AI Structured Summary
Not yet generated for this judgment
Judgment
Dr. Inder Jit Singh, Presiding Member
The present Revision Petition (RP) has been filed by the Petitioner against Respondents as detailed above, under section 21 (b) of Consumer Protection Act 1986, against the order dated 11.06.2018 of the State Consumer Disputes Redressal Commission Rajasthan (hereinafter referred to as the ‘State Commission’), in First Appeal (FA) No.145 of 2018 in which order dated 23.01.2018 of Jaipur-IV District Consumer Disputes Redressal Forum (hereinafter referred to as District Forum ) in Consumer Complaint (CC) no. 339 of 2017 was challenged, inter alia praying for setting aside the order dated 11.06.2018 of the State Commission.
Petitioner has challenged the said order dated 11.06.2018 of the State Commission inter alia on the following grounds:
(a). Written version is required to be filed within a period of 30 days or extended period of 45 days from the date of receipt of copies of complaint supplied by cosumer fora, as provided in Section 13 (2) of the Consumer Protection Act and as has been held by Supreme Court in Civil Appeal No. 10941-10942 of 2013 New India Assurance Co. Ltd. Vs. Hilli Multipurpose Cold Storage Pvt. Ltd.
(b). State Commission failed to appreciate that there was no actual proof of service of the petitioners of the notices.
( c). District Forum ought to have afforded one more chance for awaiting service and reply of the petitioners as 07.06.2017 was the first date for filing reply.
(d). Respondents had defaulted in payments of instalments and estopped from making any allegation regarding delay in development and possession. Project of the petitioner is well developed and all approvals are in place.
( e). Because of default by the respondent, clause 8 of the application form and clause 7 of the agreement between the parties come into picture and amount paid by them is deemed to have been forfeited.
(f). In the reply dated 02.01.2017 petitioners had mentioned that it was ready to deliver the possession of the plot if the respondent would pay the balance amount.
(g). Respondents are defaulters and even otherwise in their reply to the legal notice, the petitioners had made it clear that they are willing to refund the amount paid by the respondent as per the norms of the petitioners after due adjustment of account.
(h). Case has been decided ex parte and it is necessary in the interest of justice to decide it on merits after affording a sufficient opportunity to the petitioners.
(i). It was made clear to the respondent as is recorded in the demand letter that in case of delay in payment of instalment, possession of unit would be delayed reciprocally.
(j). Respondents never applied for cancellation of allotment.
(k). The respondents are speculative investors and invested in plot for better returns and to sell the same midway through allotment process. Due to general recession in the real estate market, they filed false and frivolous complaint to seek refund with interest and compensation.
(l) The petitioner did not forfeit the amount nor cancelled the unit and is ready to give plot the respondent and has not created any third party right.
(m). The petitioner was not given adequate opportunity to file its reply.
(n). Complaint is barred by limitation.
Heard learned counsel for both sides. In this case, there are concurrent findings of both the Fora below against the Petitioner who have been directed to refund amount of Rs.7,45,000/- paid by the respondent alongwith interest @ 9% and compensation of Rs.1.00 lakh. It is contended by the Petitioner that total cost of the plot in question was Rs.12.07 lacs, against which, only an amount of Rs.7,45,000/- was paid, hence, respondent was in default. Counsel for the respondent on the other hand contends that plot / project in question has not been developed in accordance with the scope and specifications of the agreement and requisite licences / clearances have still not been obtained, al-though the Petitioner claims that all developments have been done and they have obtained all clearances and such clearances are on record. Registration for the plot in question was done on 01.02.2007. Terms and conditions of this registration state that allotment of property plot/plot/villa by the Company shall be done within 4-5 months from the date of registration. However, the agreement was done on 13.09.2008 only. It is stated by the respondent that alongwith registration amount, they have deposited Rs.7,45,000/-, hence they had no option but to sign the agreement dated 13.09.2008, which contains unfair conditions and open ended time lines. It was on 01.08.2016 that for the first time, the respondents sought refund followed by another communication dated 09.05.2016. Respondent has drawn our attention to the accounts statement filed by the petitioner, according to which, the total amount payable is shown as 16,57,500/-. Respondent contends that Petitioner has unilaterally and wrongly enhanced the cost of the plot from Rs.10.50 lacs + PLC Rs.1.57 lacs i.e. total Rs.12.07 lacs to Rs. 16.57 lacs. Respondent contends that this document dated 29.09.2008 is a forged and ante dated one. Petitioner has drawn our attention to their communication dated 08.06.2013 and 31.07.2013. However, these two communications do not refer to any outstanding amount against the respondent. Petitioner has further drawn our attention to communication dated 16.03.2019, as per which amount of Rs.3.36 lacs was demanded . Respondent contends that when they visited the site during February 2009, they saw no development at all and hence they did not pay the same. Petitioner has not placed on record any evidence / documents to rebut these contentions.
We have carefully gone through the orders of the State Commission, District Forum and other relevant records. Notwithstanding the contention of the Petitioner that they were not given enough opportunity before the District Forum to argue their case on merits, during the hearing before us, both sides have extensively argued on the case on merits and were given full opportunity to show us all the relevant documents relied upon by them. It is seen that as per the registration form dated 01.02.2007, the committed time frame for allotment of the plot in question was 4-5 months from the date of registration. However, the agreement took place on 13.09.2008 and by this time, respondent had already paid a major portion out of the total consideration i.e. Rs.7.45 lacs and they were having no option but to sign the agreement. In Pioneer Urban Land & Infrastructure Ltd. Vs. Govindan Raghvan (2019) 5 SCC 725, Hon’ble Supreme Court also observed that “a term of a contract will not be final and binding if it is shown that the flat purchasers had no option but to sign on the dotted line, on a contract framed by the builder ......... the incorporation of one sided clause in an agreement constitute an unfair trade practice as per Section 2 (r) of the Consumer Protection Act, 1986 since it adopts unfair methods or practices for the purpose of selling flats by the builder ........., the appellant-builder cannot seek to bind the respondent with such one sided contractual terms.”
As was held by the Hon’ble Supreme Court in Rubi Chandra Dutta Vs. United India Insurance Co. Ltd. [(2011) 11 SCC 269] that 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.”
In this case, there is an inordinate delay in delivering the possession of the plot in question, complete in all respects as per the registration application / agreement. As was held by Hon’ble Supreme Court in Banglore Development authority Vs Syndicate Bank (2007) 6 SCC 442 and Fortune Infrastructure Vs Trevor D' Lima (2018) 5 SCC 422, allottees cannot be made to wait indefinitely. Delay in delivery of possession amounts to deficiency in service. Hence, allottees are entitled to seek refund of their principal amount alongwith reasonable amount of compensation.
In view of the foregoing, we find no illegality or material irregularity or jurisdictional error in the order of the State Commission. Hence, the same is upheld but with slight modifications. Accordingly, we slightly modify the order of the District Forum / State Commission and order the refund of entire principal amount of Rs.7.45 lacs alongwith interest @ 9% per annum w.e.f. the date of each deposit till the date of refund. This amount is to be paid to the respondent within one month from the date of this order and is subject to due verification of the dates and amounts paid as per receipts. The amount deposited by the petitioner with the District Forum in pursuance to this Commission’s order shall be released by District Forum to the Respondent within two weeks from today under intimation to the Petitioner herein and balance payable, if any, shall be paid by the petitioner directly to the respondents within one month from today.
Revision Petition is disposed off accordingly with above orders alongwith cost of Rs.30,000/- to be paid by the petitioner to the Respondents.