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Judgment
Subhash Chandra, Member
This revision petition filed under section 21(b) of the Consumer Protection Act, 1986 (in short, ‘the Act’) assails the order dated 30.11.2011 of the Maharashtra State Consumer Disputes Redressal Commission, Mumbai (in short, ‘the State Commission’) in First Appeal no. A/08/21617, partly allowing the appeal against the order of the District Consumer Disputes Redressal Forum, Pune (in short, ‘the District Forum’) in Consumer Complaint no. PDF/7/20007 decided on 24.11.2008, deleting the directions to award compensation at Rs.3000/- per month with effect from 01.02.2005 till the date of actual delivery of possession of the flat in question to respondent no.1.
The facts, in brief, as stated by the petitioner, are that respondent no.1 was in occupation of a room measuring 112.50 sq ft on the ground floor of House no. 206, Shukrawar Peth, Pune – 411 002. The house was owned by Mr Achalchand Valchand Jain, proprietor of M/s Achal and Associates. A Development Agreement between M/s Achal and Associates and M/s Mayur Associates was signed on 13.08.1993 and on 18.08.1993. Subsequently, M/s Mayur Associates assigned its development rights in favour of the present petitioner through a registered agreement dated 26.06.2001. Under this agreement the petitioner was required to obtain modifications of the sanctioned plan within three months of the date of the agreement and respondent no .1 was to be put in possession of the flat no.6A, 3rd floor of the building at 206, Shukrawar Peth, Pune, admeasuring 325 sq ft for a consideration of Rs.1,25,000/-. It was agreed that in the event of delay on the part of the petitioner to hand over the flat no. 6A, the defaulting party would be entitled to Rs.3000/- per month as compensation from the other party. In the interim an alternative accommodation as mentioned in the agreement was to be provided to respondent no.1. Accordingly, respondent no.1 handed over the premises to the petitioner and was provided an alternative accommodation.
The petitioner states that respondent no.1 filed a complaint before the District Forum, Pune seeking possession of flat number 6A and compensation for the delay. The District Forum vide its order dated 24.11.2008 in CC no. PDF/7/2007 allowed the complaint and directed the petitioner to hand over the possession of the flat no.6A along with compensation of Rs.3000/- per month with effect from 01.02.2005 till the delivery of the possession and also directed respondent no.1 to pay Rs.1,25,000/- towards the cost of the flat to the petitioner.
Aggrieved by this order, the petitioner filed an FA No. A/08/1617 before the State Commission which came to be decided on 30.11.2011 in favour of the respondent affirming the order of the District Forum after deleting the direction to pay Rs.3000/- per month to the respondent. This order is impugned before us through this revision petition.
The petitioner has averred that the impugned order is based on a perverse finding and has erred in interpreting the Development Agreement dated 31.07.2003. It is averred that the State Commission has wrongly considered that the petitioner is required to compensate the respondent at the rate of Rs.3000/-per month for any delay in handing over the flat. It is urged that the compensation clause is binding on both the parties to the agreement and that this material fact has not been considered by the State Commission. It is averred that the respondent had failed to pay Rs.1,25,000/- to the petitioner as per the payment schedule towards the construction cost of the flat and therefore, was liable to compensate the petitioner as per the agreement. It is also averred that the State Commission did not consider the fact that the electricity bill for the alternative accommodation provided to the respondent by the petitioner had not been paid by the respondent. Since the respondent had defaulted in payment of the required consideration, the construction time taken for the flat had been extended and the construction cost had also proportionately changed. It is claimed that the impugned order did not consider that the respondent had not approached the District Forum with clean hands and had concealed the material facts. As both the fora below had considered the facts erroneously, it has been prayed that the revision petition be allowed and the order of the State Commission be set aside.
The respondent in his short synopsis has admitted signing the agreement dated 31.07.2003 and acknowledged that a new flat was to be handed over to him within 18 months (by 31.01.2005) from the date of agreement. He admits that he was required to pay Rs.1,25,000/- as per the agreement in stages, commencing within one month from the sanctioned plan. It is, however, contended that the petitioner had altered the plan and there was no provision for flat no.6A in the sanctioned plan. It is submitted that the petitioner did not construct the building as per the agreement dated 31.07.2003 and therefore, the question of paying the amount agreed upon to the petitioner did not arise. It is also submitted that the petitioner who was required to provide alternative accommodation to the petitioner, allocated the respondent a shop which was not a flat fit for habitation as a sewerage line passed through it. However, in terms of the order of the District Forum dated 24.11.2008, the respondent no.1 had deposited Rs.1,25,000/- with the petitioner and was therefore, entitled to be put in possession of the said flat no.6A.
We have heard the learned counsel for both the parties and perused the documents on record. Respondent nos. 2 to 9 were deleted from the array of parties vide this Commission’s order dated 21.02.2013.
