V.B Gupta, Presiding Member:— In this revision petition, there is challenge to order dated 24.5.2012 passed by Karnataka State Consumer Disputes Redressal Commission, Bangalore (for short as ‘State Commission’) vide which appeal of the petitioner was dismissed at the admission stage.

2. Facts as emerges from record are that respondents/complainants in order to own a flat in Bangalore approached petitioner/opposite party and entered into sale and construction agreement, dated 14/11/2008 for purchase of Flat No. 212 on 2 Floor of Tower-2 Block in the project “Manthri Royal” along with one covered car parking in the basement floor for total sale consideration of Rs. 37,70,247/-. At the instance of the petitioner, respondents paid Rs. 1,00,000/- on 07/11/2008 and Rs. 17,00,000/- on 14/11/2008, towards part of the sale consideration and agreed to pay the balance of sale consideration of Rs. 19,70,247/- as and when demanded by the petitioner after completion of particular stage of construction and handing over the possession of the property. As per terms of the sale and construction agreement, petitioner failed to complete the construction work and even after lapse of three years from the date of agreement, failed to complete and hand over the possession of the property. In spite of several requests made to the petitioner which it did not consider, as a result respondents virtually lost interest in buying the schedule property from the petitioner. Realizing the fact that there will be a further delay in completing the project and handing over of the possession of the property, respondents requested the petitioner to refund the amount paid by them to the extent of Rs. 18,00,000/- as they are willing to buy an apartment for their own elsewhere. Even though petitioner has sent an ‘email’ on 07/08/2011 informing the respondents that refund of cheque would be ready by 16 of August, 2011, but it failed to refund the amount. Therefore, respondents filed complaint before the District Forum.

3. Petitioner in its written version and additional version admitted receipt of Rs. 18,00,000/- as well as agreement to sale and agreement to construction. It is stated that as per agreement, petitioner have to deliver the property to the respondents within 18 months from the date of commencement of construction, provided all instalments are paid promptly and regularly. The commencement certificate was obtained on 10.09.2012 But in the meanwhile, respondents terminated the contract. Hence, they are not entitled to any relief.

4. District Forum, vide its order dated 29.3.2012, allowed the complaint in part and passed the following order;

“2. The opposite parties are directed to pay to the complainants the sum of Rs. 18,00,000/- together with interest @ 3% per annum thereon from 14.11.2008 until payment within 30 days from the date of this order.

3. In case it is not paid within 30 days, the amount stated at serial No. 2 above, then they shall pay Rs. 18,00,000/- with interest at 12% p.a from 14.11.2008 until payment within 60 days from the date of this order.

4. In case it is not paid within 60 days the amounts stated at serial No. 2 or 3 above, then they shall pay Rs. 18,00,000/- with interest at 18% p.a from 14.11.2008 until payment within 90 days from the date of this order.

5. The opposite parties are also directed to pay Rs. 2,000/- towards costs of this litigation.”

5. Aggrieved by the order of the District Forum, petitioner filed an appeal which was dismissed at admission stage by the State Commission. This is how the matter has reached before this Commission.

6. It is contended by learned counsel for petitioner that the State Commission has not considered the fact that the case was mainly for recovery of money once the agreement has been cancelled by Respondents by demanding the refund of the amount which respondents had given to the petitioner in pursuance of agreement of sale & agreement of construction dated 14.11.2008 So rather than entertaining the consumer complaint, respondents ought to have been directed to a civil court for filing a civil suit for recovery.

7. District Forum in its order has held;

“6. It is an admitted fact that there is an Agreement of Sale and Construction that was entered into between the parties on 19.11.2008 with respect to the flat to be constructed by the opposite parties and delivered to the complainant as per certain terms and conditions. It is also an admitted fact that regarding the Sale and Construction Agreement the complainant had paid Rs. 18,00,000/- by 14.11.2008 It is also an admitted fact that till date the opposite parties have not constructed the building nor delivered the flat or registered the flat in the name of the complainant. Even after four years there is no proof to show that the opposite parties have built and handed over any complex to the complainant or to anybody.

7. It was contended during the course of the arguments that as per the Clauses of the agreement the opposite parties can deliver the building within 18 months from the date of obtaining the Commencement Certificate and the Commencement Certificate was obtained by the opposite parties on 09.09.2010, hence the complaint is premature. It is an untenable contention. It is not the commencement certificate that warrants.

8. The opposite party on 01.10.2009 at 4.02 PM has written the following e-mail to the complainant:—

“With reference to our earlier mail, we are happy to inform you, we will be starting the work from 05.10.2009 in full swing and tentatively we would be completing the Basement Slab by 20.11.2009 and thereafter every 21 days, we would be finishing every slabs, overall finishing may take 18 months from now. Thank you very much for your patience and co-operation. We would be expecting few references from your end to make the successful and most beautiful project

Further in e-mail dated 20.10.2009 at 11.27 AM the opposite parties stated thus:—

“As you aware that we had started the work at Mantri Royale Site and it is going in full swing, kindly find an attachment of work progress photos. We hereby requesting you to refer some of your friends and relatives and get a referral gift. We are committed to providing you with the world class service that you deserves. Thanking you.

That means the opposite parties have started construction of the building by October, 2009 itself and they have agreed to deliver the building, within 18 months from October, 2009 and it is not 18 months from the date of obtaining he commencement certificate. It is within 18 months from starting the commencement of the construction of the building. The construction of the building has been started in October, 2009 but till today it has not been completed. Hence, there is no violation and breach of conditions by the opposite parties.

9. As the opposite parties failed to discharge their obligations under the terms and conditions of the contract in completing the construction work within 18 months from the date of its commencement i.e from 01.10.2009 within 18 months the complainant sought refund of the money, and the opposite parties have failed to refund the money. This is part and parcel of the services that has been agreed to between the parties, as that has not been done, this is nothing but deficiency in service and also an unfair trade practice as contended.

