PETER M. D'SOUZA & ANR. vs ENG. ALFREDO COTTA

This revision petition has been filed by the petitioner against order dated 25-07-2014 passed by the learned State Consumer Disputes Redressal Commission, Goa (in short, ''the State Commission'') in Appeal No. 48 of 2014 - Peter M. D''Souza & Anr. Vs. Eng. Alfredo M. Cotta, by which while allowing appeal partly order of District Forum allowing complaint was modified.

Brief facts of the case are that complainants/petitioners agreed to purchase Flat No. HS 1 and HS 2 from opposite party/respondent for a sum of Rs2.45 lakh each. As per agreement flats were to be constructed within 24 months with extension period of six months. Complainants were require to pay Rs.45,000/- for each flat at the time of execution of the agreement and balance Rs.50,000/- within one month and balance Rs.1,50,000/- as per stage of construction. It was further submitted that complainants paid Rs.2,10,000/- for each flat but no progress in the construction. In such circumstances complainants asked by notice to opposite party to refund value of the flats at current market rate which was not replied. Alleging deficiency on the part of opposite party, complainants filed complaint before District Forum. Opposite party did not file written statement before District Forum. Learned District Forum after hearing parties allowed complaint and directed opposite party to refund Rs.3,70,000/- with 18% p.a. interest and further awarded compensation of Rs. 1 lakh for harassment and cost of Rs.40,000/-. Both parties filed appeals before State Commission and learned State Commission vide impugned order allowed appeals partly and modified order of District Forum and directed opposite party to refund Rs.4,20,000/- with future interest @ 15% from the date of respective payments of installment till realization and further directed opposite party to pay compensation of Rs.50,000/- and cost of Rs.20,000/- against which this revision petition has been filed along with application for condonation of delay.

Heard learned counsel for the petitioner finally at admission stage and perused record.

As there is delay of 50 days in filing revision petition, delay is condoned for the reasons mentioned in the application for condonation of delay.

Learned counsel for the petitioner submitted that learned State Commission committed error in reducing rate of interest, compensation and cost, hence revision petition be admitted.

Learned counsel for the petitioner further apprised that another cross Revision Petition No. 3297-3298 of 2014 was also filed by opposite party. I directed to place this matter along with aforesaid revision petition. It was observed that revision petition no. 3297-3298 of 2014 have been dismissed by Bench No. 1 by order dated 20-04-2015. In such circumstances, this revision petition is to be decided separately.

Learned counsel for the petitioner submitted that District Forum rightly allowed interest @ 18% p.a. and compensation of Rs. 1 lakh but learned State Commission without any cogent reason has reduced rate of interest as well compensation. I do not find any substance in this submission. Learned State Commission while dealing with aforesaid contentions observed as under:-- "24. As already observed, clause 19 of the agreements between the parties will come in the way of the Complainants in claiming interest of not more than 15%. This is a case where due to unforeseen circumstances the building was not completed within a period of 24 months or extended period of 30 months. The parties stipulated that in such situation the purchaser would be at liberty to exercise his option to cancel the agreement and claim the refund of money paid to the builder with 15% interest. In our view, the Complainants having chosen not to go after the said Prabhu Constructions, to whom the project was sold by the OP, was left with no other option but to claim the refund with interest at 15% p.a. as agreed by clause 19 of the agreement. For the same reason, the Complainants are not entitled to the originally booked flats. The Complainants are also not entitled to have refund at the current market rate, apart from the fact that the Complainant placed no acceptable material on record as to what would be the market rate of a similar flat/s at the time of filing the complaint. At one stage the Complainants claimed that the current rate was Rs.75,000/- per sq.mt. Later, relying on Times Property Index, they claimed Rs.45,000/- to Rs.50,000/- per sq.mt. We do not know to what extent the statistics given on ''Times Property Index'' are reliable. As already stated, the Complainants are bound by clause 19 of the agreements. It is now well settled that Indian Contract Act applies to all including the consumers (see Marine Container Services, AIR 1999 SC 80). It is also well settled that the party is ordinarily bound by the terms of the contract (see Bharati Knitting Company, AIR 1996 SC 2508). It is not possible for the Complainants to wriggle out from clause 19 of the agreement and claim anything more than what they contemplated at the time of executing the agreements in the event the project remained incomplete.

The Complainants had claimed compensation of Rs.50,000/- and costs of Rs.20,000/-. The Lr. District Forum has enhanced the same to Rs.1,00,000/- and Rs.40,000/- respectively, without a whisper. The Complainants chose not to amend the said prayers of the complaint at any given time although the Complainants were well advised at all times by a lawyer, and, therefore, in our view, and without any reasons there was no question of enhancing the compensation and costs prayed for by the Complainant. Incidentally, it may be observed that now the Complainants claim compensation of Rs. 2 lacs and costs of Rs.1 lac. Sky seems to be the limit for the Complainants to claim the reliefs. We cannot give the Complainants the moon. We have to restrict to what was claimed by the Complainants in the complaint and to what is reasonable."

Learned State Commission in the light of aforesaid observations rightly reduced rate of interest from 18% to 15% and rightly reduced amount of compensation and cost as complainant claimed only compensation of Rs.50,000/- and cost of Rs.20,000/- in the complaint and learned District Forum had no occasion to award compensation of Rs.1 lakh and cost of Rs.20,000/-.

In the light of aforesaid discussion I do not find any illegality, irregularity or jurisdictional error in the impugned order and revision petition is liable to be dismissed at admission stage.

Consequently, revision petition filed by the petitioner is dismissed at admission stage with no order as to costs.