National Consumer Disputes Redressal
Ashapurna Buildcon Ltd. vs Om Prakash on 29 October, 2021
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO. 1171 OF 2020 (Against the Order dated 30/09/2020 in Appeal No. 1304/2019 of the State Commission Rajasthan) 1. ASHAPURNA BUILDCON LTD. ...........Petitioner(s) Versus 1. OM PRAKASH ...........Respondent(s)
BEFORE: HON'BLE MR. C. VISWANATH,PRESIDING MEMBER
For the Petitioner : Mr. Shiv Vyas, Advocate For the Respondent :
Dated : 29 Oct 2021 ORDER
1. The present Revision Petition has been filed by the Petitioner against order dated 30.09.2020 passed by the State Consumer Disputes Redressal Commission, Rajasthan (for short "State Commission") in First Appeal No. 1304/2019.
2. Case of the Ccomplainant/Respondent is that he entered into an agreement dated 05.03.15 with the Opposite Party/Petitioner for construction on Plot No. 308 under the scheme "Ashapurna Nano Grand Project" for Rs.14,14,577/-. The Opposite Party gave a proposal for construction of Residential House in village Kharda Randhir, Shikargarh, Jodhpur at Khasra No. 19, 19/1, 19/2 and 19/3 and 31, 30/3, 30/4 and 30/7. The Complainant accepted the proposal for which the agreement was made on 05.03.2015. According to the agreement the construction area was 735 sq. feet on total area of Plot No. 308 of 111.11 sq. yards.
3. The booking was done on 18.03.2015 and booking amount of Rs.11,000/- was deposited through Receipt No. 1524 at the same time and later Rs.3,10,000/- was paid on 13.04.2015. Further, Rs.1,50,000/- was paid on 17.04.2015 and Rs.8,00,000/- was paid on 20.04.2015 through cheque by the Respondent. Total amount of Rs.12,71,000/- was paid by the Respondent and the balance payment of Rs.1,43,577 was assured to be paid at the time of delivery of possession as per the terms and conditions of the Agreement. On inspection by the Respondent's Civil Engineer, it was found that material used in the building, bathroom, furnishing, electric work etc. was of substandard quality. The Respondent, vide letter dated 26.09.2015, informed the Petitioner about the same. Instead of correcting the deficiencies, the Petitioner, vide letter dated 13.10.2015, cancelled the allotment on the ground of non-payment of balance amount. The Residential House No.308 was also sold to a third party Shri Mohan Singh Bhati. Aggrieved by the Opposite Party/Petitioner, the Complainant/ Respondent filed Consumer Complaint No.948 of 2015 before the District Forum for the alleged deficient service with the following prayer:
"Hence application is submitted and prayed that application of the applicant be accepted and as per promise given to applicant by the non-applicant order be issued to make the residential house available and order be issued to allow Rs. 20,000/- for mental agony, Rs. 3,000/- complaint expenses and Rs. 1,00,000/-, in words rupees one lac, for compensation for the wastage of time of the applicant from the non-applicant to applicant and other relief in favour of the applicant, if any be allowed."
4. The Complaint was resisted by the Opposite Party/Petitioner before the District Forum in which it was contested that the dispute was of civil nature and civil court was appropriate forum for the adjudication of the case. It was stated that the Respondent was not 'Consumer' under the Consumer Protection Act, 1986. The Respondent had not booked the house for residential purpose but for commercial purpose and matter therefore related to sale-purchase of immovable property which does not amount to any deficiency in service. The Opposite Party referred to the condition No. 59 of the Agreement, which makes a reference to the settlement of the dispute through Arbitration.
5. Opposite Party alleged that the Complainant was requested from time to time to pay the balance amount. The allotment was subsequently cancelled by giving him notice dated 13.10.2015 for non-deposit of the amount. Thereafter, it was sold to Shri Mohan Singh Bhati on 28.10.2015. The Complainant was offered the refund of balance amount after deduction from his deposited amount as per the Agreement. Opposite Party, therefore, claimed that there was no deficiency in service on their part. The Opposite Party also pointed out that high standard of technique was used for construction and the material used was as per the Agreement. Opposite Party also pointed out that the Complainant did not adhere to the payment schedule. The Complainant was given notices dated 12.08.2015, 04.09.2015, 28.09.2015 for depositing the amount due. Only after the repeated notice for payment of balance amount the Complainant was sent cancellation letter dated 13.10.2015.
6. The District Forum hearing the learned Counsel for the Parties and perusing the record held that in spite of receiving 90% of the total amount the Opposite Party failed to deliver possession of the house. When the Complainant informed the Opposite Party regarding deficiency in construction, the Opposite Party instead of taking any action in that regard cancelled the allotment, which amounted to deficiency in service and unfair trade practice. the District Forum allowed the Complaint and ordered as follows-
"Hence, complaint of the complainant is accepted against non-applicant jointly and severally, it is directed that non-applicant to deliver possession of disputed house No. 308 to the complainant within period of one month from the date of decision and at the time of taking possession complainant himself and or through Bank to pay the balance amount to the non-applicant. In addition to this to pay to complainant also Rs. 50,000/- lump sum on account of mental agony and complaint expenses."
