M/s Desai Homes vs Dr. Rajeev Venugopal

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 09.11.2016 in Appeal No. 895 of 2012 of the State Consumer Disputes Redressal Commission, Kerala (in short, the ‘State Commission’) arising from the order dated 30.04.2012 of the District Consumer Disputes Redressal Forum, Ernakulam (in short, the ‘District Forum’) in Consumer Complaint no. 265 of 2011.

The relevant facts of the case are that the respondent had booked a 3 bedroom flat in the petitioner’s project, DD Golden Gate on 19.12.2006 for a sale consideration of Rs 22,85,000/-. Flat no. 504E with car park was allotted in Tower 5. An Agreement was signed the same day and Rs 3,11,500/- was deposited. The agreed date of delivery was September 2009. A sale deed was executed on 05.10.2009. Possession was to be handed over in January 2010 which was extended to February 2011 which commitment was defaulted by the petitioner. Petitioner contends that he completed the construction in October 2011 and obtained completion certificate in April 2012. Respondent also took possession of the flat in March 2013. The respondent approached the District Forum which upheld the complaint and the appeal before the State Commission was dismissed on merits. The present petition assails this order.

I have heard the counsel for the respondent and considered the material on record. The counsel for the petitioner remained unrepresented despite notice and was placed ex parte on the date the matter was listed for final hearing. His IA No.10453 of 2023 dated 07.08.2023 praying for his written submissions to be taken as his final arguments was allowed on 29.08.2023.  Written submissions filed are accordingly considered.

The District Forum, after hearing both the sides and considering the records filed before it, arrived at the following finding:

It is pertinent to note that apart from the averments in the version, nothing is on record to substantiate the contentions of the opposite party that the delay in completion and handing over possession of the flat was caused due to the reasons beyond their control. In short, pertinently there is deficiency in service on the part of the opposite party for the delay in handing over the possession of the flat that too after the acceptance of the total consideration in advance for which they are liable squarely reasons which has not been explained for. Though the opposite party contended that as of now, the flat is in habitable conditions and ready for handing over the possession, they have not produced any evidence to substantiate the same.

The decisions, cited by the complainant in the above cases necessarily go to show that the opposite party is liable to pay interest for the amount received by them. Though in 4 cases, the quantum has been fixed at 18% the rest lay on 12%. We are inclined to go by the majority of decisions.

In the result, we partly allow the complainant and directed as follows:

i. The opposite party shall deliver the possession of the flat to the complainant immediately;

ii. The opposite party shall pay interest @ 12% per annum for Rs.22,45,695/- being paid by the complainant the amount accepted by the opposite party from the grace period as per clause 15 in Ext A 1 till the date of actual delivery of the flat to the complainant.

The State Commission’s order in appeal filed by the petitioner considered the sustainability of the District Forum’s order and concluded as follows:

The counsel for the appellant argued that the delay in delivery of the flat was due to reasons beyond the control of the opposite party and that therefore, opposite party is not liable to pay any interest for the amount paid by the complainant. We are unable to agree. No evidence was adduced by the opposite party to show that it was due to reasons beyond his control the delay was caused. Further complainant paid the entire sale consideration to the opposite party. Therefore, opposite party is bound to pay interest to the complainant for the amount paid by him at the rate of 12% per annum from February 2011 to June 2014. Finding of the forum on this point is confirmed.

There is another aspect in this case during the pendency of the appeal opposite party handed over possession of the flat to the complainant. Complainant filed statement on August 17, 2013 stating that about Rs.15,000/- has to be spent for the repairing work in the flat. The complainant is entitled to recover that amount from the opposite party.

In the result, we find no merit in this appeal and the same is hereby dismissed with cost of Rs.5,000/-.

From the foregoing, it is apparent that the petitioner was guilty of deficiency in service in not handing over possession of the flat within or by the time agreed to under the agreement. The relief claimed to mitigate this lapse by citing force majeure events does not come to his rescue as held by the lower fora. There are concurrent findings of the District Forum and the State Commission that are attempted to be challenged before this Commission by way of this revision petition. This Commission, in exercise of its revisional jurisdiction under section 21 of the Act is not required to re-assess and re-appreciate the evidence on record when the findings of the lower fora are concurrent on facts. It can interfere with the concurrent findings of the fora below only on the grounds that the findings are either perverse or that the fora below have acted without jurisdiction. Findings can be concluded to be perverse only 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 power of this Commission to review under section 21 of the Act is, therefore, limited to cases where some prima facie error appears in the impugned order. As laid down by the Hon’ble Supreme Court in Rubi (Chandra) Dutta (2011) 11 SCC 269 decided on 18.03.2011, Lourdes Society Snehanjali Girls Hostel and Ors vs H & R Johnson (India) Ltd., and Ors  (2016) 8 SCC 286 decided on 02.08.2016 and T Ramalingeswara Rao (Dead) Through LRs & Ors Vs. N Madhava Rao and Ors, Civil Appeal No. 3408 of 2019 decided on 05.04.2019, revisional jurisdiction is warranted to be exercised in cases of concurrent findings on facts by the lower fora only where there is either a jurisdictional error or a material irregularity resulting in miscarriage of justice. In the instant case, the petitioner has not established any jurisdictional error or material irregularity in the impugned order and has only attempted to re-agitate its arguments already urged before the lower fora.

In view of the discussion above and in the facts and circumstances of this case, the revision petition is liable to fail. In the light of the foregoing, I do not find any reason to interfere with the order of the State Commission. The revision petition is accordingly dismissed as without merits.  There shall be no order as to costs.

Pending IAs, if any, stand disposed of with this order.