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Judgment
Avm J. Rajendra, Avsm Vsm (Retd.), Presiding Member
This Revision Petition No. 922 of 2022 challenges the impugned order of the Tamil Nadu State Consumer Disputes Redressal Commission, Chennai (State Commission) dated 16.02.2022. Vide this order, the State Commission had dismissed Appeal No.19 of 2016. In turn, this Appeal had been filed against the order of the District Consumer Disputes Redressal Forum, Chennai (North) (District Forum) dated 20.10.2015. Vide this order, the District Forum, dismissed the Complaint filed by the Petitioner/ Complainant.
Briefly, the facts of the case as per the Petitioner/ Complainant are that, believing the representation/assurance of the Opposite Party OP) No.1 that he is a Builder, promoting projects and doing quality construction of flats, the Complainant had booked Flat No.1, "Golden Palm Apartments', Thoraipakkam, Chennai on 21.02.2011. Towards the same, he entered into a Tripartite Construction Agreement, dated 23.03.2011, with the OP-1 and 2. In terms of the said Agreement, he also paid 70% of the total construction cost. The complainant was in constant touch with the OP-1, seeking details on progress and other aspects of the construction. From 23.01.2012 onwards, he constantly pursued OP-1 for further alterations in the internal partitions of the flat as well as changing the common bathroom as attached one and the attached bathroom as common. Vide reply dated 31.01.2012, OP-1 informed him that such change could be done by the Complainant himself after handing over possession, since the construction stage had matured. The alterations sought would, in no way, cause any loss to the OP-1 as the entire alteration cost would be borne only by the Complainant himself. Further, the alterations could be done easily at the basic construction stage itself and it would, in no way, hamper the progress of construction. But, it would cause huge expenditure, if done after handing over the possession. Clause-9 of the construction agreement specifically provides to safeguard the satisfaction of the Complainant as regards modification to internal partitions, and OP-1 alone was responsible for the consequences, if he fails to undertake the modifications. While he awaited for OP-1 to complete the construction with the alterations in the internal partitions as per the specifications of the agreement, he was shocked to receive a mail, dated 14.04.2012, from OP-1, informing that further construction is in progress without alterations to internal partitions and vide letter dated 10.05.2012 OP-1 demanded settlement of the balance amount. He had taken loan from HDFC Bank with EMI at Rs.30,839/- and paid over 70% cost and was greatly shocked by the conduct of OP-1 in demanding balances payment when the work remained incomplete. OP-1, in fact, failed to complete many works mentioned in the agreement viz., cupboards not provided in the kitchen & bathrooms, electrical points with proper wiring not given according to the plan, not making a provision for exhaust fan in the kitchen, putting up kitchen tiles and fan hooks contrary to the purpose, defective skirting of wall in smaller bedroom, replacement of broken wooden frames, not providing standard wash-basin in attached bathroom, not providing window in Namaz Room, not providing open kitchen and not carrying out alterations to the internal partitions. Hence, he prayed the District Forum to pass an award against the OPs to- (i) hand over a fully completed Flat No.F1, "Golden Palm Apartments", Thoraipakkam, Chennai, in all respects as per the agreed terms on payment of balance, after due deductions; (ii) permit the Complainant to deduct the cost of remaining unfinished works as listed out in Para 7 of the complaint, from the balance payable; (iii) appoint an Advocate Commissioner to inspect with the aid of a qualified civil engineer and submit a report of the said flat; (iv) pay Rs.5,00,000/- for alterations to the internal partitions which the OP failed to do, as agreed; (v) pay Rs.5,00,000/- as compensation for the deficiency of service for failure to complete and handover a fully completed flat in all respects as per the Construction Agreement dated 23.03.2011; (vi) pay Rs.5,00,000/- for the resultant mental agony and pain caused by such deficiency of service; and (v) pay Rs.25,000/- as costs of the complaint.
