1.     This revision petition under section 21 (b) of the Consumer Protection Act, 1986 (in short, the ‘Act’) assails the order of the Maharashtra State Consumer Disputes Redressal Commission, Mumbai (in short, ‘State Commission’) in First Appeal No. A/12/76 dated 04.05.2012 arising out of order dated 20.10.2011 of the District Additional Consumer Disputes Redressal Forum, Pune (in short, ‘District Forum’) in Consumer Complaint No. 37 of 2011.

2.      Briefly stated, the facts of the case are that the respondent/complainant had executed an Agreement with the petitioner/builder for a row house for a sale consideration of Rs 11,50,000/-. Petitioner executed the Sale Deed on 19.11.2009. Respondent contends that despite the Sale Deed, possession was not handed over and that there were 13 lacunae in the house. Also, petitioner/builder did not provide other necessary documents such as Completion Certificate, N.A. Order and the 7/12 Extract with the names of the respondents/complainants which amounted to deficiency in service. These issues were considered by the District Forum in CC No. 37/2011 and, on contest by the petitioner/builder, the District Forum partly allowed the complaint directing the petitioner to provide the documents within 60 days failing which to pay compensation at the rate of Rs 100/- per day along with Rs 25,000/-for mental harassment and Rs 3,000/- as legal costs. The Appeal filed by the petitioner/builder against this order was partly allowed and the order of the District Forum confirmed. In addition, interest @ 24% p.a. from 01.01.2009 till handing over of Occupancy Certificate and Completion Certificate was directed to be paid to respondents/complainants on the amount of Rs 11,50,000/-. This order is impugned before this Commission with the prayer to set it aside and dismiss the complaint with costs.

3.      The petitioner has contended that the impugned order raises the following questions of law:

(i)     whether it is under the ambit of the Consumer Protection Act, 1986? 

(ii)    whether the complaint before the District Forum was maintainable under section 12 of the Act?

(iii)    whether the orders of the lower fora were justified in view of the orders not being on merits?

(iv)   whether the orders of the lower fora were based on evidence on record and facts?

It is the petitioner’s contention that the State Commission’s order is not based on merits and the grounds of appeal and is therefore illegal. It is lleged that the District Forum also did not consider the evidence on record and decided the case on wrong facts. The impugned order of the State Commission is stated to be based on surmises and conjectures and, therefore,  perverse. The order is stated to be non-speaking and without considering that evidence was not produced by the respondents/complainants. It is the petitioner’s contention that the Sale Purchase Agreement was flawed in respect of clause 7(N) stating that the construction would be completed by 01.01.2009 and that the builder would obtain the necessary Completion Certificate from the Competent Authority and in default thereof, pay interest @ 24% to the purchasers for period of delay. It is averred that there were obligations to be discharged by the repondents/complainants with regard to payments as per para 7(B) and 7 (D) and 7 (E) and hence it would be wrong to only penalize the petitioners. Therefore, the order of the State Commission is liable to be set aside.

4.      The respondents/complainants in their written arguments filed on 05.04.2021 have contested the averments of the petitioner. It is submitted that the complaint was maintainable under section 12(b) of the Act. It is denied that clause 7 (N) of the registered Sale Purchase Agreement was illegal. It is contended that the petitioner did not raise any issues of default under this document and it is asserted that all payments were made by them as per schedule mentioned in the Agreement. An amount of Rs 11,50,000/- was paid by him as on 16.10.2009. Accordingly, it is stated that the petitioner’s contentions are vague and misleading and that respondents have a right to be compensated as per conditions in para 7(D) and (E) with interest @ 21% p.a. It is stated that the respondents cannot be faulted if the petitioner was not diligent about his rights. It is therefore prayed that the orders of the lower fora be confirmed with enhanced compensation.

5.      I have heard the learned counsel for both the parties and carefully considered the material on record.

6.      The arguments that the complaint was without jurisdiction, that the orders of the fora below were without jurisdiction and that the order of the State Commission was not a speaking order have been considered. The respondents/complainants are ‘consumers’ under the ambit of section 2(1)(d) of the Act in that the house was purchased for personal use against a sale consideration. The petitioner has not brought out any other specific ground for stating that the orders were without jurisdiction. The orders have clearly discussed the arguments of the parties and come to a conclusion.

7.      Admittedly the petitioner/builder has not obtained the Completion Certificate, documents for NA and the 7/12 extract showing ownership of the respondents/complainants. Mere handing over of possession with the Sale Deed without execution of all the necessary documents does not constitute complete legal title. It is further evident that the petitioner did not take steps to hold the respondents guilty of default in payment at any point prior to handing over. The petitioner executed the Sale Deed after having accepted full payment before registration of the sale deed. At this stage, after having executed the document it is not open for it to question the legality of the Sale Agreement. Therefore, his arguments on this front that this document was incorrectly drafted do not merit consideration. At this stage the petitioner has to comply with the agreed terms of the contract with the respondents/ complainants. In a catena of judgments the Hon’ble Supreme Court and this Commission have held that parties are bound by the terms of the contract which cannot be re-written. The rate of penal interest for default @ 21% cannot therefore be questioned at this stage by the petitioner. It is also manifest from the record that the petitioner has not brought on record the steps taken to rectify the 13 lacunae in this house pointed out at the time of taking over possession by the respondents/complainants.

8.      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.       

9.      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 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.

10.   The Hon’ble Supreme Court in Mrs Rubi (Chandra) Dutta vs M/s United India Insurance Co. Ltd., (2011) 11 SC 269 dated 18.03.2011 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.”

11.    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 SCC 286 dated 02.08.2016 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.”

12.   The Hon’ble Supreme Court in its judgment dated 05.04.2019 in the case of T Ramalingeswara Rao (Dead) Through LRs & Ors Vs. N Madhava Rao and Ors, Civil Appeal No. 3408 of 2019 dated 05.04.2019 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.”

13.    The foras below have pronounced orders which are detailed and have dealt with all the contentions of the petitioner which have been raised before me in this revision petition. It is also seen that the orders of these fora are based on evidence on record.  In view of the settled proposition of law that where two interpretations of evidence are possible, concurrent findings based on evidence have to be accepted and such findings cannot be substituted in revisional jurisdiction, this petition is liable to fail.

14.   I, therefore, find no illegality or infirmity or perversity in the impugned order warranting any interference of this Commission. The present revision petition is, therefore, found to be without merits and is accordingly dismissed.