7. Aggrieved by the order of the District Forum, the Opposite Party filed Appeal No. 1304 of 2019 before the State Commission. After hearing the Learned Counsels for the Parties and perusing the record, the State Commission upheld the order of the District Forum and dismissed the Appeal. Order of the State Commission reads as follows: -
"The Complainant had paid 90% amount and only 10% amount remained due. By this it seems that the Respondent was ready to take the House. The Complainant sent the notice only for correction of deficiency, only on that basis the allotment of the Complainant was cancelled. If the non-applicant even allotted the plot to Mohan Singh Bhati, he shall be responsible for that."
8. Aggrieved by the order of the State Commission, the Petitioner/Opposite Party preferred Revision Petition before this Commission with the following prayer:
"1. Admit the revision petition, and call for the records and after hearing the parties be pleased set aside the impugned order dated 30.09.2020 passed by Hon'ble Rajasthan State Commission Jaipur in appeal No: 1304/2019 and allow the revision petition.
2. Any other relief, which this Hon'ble Commission deems fit in view of the facts and circumstances of the case."
9. Heard Learned Counsel for the Petitioner and have carefully gone through the record. Learned Counsel for the Petitioner submitted that the Fora below have failed to observe that the Respondent had not come before the Forum with clean hands and concealed the true facts that he was never interested in taking possession and failed to comply with the terms and conditions of the Contract. On demanding the balance payment the Respondent started raising false contentions of defects in construction and did not submit any report regarding the defects in construction work as alleged. The Fora below failed to appreciate that Residential Plot No. 308 had already been allotted to another person and the Petitioner is ready to refund the amount deposited by the Respondent as per the terms of the agreement. The Respondent failed to make balance payment as per schedule and the allotment of the house to the Respondent was cancelled as per rules and there was no deficiency in service and prayed for the dismissal of the complaint.
10. The admitted facts of the case are that the Respondent entered into an Agreement on 05.03.2015 for construction of Residential House in 'Ashapurna Nano Grand Project' with the Petitioner for Rs. 14,14,577/-. The Respondent deposited total Rs.12,71,000/- and consented to pay the balance amount of Rs.1,43,577/- at the time of delivery of possession and execution of the documents as per the terms & conditions of the Agreement. The Respondent brought to the notice of the Petitioner certain grievances related to the defects and sub-standard material used in the construction, which was to be rectified by the Petitioner. The Petitioner in response cancelled the Residential building No.308 on the ground of non-payment of dues and sold the same to Shri Mohan Singh Bhati.
11. In the present case, the Petitioner entered into development agreement with the Respondent for the purpose of a residential housing project, which makes the Petitioner a service provider and the Respondent, a Consumer. Therefore, the case falls within the ambit of the Consumer Protection Act, 1986.
12. The main issue for adjudication is whether cancellation of a Residential House by the Petitioner amounted to deficiency in service. From the letter dated 26.09.2015 it is clear that the Complainant paid 90% of the total consideration and was interested in the full payment of the house. The Petitioner did not produce any evidence to satisfy this Commission regarding steps taken to rectify the defects related to the sub-standard construction. Also, the Petitioner failed to produce any evidence that the Complainant failed to make the payment. Instead, the Opposite Party served the cancellation notice dated 13.10.2015 for non-payment and allotted the Residential Building to a third party. Payment of 90 per cent of the amount by the Respondent and promise to pay the balance on the delivery shows that the Complainant was ready and willing to take the house. The cancellation of the Residential House by the Petitioner, instead of correction of defect in the building and further allotment of the same to the third party, certainly amounts to deficiency in service and unfair trade practice. This Commission endorses the concurrent view taken by the Fora below that arbitrary cancellation of Residential House amounts to deficiency in service and unfair trade practice.
13. Also, Jurisdiction of this Commission is limited under Section 21 (b). This Commission is not required to re-appreciate and reassess the evidences and reach to its own conclusion. The Court can intervene only when the Petitioner succeeds in showing that the Fora below have wrongly exercised its jurisdiction or there is a miscarriage of justice. It was so held by the Hon'ble Supreme Court in the case of Mrs. Rubi (Chandra) Dutta Vs. M/s United India Insurance Co. Ltd. (2011) 11 SCC 269 has held as under: -
"13. 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."
14. Same principle has been reiterated by Hon'ble Supreme Court in the case of Lourdes Society Snehanjali Girls Hostel and Ors. Vs. H & R Johnson (India) Ltd. and Ors. (2016 8 SCC 286 wherein Hon'ble Supreme Court has held as under:-
"23. The National Commission has to exercise the jurisdiction vested in it only if the State Commission or the District Forum has failed to exercise their jurisdiction or exercised when the same was not vested in their 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."
15. In view of the above, I find no reason to interfere with the concurrent findings of both Fora below. Petitioners have failed to point any illegality or irregularity in the order passed by the State Commission, warranting interference in exercise of Revision Jurisdiction of this Commission under the Consumer Protection Act, 1986. Revision Petition is accordingly dismissed with no order as to costs.
...................... C. VISWANATH PRESIDING MEMBER