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Larica Estates Ltd. & Another v/s Kalyan Ghosh

    Revision Petition No. 909 of 2017

    Decided On, 16 March 2020

    At, National Consumer Disputes Redressal Commission NCDRC

    By, THE HONOURABLE MR. C. VISWANATH
    By, PRESIDING MEMBER

    For the Appearing Parties: Prasanta Banerjee, Surojit Banerjee, Advocates.



Judgment Text

Revision Petition has been filed by the Petitioner under Section 21 (b) of the Consumer Protection Act, 1986 against the order passed by the West Bengal State Consumer Disputes Redressal Commission, Kolkata (hereinafter referred to as "the State Commission") in First Appeal No.537/2015 dated 15.03.2017.

2. Case of the Respondent/Complainant is that he had made a payment of Rs.25,050/- out of the total consideration amount of Rs.7,06,000/- and booked a flat with the Petitioner/Opposite Party. The Petitioner did not complete the flat despite several requests made by the Respondent for completion of the same. Aggrieved by the delay in completion of the pending works, the Respondent filed a complaint case before the District Forum with following prayer: -

"A An order for directing the opposite parties jointly or severally to execute and register the deed of conveyance in respect of the flat of the petitioner more fully and specifically described in schedule below in favour of the petitioner, failing which the deed of conveyance may be registered through court/forum; and

B. An order for directing all the opposite parties jointly or severally to deliver the peaceful vacant physical possession of the said flat of the petitioners more fully and specifically described in schedule below in favour of the petitioner, failing which the deed of conveyance may be registered through court/forum; and

C. An order for directing all the opposite parties jointly and/or severally to bear/pay the enhanced cost of registration if and as to be determined by the Ld. Forum and

D. An order for directing all the opposite parties no. 1 to 2 jointly and/or severally to pay Rs.7,00,000/- compensation for harassment, mental agony and also for negligent act and conducting the deficiency in service; and

E. An order for directing all opposite parties jointly and/or severally to take the completion certificate with regard to said multistoried building including all facts as per sanctioned plan from the local Municipality and to hand over the same to the representative petitioner; and

F. An order for directing the all opposite parties jointly and/or severally to provide the all sorts of common facilities in respect of the suit flat and building, in favour of the petitioner; and

H. All cost of the proceeding; and

I. All other relief/reliefs as the petitioner is entitled to get in law and equity."

3. The District Forum allowed the Complaint ex-parte against the Petitioners, imposing a cost of Rs.5,000/-. The District Forum ordered as follows: -

"That the case be and the same is allowed ex-parte against the O.P. no. 1 & 2, with the cost of Rs.5,000/- only.

That the O.P. no. 1 & 2 are jointly and severally directed to hand over the actual vacant possession of the said three bed rooms flat in question, on payment of balance consideration money of Rs.6,81,000/- only, within a period of one month from the date of payment of balance consideration money.

That the O.P. no. 1 & 2 are jointly and severally directed to execute and register appropriate Deed of Conveyance, in favour of the complainant in respect of the said flat within a period of one month from the date of payment of the balance consideration money.

That the O.P. no. 1 & 2 are jointly and severally directed to pay a sum of Rs. 5,000/- only as compensation for harassment and mental agony, within one month from the date of this order.

In the event of non-compliance of any portion of the executable order by any of the O.Ps within the above specified period, the said O.Ps shall have to pay a sum of Rs.200/- per day from the date of this order till its realization, as punitive damages, which shall be deposited by the O.Ps in the State Consumer Welfare Fund."

4. Aggrieved by the order of the District Forum, the Petitioners filed an Appeal before the State Commission. The State Commission heard both the parties and dismissed the Appeal as it was bereft of any merit to be entertained. Against the concurrent findings of both the Fora below, the Petitioners have filed the present Revision Petition before this Commission.

5. Heard learned counsel for the parties. This is a case where the Complainant made part payment of Rs.25,050/- out of a total consideration of Rs.7,06,000/- for purchase of a flat whose construction got delayed. Learned Counsel for the Petitioner argued that the payment of instalment was withheld by the Respondent/Complainant, which led to the cancellation of the booking in terms of clause No.13 of the terms and conditions of the allotment. The reason for non-payment of the balance amount within the time schedule was non-sanction of funds by the Bank for want of required papers which were supposed to be supplied by the Petitioners/Opposite Parties. The State Commission observed that this averment was not controverted by the Appellants/Opposite Parties and, therefore, could be relied upon. Further the learned Counsel for the Respondent/Complainant at the time of argument before the State Commission referred to a letter issued by the Appellants/Opposite Parties to the Respondent/complainant, after the orders of the District Forum were delivered, requesting the Respondent/Complainant to take possession of the flat and get the conveyance deed registered. This indicated the inclination of the Petitioners for carrying out the orders passed by the District Forum. Keeping in view the above, the State Commission did not find any necessity to interfere with the order of the District Forum and dismissed the Appeal on contest without any cost and confirmed the order of the District Forum.

6. Jurisdiction of this Commission under Section 21 (b) is very limited. 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 has 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."

7. 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 j

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urisdiction 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." 8. The State Commission was perfectly justified in dismissing the Appeal. I see no reason to disagree with the concurrent findings of both the Fora below. There is no infirmity or illegality in the impugned order, warranting interference under Section 21 (b) of the Consumer Protection Act, 1986. Revision Petition is therefore dismissed with no order as to costs.
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