Builders often drag flat purchasers through a series of litigation to discourage them from approaching courts. National Consumer Commission is discouraging such practice.
“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 that 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 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 finding of two fora.”
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION
NEW DELHI
REVISION PETITION NO. 1566 OF 2010
(From the order dated 30.10.2009 in Appeal No. 728/2009
of the State Commission, Maharashtra)
M/s R.N.A. BUILDERS (NG)
Raja Bahadur Building,
28, Bombay Samachar Marg,
fort, Mumbai-400023. … Petitioner (s)
Versus
Shri Kalikant Mishra
R/0 F-75, Sagar Kiran,
ONGC Employees CHS Ltd.,
Navghar Road, Bhayander (E),
District Thane-401105. … Respondent (s)
For the Petitioner : Mohd. Wasay Khan, Advocate
For the Respondent : Mr. Nagaraj V. Hoskeri, Advocate
REVISION PETITION NO. 1567 OF 2010
(From the order dated 30.10.2009 in Appeal No. 729/2009
of the State Commission, Maharashtra)
M/s R.N.A. BUILDERS (NG)
Raja Bahadur Building,
28, Bombay Samachar Marg,
Fort, Mumbai-400023.
Through Mr. Narender Gupta … Petitioner (s)
Versus
Shri Sujit Kumar Mishra
Through his Attorney holder
Kalikant Mishra,
R/0 F-75, Sagar Kiran,
ONGC Employees CHS Ltd.,
Navghar Road, Bhayander (E),
District Thane-401105. … Respondent (s)
For the Petitioner : Mohd. Wasay Khan, Advocate
BEFORE:
HON’BLE MR.JUSTICE V.B. GUPTA, PRESIDING MEMBER
HON’BLE MR.SURESH CHANDRA, MEMBER
Dated 05th July, 2011
ORDER
PER JUSTICE MR. V.B. GUPTA, PRESIDING MEMBER
Consumer Disputes Redressal Commission, Mumbai, Maharashtra (For short ‘State Commission’) vide common order dated 30th October, 2009 disposed of two appeals (No. 728 & 729/2009) filed by respondents Kalikant Mishra and Sujit Kumar Mishra as issues involved in these appeals were common and the builder (i.e. petitioner) is also common.
- Respondent/Complainant (Kalikant Mishra) filed complaint (No. 390/2007) whereas respondent/complainant (Sujit Kumar Mishra) filed complaint (No. 398/2007) before District Consumer Forum, Thane, for not giving possession of two flats to them. According to their complainants they had purchased flat no. 401 & 402 on 4th floor in “A” Wing in the building known as ‘NG VIKAS’ and each flat is measuring 379.88 sq. ft. in area. Cost of flat no. 401 was Rs.8,24,600/-. Accordingly, agreement for sale was registered on 25-04-2006. As per complainant, he paid Rs. 5,50,000/- out of Rs.8,24,600/- to the O.P. as part consideration. Complainant further submits that he approached O.P. and requested for possession of the flat after receipt of balance consideration amount. However, O.P. failed to hand over the flat to the complainant.
- In case of flat no. 402, complainant paid entire amount of Rs.8,24,600/- to the O.P. in full and final settlement of the price. In spite of having accepted full consideration amount, O.P. failed to hand over possession of flat no. 402 to the complainant.
- Therefore, separate consumer complaints were filed by both
respondents/complainants alleging deficiency in service on the part of the builder. - O.P./petitioner filed its written statement and denied allegations of the complainants. It pleaded that cost of flat no. 401 was fixed at Rs.8,24,600/- and cost of flat no. 402 was Rs.7,38,600/- and Rs.86,000/- was fixed by O.P. for providing extra amenities. Out of Rs.86,000/-, complainant paid only Rs.46,403/- for the extra amenities and failed to pay the balance amount of Rs.46,403/- to the O.P. it is further pleaded that complainant has not paid entire amount of the flat. Therefore, possession of the flat was not handed over to the complainant since complainant was facing financial crises and had not paid balance amount to the O.P. Therefore, there was no deficiency in service on the part of O.P.
