1.       The present Revision Petition (RP) has been filed by the Petitioner against Respondents as detailed above, under section 21 (b) of Consumer Protection Act 1986, against the order dated 24.10.2018 of the State Consumer Disputes Redressal Commission Maharashtra (hereinafter referred to as the ‘State Commission’), in First Appeal (FA) No.A/16/790 in which order dated 21.03.2016 of Thane District Consumer Disputes Redressal Forum (hereinafter referred to as District Forum) in Consumer Complaint (CC) no. 52 of  2009 was challenged, inter alia praying for staying the order dated 21.03.2016 of the State Commission.

2.       While the Revision Petitioner (hereinafter also referred to as OP) was Appellant and the Respondents (hereinafter also referred to as Complainants) were Respondents in the said FA No. A/16/790 before the State Commission, the Revision Petitioner was OP and Respondents were Complainants before the District Forum in CC no.52 of 2009.

3.       Notice was issued to the Respondents on 24.01.2019. Parties filed Written Arguments/Synopsis on 16.08.2023 and 18.08.2023 respectively.

4.       Brief facts of the case, as emerged from the RP, Order of the State Commission, Order of the District Forum and other case records are that Flat No.2, Golden Nest, building No.29, Phase XII admeasuring about 434.70 sq. ft. was agreed to be purchased by the complainants for a sum of Rs.8,28,800/-. A flat Buyer agreement was executed between the Petitioner and Respondents duly signed and registered.  As per the said agreement, OP shall give the possession of the said flat to the complainants by 30.12.2006.  The complainants had agreed to pay balance consideration and for that purpose had asked OP to give No Objection Certificate for keeping the flat as mortgage to the Bank, to obtain loan.  However, OP failed to give NOC and did not execute the conveyance deed. OP created third party interest in respect of said flat.  Several reminders were sent to the complainants but there was no response from them regarding payment of balance consideration and, therefore,  flat was sold to one Smt. Sangeeta Devi.  Being aggrieved, the Complainants field a CC before the District Forum and the District Forum vide order dated 21.03.2016 partly allowed the CC.  Being aggrieved, the OP preferred an Appeal before the State Commission and State Commission vide order dated 24.10.2018 dismissed the appeal of the OP.  Hence, the OP is before this Commission by way of present RP.

5.       Petitioner has challenged the said Order dated 24.10.2018 of the State Commission mainly on following grounds:

1. Respondents failed to come forward to make balance payments towards the said flat despite issuing 10 notices.

2. Respondent’s failure to make balance payments in accordance with the agreement for sale rendered the agreement cancelled as per clause 4,6 and Clause 15 of the agreement for sale, as timely payment was essence of the contract.

3. The Petitioner terminated the agreement in accordance with terms of the agreement for sale and same was intimated to the respondents vide notice dated 24.04.2007.

4. The  Petitioner executed agreement for sale in respect of said flat in favour of third party in May 2008 and till then there was  no communication from the respondents.

5. All notices issued to respondents were issued at the known address of the parties and in accordance with clause 33 of the agreement for sale that required notices to be issued by ‘Certificate of posting’.

6. Respondents never expressed their readiness and willingness to make balance payment.

7. Although respondents received detailed reply dated 18.07.2008, the issue of non receipt of notices was never raised and respondents remained silent on receipt of said notices.  If notices were not received by the complainants, they could have denied receipt of notices when Petitioner’s reply to legal notice gave dates of all notices issued to them.  Even in the complaint, the issue of non receipt of notices was never pleaded although the notices or at-least the contents thereof was within their knowledge when they filed complaint by virtue of receipt of reply notice dated 18.07.2006 and it was only after petitioner brought on record his written statement, wherein details of various notices including the termination notices were issued, the respondents for the first time raised the issue of non receipt of notices.

8. The pre-sanction letter issued by the Bank for the purpose of obtaining NOC for mortgage was admittedly issued and dated 02.11.2007 subsequent to the date of termination of the agreement.

9. Fora below erred in recording the fact that Petitioner offered financial assistance for loan and further failed to give NOC on the basis of mere allegations and absence of cogent evidence.

10. Clause 33 of the agreement provided that issue of notices / receipts under Certificate of Posting would constitute ‘sufficient service’. Further Petitioner is not bound to issue notices in respect of amounts due towards the purchase of flat.

