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Judgment
Sudip Ahluwalia, Member
The present Revision Petition under Section 21(b) of Consumer Protection Act, 1986 has been filed by A.K.G. Affordable Housing Pvt. Ltd. against the impugned Order dated 10.04.2019 passed by the State Consumer Disputes Redressal Commission, Bench No. 1, Rajasthan in First Appeal No. 294 of 2019 vide which the Appeal filed by the Petitioner was dismissed.
Brief facts of the case as per the Complaint are that the Petitioner/Builder had proposed a Group Housing Project at Pallavi Apartments, Narsinghpura, Behind Pink Pearl, Ajmer Road, Jaipur, in pursuance of its own business, by describing it as “Mukhya Mantri Jan Awas Scheme, 2016” in its advertisements, and attracted the buyers, who were informed that possession would be handed over after constructing 1 BHK and 2 BHK Flats within 12 months. The Complainant being influenced by the advertisements contacted the Builder for a 2 BHK Flat in the said Project. The Complainant then selected a Flat for purchase on the Registration Form given by the Builder. The Builder assured the Complainant that the Flat selected by her is under the “Mukhya Mantri Jan Awas Scheme” and that it would be available on time. The total value of the Flat was ₹10,00,000/- wherein subsidy of ₹3,00,000/- was to be given, and the possession of the Flat was to be given within 12 months. The Complainant then booked a Flat in the aforesaid scheme under L.I.G. lottery and her name was selected for the 2 BHK Flat. The Builder then requested a Demand Draft (DD) of ₹55,000/- which was promptly submitted by the Complainant. The Builder further demanded a DD of ₹50,000/- for the purpose of booking of the Flat. The Complainant further paid an additional amount in the name of file charges for getting the loan. Thus, the Complainant paid a total of ₹1,05,000/- to the Builder. She continued to enquire from the Builder regarding the status of the Project but no clear answer was provided to her. On 14.03.2018 while refusing to give the Flat to the Complainant, the Builder gave a cheque dated 08.05.2018 to the Complainant which was dishonoured upon presenting it to the Bank due to insufficient funds. Aggrieved by the act of the Builder, the Complainant filed her Complaint before the District Forum No. 4, Jaipur.
The District Commission vide its Order dated 07.01.2019 partly allowed the Complaint. The relevant extracts from the Order of the District Commission are set out as below -
“Consequently, allowing the Complaint ex parte it is ordered that the Opposite Party should pay the booking amount of Rs. 50,000/- (Rupees fifty thousand) deposited by the Complainant in connection with getting a Flat booked in the Project in question with interest at the rate of 9% per annum from the date of deposit 20/05/2016 till the date of payment and on the allotment of the Flat to the Complainant the amount of Rs. 55,000.00 (Rupees fifty thousand) deposited by the Complainant be paid with interest at the rate of 9% per annum from the date of deposit 24/08/2016 upto the date of payment.
Besides this the Opposite Party should pay the amount of Rs. 1,00,000/- (Rupees one lakh) towards compensation for mental torture and Rs. 5,000/- (Rupees five thousand) towards litigation expenses within two months from today.
In the event of not making compliance of this order within two months the Opposite Party will be liable to pay to the Complainant interest at the rate of 12 per cent per annum on the all the aforesaid amounts from the date of this order.
The rest of the prayer of the Complainant is disallowed.”
Aggrieved by the Order of the District Commission, the Petitioner filed its Appeal before the State Commission. The State Commission dismissed the Appeal of the Petitioner vide the impugned order in which it observed -
“There is no error in the Order which has been passed by the learned District Forum, the appeal is liable to be dismissed at the admission stage, which is hereby dismissed.”
Ld. Counsel for Petitioner/Builder argued that upon filing of the Complaint by the Complainant in the District Commission, notices were issued but the same were not served upon the Petitioners. Therefore the Petitioners could not have appeared before the District Commission and Ex-parte Order was passed against them. On 26.02.2019, a Legal Notice was sent to the Petitioner on behalf of the Complainant through her Counsel for compliance of Order of the District Commission dated 07.01.2019. The Petitioner became aware of the Order only after the Legal Notice and then obtained a certified copy of the same and preferred an Appeal before the State Commission, which dismissed the appeal without taking into consideration the documentary evidence available on record. It is relevant to mention that the Complainant had only given the booking amount, and did not pay the entire amount of the Flat.
Ld. Counsel for Respondent/Complainant has argued that the Builder had proposed the Project under an affordable Housing Scheme in the name of “Mukhyamantri Jan Awas Yojana-2016” at Jaipur, Rajasthan with grand advertisements for 1 BHK and 2 BHK flats. The Complainant being attracted to the scheme applied for a 2 BHK Flat which was worth ₹10,00,000/-, with assured subsidy of ₹3,00,000/-. The possession was assured to be given in twelve months. The Complainant further paid ₹1,05,000/- on various dates but despite the payments the Builder did not provide any clarity over possession. The Builder then gave the Complainant a cheque of ₹50,000/- which was dishonoured by the Bank due to “Insufficient Funds”. This act of the Builder of giving a dishonoured cheque is an act of deficiency of service which the State Commission had also upheld. The present Revision Petition should therefore be dismissed with costs and the Order of the State Commission should be upheld.
In its Revisional Jurisdiction, there is little scope for this Commission to interfere with the concurrent decisions of both the Ld. Fora below. At any rate, it is nowhere the case of the Petitioner that it is even now in a position to deliver possession of the allotted Flat to the Complainant. Fact of the matter is that the Petitioner had failed to deliver the Flat to the Complainant within the stipulated time. She was therefore well within her right to seek refund of the amount paid by her towards its booking, and partial payments for the concerned dwelling Unit. But admittedly, the amount refunded to her could also not be encashed due to the dishonouring of the cheque issued by the Petitioner, for lack of sufficient funds. She was therefore clearly entitled to additional compensation for such unnecessary harassment in recovering the amount paid by her to the Petitioner.
For the aforesaid reasons, the decisions of the Ld. Fora below do not call for any substantial modification except a reasonable reduction in the compensation awarded to her, although the direction for refunding the amount actually paid by her does not call for any interference. In fine, considering that the total amount paid by her was itself to the tune of ₹ 105,000/– only, so compensation towards mental torture of an amount of ₹ 1 lakh in addition, would appear to be somewhat exorbitant.
The Revision Petition is therefore allowed by partially modifying the Orders of both the Ld. Fora below to the extent that the amount awarded as compensation for mental torture alone is reduced from ₹ 100,00/– to ₹ 50,000/- only, while the Litigation Costs awarded to her are enhanced from ₹ 5000/– to ₹ 15,000/–. No further orders as to costs.
Pending application(s), if any, also stand disposed off as having been rendered infructuous.