PRAHALAD NARAYAN GAIKWAD PROP OF M/S OM GANESH SAPTASHRUNGI, CONSTRUCTION, BUILDERS & DEVELOPER vs BHARAT YADAV CHANNE KHARADI ANANDNAGAR

Present revision petition has been filed by the Petitioner/ Opposite Party against the impugned order dated 06.05.2014, passed by the Maharashtra, State Consumer Disputes Redressal Commission, Mumbai (for short, ''State Commission'') in First Appeal No.1242 of 2009.

Brief facts of the case as per Respondent/Complainant are that he had filed a complaint under Section 12 of the Consumer Protection Act, 1986 (for short, ''Act'') by alleging deficiency in service against the petitioner, who is the proprietor of M/s. Om Ganesh Saptashrungi Constructions Company and had undertaken construction work on Survey No.135, plot no.63, area 404 sq. mtr. under name of Saptashrungi Apartment. On instigation of the petitioner, respondent agreed to purchase flat no.102 admeasuring 800 sq.ft. from Saptashrungi Apartment for the consideration of Rs.5,00,000/-. Agreement to purchase the flat was executed on 11.01.2008, which was registered before the Sub-Registrar, Shahapur, Dist. Thane. In pursuance of the agreement, respondent had paid an amount of Rs.75,000/- on 30.11.2007 to the petitioner. He also paid an amount of Rs.75,000/- on 06.12.2007 and an amount of Rs.1,00,000/- on 25.10.2008. Payments were duly received vide receipts no.124, 125 and 130. As such total amount of Rs.2,50,000/- was paid to the petitioner. Thane District Central Co-operative Bank Ltd., Thane had sanctioned loan of Rs.2,50,000/- with interest @ 9.5% p.a. to the respondent for purchase of flat. Respondent undertook to repay said loan amount by monthly installments. It was agreed that flat no.102 having area of 800 sq. ft. would be mortgaged to the Bank against the loan. In spite of receipt of huge amount of Rs.2,50,000/-, the petitioner without any intimation sent back the cheque of Rs.2,50,000/- to the respondent. Respondent had insisted that the petitioner accept the said cheque. Petitioner filed a report on 13.10.2008 against the petitioner with the Police Inspector, Vashind, but no action was taken. Petitioner failed to hand over possession of the flat no.102 to the respondent in spite of receipt of huge amount and in spite of registration of agreement. Hence, respondent has suffered mental pain and agony. Therefore, he has filed complaint against the petitioner and has claimed possession of flat no.102 from Saptashrungi Apartment with Occupation Certificate, Completion Certificate. He sought direction to be given to the petitioner for continuous supply of water, continuous supply of electricity, formation of co-operative society which should be registered. Respondent had also claimed an amount of Rs.1,00,000/- towards compensation for mental pain and an amount of Rs.50,000/- towards costs of litigation.

Petitioner resisted the complaint by filing their written statement and denied the claim of the respondent. It was submitted that an amount of Rs.2,50,000/- paid by the respondent was repaid to him on 18.08.2008. Bank sanctioned the loan of Rs.2,50,000/- to the respondent on 01.09.2008 and he can now take an alternate flat. As per the para 10 of the Agreement dated 11.01.2008, if loan is not sanctioned to the respondent, sale agreement would stand automatically cancelled. Petitioner had the discretion to cancel the sale agreement, and accordingly, agreement was cancelled. Petitioner prayed that on all these counts, complaint was liable to be dismissed with costs.

District Consumer Disputes Redressal Forum, Thane (for short, ''District Forum) vide its order dated 28.07.2009 held as under ; " 1) The complaint No 472/2008 is partly accepted.

2) The opponent party may give to the complainant the Flat No. 102, A Wing, Admeasuring 800 sq ft. area in the Saptashrungi Apartment into the possession of the complainant, along with the possession Certificate with meter after forming the co-operative society and registered it and take the balance amount ."

Aggrieved by the order of the District Forum, petitioner has filed an appeal before the State Commission.