11. There is no explanation or evidence from the respondents as to why they did not come forward to make payments and execute Sale deed for a period of two years.

12. The effect of second legal notice dated 28.12.2007 informing the respondents of termination of agreement issued along with cheque for refund of Rs.87,560/- was that any right of the respondents to make claim to said flat stood extinguished.

13. Considering that Agreement between the parties stood cancelled by the respondents own breach of terms of the agreement and also duly terminated by issuing notice, the Fora  below could not have entertained claim for possession without challenge being raised to the notice terminating the agreement for sale.

14. Assuming but not admitting that flat no.002 or a similar one is available for conveyance, if the benefit possession on payment of balance dues is to be granted to the respondent, it must be subject to payment of the balance amount at the current market value of the flat considering the delay and lapses on the part of the respondents.

6.       Heard counsels of both sides.  Contentions/pleas of the parties, on various issues raised in the RP, Written Arguments, and Oral Arguments advanced during the hearing, are summed up below.

6.1.    Counsel for the Petitioner argued that non payment of entire sale consideration by the respondents is an admitted position.  However, despite the said fact, the relief of alternate possession and compensation had been granted to the respondents.  Counsel argued that orders of Fora below go beyond the scope of the pleadings filed by the respondents and without jurisdiction.  Counsel further argued that date of possession mentioned in the agreement was 30.12.2006 and Petitioner obtained NOC for the building on or about 07.01.2007 and between November 2006 to April 2007, the petitioner issued about 10 demand notices calling upon the respondents to make the balance payments and to take possession, however, there was no response from the respondents and not a single penny was paid by the respondents and, therefore, the Petitioner was constrained to terminate the agreement for sale in terms of clause 4 and 6 of the said agreement and refunded the earnest amount by cheque.

          6.2.    It is further contended by counsel for the Petitioner that one full year after issuing the notice of termination, the petitioner executed agreement for sale dated 23.05.2008 in respect of flat no. 002 in favour of Sangeeta Devi on receipt of full consideration and the said Sangeeta Salvi was put in possession of the said flat.  Further, it is argued that respondents took the false plea that they were unable to make the payments because the petitioner did not give them any loan from their final institution for the purchase of flat and the respondents had defaulted in  making of timely payment and respondents are desperately trying  to make excuses and build up a false case against the Petitioner for the sake of compensation.

6.3.    Further, it is argued that respondents were also informed about the subsequent transfer of the said flat to a third party.  The respondents remained silent on receipt of notice and they did not refute receipt of 12 notices issued by the petitioner.  The respondents took a false stand that they  had not read the agreement for sale and that Petitioner was running a financial institution and that they had promised to sanction loan to the respondents and they were unable to make the payments because the Petitioner did not give them any loan from their financial institution for purchase of said flat. No evidence was produced by the respondents that Petitioner had promised to sanction a loan from the financial institution of the petitioner. Even the pre sanction letter which is subsequent to the date of termination of agreement was never supplied to the petitioner.The complainant filed before the District Forum is barred by limitation having been filed in January 2009 after alleged refusal of loan by the Petitioner on or before 30-31 December 2006.  It is further contended that there was never a plea taken by the respondents in the legal notice nor the complaint that they did not make the payments because they had not received the demand notices for payment and they had made it abundantly clear that they did not have the money and had taken the false plea that they had not made the payments because the loan was not given by the petitioner.  Further, it is submitted that there was never a plea taken  by the respondents in the legal notice nor the complaint that they did not make the payments because they had not received the demand notices for payment.  They had taken the false plea that they  had not made the payments because the loan was not given by the Petitioner as promised.  Even they were aware that possession was due and payments were to be made.

6.4.    Further,  it is argued that as per clause 33 and 52 of the Agreement for sale, all notices / receipts and communication dispatched either by ‘Certificate of Posting’ or RPAD to the known address of the respondents would amount to good, effective and sufficient service.  Even, both the fora failed to consider that termination of agreement by invoking a clause in the agreement for default on the part of the respondent is different from cancellation of agreement. An adverse inference should have been drawn against the respondents for failure on their part to promptly refute receipt of notices immediately on receipt of reply dated 18.07.2008 issued by petitioner wherein all details of 12 notices were given. The Petitioner handed over possession of flat no. 302 in the project to the respondents upon receiving all due payments.  It is further argued that respondents never raised issue of non receipt of demand notices and termination notices and it was only after the petitioner brought on record their written statement, wherein details of various notices including the termination notices was placed on record, the respondents for the first time raised the issue of non receipt of notices.

