1.       This is a peculiar case, where the chronological history thereof would reveal that the facts on the record require an appreciation in this revisional jurisdiction, not because of the contentions which were raised between the parties in the fora below but because of intervening orders passed by this Commission and also by the Apex Court as narrated hereinafter.

2.       The complainant/ petitioner booked a property in the shape of a flat which was developed by the respondent nos. 1 and 2 on a land, the owner whereof was the third respondent. There was a owner-builder agreement for sharing the construction between themselves at a ratio of 50% each.

3.       The flat was not delivered in spite of the fact that the petitioner had advanced a sum of Rs.7,50,000/- to the developers as admitted by the respondent nos. 1 and 2. There were other sums also claimed to have been advanced, which were disputed by the respondent nos. 1 and 2.

4.       The complainant having failed to receive the property and feeling aggrieved file CC/50/2011 before the State Consumer Disputes Redressal Commission, Ranga Reddy, Andhra Pradesh.

5.       The complaint was entertained and the finding in respect of the receipt of the amount as alleged by the complainant was accepted but having gone through the agreement and also the cancellation thereof dated 02.11.2008, the District Commission  came to the conclusion that since the complainant did not pay the balance of the consideration therefore he could not claim any enforcement of the agreement for the property, and accordingly even though held that the complaint to be maintainable, dismissed it on merits. This order passed by the District Commission dated 24.01.2013 came to be challenged by the complainant in FA/153/2013. The complainant remained unsuccessful before the State Commission in appeal that confirmed the order of the District Commission.

6.       The present revision petition was filed and entertained and after notices were issued the respondent nos. 1 and 2 filed a reply on 09.03.2015, which is on record. Since the said reply on behalf of the said respondents has a definite bearing on the present controversy, paragraph 4 thereof is extracted herein under:

“4. It is submitted that the petitioner and the respondent No.1 entered into Agreement of Sale with regard to the subject flat dated 5- 10-2009 for total sale consideration of Rs.20,00,000/- out of that the Petitioner had paid Rs.7,50,000/- towards advance sale consideration and he promised to pay remaining balance amount of Rs.12,50,000/- (Rupees Twelve Lakhs fifty thousand only) at the time of registration, thereafter the revision petitioner neither approached the respondent No.1 nor contacted her for fulfilling his obligation in payment of the balance sale consideration and requested the respondent No.1 for getting the registration of sale deed, but the petitioner simply leveled false allegations against the respondents 1 and 2 stating that he has paid some amounts in different dates upto 2010 but in fact the petitioner no point of time paid any amount of balance of sale consideration to Respondent No.1 and moreover the evidence adduced by the Revision petitioner and the Lower Court has not established any genuine reason in his favour as such this complaint at the District level and appeal at state level are already dismissed. Now, the petitioner only for the purpose of causing mental harassment to this respondents approached this Hon'ble Court for his wrongful gain.”

7.       The said respondents however in spite of having put in appearance and having filed their response were proceeded ex parte, as they did not appear on the date fixed. The third respondent, who is the owner of the property, put in appearance and on 06.07.2015 a statement was made before the Commission that the parties wanted to settle the dispute.  

8.       It may be mentioned that this agreement seems to have been drawn-up between the petitioner and the third respondent only, which was in respect of the disputed flat that was in the possession of the third respondent. According to the agreement between the builders and the third respondent, an apportionment had been made in respect of the built up property at the rate of 50% each. The third respondent had taken a stand that the petitioner could not acquire the said flat as it was the respondent nos. 1 and 2, who surreptitiously sold the said flat to the petitioner in spite of the fact that it formed part of the share of the respondent no. 3. It is undisputed that the respondent no. 3 had a share of 4 of the 8 flats, of which one of them was the same flat for which the settlement was negotiated between the petitioner and the respondent no. 3 during the pendency of this revision.

