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Sakuntala Devi v/s Dr. Md. Mumtaz Alam & Others


Company & Directors' Information:- DEVI CORPORATION PRIVATE LIMITED [Active] CIN = U16000AP2011PTC076133

Company & Directors' Information:- ALAM & CO LTD [Strike Off] CIN = U60210WB1946PLC014227

Company & Directors' Information:- MD INDIA PRIVATE LIMITED [Active] CIN = U74999DL2016PTC306314

Company & Directors' Information:- MD R INDIA PRIVATE LIMITED [Strike Off] CIN = U72400DL1999PTC097812

    Revision Petition No. 78 of 2020

    Decided On, 06 March 2020

    At, National Consumer Disputes Redressal Commission NCDRC

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

    For the Petitioner: Ratan Lal Shaw, Advocate. For the Respondents: -----



Judgment Text


1. This 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.A/73/2019 dated 27.12.2019.

2. The case of the Complainant/Respondent No.1 is that he entered into an agreement for sale on 13.03.2010 with Opposite Parties No.1 & 2/Developers, who took up construction of a building on the land provided by Opposite Party No.3/Respondent No.6 and Petitioner/Opposite Party No.4 for purchase of a flat on the first floor of the building measuring 408 sq. ft., for a consideration of Rs.7 lakhs. Opposite Parties 1 & 2 alongwith Opposite Parties No.3 & 4 entered into a separate agreement on 25.03.1997 and the Complainant’s flat came within the developer’s allocation. Initially the Complainant paid a sum of Rs.1,70,000/- to Opposite Parties No. 1 & 2 and subsequently he paid the balance amount, totalling to Rs.6,10,000/-. Although the Complainant was ready to get the sale deed executed on payment of the final balance amount of Rs.90,000/- within the stipulated time, the Opposite Parties in collusion with each other avoided handing over of the flat. Hence, a complaint case was filed before the District Forum by the Complainant with following prayer: -

“a. To admit the case and to direct service of notice upon the opposite parties.

b. To direct the Opposite Parties to hand over possession of the said flat and to execute the register deed of conveyance in favour of the complainant.

c. To direct the Opposite Parties to pay Rs.1,00,000/- as compensation for their unfair means of trade practice and mental agony and harassment caused to the complainant.

d. To direct the Opposite Parties to pay litigation cost of Rs.50,000/-

e. To pass such other relief or reliefs as the Ld. Forum deem fit & proper.”

3. The District Forum allowed the Complaint on contest against Opposite Party No.1, 2 (i) to (iii) and ex-parte against Opposite Parties No.3 & 4. It directed as follows: -

“That the complaint be and the same is allowed on contest against Opposite Parties 1, 2 (i), 2 (ii) and 2 (iii) in terms of Section 13 (2) (b) (i) of the C.P. Act, 1986 and ex parte against OPs 3 & 4 in terms of Section 13 (2) (b) (ii) of the Act;

That all OPs are directed to jointly and severally hand over possession of the flat in question as per Schedule given at page 9 of the complaint, to the complainant and execute and register the same in favour of the complainant, within 45 days from the date of this order;

That the complainant is directed to pay Rs.90,000/- to the legal heirs of OP-2 i.e. OPs 2 (i), 2 (ii) and 2 (iii) on the date of registration of the flat;

That OPs 2 (i), 2 (ii) and 2 (iii) are directed to jointly and severally pay to the complainant Rs.30,000/- as compensation for physical harassment and mental agony of the complainant and Rs.10,000/- as litigation cost, to the complainant within 45 days from the date of this order;

That non-compliance by the OPs of above orders will ensure the complainant to put the orders into execution in terms of Section 27 of the Act.”

4. Aggrieved by the order of the District Forum, an appeal was filed before the State Commission, which ordered as follows: -

“Regard being had to the facts of the case we simply find no merit in the Appeal. And we, therefore, dismiss the same with the observations that the Complainant/Respondent No.1 shall get the deed executed and registered in respect of the flat I n question as referred to in Schedule B of the Petition of complaint, on payment of a sum of Rs.90,000/- (rupees ninety thousand) to the substituted OPs No.2 and 3 and all the OPs are directed to execute and register the deed of conveyance in favour of the complainant and deliver possession within 45 days from the date of order. The cost of registration shall be borne by the complainant himself. Hence, we dismiss the Appeal, affirm the judgment impugned with the modifications, noted above, resulting that the complaint case being CC 237 of 2017 is allowed. Further we make it clear that if the OPs i.e. the Promoter and land owners failed to execute and register the deed of conveyance in favour of the complainant within the stipulated time, the complainant shall be at liberty to get the said deed executed through the machinery of the Forum on deposit of the balance consideration and it is obvious that cost of registration shall be borne by the complainant. Parties to bear their respective costs of Appeal.

5. Heard the learned Counsel for the Petitioner and carefully perused the record. This is a case where Respondent No.1/Complainant had booked a flat in the developer’s allocation by entering into an agreement for sale on 13.03.2010. Initial consideration amount of Rs.1,70,000/- was paid by Respondents No.1 & 2 and subsequently paid balance amount, totalling to Rs.6,10,000/-. The possession was to be given and sale deed executed in favour of the Complainant within six months from the date of agreement i.e. 13.03.2010. Respondent No.1/Complainant was willing and ready to pay the balance consideration of Rs.90,000/- and take the possession and get the sale deed executed in his favour. The Opposite Parties failed to hand over possession of the flat by deed of conveyance. Hence, a consumer complaint was filed before the District forum. The District Forum after hearing the parties directed the Opposite Parties to execute and register the sale deed in favour of the Complainant within 45 days, apart from payment of compensation and litigation expenses within the specified period. The State Commission simply found no merit in the Appeal and dismissed the same. On the concurrent findings of both the Fora below, a Revision Petition has been filed before this Commission.

6. The jurisdiction of this Commission under Section 21 (b) of the Consumer Protection Act, 1986 is very limited. This Commission is not required to reassess or re-appreciate the evidences and substitute its opinion to the concurrent findings of fact by the Fora below. 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

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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.” 8. The Petitioner failed to point out any miscarriage of justice or that the findings are perverse i.e. not based on the evidences. I find no reason to interfere with the impugned order in exercise of revisional jurisdiction under Section 21 (b) of the Consumer Protection Act, 1986. The revision petition has no merit and the same is dismissed in limine, with no order as to cost.
O R







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