IMPORTANT POINTS
1) Cancellation of the Residential House by the Petitioner, instead of correction of defect in the building and further allotment of the same to the third party, certainly amounts to deficiency in service and unfair trade practice.
2) 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 2 Forums.

ORDER

C. Viswanath, Presiding Member.—The present Revision Petition has been filed by the Petitioner against order dated 30.09.2020 passed by the State Consumer Disputes Redressal Commission, Rajasthan (for short “State Commission”) in First Appeal No. 1304/2019.

2. Case of the Complainant/Respondent is that he entered into an agreement dated 05.03.15 with the Opposite Party/Petitioner for construction on Plot No. 308 under the scheme “Ashapurna Nano Grand Project” for Rs.14,14,577/-. The Opposite Party gave a proposal for construction of Residential House in village Kharda Randhir, Shikargarh, Jodhpur at Khasra No. 19, 19/1, 19/2 and 19/3 and 31, 30/3, 30/4 and 30/7. The Complainant accepted the proposal for which the agreement was made on 05.03.2015. According to the agreement the construction area was 735 sq. feet on total area of Plot No. 308 of 111.11 sq. yards.

3. The booking was done on 18.03.2015 and booking amount of Rs.11,000/- was deposited through Receipt No. 1524 at the same time and later Rs.3,10,000/- was paid on 13.04.2015. Further, Rs.1,50,000/- was paid on 17.04.2015 and Rs.8,00,000/- was paid on 20.04.2015 through cheque by the Respondent. Total amount of Rs.12,71,000/- was paid by the Respondent and the balance payment of Rs.1,43,577 was assured to be paid at the time of delivery of possession as per the terms and conditions of the Agreement. On inspection by the Respondent’s Civil Engineer, it was found that material used in the building, bathroom, furnishing, electric work etc. was of substandard quality. The Respondent, vide letter dated 26.09.2015, informed the Petitioner about the same. Instead of correcting the deficiencies, the Petitioner, vide letter dated 13.10.2015, cancelled the allotment on the ground of non-payment of balance amount. The Residential House No.308 was also sold to a third party Shri Mohan Singh Bhati. Aggrieved by the Opposite Party/Petitioner, the Complainant/ Respondent filed Consumer Complaint No.948 of 2015 before the District Forum for the alleged deficient service with the following prayer:

“Hence application is submitted and prayed that application of the applicant be accepted and as per promise given to applicant by the non-applicant order be issued to make the residential house available and order be issued to allow Rs. 20,000/- for mental agony, Rs. 3,000/- complaint expenses and Rs. 1,00,000/-, in words rupees one lac, for compensation for the wastage of time of the applicant from the non-applicant to applicant and other relief in favour of the applicant, if any be allowed.”

4. The Complaint was resisted by the Opposite Party/Petitioner before the District Forum in which it was contested that the dispute was of civil nature and civil court was appropriate forum for the adjudication of the case. It was stated that the Respondent was not ‘Consumer’ under the Consumer Protection Act, 1986. The Respondent had not booked the house for residential purpose but for commercial purpose and matter therefore related to sale-purchase of immovable property which does not amount to any deficiency in service. The Opposite Party referred to the condition No. 59 of the Agreement, which makes a reference to the settlement of the dispute through Arbitration.

5. Opposite Party alleged that the Complainant was requested from time to time to pay the balance amount. The allotment was subsequently cancelled by giving him notice dated 13.10.2015 for non-deposit of the amount. Thereafter, it was sold to Shri Mohan Singh Bhati on 28.10.2015. The Complainant was offered the refund of balance amount after deduction from his deposited amount as per the Agreement. Opposite Party, therefore, claimed that there was no deficiency in service on their part. The Opposite Party also pointed out that high standard of technique was used for construction and the material used was as per the Agreement. Opposite Party also pointed out that the Complainant did not adhere to the payment schedule. The Complainant