9.       It appears that the builder/ developer, opposite party nos. 1 and 2, sold the 4 flats of their share to others and walked away also with the money of the petitioner/ complainant denying him the flat on the ground that he had paid only Rs.7,50,000/- and had failed to pay the balance consideration of Rs.12,50,000/- as against the total price of Rs.20,00,000/-. The dispute therefore arose about the balance of the payment which the complainant had alleged that he had paid in cash but the same was not accepted by the District and the State Commission. However, the payment of Rs.7,50,000/- to the opposite party nos. 1 and 2 was found to have been proved. It is in this background that the complainant seems to have reconciled himself for getting the flat conveyed to him by the owner of the land, who claimed the disputed flat to be falling in his share as the builder had departed by selling his share of the 4 flats to others. Accordingly the statement of an offer of settlement between the petitioner/ complainant and the respondent no. 3/ owner was noted in the order dated 06.07.2015.

10.     On the basis of this statement the matter was adjourned and on 13.07.2015, the petitioner and the respondent no. 3 arrived at a settlement, according to which the petitioner was to pay a sum of Rs.11,00,000/-, out of this Rs.5,00,000/- was paid through a demand draft and the balance was directed to be paid within 60 days from the said date, whereafter the sale deed was to be executed.

11.     The order dated 13.07.2015 is extracted herein under:

1. “Counsel for parties present.  Arguments heard.
2. So far as complainant and petitioner are concerned, settlement has reached between the parties (respondent no. 3), where it is agreed that the flat would be given to the petitioner A.S.N. Murthy subject to further payment of Rs.11 lacs.  Parking space and other facilities be also given to the petitioner.  A sum of Rs.5 lacs through demand draft is paid to the counsel for respondent no. 3.  Rest of Rs.6 lacs would be paid within 60 days from today and the Sale Deed be also executed within 60 days from today.  The amount of Rs.6 lacs be paid on the date of execution of Sale Deed.
3. Respondent no. 1 and 2 have not turned up.  They are proceeded against ex-parte.  Evidence on the record clearly shows that respondent no. 1 & 2 have obtained Rs.7,50,000/- and they are, therefore, directed to return Rs.7,50,000/- along with interest @ 18% per annum from the date of deposit till its realization. ”

        It seems that the respondent nos. 1 and 2 did not choose to appear thereafter and may have been watching the proceedings from behind. Their sitting on the fence seems to be obvious leaving the complainant to negotiate and navigate the destiny of his property by himself. The respondent nos. 1 and 2 therefore were seemingly enjoying an undue enrichment of Rs.7,50,000/- already pocketed by  them and the complainant having lost the legal battle up to the State Commission.

12.   The revision petition was therefore finally disposed of in the above circumstances to put a quietus to the issue and consequently the sale deed was executed by the third respondent on 04.09.2015. A copy of the sale deed has been filed along with compilation of IA/7581/2019 containing additional documents. This sale deed has been executed by the third respondent in favour of the petitioner and holds good even today. The Commission, in our opinion rightly concluded that Rs.7,50,000/- with interest deserved to be refunded to the complainant/ petitioner by the respondent nos. 1 and 2

13.   The order dated 13.07.2015 contained an omission with regard to the refund of Rs.7,50,000/-, which was clarified as payable to the petitioner vide order dated 09.10.2015, which is extracted herein under:

“Counsel for the petitioner has moved an application MA/561/2015, for clarification of order. Para No. 3 of the order dated 13.07.2015 will be read as:-

“Respondents no. 1 and 2 have not turned up.  They are proceeded against ex-parte.  Evidence on the record clearly shows that Respondents no. 1 & 2 have obtained Rs.7,50,000/- “From the petitioner” and they are, therefore, directed to return Rs.7,50,000/- along with interest @ 18% per annum from the date of deposit, till its realization, “to the petitioner”.

The necessary corrections are accordingly made. MA/561/2015 stands disposed of.

Copy of this order be sent to the Respondents.

14.   The respondent no. 1 seems to have filed Special Leave Petition CC 8312/2016, against the said order, that was dismissed by the Apex Court on 06.05.2016, by the following order:

        “Delay condoned.

         The special Leave petition is dismissed.”

