1. Greater Noida Industrial Development Authority has filed the present Revision Petition under Section 21(b) of the Consumer Protection Act, 1986 (hereinafter referred to as the Act), against the Impugned Order dated 17.04.2008 passed by the Uttar Pradesh State Consumer Disputes Redressal Commission (hereinafter referred to as State Commission) in Appeal No. 249/SC/2003, whereby the State Commission had dismissed the Appeal filed by Greater Noida Industrial Development Authority (hereinafter referred to as Petitioner Authority) against the Order dated 27.12.2002 passed by the District Consumer Disputes Redressal Forum, Gautambudh Nagar (hereinafter referred to as ‘District Forum’) in Case No. 546 of 2002.  By the said Order the District Forum while partly allowing the Complaint filed by Kushagra Singh (hereinafter referred to as the “Complainant”), directed the Petitioner Authority to refund the Registration amount of ₹40,000/- deposited by the Complainant alongwith interest @15% per annum from the date of deposit till the date of payment besides a sum of ₹5,000/- towards mental agony and costs of ₹1,000/- within 30 days failing which Complainant would be entitled for interest @18% with effect from the date of default.  

 

2. Brief facts of the case as narrated in the Complaint are that the Complainant applied for a residential Plot in “Swarn Nagari” Scheme floated by the Petitioner Authority by depositing Registration amount of ₹40,000/- on 21.03.1998.  Before the draw of lots, the Petitioner Authority revised the cost of plot from ₹16,00/- to ₹2400/- per sq. mtr. and asked the consent of the Complainant  vide letter dated 15.06.1998.  The Complainant gave his consent.  The Complainant was allotted a plot of 200 sq. mts. and he was directed to deposit ₹1,84,000/- by 01.01.1999 and ₹3,36,000/- by 24.12.2000 in eight quarterly instalments of ₹42,000/- each.  On calculation, the Complainant found that the final cost of the plot would be ₹2995.85 ps. and not ₹2400/- per sq. mt.  The other point which was also creating tension to the Complainant was that if the lease was not executed by 31.12.2019, penalty upto ₹18,000/- would be charged upto 30.09.2000.  Ultimately, keeping in view his financial constraints, vide letter dated 15.12.1998 the Complainant requested the Petitioner Authority to refund the Registration money.  The Complainant persuaded the matter with the Petitioner Authority vide letters dated 29.03.1999, 20.06.1999 and 25.08.1999 but without fruitful result.  Vide letter dated 14.09.1999 the Petitioner Authority asked the Complainant to furnish postal proof of dispatch of letters regarding demanding of refund of Registration amount. The Complainant provided the copies of letters alongwith postal proof vide letter dated 01.05.2001. Instead of refunding the Registration amount, vide letter dated 10.10.2001, the Petitioner Authority informed the Complainant that the Plot No. D-109, which was allotted to him, has been cancelled and the amount paid towards registration Amount had been forfeited.  Alleging deficiency in service and unfair trade practice on the part of the Petitioner Authority, Complainant filed Consumer Complaint before District Forum seeking following directions to the Opposite Party to:-

“(i) pay ₹40,000/- to the Complainant with interest calculated at 18% per annum from 21.03.1998 upto the date of payment; 

(ii) pay ₹10,000/- towards compensation for the mental agony suffered by the Complainant;

(iii) pay to the Complainant a sum of ₹5,000/- to compensate him towards cost of conducting the above Complaint.”

 

3. Upon notice Complaint was contested by the Petitioner Authority by filing Written Statement.  The Petitioner Authority submitted that the Complainant is not a ‘Consumer’.  The Complaint is time barred and the Complaint is not maintainable.  It was contended that as per Clause A2 and B3 of the Brochure of the Scheme, the rates of the plots were tentative and the Petitioner Authority had reserved the right to revise the rate before allotment.  All the Applicants including the Complainant were duly informed about the hike in price of plot and option was also given to them to get the refund of Registration money in case the revised rates were not acceptable to them.  On the consent of the Complainant, Plot was allotted to the Complainant.  Once the Complainant had accepted the revised rates, then he could not challenge the revised rate.   It was also submitted that the rate of plot was ₹2400/- per sq. mtr. and after adding lease rent, stamp duty and registration charges in this amount, the Complainant had calculated the rate as ₹2995.85ps. which could not be counted as the price of the Plot.  It was also contended that the Complainant failed to submit the postal proof of dispatch of letters by which he alleged to have requested for refund of Registration amount.  If the proof of dispatch of the said letter was submitted his registration amount would have been refunded.  The Opposite Party further submitted that as per Clause F-5 of the Brochure, in case failure to deposit the amount within stipulated period, the registration amount would be forfeited.    The Petitioner Authority further submitted that there is no deficiency in service on their part and the Consumer Complaint be dismissed.  

