K. K.Co-Operative G. H. S. Ltd. vs Arun Tandon

BY way of this revision petition filed under Section 21 of the Consumer Protection Act, 1986(for short as ?Act? ) there is challenge to order dated 27.01.2009 passed by State Consumer Disputes Redressal Commission, Delhi (for short as ? State Commission?) vide which it partly allowed the appeal of the petitioner, challenging order dated 09.2.2007,passed by District Consumer Disputes Redressal Forum-VII, New Delhi ( for short as ?District Forum? ).

BRIEF facts of this case are that respondent/complainant applied for membership of a three bed room flat with petitioner in the year 1996. Cost of flat was Rs. 4,58,000/- and the same was to be completed and handed over to the respondent in mid 1998. Respondent paid Rs. 8,26,617/- to the petitioner i.e. Rs. 3,68,617/- in excess. It is the allegations of the respondent that petitioner forced him to pay the amount as per Type-B category of flat, though he was allotted Type-C category. Petitioner delivered the possession of flat on 21.08.2005 after four years of its allotment in semi finished condition even though petitioner has mentioned in the brochure that possession of the flat would be given in finished condition. No equalization money was paid to the respondent as his flat?s category was changed from Type-B to Type-C. Petitioner withheld the possession of the flat, though there were no dues against him for about five years. Respondent has sought directions to the petitioner to refund him the excess amount received from him and has further sought Rs. 1,40,000/-, which includes compensation for mental pain and physical harassment, litigation expenses, expenses occurred in clerical jobs and postage etc. Petitioner in its reply admitted that respondent booked the flat in year 1996 and cost of the flat was Rs. 4,58,000/-. It is further stated that demand raised by the petitioner?s Society was duly approved by the Managing Committee and General Body of Society, of which respondent was the member. It is denied that petitioner advised respondent to change the category of his flat from Type-B to Type-C or assured that in case respondent changes the category, he would not have to pay the additional demand and interest imposed thereon. Possession of the flat could be handed over to its members only after its completion, approval by the DDA and other authorities as per law. Petitioner?s society handed over semi finished flats to its members due to inflationary forces in the market and after obtaining the possession of the flat, members were asked to finish the same as per their requirement. It is further stated that petitioner has raised demand only as per approval of costs given by the General body and respondent had given only the aforesaid amount alongwith interest on account of delay in making the payment in due course.

District Forum vide order dated 9.2.2007, directed petitioner to refund to respondent a sum of Rs 1,28,716/- recovered from him in excess of the price of Type-C flat and pay a sum of Rs. 1,00,000/-(Rupees One Lac) as damages for delay of five years in giving possession alongwith Rs. 5,000/-(Rupees Five thousand) as cost of litigation

BEING aggrieved by the order of District Forum, petitioner filed an appeal. State Commission vide impugned order, partly allowed the appeal and directed the petitioner to refund Rs. 60,000/- towards excess interest charged and also to pay Rs. 10,000/- as compensation and cost of litigation. It is contended by learned counsel for petitioner that actual cost in respect of flat allotted to respondent is Rs.7,48,000/- and he has paid a total sum of Rs. 8,26,617/-, against the total cost of Rs. 7,48,000/-,which had been the cost of the flat allotted in category ? C ? allotted by the petitioner?s society. Further, every member of the society who has remitted the demands on due dates, have not paid any penny in addition to the cost of flat allotted in category ? C ?.

IT is further contended that respondent was a habitual defaulter and had never remitted the demands with society on time and had tendered the same at a belated stage. The perusal of the chart placed on record categorically indicates that respondent was defaulter in remitting the amount. On the other hand, it has been contended by the respondent that there is no infirmity or illegality in the impugned order passed by the State Commission. District Forum in its order has held that; "Thereis no force in the argument that complainant is not a consumer within the meaning of section 2(1)(d) & 2(1) (o) of the Consumer Protection Act, 1986. The remedy provided under CPA is in addition to any other remedy available to the complainant. The complainant can maintain a complaint under CPA for any deficiency and unfair practice besides approaching Registrar of Co-Op. Societies. It is undisputed fact that the category of the flat of the complainant was changed from Type-B to Type-C. As per brochure provided by the OP to the complainant the cost of flat of Type-B was Rs. 4,58,000/- and cost of Flat Type-C was Rs. 3,88,000/-(approximately). The complainant had deposited Rs. 6,82,020/- upto 09.06.2000. OP further raised demand Rs. 1,11,980/-. The complainant was unable to fulfill this demand of the OP and he requested for change of the category from Type-B to Type-C , i.e. from three bed room to two bed room flat and the OP asked the complainant to pay only Rs. 16,000/- in order to clear all the payments towards cost of Type-C flat. The category was changed by the OP vide its letter dated 27.09.2000 and vide letter dated 15.11.2000 the complainant was required to deposit Rs. 16,000/-( Annexure-G) and the said amount was deposited by the complainant on 22.11.2000. Thus, the complainant paid the cost of Type-C flat by 22.11.2000. Thereafter, the name of the complainant was not shown in defaulters list also. The OP Society made the complainant to pay a sum of Rs. 40,000/- vide letter dated 8.3.2001 and Rs. 88,617/- vide letter dated 10.6.2005. There is no explanation as to why complainant was required to pay Rs. 40,000/- and Rs. 88,617/- in addition to Rs. 6,98,020/- declared cost of Type-C flat. The OP Society has thus recovered a sum of Rs. 1,28,617/- from the complainant in excess, which it is liable to refund to the complainant. The complainant had made the payment of total cost of flat of Type-C category by 22.11.2000, yet the OP failed to deliver physical possession of the flat to him. The possession of the flat was given to the complainant only on 21.08.2005 after about five years. The OP has not given any plausible explanation for his inordinate delay especially when the flats were decided to be delivered to the members in semi-finished condition. The complainant is entitled to damages for delay in getting possession".