15.   It appears that thereafter  RA/125/2017 was filed belatedly without disclosing the dismissal of the SLP with a prayer that the order dated 13.07.2015 as clarified on 09.10.2015 deserves to be reviewed, in as much as, the revision petition had been disposed off on the basis of consent between the petitioner and the third respondent only. This Commission on 05.03.2018, passed the following order:

“The review application, RA No.125 of 2017 has been filed by Smt. Rajee Sudha, the review petitioner seeking review of order passed by this Commission on 13-07-2015 in R.P.No.3564 of 2014 as per which this Commission allowed settlement between respondent no.1 and respondent no.2 and directed the review petitioner to refund Rs.7,50,000/- to respondent no.1 with interest @18% per annum.

This matter needs consideration; it is felt in the interest of justice that both the parties should be given a chance of hearing before taking a view on the review application.

 Issue notice to learned counsel for both the parties for hearing on 18-04-2018.

A copy of the review application be sent to the learned counsel for the respondents also.”

16.   After hearing learned counsel for the parties, the Commission noticed the dismissal of the SLP but the review application was ultimately allowed on 14.05.2019 and the order dated 13.07.2015 and 09.10.2015 were recalled.

17.   It is in this background that the matter remained pending and was placed for hearing. This is how the matter has come up today. In spite of the fact that the respondent nos. 1 and 2 were continuously represented on and off and they had also filed their response on 09.03.2015, they are absent today and are again remain unrepresented.

18.   In view of the aforesaid position, it is therefore obvious that the respondent nos. 1 and 2 do not seem to be interested in contesting this revision petition and hence there is no option but to proceed ex parte against them.

19.   Learned counsel for the third respondent is present and he submits that in view of the subsequent events that have taken place, the revision can be disposed off as the claim of the petitioner in respect of the property in question stands satisfied with the execution of the sale deed by the third respondent.

20.   Having heard learned counsel for the parties, the fact remains that the sale deed was executed after the orders were passed by this Commission on 13.07.2015  and before the review was allowed on 14.05.2019. The said sale deed is a final contract between the transacting parties. The effect thereof can be taken away only by seeking any cancellation thereof and not otherwise. None of the parties seem to have taken any such step or raised any dispute about its execution and therefore the sale deed has attained finality as on date. It needs to be clarified that the Sale deed of the flat is that which fell in the share of the opposite party no. 3 and hence its conveyance is an independent transaction about which the respondent nos. 1 and 2 cannot and do not have any grievance. This was not even in their allegations in the review application. They were only concerned about the refund of Rs.7,50,000/- directed against them which they alleged could not be a matter of contest between the petitioner and the third respondent. Thus the execution of the Sale deed in between remains unaffected in any manner whatsoever.  

21.   The respondent nos. 1 and 2 have not come up to contest the present revision petition. Even though they had filed the review application but the fact remains that the reply filed by them on 09.03.2015, extracted hereinabove unequivocally admits of having received the payment of Rs.7,50,000/- from the petitioner.

22.   This amount of Rs.7,50,000/- therefore in the wake of the facts narrated above deserves to be refunded to the complainant/ petitioner, in as much as, he cannot be compelled to pay twice for the same property, which has been negotiated and sold under a valid sale deed that has not been questioned as yet. There is yet another fact which needs mention, namely, the principle of merger may not strictly apply, but the fact remains that the respondent no. 1 herself had approached the Apex Court by questioning the correctness of the order dated 13.07.2015 and the SLP after condoning the delay had been dismissed. In such circumstances the         impact of the said order cannot be overlooked. The order dated 13.07.2015 has been recalled under the review application filed, but in so far as the respondent no. 1 is concerned the aforesaid fact remained undisputed that the issues raised by her before the Apex Court could not be re-agitated, more so in the wake of the admitted position of receipt of Rs.7,50,000/-, which is contained in the reply filed by the respondent nos. 1 and 2 themselves.

23.   In the background above, the revision petition does not require any further  interference with the impugned orders in view of these intervening events except to the extent that the impugned order shall in no way impact upon the sale deed already executed in favour of the petitioner by the third respondent in respect of the property in question.

24.   However, in view of the admitted position of Rs.7,50,000/- having been received by the respondent nos. 1 and 2, the impugned order deserves to be modified to the extent that the amount of Rs.7,50,000/- that has been admittedly received by the respondent nos. 1 and 2, shall be refunded to the petitioner along with interest @ 6% per annum from the date of the complaint till the date of realisation. The Revision is accordingly partly allowed with the above directions.