Ravindra Sakharam Nagare vs Ajay Rao Saheb & 3 Ors

Dr. S. M. Kantikar, Presiding Member

We heard the learned counsel for the revision petitioner and the respondent no. 1 / complainant no. 1 in person for the respondents no. 1 & 2 / complainants no. 1 & 2. Respondents no. 3 & 4 were ex parte.

We perused the entire material on record.

The revision petition has been filed with delay of 45 days. From the reasons stated in the application for condonation of delay, sufficient cause to condone the delay is not visible. However, in the interest of justice, to afford fair opportunity to the revision petitioner, and to settle the matter on merit, the delay is condoned.

The dispute relates to not delivering possession, not providing the completion-cum-occupancy certificate and not getting the sale deed registered in respect of a row house.

The facts of the case have been briefly stated in the following extract of the State Commission's Order dated 21.04.2014:

It is the contention of the complainants/ respondents that they had booked a row house no.3 in a construction to be carried out by the opponent/appellant for a consideration of Rs. '18,00,001/-. It is further contended that the land originally belonged to the original opponent nos.2 & 3 and they entered into a development agreement with opponent no.1/ present appellant and the opponentnos.2 &3 had executed a power of attorney in favour of opponent no. 1/appellant. Accordingly, opponent has got the plan approved by the Local Urban authority. The complainants have paid an amount of '51,000/- to the opponent no. 1 and opponent no. 1 has issued a receipt thereof. Thereafter, the complainants have made a payment of '1,50,000/- and the complainants have produced an extract of Bank Account in support of their contentions. According to the complainants, remaining amount was to be paid to the opponent no.1 by taking a loan from the financial institution. Accordingly, the complainants have approached to HDFC bank and the HDFC Bank had principally sanctioned a loan amounting to '16,00,000/-. The complainants have informed the same to opponent no. 1. However, opponent has not provided the papers required for releasing the loan. Complainants met O.P. no. 1 from time to time for providing the papers. However, opponent no. 1 - appellant has not provided the papers required for sanctioning the loan and refused to hand over possession of the row house. Alleging this, as deficiency in service on the part of the opponents, the complainants have filed a consumer complaint with a prayer that the opponents be directed to carry out the incomplete work and hand over possession of row house no. 3 after accepting an amount of ' 16,00,000/- and if opponent no. 1 / appellant is not in a position to hand over possession, to pay compensation of '10,00,000/- along with interest of 24 % p.a. of the amount already paid to the opponent no.1 w.e.f. 19/04/2010, to pay a house rent of '3,500/- per month w.e.f. April, 2010, to direct the opponents to pay a processing fee of '15,000/- paid to the financial institution for sanctioning the loan. Alternatively, if opponent no. 1 is not in a position to hand over possession, to pay an additional amount of '7,00,000/- to 8,00,000/- for purchasing a row house in the same area along with costs of '25,000/-.

The District Forum heard the parties, appraised the evidence, and vide Order dated 12.04.2012 partly allowed the complaint. Extract from the appraisal made by the District Forum is quoted below:

After considering the statement made in the complaint as well as written submission of the Respondent and page no. 7 & 8 that out of consideration amount of Rs. 18,00,001/-, the complainant has given Rs. 2,00,001/- to the Respondent and the complainant is ready to pay the remaining amount of Rs. 16,00,000/- by taking loan from the finance company. According to us and in view of this the complainant is liable to pay the balance amount of Rs. 16,00,000/- to the Respondent as well as getting possession of constructed Row house no. 3 along with final registered sale deed as well as completion certificate.

The Respondent No. 1 did not construct Row house within the time frame as well as nor executed registered sale deed and possession to the complainant. Therefore the complainant has sustained financial loss as well as mental and physical agony and also incurred expenses for filing this consumer complaint before this forum. In our opinion and in view of the above said reasons the complainant is liable to take compensation as Rs. 75,000/- as well as Rs. 15,000/- as mental agony from the Respondent along with cost of litigation as Rs. 1,000/-.

The complaint of the complainant and documents filed along with complaint as well as written argument and written submission filed by the Respondent no. 1 to 3, affidavits along with filed documents and arguments of the Advocates were considered and passed the following order is as under.

ORDER

The complaint of the complainant was partly allowed against the Respondent No. 1 to 3.

The Respondent No. 1 was directed to complete the construction and given possession to the complainant along with completion certificate within 60 days from today.

The Respondent No. 1 to 3 was also directed to do the final registered sale deed within 60 days from today and the complainant was directed to pay the remaining balance amount of Rs. 16,00,000/- to the Respondent no. 1 at the time of executing the registered sale deed.

