PER MR SUBHASH CHANDRA

1.      This revision petition has been filed under section 21 (b) of the Consumer Protection Act 1986 (in short, the ‘Act’) impugning the order dated 29.04.2016 passed by the State Consumer Disputes Redressal Commission, Delhi (in short, ‘State Commission’) in FA number 908 of 2012 against the order dated 09.05.2012 passed by the District Consumer Disputes Redressal Forum-VI, New Delhi (in short, ‘District Forum’) in CC no. 1039 of 2009.

2.     The facts of the case, in brief, are that the respondent/complainant had booked a plot measuring 500 sq. yards with M/s Intime Promoters Pvt. Ltd. and M/s TDI Infrastructure, the present petitioner, in one of their projects named TDI City, Kundli, Sonepat, Haryana. The petitioner had agreed to sell the plot at the rate of Rs.7750 per sq. yard and the allotment was to be made within a period of six months. An amount of Rs.7,75,000 has admittedly been paid on 07.10.2005 followed by another instalment of Rs 3,87,500 on 30.01.2006. However, no allotment of a plot in the name of the respondent/complainant has been made by the petitioner so far. The respondent had issued a legal notice to the petitioner on 19.07.2008 which did not elicit any response from the petitioner herein.

3.      The respondent thereafter filed consumer complaint no.1039 of 2009 before the District Forum which allowed the complaint on contest and directed the petitioner to pay to the complainant Rs.11,62,500/-. The respondent approached the State Commission in appeal against the order of the District Forum in FA no. 908 of 2012. Vide the impugned order dated 29.04.2016, the State Commission set aside the order of the District Forum on the ground that the petitioner herein had failed to present evidence to prove their entitlement under their company’s policy to deduct 10% of the deposited amount. The order of the State Commission was as under:

3.       Defence raised by the OP in the learned District Forum was that the complainant had failed to make payment of various instalments in terms of schedule of payment.

4.       No schedule of payment has been placed on record by the Ops/respondents. No letter asking for payment off instalments has been relied upon by the Ops. Ld. District Forum held that the OPs were guilty of deficiency in service and passed orders which are impugned. The only grievance of the appellant/complainant is that the deduction to the tune of 10% as referred to in the orders is illegal and unjustified

5.       I have given careful thought to the prayer made in the appeal and perused the records.

6.       OPs have failed to place on record any material in support of their contention that any policy of the company permitted for deduction of 10% of the amount deposited by the complainant in any eventuality. In these circumstances appeal is allowed and the orders dated 17.04.2012 are modified to the extent that the Ops/ respondents directed to pay to the complainant/appellant an amount of Rs 11,62,500/- along with interest @ 9% p.a. from the date of deposit till the date of realisation (without any deduction). OPs shall also pay to the complainant/appellant a compensation to the tune of Rs 50,000 for causing inconvenience and harassment to the complainant.

7.       The aforesaid directions shall be complied with by the OPs/ respondents within a period of 45 days from today failing which interest @ 24% per annum shall be levied on the OPs/ respondents on the amount accruing after the expiry of the period of 45 days from today.

Appeal is accordingly disposed of.

4.      In the present revision petition the revisionist is before us seeking a stay on the operation of the impugned order of the State Commission in FA no.908 of 2012 dated 29.04.2016, a stay on the execution proceedings in EA no. 65 of 2016 before the District Forum and any other order.

5.     As per order dated 13.11.2018, the revision petition was dismissed by a coordinate Bench of this Commission on the ground of delay of 130 days which was not satisfactorily explained. However, the matter was restored and admitted on the basis of the orders of the Hon’ble High Court dated 25.07.2019. We have heard the learned counsel for the petitioner and respondent – in person, perused the records and given thoughtful consideration to the record.

6.      On behalf of the petitioners it was argued that the deduction of 10% by the petitioner from the amount deposited by the respondent towards the booking made by him was justified as it constituted ‘earnest money’. Reliance has been placed on the judgment of the Hon’ble Supreme Court in Satish Batra Vs. Sudhir Rawal, CA No. 7588 of 2012 decided on 18.10.2012 wherein it was held that:

“To justify the forfeiture of advance money being part of “earnest money” the terms of the contract should be clear and explicit. Earnest money is paid or given at the time when the contract is entered into and, as a pledge for its due performance by the depositor to be forfeited in case of non-performance by the depositor. There can be converse situation also that if the seller fails to perform the contract the purchaser can also get double the amount if it is so stipulated in the contract. It is also the law that part-payment of purchase price cannot be forfeited unless it is a guarantee for the do performance of the contract. In other words, if the payment is made only towards part-payment of consideration and not intended as earnest money then the forfeiture clause will not apply”.

