Atul Parashar vs Arun Kumar And Ors.

THIS revision petition has been filed by the petitioner against the order dated 10.4.2013 passed by the M.P. State Consumer Disputes Redressal Commission, Bhopal (in short, ''the State Commission'') in Appeal No. 526 of 2011 - Atul Parashar v. Arun Kumar Nigam & Anr. by which, while allowing appeal partly, order of District Forum allowing complaint was modified.

BRIEF facts of the case are that Complainant/respondent entered into an agreement dated 4.12.2007 with OP/petitioner for purchase of plot and construction on that plot and complainant paid Rs. 6,15,000/ - along with postdated cheque of Rs. 35,000/ - to OP. It was further submitted that sale deed was registered on 28.12.2007 and as per terms and conditions, OP was to construct house on the purchased plot by 28.5.2008. It was further submitted that out of the sale consideration Rs. 4,46,000/ - was pertaining to consideration for purchase of plot and rest of the amount was for construction of the plot. OP has not started construction and intimated to the complainant regarding his unwillingness to carry out construction on the plot. Then, complainant sent legal notice to OP for termination of the agreement and for refund of amount, but amount was not refunded. Alleging deficiency on the part of OP, complainant filed complaint before District Forum. OP resisted complaint, admitted execution of agreement to sale and sale deed, but submitted that OP could not start construction as complainant wanted major changes in the approved and agreed specifications and drawing of proposed house which was not possible and in such circumstances, OP expressed his inability to accept major changes proposed by complainant. It was further submitted that matter pertains to breach of agreement which is not consumer dispute and complaint is not maintainable. It was further submitted that cheque of Rs. 35,000/ - has not been honoured by the Bank and there is breach on the part of complainant and prayed for dismissal of complaint. Learned District Forum after hearing both the parties allowed complaint and directed OP to refund Rs. 1,69,000/ - with 7% p.a. interest and was further directed to pay compensation of Rs. 50,000/ - and Rs. 2,000/ - as cost of litigation. Appeal filed by OP was partly allowed by learned State Commission and compensation of Rs. 50,000/ - was reduced to Rs. 25,000/ - and rest of the order was upheld against which, this revision petition has been filed along with application for condonation of delay. Heard learned Counsel for the parties finally at admission stage and perused record.

PETITIONER has filed application for condonation of delay and submitted that copy of impugned order dated 10.4.2013 was received by him on 17.4.2013 which was misplaced due to petitioner''s severe illness and depression and later on duplicate copy was obtained and this revision petition has been filed, so, delay may be condoned. As per office report, there is delay of 80 days in filing revision petition. Petitioner in support of his application has filed prescriptions dated 12.7.2013, 22.8.2013 and 23.9.2013 of Dr. Ratnesh Kurariya, Neuropsychiatrist. He also filed medical certificate dated 18.10.2013 in which it has been mentioned that petitioner was suffering from severe depression for last 6 months and he was under his medical supervision. In the light of prescription and medical certificate of Dr. Ratnesh Kurariya, I deem it proper to condone delay of 80 days in filing revision petition and delay stands condoned.

HEARD learned Counsel for the parties and perused record. Learned Counsel for the petitioner submitted that order passed by learned State Commission is not a speaking order and without any reasons has upheld order of District forum; hence, revision petition be allowed and impugned order be set aside. On the other hand, learned Counsel for the respondent submitted that payment has already been made by petitioner and order passed by learned State Commission is in accordance with law; hence, revision petition be dismissed.

ORDER of learned State Commission runs as under: "Learned Counsel submits that though the amount has "been deposited in the executing court, in view of the facts and circumstances of the case where the agreement was executed on 4.12.2007 and the plot was registered on 28.12.2007 for which expenses were borne by the appellant builder, penalty ought not to have been imposed. We find that on account of delay caused by the appellant, the respondent suffered from mental agony but the penalty imposed is on higher side. We reduce the penalty from Rs. 50,000/ - to Rs. 25,000/ -. With the reduction of penalty as aforesaid, this appeal is disposed of."

LEARNED State Commission has only reduced compensation from Rs. 50,000/ - to Rs. 25,000/ - as it was on higher side, but has not dealt other objections and grounds of appeal. No reason has been given for upholding order of District Forum. Learned Counsel for the petitioner submitted that petitioner has incurred heavy expenses on boring, leveling of plot and preparation of site plan which have not been considered whereas, learned Counsel for the respondent submitted that no expenses have been incurred by petitioner in aforesaid works. In such circumstances, learned State Commission ought to have considered grounds taken by petitioner in memo of appeal. Hon''ble Apex Court in : (2001) 10 SCC 659 - HVPNL v. Mahavir observed as under:

"1. In a number of cases coming up in appeal in this Court, we find that the State Consumer Disputes Redressal Commission, Haryana at Chandigarh is passing a standard order in the following terms:

''We have heard the Law Officer of HVPN - appellant and have also perused the impugned order. We do not find any legal infirmity in the detailed and well -reasoned order passed by District Forum, Kaithal. Accordingly, we uphold the impugned order and dismiss the appeal''.

We may point out that while dealing with a first appeal, this is not the way to dispose of the matter. The appellate forum is bound to refer to the pleadings of the case, the submissions of the counsel, necessary points for consideration, discuss the evidence and dispose of the matter by giving valid reasons. It is very easy to dispose of any appeal in this fashion and the higher courts would not know whether learned State Commission had applied its mind to the case. We hope that such orders will not be passed by the State Consumer Disputes Redressal Commission, Haryana at Chandigarh in future. A copy of this order may be communicated to the Commission".

IN the light of above judgment, it becomes clear that Appellate Court while deciding an appeal is required to deal with all the aspects and arguments raised by the appellant and as learned State Commission has not dealt with any arguments of the appellant, it would be appropriate to remand the matter back to the learned State Commission for disposal by speaking order after dealing with all the contentions and arguments raised by the parties.

LEARNED Counsel for the petitioner has also drawn my attention towards order dated 31.1.2011 of District Forum in which after recording some payment by OP to complainant it has been mentioned that OP has not preferred appeal and he has no objection in making payment which is apparently not correct because petitioner had already preferred appeal before this date which was decided by impugned order and had he no objection in making payment he would not have filed appeal as well revision petition before this Commission. Consequently, revision petition filed by the petitioner is allowed and order dated 10.4.2013 passed by the State Commission in Appeal No. 526 of 2011 - Atul Parashar v. Arun Kumar Nigam & Anr. is set aside and matter is remanded back to the learned State Commission for deciding it by speaking order after giving an opportunity of being heard to the parties.

PARTIES are directed to appear before the learned State Commission on 14.8.2015.