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Judgment
Dr. Inder Jit Singh, Presiding Member
The present Revision Petition (RP) has been filed by the Petitioners against Respondent as detailed above, under section 21 (b) of Consumer Protection Act 1986, against the order dated of the State Consumer Disputes Redressal Commission Maharashtra (hereinafter referred to as the ‘State Commission’), in First Appeal (FA) No. 1280 of 2016 in which order dated 11.05.2016 of Central Mumbai District Consumer Disputes Redressal Forum (hereinafter referred to as District Forum) in Consumer Complaint (CC) no. 88 of 2013 was challenged, inter alia praying for setting aside the order dated 08.06.2018 of the State Commission.
While the Revision Petitioners (hereinafter also referred to as OPs) were Appellants and the Respondent (hereinafter also referred to as Complainant) was Respondent in the said FA No. 1280 of 2016 before the State Commission the, Revision Petitioners were OPs and Respondent was Complaint before the District Forum in CC no. 88 of 2013.
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: as per Memorandum of Understanding ( MOU), complainant booked flat no. 306 in ‘Datta Enclave’ situated on 3rd Floor for total consideration of Rs.13.00 lacs and paid booking amount in the sum of Rs.50,000/-. Thereafter, he paid Rs. 5,60,000/- from time to time. According to complainant, the OPs were demanding money without executing agreement for sale. The complainant issued letter informing that she is ready and willing to execute the agreement for sale and requested the OPs to take appropriate steps. As the OPs were not ready to execute the agreement for sale, the complainant informed the matter to the Police Station. The police called both the parties on 04.07.2012 to resolve the dispute and agreement was executed on 19.01.2013 whereby OPs agreed to refund the amount of Rs.17.00 lacs to the complainant. The OPs did not comply the said agreement. According to the complainant, as OPs failed to comply with the said agreement, the booking of said flat is still in existence. The complainant is ready and willing to pay the balance amount of Rs.7,40,000/-. The OPs are neither refunding the amount nor they are giving possession of the flat. Being aggrieved, the complainant has filed CC before the District Forum. The District Forum vide order dated 11.05.2016 partly allowed the CC. Being aggrieved, the OPs preferred an appeal before the State Commission and State Commission vide order dated 08.06.2018 dismissed the Appeal. Therefore, the Petitioners are before this Commission now in the present RP.
Petitioners have challenged the said Order dated 08.06.2018 of the State Commission mainly on following grounds:
i. Both the fora below failed to consider that Complaint was based on the Memorandum of Understanding dated 02.01.2000 and hence the complaint is barred by limitation.
ii. Both the Fora below failed to consider the evidence of the Petitioners stating that agreement dated 02.01.2000 has been cancelled since the complainant failed to deposit the consideration amount of the flat as per MOU and therefore relationship of a consumer and service provider does not exist between the parties. Hence, the District Forum was not having the jurisdiction to try, entertain and dispose of the complaint.
iii. Both the Fora below failed to consider that as per the MOU dated 19.01.2013 given by the Petitioners before the Police, the Petitioners were ready to refund the agreed amount in instalments but complainant refused to accept the same.
iv. Both the Fora bellowed erred in partly allowing the complaint when the Consumer Forum had no jurisdiction to pass any order to enforce the undertaking given by the Petitioners upon the intervention by the police and that Complainant has to initiate appropriate proceedings before the appropriate forum. Since MOU has already been cancelled by the Petitioners, there does not exist any consumer and service provider relationship between the parties.
v. The Fora below failed to consider that builder had issued 2 cheques of Rs.5 lacs each in favour of the complainant which complainant has refused to accept.
vi. Both the Fora below failed to consider that Petitioners were always ready to pay the amount as agreed by them as per the undertaking dated 19.01.2013.
vii. Both the Fora below failed to consider that Complainant herself by issuing notice dated 28.12.2009 demanded repayment of Rs.4,85,000/- which has been invested by the complainant while booking the flat. The Complainant had agreed to settle the dispute before the police for Rs.17.00 lacs and accordingly Petitioner had issued an undertaking in favour of the complainant. Complainant refused to accept the instalment amount and filed the complaint. This shows that the complaint is only interested in extracting the money from the Petitioners.
During the final hearing on 30.11.2023, the petitioner was absent. He was also absent on previous dates i.e. 04.10.2023 The counsel for the respondent was heard. Accordingly, the case is being decided on merits on the basis of the revision petition, written submissions filed by respondent and other case records. The reasons for challenging the order of State Commission advanced by the Petitioner have been summed up in the previous paras. Counsel for the respondent argued that scope of Revision Petition under Section 21 (b) of the Consumer Protection Act, 1986 is very limited and under the revisional jurisdiction, this Commission cannot go into the facts and evidence of the case which has already been appreciated and decided by District Forum and State Commission. Further, the Petitioner failed to comply with the agreement dated 19.01.2013. Further, instead of complying the order of the District Forum, the Petitioner filed an Appeal before the State Commission which was also dismissed. Petitioners do not want to pay the amount as per the agreement.
In this case, there are concurrent findings of both the Fora below. 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 8th 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.”
Petitioner herein admit having agreed to settle the matter for Rs.17.00 lacs but have failed to honour the settlement. After careful consideration of entire facts and circumstances of the case, we find no illegality or material irregularity or jurisdictional error in the order of the State Commission. Both the Fora below have given a well reasoned order. Hence, the order of State Commission is upheld. Accordingly, Revision Petition is dismissed.
The pending IAs in the case, if any, also stand disposed off.