7.     The District Forum had held that the revisionist was entitled to the retention of 10% of the amount deposited by the respondent while refunding the amount. However, the State Commission had set this direction aside. The only issue urged by the petitioner before this Commission during arguments was that the deduction of earnest money was justified in view of the judgment in Satish Batra (supra). The law in Satish Batra (supra) is clear that there has to be a ‘clear and explicit’ inclusion of such a clause in the contract as a pledge for its due performance and that forfeiture results in case of non-performance by the depositor. However, no document has been brought on record to substantiate this averment. The petitioner had failed to substantiate his contention before the State Commission that there was a default in payments by the respondent as it did not submit any schedule of payments which had not been abided by. In the present revision petition also no copy of the contract conditions stipulating that payment received by the petitioner was not part-payment has been brought on record. Therefore, the petitioner’s reliance on Satish Batra (supra) is erroneous as the case is clearly distinguishable to the facts of the petition under consideration.

8.      This Commission, in exercise of its revisional jurisdiction, is not required to re-assess and re-appreciate the evidence on record when the findings of the lower fora are concurrent on facts. It can interfere with the concurrent findings of the fora below only on the grounds that the findings are either perverse or that the fora below have acted without jurisdiction. Findings can be concluded to be perverse only when they are based on either evidence that have not been produced or are based on conjecture or surmises i.e. evidence which are either not part of the record or when material evidence on record is not considered. The power of this Commission to review under section 21 of the Act is, therefore, limited to cases where some prima facie error appears in the impugned order. Different interpretation of same sets of facts has been held to be not permissible by the Hon’ble Supreme Court.

9.     The Hon’ble Supreme Court in Mrs Rubi (Chandra) Dutta vs M/s United India Insurance Co. Ltd., (2011) 11 SCC 269 has held that:

“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 the two Forums. The decision of the National Commission rests not on the basis of some legal principle that was ignored by the Courts below, but on a different (and in our opinion, an erroneous) interpretation of the same set of facts. This is not the manner in which revisional powers should be invoked. In this view of the matter, we are of the considered opinion that the jurisdiction conferred on the National Commission under Section 21 (b) of the Act has been transgressed. It was not a case where such a view could have been taken by setting aside the concurrent findings of two Fora.”

10.   Reiterating this principle, the Hon’ble Supreme Court in Lourdes Society Snehanjali Girls Hostel and Ors vs H & R Johnson (India) Ltd., and Ors  (2016) 8 Supreme Court Case 286 held:

“17. The National Commission has to exercise the jurisdiction vested in it only if the State Commission or the District Forum has either failed to exercise their jurisdiction or exercised when the same was not vested in them or exceeded their jurisdiction by acting illegally or with material irregularity. In the instant case, the National Commission has certainly exceeded its jurisdiction by setting aside the concurrent finding of fact recorded in the order passed by the State Commission which is based upon valid and cogent reasons.”

11.   The Hon’ble Supreme Court in T Ramalingeswara Rao (Dead) Through LRs and Ors vs N Madhava Rao and Ors, dated 05.04.2019 again held as under:

“12. When the two Courts below have recorded concurrent findings of fact against the Plaintiffs, which are based on appreciation of facts and evidence, in our view, such findings being concurrent in nature are binding on the High court. It is only when such findings are found to be against any provision of law or against the pleading or evidence or are found to be perverse, a case for interference may call for by the High Court in its second appellate jurisdiction.”

12.   From the records it is apparent that the petitioner has challenged the impugned order on the very same grounds which were raised before the District Forum as well as the State Commission in appeal. The concurrent findings on facts of these two foras are based on evidences led by the parties and documents on record. The present revision petition is therefore an attempt by the petitioner to urge this Commission to re-assess, re-appreciate the evidence which cannot be done in revisional jurisdiction. Learned counsel for the petitioner has failed to show that the findings in the impugned order are perverse.       

13.   The foras below have pronounced orders which are detailed, based on evidence on record and have dealt with all the contentions of the petitioner. As noted above, no evidence has been brought on record in support of the legal contentions now being relied upon with regard to the deduction of 10% of the deposit as “earnest money”. Hence the concurrent findings based on evidence have to be accepted as such findings cannot be substituted in revisional jurisdiction. This petition is, therefore, liable to fail.

14.    The order of the State Commission is reasoned and clear. We, therefore, find no illegality or infirmity or perversity in the impugned order. The present revision petition is found to be without merits and is accordingly dismissed.