6.5.    Counsel for the respondents argued that revision petition is not maintainable and has placed reliance on the decision of Hon’ble Supreme Court in Ruby ( Chandra) Dutta Vs. United India Insurance Co. Ltd.  It is further argued that State Commission had rightly held that no acknowledgement in writing signed by the complainant was produced before the District Forum or before them to believe that reminders were sent and received by complainants calling upon the complainants to pay balance consideration.   Even the State commission had right held that registration receipts does not mention any address as mentioned in the letter nor in writing is produced to show that letter was received by complainant.  It is further argued that respondents were willing to pay the balance consideration price by availing housing loan and petitioner had assured for the same but when the same was denied, respondents approached other banks for obtaining sanction for which petitioner did not cooperate.  Petitioner failed to produce cancellation deed or cancellation agreement.   The Petitioner were not able to justify their action of illegally terminating agreement and creating third party interest in the flat, and therefore, revision petition is not maintainable.

7.       We have carefully gone through the orders of the State Commission, District Forum, other relevant records and rival contentions of the parties.  In this case, there are concurrent findings of both the Fora below against the Petitioner herein.  Both the State Commission and District Forum have given a well-reasoned order after duly appreciating the facts and evidence placed before them.  Complainant had agreed to pay balance consideration and for that purpose had asked OP to give NOC to mortgage the flat with Bank to obtain loan.  However, OP failed to give NOC, execute the conveyance deed and later on created third party interest in respect of said flat.  State Commission in its order has observed that reminders by OP to Complainant were sent by U.P.C. while as per agreement all notices to the purchasers have to be sent by Registered A.D. Post. 

8.       As was held by the Hon’ble Supreme Court in Rubi Chandra Dutta Vs. United India Insurance Co. Ltd. [(2011) 11 SCC 269], the scope in a Revision Petition is limited. Such powers can be exercised only if there is some prima facie jurisdictional error appearing in the impugned order. In Sunil Kumar Maity Vs. State Bank of India & Ors. [AIR (2022) SC 577]  held that “the revisional jurisdiction of the National Commission under Section 21(b) of the said Act is extremely limited. It should be exercised only in case as contemplated within the parameters specified in the said provision, namely when it appears to the National Commission that the State Commission had exercised a jurisdiction not vested in it by law, or had failed to exercise jurisdiction so vested, or had acted in the exercise of its jurisdiction illegally or with material irregularity.”   

9.       The Hon’ble Supreme Court in Rajiv Shukla vs Gold Rush Sales And Services Ltd. Civil Appeal No. 5928 of 2022, decided on 8 September, 2022, held that:-

“13. As per Section 21(b) the National Commission shall have jurisdiction to call for the records and pass appropriate orders in any consumer dispute which is pending before or has been decided by any State Commission where it appears to the National Commission that such State Commission has exercised its jurisdiction not vested in it by law, or has failed to exercise a jurisdiction so vested, or has acted in the exercise of its jurisdiction illegally or with material irregularity. Thus, the powers of the National Commission are very limited. Only in a case where it is found that the State Commission has exercised its jurisdiction not vested in it by law, or has failed to exercise the jurisdiction so vested illegally or with material irregularity, the National Commission would be justified in exercising the revisional jurisdiction.

14. In exercising of revisional jurisdiction the National Commission has no jurisdiction to interfere with the concurrent findings recorded by the District Forum and the State Commission which are on appreciation of evidence on record. Therefore, while passing the impugned judgment and order the National Commission has acted beyond the scope and ambit of the revisional jurisdiction conferred under Section 21(b) of the Consumer Protection Act.”

10.     In view of the foregoing, we find no illegality or material irregularity or jurisdictional error in the order of the State Commission, hence the same is upheld.  Accordingly, Revision Petition is dismissed.

11.     The pending IAs in the case, if any, also stand disposed off.