 

4. On appraisal of the material available on record and evidence adduced before it, the District Forum observing that “under Section 2(o) of the Act, the word ‘services’ have been defined and these includes housing and construction services provided it is not free of cost”, held that the Complaint is maintainable.  The District Forum after relying upon a Judgment of the Hon’ble Supreme Court in “GDA versus Union of India” [2000 CPJ (1) Supreme Court], held that the conditions set out in the brochure are only offer and not a contract.  The terms of the Brochure cannot be altered; whereas the terms of the contract can be changed, therefore, it is clear that the condition in the brochure regarding refusing to refund the registration amount is void and unreasonable and is not in public interest and cannot be accepted, and partly allowed the Complaint by observing that the information regarding surrender of the plot has been sent by the Complainant to the Opposite Party by letter dated 15.12.1998 copy whereof has been filed as document 9/C/5 and has also filed photocopy of the UPC receipt by which this letter was sent to the Opposite Party.  From the aforesaid, it is clear that the Complainant had informed the Opposite Party regarding non-taking of the plot.  In compliance of the request of the Opposite Party, the Complainant made available copy of the postal proof of letter dated 15.12.1998.  But still the Registration amount was not refunded, which is a clear case of deficiency in service on the part of the Petitioner Authority.  

 

5. Aggrieved by the Order dated 27.12.2002 passed by the District Forum, the Petitioner Authority filed an Appeal before the State Commission. After hearing both the Parties and perusal of material on record, the State Commission dismissed the Appeal by observing as under:-

“As regards the plea of limitation is concerned, a Complaint has been filed in the year 2002 and the Complainant sent letter for refund of the money vide letter dated 15.12.1998.  Since the same was not acted upon the Complainant has been writing letters consistently for the refund of the said money vide letters dated 29.03.1999, 20.06.1999, 25.08.1999.  Even in this connection the Appellant filed letter dated 14.09.1999 asking the Complainant to furnish the postal proof of dispatch of letters in question which were immediately complied with by the Complainant vide letter dated 23.09.1999.  Thus, there was a sincere continuous demand at regular intervals from the side of the Complainant and it was the Appellant who due to the reason one or the other, has been avoiding to refund the registration money.  The demand of the refund of the money was a prior transaction and the forfeiture of the money in this case was a subsequent action through the letter dated 10.10.2001.  This letter dated 10.10.2001 for all practical purposes would be the final negative date for refusing to make the payment of the registration sum.  Thus, the period of two years will start running from this date as the cause of action accrued on this date.  Thus, the contrary plea that the Complaint was barred in view of Section 24(a) of the Act is not sustainable in the eyes of law.

 

More so, the question of forfeiture does not arise as at the very outset the Complainant having found that the terms and conditions were not suitable and the Appellant was in the habit of enhancing the price arbitrarily and having visualized that the transaction was not a gainful one, informed that it would not be possible for him to accept the offer and as such he claimed for the refund of the registration money.  Obviously, thus in that state of affairs it was wrong on the part of the Appellant to have refused to refund the money taking the shelter of Rule F-5 of the brochure which has no applicability as it was not a case of default of the payment of the instalments by the Complainant.  The learned District Forum, thus, on merit was totally justified in passing the judgment and order in question.  Since the original claim was denied even on persistent demands, the Complainant too was entitled for the interest @15% per annum which was granted by the learned District Forum.  Consequently, we find no substance in the Appeal.”

 

6. Aggrieved by the Order dated 17.04.2008 passed by the State Commission, the Petitioner Authority has filed the present Revision Petition before this Commission.

 

7. Mr. Ravindra Kumar, learned Counsel appearing on behalf of the Petitioner Authority submitted that in the present case, the allotment of the Plot was made in favour of the Respondent vide allotment letter dated 20.11.1998 and the Respondent sought refund for the first time vide letter dated 25.06.1999.  It was also submitted that UPC is not a proof of receipt of letter by the addressee of such a letter and as per terms of the Brochure the claim of surrender was to be entertained only on the basis of the date of application received in their office and not on the basis of Postal Certificate.  It was submitted that surrender was applied beyond a period of 45 days of allotment and in terms of the Brochure of the Scheme, the Respondent was not entitled for any refund.

