Back
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION, NEW DELHI
Prem Narain, Presiding Member
and C. Viswanath, Member
Ansal Housing & Construction Limited
and Anr. —Petitioners
versus
Renu Trivedi —Respondent
Revision Petition No.3806 of 2013
(Against the Order dated 24/07/2013 in Appeal No.1766/1997 of the State Commission Uttar Pradesh)
Decided on 21.10.2020
Counsel for the Parties:
For the Petitioners:Mr. N.K. Kantawala, Advocate
For the Respondent:Mr. Pawan Kumar Ray, Advocate
IMPORTANT POINT
Deduction of earnest money can be allowed only if there is loss to the complainant.
Headnote:
Consumer Protection Act, 1986—Sections 21(b) and 13(c) : [Consumer Protection Act, 2019—Sections 58 and 38]—Allotment of flat—Cancellation—Refund of earnest money—Scope—Plea of petitioner that District Forum erred in accepting report of engineer which was procured by the complainant by himself for a fee—No independent local commissioner appointed to inspect property in question—Allegedly since complainant did not pay the instalments, the allotment was cancelled and amount of 10% which was abort Rs. 30,000/- was deducted and remaining amount refunded to complainant—Both the Fora below have given concurrent finding of facts and facts cannot be reassessed at the revision stage—Petitioner also failed to clarify that whether report of engineer was part of the evidence of the complainant or this was separately filed—Against a total consideration of Rs. 2,99,000/- an amount of Rs. 1,64,000/- was already paid by complainant—Thus, substantive amount has been paid by the complainant before cancellation—Refund of amount of 10% which is about Rs. 30,000/- he paid to respondent with interest @ 9% instead of 18% p.a. as ordered by District Forum. (Paras 7 to 11)
Result: Petition allowed partly.
ORDER
Heard the learned counsel for both the parties in the matter.
2. This revision petition has been filed by the petitioner challenging the order dated 24.07.2013 passed by the Uttar Pradesh State Consumer Disputes Redressal Commission, Lucknow (‘the State Commission’) in Appeal No.1766 of 1997 wherein the order dated 20.08.1997 of the District Consumer Disputes Redressal Forum, Ghaizabad (‘the District Forum’) passed in complaint no. 539 of 1995, has been upheld.
3. Learned counsel for the petitioner states that the District Forum without following the provision of Section 13 (c) of the Consumer Protection Act, 1986, has accepted the report of the Engineer which was procured by the complainant himself for a fee and therefore, it was not an independent and unbiased report. The District Forum should have appointed an independent Local Commissioner to inspect the property in question for deciding the short comings in the property. Learned counsel for the petitioner further stated that when the complainant did not pay the installments, the allotment was cancelled on 27.11.1996 and the amount of 10% which was about Rs.30,000/- was deducted and the remaining amount was refunded to the complainant in terms of the contract. The District Forum, however, allowed the refund of this 10% amount along with 18% per annum interest. The petitioner /opposite party preferred an appeal before the State Commission and the State Commission dismissed the appeal vide its order dated 24.07.2013 and upheld the order of the District Forum.
4. Hence, the present revision petition.
5. Learned counsel for the petitioner has stated that the deduction was made as per the provisions of the agreement entered into between the parties and the District Forum has relied on the report of an Engineer which was procured by the complainant for a fee which was not an independent report, as Local Commissioner was not appointed by the District Forum. The opposite party did not get any opportunity to counter this report before the District Forum.
6. On the other hand, the learned counsel for the respondent/ complainant stated that this report is of 18.01.1997 and the same was filed before the District Forum in support of the claims of the complainant. It was the duty of the opposite party to have objected to this report, however, no objection was raised before the District Forum against this report. Therefore, the District Forum has accepted this report and ordered for refund of the remaining 10% amount along with interest.
7. We have carefully considered the arguments advanced by the learned counsel for the parties and have examined the record. It is seen that the copies of the evidence filed by both the parties before the District Forum have not been filed by the petitioner in the matter before this Commission. Further, the learned counsel for the petitioner is not able to clarify whether this report was part of the evidence of the complainant or this was separately filed. No benefit can be given to the petitioner for not filing the relevant record of the District Forum in the revision petition before this Commission. Both the fora below have given concurrent finding of fact and the facts cannot be reassessed at the revision stage against the concurrent finding given by the fora below as held by the Hon’ble Supreme Court in the case of Mrs Rubi (Chandra) Dutta vs M/s United India Insurance Co. Ltd., 2013(2) CPR 14 (SC):2011 (3) Scale 654 wherein the following has been observed:-
“23. 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 t