In reply, OP-1 contended that OP-1 & 2 entered into a joint venture agreement on 14.01.2011 to develop Complainants property. OP-1 agreed to construct 8 flats, out of which OP-1 & 2 were allotted 4 flats each. The Complainant booked flat F-1 measuring 1073 sq ft. with 547 sq ft. undivided share interest in the land for Rs.39,82,202/- payable as per the progress the construction. The Complainant had made request for certain changes which are a beyond the scope of Clause 9 of the agreement. However OP-1 undertook some changes and the Complainant paid alterations cost of Rs. 8,000/- though the amount due was Rs.48,000/-. At the time of project completion and delivery of possession to all flat owners, the Complainant requested for additional changes vide his mail dated 23.01.2012. OP-1 replied that the request cannot be acceded to at that stage of construction. The Complainant himself wanted to carryout repairs and sought 3 days. Thereafter, there were several mails between the Complainant and OP-1 with respect to alterations and the OP-1 rejected to undertake the alterations at that stage. OP-1 requested him to pay the balance Rs. 12,00,000/- and take Flat delivery vide mail dated 03.07.2012. Thereafter, the Complainant forwarded a legal notice on 01.12.2012 and the same was suitably replied. The Complainant admitted the balance due vide letter dated 15.12.2012. There is no deficiency in service by OP-1. OP-2 was proceeded ex-parte before the District Forum.
The District Forum vide order dated 20.10.2015 dismissed the Complaint by holding that the Opposite Parties have not committed any deficiency of service and hence, the complainant is not entitled for any relief.
On Appeal, the State Commission, vide the impugned order dated 16.02.2022 affirmed the order passed by the District Forum with reasons as below:
9. It is the main grievance of the appellant/complainant that, in terms of Clause-9 of the construction agreement, he had sought for certain internal modifications viz., changing the common bathroom to an attached one and the attached bathroom to a common one. But, the first respondent went ahead with the construction without carrying out the above alterations sought for in terms of clause-9. Apart from that, many shortcomings and deficiencies, as listed out in the complaint, were never corrected/rectified, thereby, clear deviation from the construction agreement by the 1st respondent is apparent. Per contra, it is the stand of the 1st respondent that the request made by the appellant to re-model the interior work, costing Rs.48,000/-, was beyond the purview of clause-9 of the construction agreement, however, only to satisfy the appellant, they agreed to do it at the cost of Rs.8,000/-, thereby, they suffered loss. According to the 1st respondent, since the act of the appellant in not coming forward to pay the balance sum for taking possession of the constructed flat clearly indicated that he failed to honour the agreement, the very complaint lacks bona fides particularly in regard to the allegation of deficiency in service.
With reference to the above contrary claims, it would be relevant to first look into the tripartite construction agreement under Ex.Al, dated 23.03.2011, in particular clause Nos.9 and 17 thereof (connected to the appellant herein/complainant, mentioning him as "Party of the Third Part"), which read as follows:-
9. That in the event of the PARTY OF THE THIRD PART desiring to alter or modify the internal partitions, change in flooring, glazed tiles and any other extra fittings shall be only at the cost of the PARTY OF THE THIRD PART and the Party of the Third Part shall pay the difference in cost in advance. "
THAT THE PARTY OF THE THIRD PART shall visit the site to look after the progress of work, but have no rights to hinder/supervise or give technical instruction on the progress of construction work over the property described.... "
A combined reading of the above two clauses make it clear that while, as per clause-17, the appellant has no right to supervise/give technical instructions on the progress of construction or to stall it, clause-9 specifies that any alteration/modification to the internal partitions, change in flooring, glazed tiles and any other extra fittings shall be only at the cost of the appellant and he shall pay the difference cost in advance. While so, the case of the appellant being that, although he made specific pleas for modification to the internal partitions in terms of clause-9, without even caring to accede to those genuine pleas, the first respondent proceeded with the construction work, over which, the appellant cannot have any supervision in terms of clause-17 and ultimately, by stating that the construction was at the verge of completion, very conveniently, his requests were declined; the 1st Respondent would claim that, for the works covered by clause-9, the appellant was always reluctant to spare the costs in advance and since he was repeatedly coming up with claims of modification one after the other which amounted to violation of clause-17, such demands could not be entertained owing to the fact that, by that time, the construction has reached the final stage. To find out as to whether the appellant's request in terms of clause-9 was made at the relevant time/basic stage of construction suitable to carry out the changes or it was purposely delayed due to the tactics of the 1st respondent by taking shelter under clause-17 of the construction agreement, is a question of fact that cannot be gone into in summary proceedings, since it requires comprehensive adjudication based upon elaborate evidence by affording opportunity of cross-examination to the other side before appropriate civil court, where, the appellant can very well canvass other points raised by him viz., whether there was lawed design in the original plan of the 1 respondent, whether there was failure to lay a pit in the place marked for a common bathroom to provide Indian-type closet when a sunken pit was provided in the attached bathroom which was not required at all for placing the western-type closet, whether or not the first respondent was conscious of the structural design that the pillars would come in the way of the proposed modification, whether there was deviation from the construction agreement on the part of the first respondent in not providing cupboards in the bed-room with Cudappa Stones without shutters, as per schedule-D of the agreement & in not providing wash basin in the attached bathroom and more importantly about cost adjustments, etc. Although the Report, dated 25.07.2019, of the Advocate Commissioner, appointed by this Commission subsequent to the orders, dated 22.04.2019, passed in CMP No.131 of 2019, as well as the Engineer's Report, dated 24.06.2019, indicate that many deficiencies and defects need to be rectified, we refrain ourselves from discussing the same since we are afraid, any such exercise would again incidentally lead to disputed questions on fact. For any wholesome adjudication, it is for the appellant to approach the civil court concerned, where the parties can examine/cross-examine the other side and adduce elaborate evidence to canvass/substantiate their respective claims. Accordingly, we are not inclined to entertain the present Appeal.
