National Consumer Disputes Redressal
Mahima Real Estate (P) Ltd. vs Radheyshyam Sharma, on 2 February, 2012
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION
NEW DELHI
REVISION
PETITION NO. 3005 OF 2011.
(From the order dated
08.06.2011 in Appeal No. 902 of 2011 of the State Consumer Disputes Redressal Commission,
Rajasthan)
Mahima Real Estate (P) Ltd.
Through Dhiredra Madan Managing Director, F-I,
Opposite Petrol Pump, Raja Park,
JAIPUR- 302004. Petitioner.
Versus
Radheyshyam Sharma,
Resident of 75 Shalimar Bagh Extension, Ajmer Road,
JAIPUR-302024.
.Respondent.
BEFORE:
HONBLE MR.JUSTICE V.B. GUPTA, PRESIDING
MEMBER
HONBLE MR. VINAY KUMAR, MEMBER
For the Petitioner (s):
Mr. Rohit Choudhry and Ms.
Preeti Khiwani, Advocates.
Dated
: 2nd Day of February, 2012.
ORDER
PER MR.
JUSTICE V.B. GUPTA, PRESIDING MEMBER Present revision petition has been filed against order dated 8.6.2011, passed by State Consumer Disputes Redressal Commission, Jaipur (for short as State Commission) vide which appeal filed by petitioner (non-Complainant in the District Forum) has been dismissed.
2. Brief facts are that petitioner agreed to sell Office No. 32 super built up area of 436 sq. ft. @ Rs. 3,600/- per sq. ft. on 5th floor in Mahima Real Estate to the respondent. It was also agreed that possession of well furnished office with AC fitted would be given to the respondent in December, 2009. Respondent paid Rs. 23,440/- being 15%, through cheque on 6.6.2009 on believing the assurance of the petitioner. Respondent financed Rs. 11,79,016/-
from the bank and paid to the petitioner.
Petitioner allotted 327.40 sq. ft. built up area vide allotment Letter dated 12.2.2010, whereas amount of Rs. 16,71,616/- was mentioned in the letter. This amount comes for 436 sq. ft. @ Rs.
3,600/- per sq. ft., whereas only 327.40 sq. ft. area is allotted to the respondent. Price of allotted area comes to Rs. 11,78,640/-. As such, a sum of Rs. 3,92,976/- has been charged in excess from the respondent which he is entitled to recover with interest.
3. Respondent has prayed that excess amount be returned back to him and petitioner be directed to deliver possession of so called office to the respondent as agreed, without charging any additional charge and also to pay interest @ 18% p.a. on the advance amount and further to pay Rs. 2,00,000/- as compensation.
4. Petitioner in its reply admitted that it was agreed to give 436 sq. super built up area to the petitioner @ 3,600/- per sq. ft. but denied of giving any assurance for handing over possession of well furnished office with AC fitted. It is further stated in the reply that 327.40 sq. ft. is carpet built up area whereas office is of 436 sq. ft. super built up area and payment of 436 sq. ft is to be paid by the respondent. Respondent had deposited 15% amount Rs. 2,35,440/- after being fully satisfied.
5. It is admitted that respondent has deposited Rs. 11,79,016/-. However, on deposit of balance amount of Rs. 2,24,913/-, possession of so called office could have been obtained. It is also stated that respondent is prospective buyer and does not fall within the definition of consumer.
6. District Forum vide its order dated 29.3.2011, allowed the complaint and gave following directions to the petitioner;
1. To issue revised allotment letter and demand notice by referring cost of 327.40 sq. ft. within fifteen days and if any amount is to be paid to the non complainant firm to recover from the complainant within 15 days from the date of issue of revised allotment letter and demand letter and if any amount is found to pay to the complainant then to pay the same accordingly within 15 days thereof through account payee cheque to the complainant.
2. To hand over actual physical possession of the Office No. 32, 5th Floor within a period of one week to the complainant upon deposition of balance amount by the complainant or if any amount is not found to be deposited by him as stated above.
3. To refund amount with 12% interest from 18.8.2010 if found to be paid to the complainant by the non complainant firm.
4. To pay Rs. 5,000/- as damages and Rs.
2,000/- as costs to the complainant within a period of one month through account pay cheque under intimation to the Forum.
7. Aggrieved by the order of District Forum, petitioner filed an appeal before the State Commission, which was dismissed vide impugned order.
8. It is contended by learned counsel for the petitioner that State Commission has committed material irregularity because it has not considered the admission of respondent made in his complaint admitting this fact, that at the time of booking he was apprised with the fact that super built up area of the flat is 436 sq. ft. and the rate for the same is Rs. 3,600/- per sq. ft. Accordingly, respondent has paid the booking amount of 15% for the aforesaid flat.
9. Other contention is that there is no deviation in the built up and super built area. Unless and until, agreed price is paid by the respondent, petitioner cannot be asked to hand over the possession.
