Mithuna Developers And Builders Pvt. Ltd. vs T.V.Ramanand

THIS revision petition has been filed under section 21(b) of the Consumer Protection Act, 1986 against the impugned order dated 19.04.2012, passed by the Karnataka State Consumer Disputes Redressal Commission (for short ''the State Commission '') in FA No. 609/2012, ''''Mithuna Developers & Builders Pvt. Ltd. & ors. versus Ramanand TV, '''' vide which the order dated 13.03.2012, passed by the District Consumer Disputes Redressal Forum, Tumkur in CC No. 157/2011, partly allowing the said complaint, was upheld.

BRIEF facts of the case as stated in the complaint filed by the present respondent/complainant before the District Forum are that in pursuance of an advertisement, published in the newspapers by the petitioner/OP, offering sites being developed by them, the complainant paid an amount of Rs. 7 lakh to the OPs for allotment of 7 sites in Mithuna Bhadavane. Out of these, a sum of Rs. 2 lakh was given through cheque, bearing no. 452234 dated 12.03.2008 and Rs. 5 lakh was given in cash. As per the complainant, the OPs agreed to get registered 7 sites, sites no. 9 to 15, in favour of the complainant. However, they failed to do the same, despite several requests from the complainant. He sent a legal notice to them on 28.10.2011, in response to which the OPs replied on 21.11.2011, that out of total amount of Rs. 7 lakh received by them, they had repaid Rs. 3 lakh back to the complainant. The complainant then filed the consumer complaint in question before the District Forum. In their reply before the District Forum the OP ''s admitted the version of the complainant that they had received a sum of Rs. 7 lakhs from him, out of which Rs. 2 lakh was received in cheque, Rs. 5 lakh in cash and had agreed to get registered 7 sites, site no. 9 to 15 in his favour. However, they stated that the complainant was not a consumer as defined in the Consumer Protection Act, 1986 and this matter should have been agitated in the Civil Court only. They also stated that the complainant had taken back a sum of Rs. 3 lakh on 1.10.2008 from the OPs vide cheque no. 521640, drawn on State Bank of Mysore, Tumkur, and hence the complainant was entitled to get 4 sites, and not 7 sites. They further stated that the land in question was the subject matter of litigation but they were willing to get registered 4 sites in favour of the complainant after the said dispute was settled. The OPs also stated in their reply that they had been paying interest to the complainant on the balance amount of Rs. 4 lakh although they did not spell out the rate of interest. The District Forum after taking into account the evidence of the parties, partly allowed the complaint with cost of Rs. 5,000/ - and directed that site number 9 to 15 should be registered in their favour, or in the alternative a sum of Rs. 7 lakh should be returned to the complainant alongwith a compensation of Rs. 1 lakh per site towards damages with future interest @ 9 % p.a. from the date of complaint till realisation. The operative part of the order reads as under: - ''''The complaint filed by the complainant is hereby allowed in part with costs of Rs.5,000/ - The OPs are directed to register the site Nos. 9 to 15 in Mithuna Bhadavane formed by them in favour of the complainant or in alternative they shall refund a sum of Rs.7,00,000/ - (Seven Lakh Rupees only) to the complainant together with Rs.1,00,000/ - each per site i.e., totally Rs.7,00,000/ - to the complainant towards damages (i.e. in total Rs.14,00,000/ -) with future interest at the rate of 9% p.a. from the date of complaint till realisation. Order shall be complied within a period of 90 days. ''''

An appeal was made against the order of the District Forum before the State Commission, but it was dismissed at the stage of admission. The State Commission observed in their order as follows: - ''''7. Of course, it is a well settled law that, while awarding interest, the DF or the State Commission either to grant interest at the rate of 18% p.a or damages by way of compensation. But in the instant case, the DF awarded damages at the rate of Rs. 1 lakh for each site and future interest at the rate of 9% p.a. If the DF awarded interest at the rate of 18% p.a from the date of deposit then, the order under challenge in awarding a compensation of Rs. 1 lakh for each site that is in all Rs. 7 lakhs would become improper. Therefore, considering the facts and circumstances of the case, the DF perhaps keeping in mind the decision rendered by the Hon ''ble National Commission and the Apex Court and also this Commission, thought it fit to award damages at the rate of Rs. 1 lakh and future interest at the rate of 9% p.a only. If it is calculated, the same is more beneficial to the appellants/OPs than to the respondent/complainant. Accordingly, we don ''t notice any prima -facie case to admit this appeal. Hence, appeal is liable to be dismissed. ''''

THE State Commission thus, observed that the District Forum should have either granted interest @18% p.a. or damages by way of compensation, but still they upheld the order of the District Forum, allowing the compensation of Rs. 1 lakh per site and future interest @9% p.a.

AT the time of arguments before us, learned counsel for the petitioner stated that in their written statement, they had taken the main plea that the complainant in question was not a ''consumer '' as he had deposited money for buying 7 sites in one go. They had also taken the plea that a sum of Rs.3 lakh had been returned to the complainant through cheque. However, neither the District Forum nor the State Commission gave any finding to this effect and just decided the case in favour of the complainant. He also stated that the State Commission themselves have observed that it was not fair to award compensation as well as interest, but still they upheld the order of the District Forum. The complainant was not entitled to get double benefit. On the other hand, learned counsel for the respondent stated that the petitioner/OP have failed to get the site registered in his name, although he had paid his hard -earned money to them. He further stated that it was not a commercial transaction, and hence he was covered under the definition of ''consumer ''. We have examined the entire material on record and given a thoughtful consideration to the arguments advanced before us. The facts of the case on record are very clear that the petitioner/OP have taken the main plea in their written statement as well as the arguments that the complainant is not a ''consumer '' as he had planned to buy 7 sites in one go, and hence it was a commercial transaction. It cannot be stated that the said transaction was made for the purpose of earning his livelihood only. The petitioners have also taken the plea that out of a sum of Rs. 7 lakh, Rs. 3 lakh had already been returned to the complainant through cheque. It was the duty of the District Forum and State Commission to call for the relevant record and verify the facts as stated above, before coming to a conclusion. Further, it is obvious from the orders passed by the District Forum that they have awarded a compensation for damages, Rs. 1 lakh per site to the complainant as well as given him interest @9% p.a. on the said amount. The State Commission observed that it was improper to give him the benefit of compensation as well as interest. However, they also observed that the complainant should have been given interest @18% as compensation. It is not understood, therefore, as to how the State Commission upheld the order of the District Forum allowing both the compensation and interest @9% p.a. It is made out, therefore, that the State Commission has not carried out a correct analysis of the facts and circumstances on record and hence, the order passed by them is perverse in the eyes of law. There is, therefore, no alternative, but to set aside the impugned order, and we order accordingly. The revision petition is allowed, the order passed by the State Commission is set aside and the matter is remitted back to the State Commission with the direction that they should hear the parties again and then take a fresh decision based on the facts and circumstances of the case. Parties are directed to appear before the State Commission on 22.05.2014.