Chandigarh

StateCommission

RA/9/2024

M/S OMAXE NEW CHANDIGARH DEVELOPERS PRIVATE LIMITED - Complainant(s)

Versus

DR. SUNDER CHAINTA - Opp.Party(s)

MUNISH GUPTA

30 Aug 2024

ORDER

 STATE CONSUMER DISPUTES REDRESSAL COMMISSION, U.T. CHANDIGARH

[Addl. Bench]

==========

Review Application No. in Appeal No.214 of 2023	:	RA/09/2024
Date  of  Institution	:	03/07/2024
Date   of   Decision	:	30/08/2024

 

 

 

 

 

1.     M/s Omaxe New Chandigarh Developers Private Ltd. (formerly known as M/s Omaxe Chandigarh Extension Developers Private Limited), Zonal Office at India Trader Tower, 1st Floor, Baddi Kurali Road, New Chandigarh Mullanpur, District S.A.S. Nagar, Punjab – 140901.

2.     Managing Director/Directors of M/s Omaxe Chandigarh Extension Developers Private Ltd. (now known as M/s Omaxe New Chandigarh Developers Private Limited), Corporate Office SCO 19-140, 1st Floor, Sector 8-C, Chandigarh.

Note:-        Address of Appellant No.2 of Chandigarh has been wrongly mentioned by Complainants in the Complaint, as the Appellant – Company has shifted from the said address since April 2017 and now, the Corporate Address of Appellant No.2 is 10, Local Shopping Centre, Kalkaji, New Delhi – 10019.

 

Appellants No.1 and 2 both through Vishal Chawla, Authorized Representative of M/s Omaxe New Chandigarh Developers Pvt. Limited, Registered Office: 10, Local Shopping Centre, Kalkaji, New Delhi – 110019.

…. Applicants/Appellants

 

V E R S U S

 

1.     Dr. Sunder Chainta, resident of Chainta Cottage, Aira Home, New Happy Child School, Shimla.

2.     Dr. Dimple Chainta wife of Dr. Sunder Chainta, resident of Chainta Cottage, Aira Home, New Happy Child School, Shimla.

3.     Axis Bank Limited, through its Authorized Officer, SCB-5, First Floor, Chhoti Barandari near HDFC Bank, Patiala.

…… Respondents 

 

BEFORE: MRS. PADMA PANDEY   PRESIDING MEMBER

                PREETINDER SINGH      MEMBER

 

PRESENT

:

Sh. Munish Gupta, Adv. (on V.C) along with Sh. Manjinder Kumar, Advocate for Applicants/Appellants.

 

 

PER PADMA PANDEY, PRESIDING MEMBER

 

This Review application has been filed by the Applicants/Appellants – M/s Omaxe New Chandigarh Developers Pvt. Ltd. & Another under the provisions of Section 50 of the Consumer Protection Act, 2019 (in short ‘the Act’) seeking review of order dated 28.05.2024, vide which, Appeal bearing No.137 of 2022 filed by the Appellants against the order dated 23.08.2022 passed by the Learned District Consumer Disputes Redressal Commission-II, U.T. Chandigarh in Consumer Complaint bearing No.153 of 2021, was partly accepted and the orders of the Ld. District Commission were modified and Appellants were directed to refund to the Respondents/ Complainants the amount of ₹85,69,092/- along with interest @9% from the respective date(s) of deposit, till realization. The other part of the order with regard to compensation, litigation cost and penal clause for default in making compliance of the order was kept intact.

 

2.         We have heard the Learned Counsel for the Applicants/Appellants and have also gone through the record of the case with utmost care and circumspection with his able assistance.

 

3.         After giving our thoughtful consideration, to the contentions raised and material on record, we are of the considered opinion, that the instant review application is liable to be dismissed for the reasons to be recorded hereinafter.

 

4.         Learned Counsel for the Applicants/ Appellants argued with vehemence that the interest awarded on the refundable amount, compensation, litigation expenses and the conditional addl. cost awarded to the Complainants/ Respondents are on higher side. He has submitted that the Respondents/Complainants had availed financial assistance from Axis Bank under the subvention scheme and the issue qua the adjustment of the interest amount (paid by Applicants/Appellants to Axis Bank under subvention scheme) left to be even taken note of.