- After considering documents and affidavits placed before it, District consumer Forum partly allowed the complaints and directed O.P. to refund amount of Rs.5,50,000/- together with interest @ 10% p.a. from 25-04-2006. It further directed O.P. to pay Rs.7,000/- towards cost and Rs.25,000/- for mental agony in case of flat no. 401, in complaint (no. 398 of 2007).
- In case of flat no. 402, in complaint (No. 390 of 2007) District forum directed the O.P. to refund amount of Rs.8,24,600/- together with interest @ 10% p.a. from 05-05-2006. It further directed O.P. to pay Rs.10,000/- towards cost and Rs.25,000/- for mental agony.
- Aggrieved by the order of District Forum, respondents /complainants filed appeals before the State Commission, which vide impugned order, allowed both appeals and ordered that Clause 2 & 3 of the operative part of complaint (No.390/2007) regarding refund of consideration amount be substituted as under:–
“Respondent/Org. O.P. is directed to hand over possession of the flat no. 402 on 4th floor, ‘A’ Wing in the building known as ‘NG VIKAS’ admeasuring 379.88 sq. ft. carpet area to the appellant.”
- Similarly, clause Nos. 2 & 3 of the operative part of complaint (No. 398/2007) regarding refund of consideration amount be substituted as under:–
“Respondent/Org. O.P. is directed to hand over possession of the flat no. 401 on 4th floor, ‘A’ Wing in the building known as ‘NG VIKAS’ respondent/Org. O.P. is directed to hand over possession of the flat no. 402 on 4th floor, ‘A’ Wing in the building known as ‘NG VIKAS’ admeasuring 379.88 sq. ft. carpet area to the appellant after accepting balance amount of consideration.
Rest of the order stands confirmed.”
- It has been argued by learned counsel for the petitioner that respondents have not paid the entire consideration of the flats in question and as such possession cannot be handed over. Accordingly, there is no deficiency on the part of the petitioner.
- It is further argued that Respondents have made alternative prayer in their complaint seeking damages and as such possession of the flats cannot be handed over to them.
- On the other hand, it has been argued by learned counsel for respondents that there is no infirmity or legality in the impugned order passed by the State Commission. Petitioner is bound to hand over the possession of flats to the respondents and respondent in complaint (No. 398/2010) is willing to pay the balance amount of consideration as agreed earlier.
- In paras (No. 4 to 7) of both complaints, respondents /complainants have taken specific pleas with regard to the payments made by them during different periods.
- In written statement filed by the petitioner, there is no specific denial with regard to the payments made by the respondents /complainants as mentioned in their respective complaint.
- Under these circumstances, as there is no specific denial made by the petitioner, the payments as stated in the complaints shall be deemed to be admitted as correct, except that in complaint (No. 398/2007) respondent in categorical terms has stated that he is always ready and willing to pay the final consideration amount of Rs.2,74,100/- towards the purchase of the flat. Moreover, there is nothing on record to show that except for the balance consideration amount as admitted by respondent in complaint (No. 398/2007) any other amount is due towards any of the respondents.
- State Commission in its impugned order observed:–
“Perused the record and memo of appeal and we are finding that the order passed by the Forum below in each complaint is erroneous. Appellant has purchased two flats from Respondent and paid total amount of consideration of Rs.8,24,600/- for flat no. 402 and agreed to pay balance amount of consideration in case of Flat No. 401. However, O.P. failed to hand over possession of the flat to the complainant. Forum below awarded refund of consideration amount along with interest @ 10% p.a. However, appellant has filed present appeals for possession of both the flats as Forum below has awarded only refund of the amount.