The State Commission vide their order dated 06.05.2014 observed as under; " Appellant failed to hand over possession of the flat to the respondent even after receipt of huge amount from him. Search report tendered by the respondent/ complainant shows that said flat is still recorded in the name of the respondent. Appellant is in position to hand over the possession of the flat to the respondent. Learned District Forum rightly appreciated all these facts. Appellant failed to hand over possession of the flat and failed to follow the registered agreement between the parties. Said agreement was never legally cancelled. Appellant withhold the possession of the flat for long time. Certainly, there is deficiency in service on the part of the appellant. Learned District Forum rightly appreciated the facts. Order passed by the District Forum is just, legal and correct. It requires no interference. As a result, appeal deserves to be dismissed. With this view, we pass the following order.

ORDER

Appeal stands dismissed ."

Hence, the revision petition.

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

The learned counsel for the petitioner contended that the District Forum and the State Commission have failed to appreciate the facts of the present case and they have also failed to appreciate the fact that the payment on time towards consideration is the essence of the agreement dated 11.1.12008 executed between the petitioner and the respondent. The State Commission had committed a gross error by not appreciated the facts and documents by rejecting the appeal of the petitioner.

The learned counsel for the respondent on the other hand argued in favour of the impugned order.

On query, counsel for the petitioner confirmed that the flat still stood registered in the name of the respondent. The learned counsel for the respondent confirmed that though the respondent has received a cheque dated 18.08.2008 for Rs.2,50,000/- but it was not encashed. The counsel for the petitioner has shown to us the above mentioned original cheque, which is in custody of the respondent. The counsel for the petitioner could not give any evidence to show that the said cheque had been encashed.

Clause 2 of the Agreement dated 11.01.2008 executed between the petitioner and respondent reads as under; " 2) The second party will be paid an amount of Rs. 5,00,000/- (in words rupees five lakhs only) as mentioned below to the second party by the first party for a residential flat admeasuring 800. sq. ft.(built up)

Amount Details

75,000/- The first party has given to the second party a cheque bearing No. 310934 dated 30.01.2007 of the District Central Co-operative Bank Vashind Branch. (in words rupees seventy five thousand only)

75,000/- The first party has given to the second party a cheque bearing no. 310935 dated 6.12.2007 of the District Central Co-operative Bank Vashind Branch.(In words rupees seventy five thousand only)

10,000/- The first party has to pay the second party cash on 25.1.2008 (in words rupees one lakh only).

2,50,000/- The first party after receiving the bank loan has to pay to the second party (in words tow lakhs fifty thousand only).

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5,00,000/- Five Lakhs ."

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As per Clause 2 of the Agreement, Rs.1 Lakh was to be paid by the respondent on 25.01.2008. It was paid with the delay of six months. The counsel for the petitioner admitted that after accepting the payment of Rs.1 Lakh on 06.07.2008, without any protest, they had in fact condoned the delay and waived their right for compensation for delay. It is also an admitted fact as per the payment plan, balance amount of Rs.2,50,000/- was to be paid by the respondent after receiving the bank loan. The bank loan was sanctioned on 01.09.2008, whereas, petitioner without waiting for receiving the balance payment unilaterally terminated the agreement and sent a cheuqe of Rs.2,50,000/- to the respondent. This is probably due to the fact as mentioned in their letter dated 31.07.2008 because " now the market price had increased ".

In view of the above circumstances, we find that there is no jurisdictional error or illegality in the impugned order of the State Commission as also the order of the District Forum. The petitioner as per the Agreement could not have cancelled the deal without waiting for the respondent to pay the balance amount after obtaining a loan.

The 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 " .

Thus in view of the above discussion, no jurisdictional or legal error in the impugned order has been shown to us to call for interference in the exercise of powers under Section 21(b) of the Act. The order of the State Commission does not call for any interference nor does it suffer from any infirmity or erroneous exercise of jurisdiction or material irregularity. Thus, the present revision petition is hereby dismissed and the orders passed by the Fora below are hereby affirmed.

No order as to cost.