 

5.         The pointers agitated hereinabove for reviewing the order, however, lacks merit and does not hold much water in as much as, it was the Applicants/Appellants who proposed to complete the development/construction of the unit within 36 months plus extended grace period of six months meaning thereby in total 42 months, which they failed to do despite receiving a substantial amount from the Respondents/Complainants. It could not be disputed between the parties that under subvention scheme amount was financed by Axis Bank on the behest of the present Respondents/Complainants with the tacit approval of the Applicants/Appellants (Builders) by executing tripartite agreement dated 02.06.2018 under which loan amount was directly paid to the Applicants/Appellants. It is not in dispute that as per tripartite agreement ibid the interest amount was payable by the Applicants/Appellants.  However, the fact remains that the present Applicants/Appellants failed to fulfil their commitments and the Respondents/ Complainants cannot be made to suffer and wait indefinitely for possession. Thus, the Applicants/ Appellants, who certainly were in dominant position, could not be allowed to draw any benefit qua the adjustment of the interest amount once they failed to discharge their obligations per letter of allotment, in view of the law laid down by the Hon’ble Supreme Court in Pioneer Urban Land & Infrastructure Ltd. Vs. Govindan Raghavan, C.A. No. 12238 of 2018 and Pioneer Urban Land & Infrastructure Ltd. Vs. Geetu Gidwani Verma & Anr., C.A. No. 1677 of 2019.

 

6.         At the outset, we must reiterate that the scope of review by this Court is very limited. It is settled that the review would be permissible only if there is a mistake or error apparent on the face of the record or any other sufficient reason is made out. We are also equally aware of the fact that the review proceedings cannot be equated with the original hearing of the case. The review of the judgment would be permissible only if a material error, manifest on the face of the order, undermines its soundness or results in miscarriage of justice. We are also aware that such an error should be an error apparent on the face of the record and should not be an error which has to be fished out and searched.

 

7.         Needless to mention here that the issues raised now by means of present review application have already been dealt with in detail by this Commission in order dated 28.05.2024. It may be stated here that each Consumer Commission has been empowered to review its own order under the provisions of Sections 40, 50 and 60 of the Act. The power under the Statute is highly limited as compared to the powers of civil court to review its own orders under the provisions of Section 114 read with order 47 of the Code of Civil Procedure. It is beneficial to refer following provisions of law: -

 

Section 50 of the Act:- "The State Commission shall have the power to review any of the order passed by it if there is an error apparent on the face of the record, either of its own motion or on an application made by any of the parties within thirty days of such order."

 

8.         In the light of aforesaid provision, the prayer of the Applicants/ Appellants to review order dated 28.05.2024 is misconstrued and misapplied inasmuch as Section 50 of Consumer Protection Act, 2019 empowers this Commission to review its order only when there is an error apparent on the face of the record and we do not find any such apparent error on record. Therefore, this review application does not merit consideration.

 

9.         It is well settled that a party is not entitled to seek a review of a judgment delivered by a Court merely for the purpose of a rehearing and a fresh decision of the case. The normal principle is that a judgment pronounced by the Court is final, and departure from that principle is justified only when circumstances of a substantial and compelling character make it necessary to do so.  In Lilly Thomas v. Union of India and others, reported in AIR 2000 SC 1650, the Hon'ble Apex Court has held that the power of review can be exercised for correction of mistake and not to substitute views.    

 

10.         From the above observation of Hon'ble Apex Courts, it is crystal clear that the power of review cannot be equated with the power of appeal as the scope of review is very limited.  Besides this, the scope of review under the provisions of Section 50 of the Act is highly limited and only to the extent of “an error apparent on the face of record”.

 

11.         Whatever observed by this Commission in the order dated 28.05.2024 is based upon the factual position on record. There is no any apparent error on record and there is no need to review same.

 

12.         For the reasons recorded above, this review application stands dismissed with no order as to costs. The remedy lies with the Applicants/ Appellants to challenge the order, as per law, if advised.

 

13.         Certified copies of this order be sent to the parties, free of charge.

 

14.         The file be consigned to Record Room, after completion.

Pronounced

30^th Aug. 2024                                                           

Sd/-

                                                        (PADMA PANDEY)

PRESIDING MEMBER

 

 

Sd/-

                                                        (PREETINDER SINGH)

MEMBER

“Dutt”