The case of the petitioner is that flat no.6A was not delivered to the respondent since a sum of Rs.1,25,000/- had not been deposited by him. The respondent contends that payment of Rs.1,25,000/- was contingent upon the petitioner obtaining a sanctioned plan from the Pune Municipal Corporation (PMC) which had not been done. From the facts on record, it is evident that the lower fora have arrived at a concurrent findings and the only difference is that the State Commission has deleted the compensation of Rs.3000/- per month on the complaint, subject to the payment of Rs.1,25,000/- by the respondent to the petitioner. However, it is contended by the petitioner that flat no.6 A, 206, Shukrawar Peth, Pune has since been sold and is not available. However, the petitioner had stated in his appeal before the State Commission that he was ready and willing to hand over the said flat to the complainant/ respondent but has not yet been received any part of the consideration. It was subsequently argued by the petitioner before the State Commission that flat no. 6 A 206, Shukrawar Peth, Pune had been sold through an agreement to sell dated 28.12.2007 to one Sou Madhura Miling Yelsangikar and that in lieu of this flat an alternative flat could be provided. The State Commission in its impugned order, however, noted that the agreement to sell produced on record before it pertains to flat no. B 6, ‘B’ Wing ad-measuring 350 sq ft of Shukrawar Peth, City Survey no.180, Pune. It had therefore, concluded that the affidavit sworn pertains to different property and the petitioner’s contention that flat no. 6 A had since been sold was not corroborated by any documents. It is, therefore apparent that the flat in question (Flat no. 6A) is available to be handed over to the respondent, since the consideration stands deposited.
In view of the concurrent findings of the lower fora as well as this Commission has limited revisional jurisdiction under the Act. The Hon’ble Supreme Court in Mrs Rubi (Chandra) Dutta vs M/s United India Insurance Co. Ltd., (2011) 11 SCC 269 held that:
“23. 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.”
Reiterating this principle, the Hon’ble Supreme Court in Lourdes Society Snehanjali Girls Hostel and Ors vs H & R Johnson (India) Ltd., and Ors (2016) 8 Supreme Court Case 286 held:
“17. The National Commission has to exercise the jurisdiction vested in it only if the State Commission or the District Forum has either failed to exercise their jurisdiction or exercised when the same was not vested in them or exceeded their jurisdiction by acting illegally or with material irregularity. In the instant case, the National Commission has certainly exceeded its jurisdiction by setting aside the concurrent finding of fact recorded in the order passed by the State Commission which is based upon valid and cogent reasons.”
Again, the Hon’ble Supreme Court in T Ramalingeswara Rao (Dead) Through LRs and Ors vs N Madhava Rao and Ors, dated 05.04.2019 held as under:
“12. When the two Courts below have recorded concurrent findings of fact against the Plaintiffs, which are based on appreciation of facts and evidence, in our view, such findings being concurrent in nature are binding on the High court. It is only when such findings are found to be against any provision of law or against the pleading or evidence or are found to be perverse, a case for interference may call for by the High Court in its second appellate jurisdiction.”
In a recent judgment, the Hon’ble Apex Court in Rajiv Shukla vs Gold Rush Sales and Services Ltd., and Ors., (2002) 9 SCC 31 while affirming its earlier view taken in the case of Rubi (Chandra) Dutta vs United India Insurance Company (2011) 11 SCC 269 held that the National Commission has no right to interfere with the concurrent finding of facts of the Fora below in its Revisional Jurisdiction, as under:
“At this stage, it is required to be noted that on appreciation of evidence on record the District Forum as well as the State Commission concurrently found that the car delivered was used car. Such findings of facts recorded by the District Forum and the State Commission were not required to be interfered by the National Commission in exercise of the revisional jurisdiction. It is required to be noted that while passing the impugned judgment and order the National Commission was exercising the revisional jurisdiction vested under Section 21 of the Consumer Protection Act, 1986. 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 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.”
From the records it is apparent that the petitioner has challenged the impugned order on the very same grounds which were raised before the District Forum as well as the State Commission in appeal. The concurrent findings on facts of these two foras are based on evidences led by the parties and documents on record. The present revision petition is therefore an attempt by the petitioner to urge this Commission to re-assess, re-appreciate the evidence which cannot be done in revisional jurisdiction. Learned counsel for the petitioner has failed to show that the findings in the impugned order are perverse.
The foras below have pronounced orders which are detailed and have dealt with all the contentions of the petitioner. It is seen that the orders of these fora are based on evidence on record. In view of the settled proposition of law that where two interpretations of evidence are possible, concurrent findings based on evidence have to be accepted and such findings cannot be substituted in revisional jurisdiction, this petition is liable to fail.
We, therefore, find no illegality or infirmity or perversity in the impugned order. The present revision petition is, therefore, found to be without merits and is accordingly dismissed.