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Judgment
Subhash Chandra, Presiding Member
This revision petition under section 21 of the Consumer Protection Act, 1986 (in short, the ‘Act’) assails the order of the State Consumer Disputes Redressal Commission, Uttar Pradesh, Lucknow (in short, ‘State Commission’) in Appeal No. 2822 of 1999 dated 30.10.2013 arising out of order dated 26.04.1999 of the District Consumer Disputes Redressal Forum, Ballia (in short, ‘District Forum’) in Consumer Complaint No. 138/1998.
Briefly stated, the facts of the case, according to the petitioner/opposite party, are that the respondent/complainant registered for allotment of a residential plot with the Uttar Pradesh Avas Evam Vikas Parishad, Mohalla Harpur, Dist. Ballia on 17.03.1980 by paying a registration fee of Rs 5,000/-. Following a draw of lots, plot number 2B -112 in Mohalla Harpur, District Ballia under Lok Nayak Nagar Yojana, Harpur, Ballia was allotted to the respondent/complainant on 30.07.1992. The respondent was required to deposit Rs 2,62,514/- plus miscellaneous charges of Rs 30,322/- by 30.10.1992. This was subsequently revised to Rs 2,40,093/- plus miscellaneous charges of Rs 28,440/- by 31.10.1992. The respondent/complainant defaulted in making payments despite several notices to do so and to complete formalities of taking over possession. The respondent deposited Rs 3,05,109.75 in 5 installments between 04.02.1993 and 09.05.1994 along with 18% interest thereon but did not take over possession for which further notices were issued since Rule 36 of the Registration & Allotment of Residential Plots & Houses of UP Avas Evam Vikas Parishad Regulations, 1979 mandate completion of all requirements before possession. Finally, on 18.02.1997 the Hire Purchase Tenancy Agreement was signed and possession handed over on 10.03.1997. The respondent then filed a complaint before the District Forum which was decided on contest in favour of the respondent and it was ordered that the petitioner/opposite party calculate penal interest on the cost of the plot from the stipulated date of deposit till actual payment and also interest @ 18% on the amount already deposited by the complainant and pay the difference as on 10.03.1997 within two months, along with Rs 1,000/- towards mental harassment and Rs 500/- litigation costs failing which the default interest would be 20%. Aggrieved, the petitioner/opposite party filed an appeal before the State Commission which, vide order dated 26.04.1999, partly allowed the appeal and reduced the interest to 12% and set aside the compensation and costs imposed by the District Forum. This order is impugned before this Commission.
The petitioner’s case is that the respondent was a defaulter and was therefore not liable for refund. The deposit made by the respondent included calculation of penal interest on his own volition. It is stated that the lower fora failed to consider that the entire amount was not deposited by the stipulated date of 30.10.1992 and formalities of taking over possession under the Rules were delayed till 18.02.1997. The petitioner completed his part of the formalities on 10.03.1997. Hence, deficiency in service is denied and the impugned order is prayed to be set aside.
On behalf of the respondent/complainant it has been argued that the District Forum has rightly appreciated his contentions and ordered in his favour. Compensation by way of interest has been allowed since his money remained deposited with the petitioner for over 3 ½ years. During this period possession was not handed over which amounts to a deficiency in service. The order of the State Commission is prayed to be upheld in order to compensate him for the delay in handing over of the possession of the plot.
I have heard the learned counsel for both the parties and carefully considered the material on record.
The finding of the District Forum was as below:
4.… It is a matter of consideration that if the opposite party has a right to recover interest at penal rate from the complainant then there is no occasion for the opposite party in neither giving possession of the plot nor paying penal interest on a huge amount which he had retained for a long time. Possession of the plot was given to the complainant on 10/3/97 i.e. after almost 2 years from the date of last payment. The complainant is entitled to get interest on his amount at the same rate in which he had paid penal interest to the opposite party.
The State Commission, however, held as under:
Possession of the plot was handed over to the complainant on 10/3/1997, i.e., after a lapse of more than 3 years. Under the circumstances, the order of the learned forum directing the opposite party to pay 18% interest to the complainant is totally just and proper.
… Rule 18 of the Registration and Allotment of Residential Plot Housing Rules, 1979 stipulates that in case any amount is deposited by the allottee beyond of the stipulated date, then interest @ 17% p.a. shall be payable. It is an admitted fact that possession of the plot was handed over to the complainant after a gap of 3 years and the money deposited by the complainant/respondent is not lying with the appellant. The complainant/ respondent has stated the due to unavoidable circumstances, he could not deposit the required money within the stipulated period. Therefore, it would be just and proper in the interest of justice to confirm the order of the learned District Forum to the extent that the opposite party/appellant shall pay interest at 18% to the complainant/respondent and it would not be appropriate to direct the opposite party/appellant to pay Rs 1000/- as compensation for mental and physical harassment and Rs 500/- as litigation cost to the complainant/respondent.
It is evident from the record that there was delay on the part of the respondent/complainant in making the necessary payments as mandated under the relevant Rules. It is also evident that the petitioner/opposite party condoned the delays and accepted the payments with interest and proceeded to hand over possession of the plot allotted. The District Forum ordered the refund of money to the respondent after calculation of the amount payable and interest @ 18% with compensation and litigation cost. The State Commission has upheld the order with the modification that the interest be @ 12% and has set aside the compensation and cost.
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.
This Commission, in exercise of its revisional jurisdiction, is not required to re-assess and re-appreciate the evidence on record when the findings of the lower fora are concurrent on facts. It can interfere with the concurrent findings of the fora below only on the grounds that the findings are either perverse or that the fora below have acted without jurisdiction. Findings can be concluded to be perverse only when they are based on either evidence that have not been produced or based on conjecture or surmises i.e. evidence which are either not part of the record or when material evidence on record is not considered. The power of this Commission to review under section 21 of the Act is therefore, limited to cases where some prima facie error appears in the impugned order. Different interpretation of same sets of facts has been held to be not permissible by the Hon’ble Supreme Court.
The Hon’ble Supreme Court in Rubi (Chandra) Dutta vs United India Insurance Company (2011) 11 SCC 269 dated 18.03.2011 has 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 SCC 286 dated 02.08.2016 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.”
The Hon’ble Supreme Court in its judgment dated 05.04.2019 in the case of T Ramalingeswara Rao (Dead) Through LRs & Ors Vs. N Madhava Rao and Ors, Civil Appeal No. 3408 of 2019 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.”
The foras below have pronounced orders that are detailed and have dealt with all the contentions of the petitioner which have been raised before me in this revision petition. It is also 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.
I therefore, find no illegality or infirmity or perversity in the impugned order warranting any interference of this Commission. The present revision petition is, therefore, found to be without merits and is accordingly dismissed.