The First Appeal is dismissed with the observation that, for a wholesome adjudication, it is for the appellant to approach the civil court concerned, where the parties can examine/cross-examine the other side and adduce elaborate evidence to canvass/substantiate their respective claims. No costs.
The learned counsel for the Petitioner reiterated the grounds stated in the Revision Petition and asserted that the case of the petitioner is squarely covered by the law as has been laid down by the Honble Supreme Court in Dr. J.J. Merchant Vs. Srinath Chaturvedi wherein the Apex Court affirmed the powers of the Consumer Commission to try matters which are complex in nature. He has also relied upon the judgment of the Apex Court in the Civil Appeal No.432 of 2022, Sunil Kumar Maity Vs. State Bank of India, dated 21.02.2022. Even in the present case, the respondents committed many deficiencies in service which could be rectified. This amounts to deficiency in service on the part of the respondents. He sought to set aside the impugned orders passed by the Fora below.
The learned Counsel for Respondents reiterated the facts of case and raised objections in the reply filed before the District Forum and argued in support of the impugned orders passed by the learned District Forum and the State Commission.
I have examined the pleadings and associated documents placed on records as well as the orders and reasoning of the learned District Forum and the State Commission. The learned District Forum issued a well-reasoned order based on evidence and arguments advanced before it. The learned State Commission, after hearing both parties, determined that the District Forum's order required no intervention. This was primarily because the Petitioner failed to prove that the respondents were committed any deficiency in service as per the agreement executed between the parties. This order is now being challenged at the revision stage.
It is a well settled position in law that revision under section 58(1)(b) of the Consumer Protection Act, 2019 confers very limited jurisdiction on this Commission. In the present case, there are concurrent findings of the facts and the revisional jurisdiction of this Commission is limited. I do not find any illegality, material irregularity or jurisdictional error in the impugned Order passed by the learned State Commission warranting our interference in revisional jurisdiction under Act. I would like to rely upon the decision of the Honble Supreme Court in the case of Rubi (Chandra) Dutta Vs. M/s United India Insurance Co. Ltd., (2011) 11 SCC 269. Further, Honble Supreme Court in Sunil Kumar Maity vs. SBI & Anr. Civil Appeal No. 432 OF 2022 Order dated 21.01.2022 observed as follows as regards revisional Jurisdiction of NCDRC:-
9. It is needless to say 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. In the instant case, the National Commission itself had exceeded its revisional jurisdiction by calling for the report from the respondent-bank and solely relying upon such report, had come to the conclusion that the two fora below had erred in not undertaking the requisite in-depth appraisal of the case that was required. .....
Similarly, Hon'ble Supreme Court in Rajiv Shukla Vs. Gold Rush Sales and Services Ltd. (2022) 9 SCC 31 has held that:-
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.
Based on the discussion above, I do not find any merit in the present Revision Petition and the same is dismissed. Consequently, the impugned order of the learned State Commission is upheld.
Keeping in view the facts and circumstances of the present case, there shall be no order as to costs. All pending Applications, if any, are also disposed of accordingly.