The Respondent No. 1 was directed to pay Rs. 75,000/- to the complainant towards financial loss within 60 days from today.

The Respondent No. 1 was directed to pay Rs. 10,000/- to the complainant towards mental agony within 60 days from today.

The Respondent No. 1 was directed to pay Rs. 1,000/- to the complainant towards cost of litigation within 60 days from today.

(as per the translated copy furnished by the revision petitioner)

The opposite party no. 1, the petitioner herein, appealed in the State Commission. The State Commission heard the opposite party no. 1 as well as the complainants no. 1 & 2, appraised the evidence, and vide Order dated 21.04.2014 dismissed the appeal. Extract from the appraisal made by the State Commission is quoted below:

During the course of hearing, the respondent has filed copies of the Roznama of the District Forum and the papers which were part of the District Forum record. Admittedly, respondent nos. 1&2 had booked a row house no. 3 in a construction to be carried out by the appellant by paying an amount of 51,000/- and the appellant has issued a receipt dated 19/04/2010 which is at page 35 of the appeal compilation. There is a dispute regarding the consideration of the row house. The complainants are contending that the total consideration of the row house was '18,00,001/-. According to the opponent/appellant, consideration of the row house was '27,50,000/- No doubt there is no direct evidence in respect of consideration amount. In support of their contention, the complainants have filed an affidavit of one Ms. Meera Shivram Borate, who has affirmed that at the time of the contract the complainants have paid an amount of '51,000/- as advance and the consideration of the row house was '18,00,000/-. Similarly, respondent nos. 2 & 3 who were original opponents and are landlords have stated in the written version that the consideration of the row house was '18,00,001/-. At page no. 93 of the appeal compilation there is copy of the order of HDFC Bank principally sanctioning loan on 20/11/2010. Loan amount sanctioned was 16 lakhs. All these circumstantial evidence conclusively prove that the consideration of the row house in dispute was '18,00,001/-.

It is curious to note that before the District Forum appellant has taken a plea that he has sold the row house to one Mr. Bhupendra Jagannath Sawant. However, he has not adduced any evidence in support of his contention. In an appeal, appellant is taking a plea that he has sold the said row house to one Mr. Dharmendra Ganesh Nayak on 17/08/2010 for consideration of '22,50,000/-. As against this, appellant claims that he has entered into an agreement to sell the said row house to the respondent nos. 1&2 for a consideration of '27,50,000/-. So there are contradictions in the pleadings of the appellant and it seems that the appellant has not approached to the Commission with clean hands.

At page no. 93 of the appeal compilation, respondent nos. 2 & 3 has filed loan sanction order of the HDFC Bank dated 20/11/2010, whereby the bank has principally sanctioned a loan of '16,00,000/- to respondent nos. 2&3. However, appellant had not handed over the papers required for release of the loan and the loan could not be released. Thus, there is a clear cut deficiency on the part of the appellant.

District Forum looking into the facts and relying on the circumstantial evidence has rightly allowed the consumer complaint by passing the impugned order. We do not find any reason to interfere in the same. We hold accordingly and pass the following order:-

ORDER

Appeal stands dismissed. Order of the District Forum is hereby confirmed.

Parties shall bear their own costs.

The petitioner, the opposite party no. 1 before the District Forum, and the appellant before the State Commission, has filed the instant revision before this Commission under section 21(b) of the Act 1986, impugning the said Order dated 21.04.2014 of the State Commission.

We have carefully perused the Orders of the two fora below. We note in particular the extracts from their respective appraisal quoted in paras 6 and 7 above. We find both Orders to be well-appraised and well-reasoned.

The District Forum has aptly dealt with the preliminary issue of pecuniary jurisdiction as well as with the substantive matter in dispute. The State Commission, on re-appraising the evidence, has concurred with the findings of the District Forum.

Within the ambit and scope of section 21(b), we find no crucial error in appreciating the evidence by the two fora below, as may cause to require de novo re-appreciation of the evidence in revision.

We also find the award made by the District Forum (quoted in para 6 above), and as affirmed by the State Commission, to be just and equitable.

On the face of it, we find no jurisdictional error, or a legal principle ignored, or miscarriage of justice, as may require interference in the exercise of the revisional jurisdiction of this Commission under section 21(b).

The revision petition is dismissed.

Protection from execution provided by the Order dated 03.07.2019 does not survive. The District Forum shall undertake execution as per the law.

A copy each of this Order be sent to the District Forum and to all parties (including the complainant) by the Registry within three days of its pronouncement.