STATE Commission while partly allowing the appeal of petitioner has observed; "Admittedly, the category of flat of the respondent was changed from Type B to Type-C. Respondent had deposited Rs., 6,82,020/- upto 09.06.2000. Appellant further raised a demand of Rs. 1,11,980/-. The respondent was not in a position to fulfil this demand and requested for change of category vide letter dated 27.09.2000, still again asked the respondent to pay Rs. 16,000/- which was deposited by the respondent on 22.11.2000 and thus the respondent paid the cost of Type C flat by 22.11.2000 and thereafter the name of the respondent was not shown in the defaulters list. Again the appellant made the respondent to pay a sum of Rs. 40,000/- vide letter dated 08-03-2001 and Rs.88,617/- vide letter dated 10.06.2005. 7. According to the counsel for the appellant the aforesaid demands were raised by way of interest as the respondent made the payment of instalments late by three years or so. The statement produced by the appellant in this regard shows the delay started from 15-03-1997 but there is no such delay of three years in making payment. Delay, if any, was few days or few months. 8. Let us assume that cost of the flat given in the brochure was tentative. Since the cost of Rs. 4,58,000/- was raised to Rs. 8,26,617/-, the respondent was forced to change the category. Record shows that it was only in the year 2000 demand of Rs. 1,28,617/- was raised and the possession was delivered only on payment of this demand which was over and above actual demand. 9. In our view the appellant was only entitled to charge interest, if any, when the respondent was allotted type C flat which was transferred to type B flat in the year 2000 and the respondent is only entitled for refund of the interest charged subsequent to that period as by that time the respondent already paid the original cost of changed category of flat. As per calculation of the respondent, the interest charged in this regard is Rs. 60,000/-. 10. The aforesaid facts persuade us to allow the appeal partly by directing the appellant to refund Rs.60,000/- towards excess interest charged and also to pay Rs. 10,000/- as compensation and cost of litigation".

PRESENT Revision Petition has been filed under Section 21(b) of the Act. It is well settled that power of this Commission as a Revisional Court are very limited and have to be exercised only, if there is some prima facie jurisdictional error in the impugned order. Recently, Hon?ble Supreme Court in Mrs. Rubi (Chandra) Dutta Vs. 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."

According to petitioner?s own case, as per present petition the actual cost in respect of flat allotted to the respondent was Rs. 7,48,000/- and respondent had paid a total sum of Rs. 8,26,617/- against the total cost of Rs. 7,48,000/-, which had been the cost of the flat allotted in category- ? C? by the Society.

THUS, as per petitioner?s own case, when respondent has paid the excess amount in respect of category-C flat, then certainly respondent is entitled for refund of the interest charged, subsequent to the year 2000, as by that time respondent had already paid the original cost of the changed category flat. Hence, no jurisdiction or legal error has been shown to us to call for interference in the exercise of power under section 21 (b) of the Act, since impugned order does not suffer from any infirmity or revisional exercise of jurisdiction.

ACCORDINGLY, present revision petition is not maintainable being devoid of any merits and the same is hereby dismissed with costs of Rs. 10,000/-( Rupees Ten thousand only). Petitioner is directed to deposit the costs by way of a cross cheque for the sum of Rs. 10,000/- in the name of "Consumer Legal Aid Account", within four weeks from today. In case, costs are not deposited within the prescribed period, petitioner shall be liable to pay interest @ 9% p.a., till realization.

PENDING miscellaneous application also stand dismissed.

LIST on 10th October, 2011 for compliance.