We perused copy of complaint, wherein appellant has prayed for possession of both the flats namely flat nos 401 & 402 ‘A’ Wing and ready to pay balance amount of consideration of the flat no. 401. The real estate prices have been increased tremendously and the complainant/appellant herein will not be able to purchase flat at the same rate, what was prevailing in the year 2006. Therefore, by allowing both the appeals, we direct the Respondent /org. O.P. to hand over possession of both the flats to the appellants after accepting the balance amount in case of flat no. 401.”
- Since, it is a case, where purchaser of flat in complaints (No. 390/2007) has paid the entire consideration and purchaser of flat in complaint (No. 398/2007) is ready and willing to pay the balance amount, the petitioner/builder cannot deprive them of their legal right to have possession of both flats.
- Petitioner/builder, in the present case “wants to have the cake and eat it too” as in one case, admittedly it has received the entire consideration whereas in other case, certain amount is due, which the purchaser is willing to pay.
- Thus, petitioner being the builder, is enjoying possession of both flats as well as substantial amount of considerations paid by the respondents. On the other hand, both respondents after having paid full amount of consideration in one case and in the other case after having paid substantial amount of consideration, are still without any roof.
- In Narsingh Singh through LRs & Ors. Vs. Shanti Devi through LRs & Ors.2010 (115) DRJ 601. Delhi High Court observed;
“It is well settled that where two Courts below have given a concurrent findings of facts, this Court under Article 227 of the Constitution of India shall not disturb the findings even if there is some mistake committed in appreciation of some part of evidence. Under Article 227, this Court does not correct the mistakes of law or mistakes of facts. The intervention of the this Court under Article 227 has to be only in those exceptional cases where the fora below had either not exercised their jurisdiction or had acted beyond jurisdiction or had ignored the well-settled legal proposition and acted contrary to law.”
- Supreme Court in Mudigonda Chandra Mouli Sastry vs. Bhimanepalli Bikshalu and others, (AIR 1999 (SC) 3095) observed;
“It was also not open to the High Court in exercise of its revisional jurisdiction to have indulged in a reassessment of evidence and thereby interfered with the finding of the facts recorded by the two Courts below.”
- Recently, Supreme Court in Rubi (Chandra) Dutta vs. United India Insurance Co. 2011 (3) Scale 654 observed that;
“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 that 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 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 finding of two fora.”
- Such type of unscrupulous act on the part of petitioner/builder should be dealt with heavy hands who after grabbing the money from the purchasers enjoy and utilize their money but does not hand over the flats, on one pretext or the other. Petitioner has made respondents run from one Fora to other Fora during last four years so that respondents cannot have any roof over their head and he (petitioner) can go on enjoying respondent’s money without any hindrance.
- Since two Fora below have given detailed and reasoned orders which does not call for any interference nor they suffer from any infirmity or erroneous exercise of jurisdiction, in our opinion, the present petition is nothing but gross abuse of the process of law and the same is totally frivolous in nature, which is required to be dismissed with punitive cost of Rs. 1 Lakh (One Lakh). Accordingly, we dismiss these petitions with cost of Rs. 1 lakh.
- Out of this cost, Rs.25,000/- each shall be paid to each of the respondent’s in these two petitions.
- Petitioner is directed to deposit the cost by way of cross cheque for a sum of Rs.50,000/- in the name of “Consumer Legal Aid Account” and two cheques in the sum of Rs.25,000/- each in the name of each of the respondents’ within four weeks from today.
- In case the costs are not deposited within the prescribed period, the petitioner shall be liable to pay interest @ 9% p.a. till realization.
- The cost awarded to the respondents shall be paid to them only after the expiry of period of appeal or revision preferred, if any.
- Accordingly, both the revision petitions stand disposed of.
- List for compliance on 12-08-2011.
Sd/-
……………………………J.
(V.B. GUPTA)
PRESIDING MEMBER
Sd/-
………………………………
(SURESH CHANDRA)
MEMBER
aj
