid the installment as per the agreement, even he did not pay even a single penny since 20.12.2016. It is also contended that petitioner has completed the project and offered the possession vide its letter dated 20.07.2018 but respondent/complainant has neither replied to the said letter nor made payment of the amount due towards the cost of the plot. The respondent failed to pay the outstanding amount of Rs.8,59,569/- as demanded at the time of offer of possession. Therefore, the complainant is not entitled for any compensation as prayed for. It is also contended that the OC was not required as the project was for plot not for a building.
8.2 On the other hand the Respondent/complainant contended that he purchased the plot in question in the project of OP on 31.10.2014, agreement was executed between the parties. The total sale consideration of the plot was Rs.23,95,795/- out of which Rs.16,79,661/- was deposited with the OP/petitioner herein. It is further contended by the Respondent that the Petitioner assured him the construction of the unit will be completed within a period of 24 + 6 months, but the project was not completed within the stipulated time. Hence, the complainant requested for refund. The District Commission has rightly allowed the complaint of the complainant and upheld by the State Commission.
We have carefully gone through the orders of the State Commission, District Commission and other relevant records of the case. Both the Fora below have given concurrent findings against the Petitioner herein. As per allotment agreement dated 31.10.2014, possession was to be delivered within 24 months of commencement of construction with a grace period of 6 months. Complainant alleged that at the time of application for booking, it was assured by representatives of OP that possession will be delivered within 24 months from the date of booking, but even after more than two years no work, as assured, was being carried out. Hence, the complainant sought refund. District Commission, after taking into account the evidence placed before it, has given a well-reasoned and speaking order, which has been upheld by State Commission in Appeal. District Commission has observed that project has not been completed by the OP within the stipulated period in terms of the agreement and as such there is deficiency in service on the part of OP.
As was held by the Hon’ble Supreme Court in Rubi Chandra Dutta Vs. United India Insurance Co. Ltd. [(2011) 11 SCC 269], the scope in a Revision Petition is limited. Such powers can be exercised only if there is some prima facie jurisdictional error appearing in the impugned order. In Sunil Kumar Maity Vs. State Bank of India & Ors. [AIR (2022) SC 577] held 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.”
The Hon’ble Supreme Court in Rajiv Shukla vs Gold Rush Sales And Services Ltd. Civil Appeal No. 5928 of 2022, decided on 8 September, 2022, held that:-
“13. As per Section 21(b) the National Commission shall have jurisdiction to call for the records and pass appropriate orders in any consumer dispute which is pending before or has been decided by any State Commission where it appears to the National Commission that such State Commission has exercised its jurisdiction not vested in it by law, or has failed to exercise a jurisdiction so vested, or has acted in the exercise of its jurisdiction illegally or with material irregularity. Thus, the powers of the National Commission are very limited. Only in a case where it is found that the State Commission has exercised its jurisdiction not vested in it by law, or has failed to exercise the jurisdiction so vested illegally or with material irregularity, the National Commission would be justified in exercising the revisional jurisdiction.
In exercising of revisional jurisdiction the National Commission has no jurisdiction to interfere with the concurrent findings recorded by the District Forum and the State Commission which are on appreciation of evidence on record. Therefore, while passing the impugned judgment and order the National Commission has acted beyond the scope and ambit of the revisional jurisdiction conferred under Section 21(b) of the Consumer Protection Act.”
In view of the foregoing, we find no illegality or material irregularity or jurisdictional error in the order of the State Commission and the same is upheld. Accordingly, the Revision Petition is dismissed.
The pending IAs in the case, if any, also stand disposed off.