AI Structured Summary
Not yet generated for this judgment
Judgment
Delay condoned.
This Application, under Section 60 of the Consumer Protection Act, 2019 (for short, the “Act”), has been filed by the Appellant (Opposite Party No.1 in Complaint before the State Commission), praying for review of the Order, dated 28.03.2019, passed by a Bench of this Commission comprising me (Justice R.K. Agrawal, President) and Mrs. M. Shreesha, Member. Since, Mrs. M. Shreesha had demitted office, the President has directed to list this Application before us.
By Order, dated 28.03.2019, the First Appeal No. 1885 of 2017 filed by the Appellant was dismissed upholding the order passed by the State Commission. It was observed as under:-
“2. The contention of the Learned Counsel appearing for the Appellant/Developer that at the time of booking of the subject flat the area of the Flat was 711 sq. ft. super built up area and after cancellation of the deal the area of the flat in question was modified to 1526 sq. ft. super built up area and thereafter the Complainant with the help of anti-social elements occupied the flat cannot be taken into consideration at this belated stage as it is seen from the record that admittedly no suit was filed by the Appellant herein challenging this action.
It is also seen from the record that a questionnaire was filed on behalf of the Appellant to the affidavit-in-chief filed by the Complainant. Question No. eight states that the Appellant herein had repaid an amount of 2,15,000/- by way of Bankers’ cheque and by cash on various dates to the Complainant. In reply to the said question the Complainant deposed that the amount paid was 2,10,000/-. In reply to question No. 10 dealing with re-payment of 4,35,000/- to the loan account with Bank of Baroda, the Complainant had replied that the record of the Bank reveals the exact amount which has been paid. The material on record evidences that the total sale consideration as agreed to between both the parties for a flat admeasuring 711 sq. ft. was 11,48,950/-, out of which the Complainant had paid 1,50,000/- and thereafter applied for a loan from Bank of Baroda, which has sanctioned 2,00,000/- on 13.09.2006, 3,99,580/- on 29.12.2006 and 1,99,580/- on 16.01.2007 totalling to 7,99,160/- The record shows that this amount was debited from the bank account of the Appellant/Developer. It is an admitted fact that the Appellant/Developer had refunded an amount of 2,10,000/-. The bank account shows that an amount of 2,20,000/- was deposited in the loan account of the Complainant. Totally the Complainant had paid an amount of 9,49,160/- (7,99,160/-+1,50,000/-). Therefore, the Complainant had paid an amount of 5,19,160/- out of the total sale consideration of 11,48,950/-after deducting the amount of 4,30,000/- and hence the Complainant is due to pay to the Appellant/Developer an amount of 6,29,790/- as balance sale consideration. The Learned State Commission had recorded that the Complainant had failed to produce any possession letter issued by the Developer in favour of him. But however, has observed that the land-owner has revoked the Power of Attorney given to the Appellant/Developer on 20.02.2010 and has given a categorical statement that they have no objection to execute the Sale Deed in favour of the Complainant. Having regard to the fact that the Complainant has paid part consideration to the Appellant/Developer towards the subject flat and also no steps were initiated by the Appellant/Developer if indeed the possession was taken by the Complainant by force, we are of the considered view that the cause of action is a continuing one and cannot be said to be barred by limitation as the Sale Deed was still not executed.
As regarding the letter dated 30.08.2008, it is stated that it is only after the entire amount is paid to the Bank that the Complainant would undertake to execute and cooperate to register any document. It is evident from the record that the Bank had sanctioned an amount of 7,99,160/- by 16.01.2007 but the Appellant/Developer had refunded only an amount of 4,30,000/- and hence it cannot be said that the Appellant/Developer adhered to the terms of the letter dated 30.08.2008 and, therefore, the contention of the Appellant herein that the Complainant is not a ‘Consumer’ and that the privity of contract between the two has seized from 30.08.2008, is unsustainable. Keeping in view all the afore-noted reasons this Appeal is dismissed confirming the order of the State Commission.”
Having perused the Order, dated 28.03.2019 and the grounds urged in the Application seeking review of the said Order, we find that the Application is devoid of merit. An Order can be reviewed if there is a mistake apparent on the face of the record. We do not find any such mistake apparent on record. Consequently, the Review Application is dismissed.
This Order shall be communicated by the Registry to the Review Applicant.