10. District Forum while allowing the complaint has held;
It is not clear that when amount of 436 sq. ft. area was to be deposited by the complainant then why such it has not been mentioned in the allotment letter. It has been mentioned in the reply filed by the complainant that complainant was satisfied with the area and the price referred in the allotment letter and being satisfied he loaned from the bank and paid the amount. But, looking to the allotment letter merely on the basis of getting loan from the bank it cannot be held that complainant had consented with the area and amount mentioned in the allotment letter and he was estopped from raising any objection in this regard. In the opinion of the Forum act of non complainant charging of amount for 436 sq. ft. area by mentioning 327.40 sq. ft. built up area in the allotment letter is not only deficiency in service rather it is unfair trade practice.
13. Whereas, State Commission, while dismissing the appeal observed;
The dispute is in regard to area and total amount due mentioned in the allotment letter dated 12.2.10. The complainant has alleged that he was prepared to take the possession as per the allotment letter dated 12.2.10 and had also sought loan from the bank whereas the appellant has alleged that due to some inadvertence only actual built up area and the corresponding amount had been mentioned in the allotment letter whereas the measurement of super built up area and the rate accordingly could not be mentioned in the letter of allotment.
On a pointed query made by us the learned counsel for the appellant very fairly admitted that no amended allotment letter was ever issued to the respondent complainant nor any revised demand was raised for additional amount. The leaned counsel for the appellant however submitted that the premises was purchased for commercial use as such the Consumer Forum could not have entertained the complaint filed by the complainant. The appellant is a builder and sells the commercial as also residential premises as per availability in a particular complex on receiving certain amount for construction and other sundry items. Till the actual possession is given to the allottee, he will be treated as consumer. It is only after possession if the premises is used for commercial purpose, the allottee cannot claim any damages for subsequent defects or deficiencies of services if any otherwise agreed upon between the parties.
After having carefully gone through the material on record and the submissions made on behalf of both the sides, we find no error or illegality in the impugned order passed by the District Forum so as to call for any further interference in the present appeal. The same is dismissed accordingly as having no merits.
14. This story put forward by petitioner that built up area of the unit was 327.40 sq. ft. and super built area was 436 sq. ft., is against petitioners own case. In this regard, it would be fruitful to quote the defence taken up by petitioner in its written statement, filed before the District Forum and the same is reproduced as under;
True facts are that said premises was booked by the applicant by giving advance after being satisfied completely and had paid Rs. 2,35,440/-( Ruypees Two Lac Thirty Five Thousand Four Hundred Forty) through cheque No. 060979 dated 6.6.2009 being Rs. 15% of the cost of 436 sq. ft. area and allotment letter etc. was handed over to the applicant on the very same day. No pressure was ever made by the non-applicant on the applicant. Applicant was free to purchase the said premise as per his convenience. It was also told to the applicant on very day that the said premise is loanable and any financial institution will provide loan on it. No assurance was ever given by the non applicant to the applicant for providing of loan.
15. As per above averments made in the written statement, it is no where stated that 436 sq. ft area is to be the super built up area. Now the defence taken by the petitioner in this petition is that, 327.40 sq. ft. was the carpet built up area whereas, super built up area is 436 sq. ft. and respondent has to pay the payment for 436 sq. ft., the super built up area.
16. As noted above, it is petitioners own case that respondent has made payment for 436 sq. ft. area, now it does not lie in the mouth of petitioner to say that 436 sq. ft. is the super built up area and not the carpet area.
17. Under Section 21 of the Consumer Protection Act, 1986 (for short as Act ) this Commission can interfere with the Order of State Commission where such State Commission has exercised a 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.
18. There is no illegality or material irregularity in this case on the part of State Commission.
19. Honble Supreme Court in Mrs. Rubi (Chandra) Dutta Vs. M/s United India Insurance Co. Ltd . 2011 (3) Scale 654 has observed ;
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.
20. In view of the concurrent findings of the facts given by foras below, no jurisdiction or legal error has been shown to us to call for interference in the exercise of power under section 21
(b) of the Act.
21. Moreover, the foras below have given cogent reasons in their orders which do not call for any interference nor they suffer from any infirmity or revisional exercise of jurisdiction.
22. It is not that every order passed by the Fora below is to be challenged by a litigant even when the same is based on sound reasoning.
23. Under these circumstances, present petition is without any legal basis and is merit-less. Accordingly, the same is hereby dismissed with costs of Rs. 25,000/- (Rupees Twenty Five Thousand only).
24. Petitioner is directed to deposit the costs of Rs. 25,000/- (Rupees Twenty Five Thousand Only) by way of a cross cheque in the name of Consumer Legal Aid Account within four weeks from today.
25. In case, costs are not deposited within the prescribed period, then petitioner shall be liable to pay interest @ 9% p.a., till realization.
26. List on 09th March, 2012, for compliance.
J. (V.B. GUPTA) PRESIDING MEMBER ...
(VINAY KUMAR) MEMBER SSB