G. Adiseshu vs P. Beena Devi

PETITIONER /Opposite Party being aggrieved by order dated 15.09.2006, passed by A.P. State Consumer Disputes Redressal Commission, Hyderabad (for short, ''State Commission'') has filed this revision petition under Section 21(b) of the Consumer Protection Act, 1986 (for short, ''Act'').

BRIEF facts are that Respondent/Complainant entered into an agreement for construction of a house building on her plot with petitioner for a value of Rs. 5,00,000/ -. Petitioner agreed to construct the building within 90 days from the date of handing over of the site, with 30 days grace period. Even though, respondent paid the amount and performed her obligations, but petitioner failed to perform his part of obligation including handing over the schedule property. Alleging deficiency of service on the part of petitioner in construction and also for delay in handing over the building, respondent filed consumer complaint seeking direction to the petitioner to refund the cost of Rs. 45,320/ - spent by her alongwith interest at 24% p.a. and Rs. 4,46,000/ - towards damages for mental agony and for delay in handing over the building in complete stage. Petitioner in its written statement took the plea that there is no deficiency of service. The construction has been done as per terms of the agreement. Further, construction area was increased at the request of the respondent. Moreover, the cheques issued by respondent were bounced. It is further stated that respondent is liable to pay Rs. 2,00,000/ - for additional construction. The petitioner has filed a civil suit for recovery of Rs. 2 lakhs against the respondent. After the suit was filed, respondent filed the complaint as a counter blast to avoid the payment and to have unlawful gain. Hence, the complaint is liable to be dismissed with exemplary costs.

DISTRICT Consumer Disputes Redressal Forum, Visakhapatnam, A.P. (for short ''District Forum'') vide majority decision dated 5.5.2003, allowed the complaint. It directed petitioner to pay Rs. 2,00,000/ - (Rupees Two Lacs only) with interest 18% p.a. from the date of filing of the complaint and to pay Rs. 1,000/ - towards the cost of complaint.

AGGRIEVED by the order of District Forum, petitioner filed an appeal before the State Commission, which confirmed the majority decision of the District Forum, except that interest was reduced from 18% to 9% p.a. Hence, this revision petition.

WE have heard the learned counsel for parties and gone through the record.

IT has been submitted by learned counsel for the petitioner that inspite of non -payment as per schedule, petitioner finished the building with excess construction as requested by the respondent, deviating from the original plan and handed over the possession. The respondent has taken the possession without objection. However, both Fora below have not considered this aspect. The consumer complaint had been filed as counter blast to the civil suit filed by the petitioner. Thus, there is no deficiency in service on the part of the petitioner. On the other hand, it has been submitted by learned counsel for the respondent, that possession of the building was not given within the prescribed period, though respondent had made the payment as per agreement. Thus, there is deficiency in service on the part of the petitioner. Moreover, there is no infirmity in the impugned order.

RESPONDENT in her complaint has averred, that as per agreement petitioner/builder was to hand over the possession within 90 days from the date of agreement with a grace period of 30 days. Thus, possession was to be handed by 15th December, 1998. In fact, the possession was handed in the month of August, 1999 and that too, in unfinished condition. Hence there was delay of 7 months in handing the possession of the building.

ADMITTEDLY , a joint agreement for construction of building was executed between the parties. Relevant Clauses of this Agreement read as under; "An agreement made on 14.08.1998 between Sri ADISESHU S/o. Sri Venkata Subbaih, D.N. 55 -6 -2 1/6 (hereinafter called the BUILDER) and Mrs. P. Beena Devi w/o Sri PV. Bhaskara Rao (hereinafter called the owner) and residing at D. No. 8 -50 -9, China Waltair, Visakhapatnam - 530035).

WHERE as the Owner of the above plot of land Mrs. P. Beena Devi and builder agreed on the following terms and conditions and specifications of construction of the building on the said plot as per drawing and plans for a total cost of Rs. 5,00,000/ - (Rupees Five Lakhs only) and payment to be released on instalment basis as per annexure. Elevation of the building, specification of work to be done as per plan discussed.

It is hereby mutually agreed as follows:

BUILDERS RESPONSIBILITY:

a) To arrange for dismantling of the old building structure free of cost and removal of garbage.

b) Construction period is 90 days. However 30 days is the grace period.

Perfect curing of the entire building is to be done.

If work stopped due to any reason, it is to be solved mutually if with in control of both parties.

Working plan, drawing, estimation, elevation are to be made available".

According to the agreement, it was the responsibility of the Petitioner; "To arrange dismantling of old building structure free of cost and for removal of garbage. Further construction period was of 90 days with a grace period of 30 days. Thus, construction of the building was to be completed by 14.12.1988."

AS per Petitioner''s own admission, building was handed over only in August, 1999. Thus, there was delay of about 8 months, which certainly amounts to deficiency in service on the part of the petitioner.

THE State Commission in its order observed; "It is to be noticed that the opposite party has handed over the building in an unfinished condition and the complainant has filed this complaint within a period of limitation. The agreement entered into between the parties does not contemplate any additional payment, if any, to be paid to the complainant and it does not arise take into consideration the recitals in the agreement."

It is well settled that under Section 21(b) of the Act, scope of revisional jurisdiction is very limited. Under this Section, this Commission can interfere with the order of the State Commission only where such State Commission has exercised a jurisdiction not vested in it by law, or has failed to exercise jurisdiction so vested, or has acted in the exercise of its jurisdiction illegally or with material irregularity.

THE Hon''ble Supreme Court in Mrs. Rubi (Chandra) Dutta v. 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".

THEREFORE , in view of the concurrent findings of the facts given by both fora below, there is no infirmity or illegality in the impugned order passed by the State Commission. Accordingly, present revision petition stand dismissed. No order as to cost.