 

8. Per contra, Mr. G.S. Chaturvedi, learned counsel appearing on behalf of the Respondent / Complainant submitted that by way of present Revision Petition, the Petitioner Authority has challenged the concurrent findings recorded by the Fora below.  As per settled law, concurrent findings can only be disturbed by this Commission in case the findings are perverse but in the present case, no such allegation is made out by the Petitioner Authority.  Relying upon the Judgment passed by the Hon’ble Supreme Court in the case of ‘Pioneer Urban Land & Infrastructure Ltd. Vs. Govindan Raghavan, II (2019) CPJ 34 (SC)’ it was submitted that the term of the Brochure, i.e., ‘the claim of surrender was to be entertained only on the basis of the date of application received in the Petitioner Authority’s office and not on the basis of Postal Certificate’ being one-sided and unconscionable is not binding on the Respondent.  He supported the Impugned Order passed by the State Commission as according to him the State Commission has passed a well-reasoned order which is based on a correct and rightful appreciation of evidence and material available on record and does not call for any interference.

 

9. We have heard Mr. Ravindra Kumar, learned Counsel appearing on behalf of the Petitioner and Mr. G.S. Chaturvedi, learned Counsel appearing on behalf of the Respondent/Complainant.

 

10. From the perusal of the material available on record and having given thoughtful consideration to the various pleas raised by both the Parties, we are of the considered opinion that the submissions made by the learned Counsel for the Petitioner Authority are not acceptable for the simple reason that there is concurrent finding of the fact that the Complainant/Respondent herein, had informed the Petitioner Authority about surrender of the Plot vide letter dated 15.12.1998.  The State Commission vide its well-reasoned Order dated 17.04.2008 has rightly affirmed the findings recorded by the District Forum that there was deficiency in service on the part of the Petitioner Authority in forfeiture of registration amount despite information about surrender of the Plot sent by the Respondent/Complainant vide letter dated 15.12.1998 to them.  While passing the Impugned Order dated 17.04.2008, the State Commission had considered all the material evidence on record and we do not find any illegality, material irregularity or jurisdictional error in the Order passed by the State Commission.    

 

11. It is well settled by the Hon’ble Supreme Court in ‘Sunil Kumar Maity vs. State Bank of India & Anr.’ [Civil Appeal No. 432 / 2022 Order dated 21.01.2022] that the Revisional Jurisdiction of this Commission under section 21(b) of the Consumer Protection Act, 1986 is extremely limited and this Commission cannot set aside the Order passed by the State Commission in Revisional Jurisdiction until and unless there is any illegality, material irregularity or jurisdictional error in the Order passed by the State Commission.  For ready reference, relevant paragraph of the Judgment passed by the Hon’ble Supreme Court in ‘Sunil Kumar Maity vs. State Bank of India & Anr.’ [supra]  is reproduced as under:-

“9. It is needless to say 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. In the instant case, the National Commission itself had exceeded its revisional jurisdiction by calling for the report from the respondent-bank and solely relying upon such report, had come to the conclusion that the two fora below had erred in not undertaking the requisite in-depth appraisal of the case that was required. .....”

 

12. It is well-settled that the concurrent finding recorded by the fora below cannot be interfered in revisional jurisdiction by this Commission as has been held by the Hon’ble Supreme Court in “Rajiv Shukla vs. Gold Rush Sales and Services Ltd. and Ors. [MANU/SC/1120/2022 : (2022) 9 SCC 31] wherein it has been held that 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,  For ready reference, Para 7.1 of the Rajiv Shukla (supra) is reproduced  as under:

“7.1 At this stage, it is required to be noted that on appreciation of evidence on record the District Forum as well as the State Commission concurrently found that the car delivered was used car. Such findings of facts recorded by the District Forum and the State Commission were not required to be interfered by the National Commission in exercise of the revisional jurisdiction. It is required to be noted that while passing the impugned judgment and order the National Commission was exercising the revisional jurisdiction vested under Section 21 of the Consumer Protection Act, 1986. 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. 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.”

 

13. Thus, in view of the law laid down by the Hon’ble Supreme Court in ‘Sunil Kumar Maity vs. State Bank of India & Anr.’ (supra) as also in ‘Rajiv Shukla vs. Gold Rush Sales and Services Ltd. and Ors. (supra)’, we do not find any good ground to interfere with the well-reasoned Order passed by the State Commission.  Consequently, the present Revision Petition fails and is hereby dismissed.  Keeping in view the facts and circumstances of the case, there shall be no Order as to costs.