Sanjay Singh vs Rajendra Das Gupta

PETITIONERS/OP nos.1 & 2 have filed the present revision petition challenging order dated 25.8.2009 passed by Chhattisgarh State Consumer Disputes Redressal Commission, Raipur (for short ?State Commission?) vide which their appeal was dismissed.

BRIEF facts are that respondent No.1/complainant had entered into an agreement with petitioners/OP nos.1 & 3, who are builders and also in the business of sale and purchase of land. Respondent No.1 being impressed with their advertisement contacted petitioners and after seeing the land entered into an agreement with them on 28.6.2005 and paid Rs.40,000/-. It is stated that petitioners had also shown the layout plan etc. relating to the land. Respondent no.1 reminded the petitioners to execute registered sale deed after taking balance amount of Rs.20,000/- together with Rs.15,000/- towards registration charges. Petitioners told respondent no.1 that they are also builders and they will hand-over the land after building the house upon it. After such assurance, petitioners collected cheque no.037034 drawn on Apex Bank, Bilaspur from respondent no.1, but did not get the sale deed registered. The cheque was got encashed by respondent no.2/OP no.3 but land was not registered in favour of the respondent no.1. Accordingly, respondent no.1 claimed refund with interest. Petitioners and respondent No.2 resisted the claim on the ground that respondent no.1 has made complaint to the Police, hence complaint before District Forum is not maintainable. Petitioners also took the plea that vide notice dated 14.10.2006, they asked respondent no.1 to pay the amount and get the land registered but he has failed to do so. Petitioner no.1 is always ready and willing to execute registry in favour of respondent no.1 but respondent no.1 has failed to fulfill the terms. Petitioners deny that there was any undertaking regarding building the house on the aforesaid land. It is further stated that Singh Consultancy is a proprietorship firm of petitioner No.1.

None appeared for OP no.2, before District Forum, despite publication.

ON consideration of material placed before it, District Forum allowed the complaint and directed the petitioners to refund the amount of Rs.75,000/- deposited by respondent no.1, together with interest and cost. State Commission, vide impugned order dismissed the appeal of the petitioners.

BOTH the parties have argued their matter in person and have also filed written arguments. It is contended by petitioner that they were ready and willing to perform their act and for that purpose an agreement was also signed between the parties but respondent no.1 failed to fulfill the terms and conditions. Moreover, notice was also sent to respondent no.1 for payment of the balance amount so as to get the land registered. Another contention is that it was respondent no.1 who got published one fake notice in the newspaper regarding respondent no.2 who has no existence at all. Even publisher of the newspaper clarified the same that no such publication was published on behalf of the petitioners. On the other hand, it is argued by respondent no.1 that petitioners have defrauded many consumers and it was the petitioners who introduced Vimlesh Vaishnav as their partner and asked respondent no.1 to draw cheque in his name and hand over the same. Thus, petitioners have cheated him.

PETITIONERS denied the publication of the advertisement and their plea is that it was respondent no.1 who has failed to deposit the balance amount. In this respect, it would be fruitful to reproduce the relevant findings of the State Commission which read as under ; "9. The present appellants have denied publication of advertisement in Haribhumi on 16.6.2005, 17.6.2006 and notice in Deshbandhu on 28.2.2006. It is surprising to note that they have admitted receiving amount of Rs.40,000/- and executing agreement with the complainant which is alleged by the complainant to have been in pursuance of the advertisement published in Haribhumi dated 16.6.2005 and 17.6.2005. Notice appears to have been published by OP-3 in Deshbandhu dated 24.2.2006 to the effect that due to personal as well as other reasons delay was caused and persons who had booked the plot or house with the firm may contact to take refund. One thing very clearly emerges out of the aforesaid notice that OP-3 was the partner of the firm and the firm had taken booking amount from persons for allotment of plots as well as houses. Hence, it appears that in order to avoid refund the present appellants are making such false statements. 10. The appellants have also filed copy of letter dated 9.2.2008 allegedly sent by the Advertisement Manager, Dainik Deshbandhu to show that the notice published under bill no. BLS 41228 dated 28.2.2006 was not published on that date. It is further written in the letter that the advertisement which was published in the newspaper may be treated to be illegal because the same was not published by Singh Consultancy but by some unknown person, with the intention to implicate Singh Consultancy and Singh Consultancy may not be held responsible for the publication. We are of the opinion that such letters are not normally issued. In case the Advertisement Manager was aware at the time of publication itself that the said advertisement was being published by unauthorized person, he could have taken care not to permit its publication. However, issuance of such letter as has been placed on record does not appear to be a common practice. Copy of Duplicate Bill dated 28.2.2006 is placed on record and it is conclusive evidence to prove that an advertisement was got published by Singh Consultancy and Construction. The appellants have failed to show as to for which advertisement the bill was issued if it was not for the aforesaid notice. We believe that there are no special means available to the Advertisement Manager to subsequently ascertain and certify after two years of publication that a particular advertisement was illegally published by an unauthorized person. So it is apparent that the present appellants had obtained such letter by hook or by crook to avoid their liability because advertisement published in Deshbandhu clearly shows that the appellants are promoters and builders and Vimlesh Vaishnav is also a partner of the firm. 11. The complainant has also placed on record a pamphlet issued by Singh Consultancy & Construction. This also is an advertising pamphlet bearing names of Sanjay Singh, Bajrang Singh & Vimlesh Vaishnav. The appellants submitted that they did not publish or distribute any such pamphlet. However, we are not convinced by such plea and hold that the pamphlet relates to the OPs. It is apparent from the pamphlet that the OPs are running the business under the name of Singh Consultancy and Constructions and offered to sell developed plots and residential houses and further that OP-3 is also a part of Singh Consultancy & Constructions. 12. In the light of observations made in foregoing paragraphs we find that the order passed by the District Forum is just and proper, hence the same is affirmed. This appeal being devoid of merits is dismissed subject to payment of cost of Rs.2,000/- to the complainant in addition to the award of the District Forum."

IT is an admitted case of the petitioners also that they have taken Rs.40,000/- from respondent no.1 but no land has been handed over by them to respondent no.1. Both the fora below have given concurrent findings of facts against the petitioners. These findings are based on sound and valid reasons. We find no reason to disagree with the findings of the fora below. Present revision petition has been filed under Section 21(b) of the Consumer Protection Act, 1986 (for short ?Act?).

It is well settled that the powers 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."

Thus, 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, two fora below have given cogent reasons in their orders, which does not call for any interference nor they suffer from any infirmity or revisional exercise of jurisdiction.

IN our opinion, the present petition is nothing but a gross abuse of process of law and the revision petition is totally frivolous in nature which is required to be dismissed with costs of Rs.10,000/-. Accordingly, we dismiss the present petition with cost of Rs.10,000/- (Rupees ten thousand). Petitioners are directed to deposit the cost of Rs.10,000/- in the name of "Consumer Legal Aid Account" of this Commission, within thirty days. In case, petitioners fail to deposit the said cost within the prescribed period, they shall also be liable to pay interest @ 9% p.a., till realization. List for compliance on 4.11.2011.