10. It was contended that as per the Clauses of the agreement the opposite parties are entitled to refund the money within 12 months from the date of its cancellation i.e, 12.07.2011 This is an untenable contention. The opposite party on 07.08.2011 at 7.50 PM has written the following e-mail to the complainant;

“With reference to the discussion had at our office, please be informed that the Refund cheque would be ready by 16th of August, 2011 we will keep you informed and please drop in at our office with the agreements and receipts in original.

That means irrespective of the agreement the opposite parties have agreed to return the money by 16.08.2011 and cheque will be ready by that time. But till today the opposite parties have not returned the money. There were several e-mail correspondence, notices made between the parties from 16.08.2011, but till date the opposite parties have not returned the money nor refunded the money nor paid any penalty.

11. The photographs produced by the complainant shows that it is only the skeleton of the building that is there and nothing else. Even the skeleton is incomplete. There is no proof to show that 80% of the work of the flats are completed. That means the opposite parties are only trying to drag on their proceedings as contended by the complainant.

12. It was contended that the complainant claimed rent earlier and hence it is a commercial transaction the complainant is not a “Consumer”. The opposite parties never stated that the complainant has invested the money in the flats only to rent out and to earn profit and it is the business, nor it is stated by the opposite parties that the complainant has invested money so that he can purchase or sell the flats to any other person for the higher prices. Earlier to the amendment the complainant has sought certain relief that has been given up. The complainant now wants only Rs. 18,00,000/- his amount with interest at the rate of 3% per annum and the costs. The agreement provided for rent the complainant had claimed it. As the amount exceeds the pecuniary jurisdiction of this Forum, the complainant restricted his claim to come within the pecuniary jurisdiction of the forum. This will never change the nature of the case nor anything. Hence under these circumstances this cannot be a commercial transaction. Keeping the others huge money agreeing to give a flat within 18 months and not delivering the flats though commenced the construction work and keeping their money for years together not repaying it, nor delivering the flats, is nothing but unfair trade practice and deficiency in service.”

8. State Commission while concurring with the findings of the District Forum has observed;

“7. In Para-4 of the version filed before the D.F discloses that the appellants/Ops have taken a contention they shall be entitled for further extension of three months due to unforeseen circumstances in delivering the Flat. On perusal of the agreement of sale and the construction agreement, it is clear that both the agreements entered into on 14/11/2008. Of course, it is clear that the appellant is accepted to refund the money within 12 months from the date of cancellation of the agreement i.e, 12/07/2011. On this scope the D.F has rightly held that the very appellant/O.P by its ‘e’ mail dated 07/08/2011 at 7.50 p.m stated that with reference to the discussion had at our office, please be informed that the refund cheque would be ready by 16th of August, 2011, we will keep you informed and please drop in at our office with the agreements and receipts in originals.

8. When once the appellant sent “e” mail to the respondents/complainants stating that the appellant/O.P is prepared to refund the amount through cheque and the cheque would be ready by 16th of August, 2011 and requested the respondent to drop in at our office with the agreements and receipts in original, now the appellant cannot deny the ‘e’ mail sent by it to the respondents. Therefore, the persons could not be allowed to enrich at the cost of the innocent ambitious persons who are willing to buy a house or a flat in Bangalore. Therefore, we do not notice any factual or legal aspects involved to admit the appeal.”

9. Petitioner has not placed on record, either original or copy of the Sale and Construction Agreement, dated 14.11.2008, which is the basic document in this case. Be that as it may, out of total consideration of about Rs. 37 lakhs, petitioner has already received Rs. 18,00,000/- and as per the finding of both the fora below, construction is nowhere near completion. Thus, petitioner in present case is enjoying Rs. 18,00,000/- of the respondents since 2008 and there is also nothing on record to show as to on which date the possession of the flat is likely to be handed over to the respondents. Thus, petitioner-Builder in the present case wants to have the cake and eat it too, as admittedly after having received near about 50% of the total consideration amount, petitioner is enjoying the same for last more than 4 years. On the other hand, respondents after paying Rs. 18,00,000/- are not sure as to when they will get their flat.

10. Supreme Court in Mudigonda Chandra Mouli Sastry v. Bhimanepalli Bikshalu, ((1999) 7 SCC 66 : AIR 1999 (SC) 3095) observed;

“It was also not open to the High Court in exercise of its revisional jurisdiction to have indulged in a reassessment of evidence and thereby interfered with the finding of the facts recorded by the two Courts below.”

11. Apex Court in Rubi (Chandra) Dutta v. United India Insurance Co., 2011 (3) Scale 654 has observed;

“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 that 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 finding of two fora.”

12. Such type of unscrupulous act on the part of petitioner/builder should be dealt with heavy hands, who after grabbing the money from the purchaser, enjoy and utilize their money but does not hand over the flat, on one pretext or the other. Petitioner has made respondents run from one Fora to other Fora so that they cannot have any roof over their head and he (petitioner) can go on enjoying respondents money without any hindrance.

13. The State Commission has given detailed and reasoned order which does not call for any interference nor the same suffer from any infirmity or erroneous exercise of jurisdiction, in our opinion, the present petition is nothing but gross abuse of the process of law and the same is totally frivolous in nature, which is required to be dismissed with punitive cost of Rs. 25,000/- (Rupees Twenty five thousand only). Accordingly, we dismiss the petition with cost of Rs. 25,000/-.

14. Petitioner is directed to deposit the cost by way of demand draft in the name of Consumer Legal Aid Account”, within four weeks from today.

15. In case the cost is not deposited within the prescribed period, the petitioner shall be liable to pay interest @ 9% p.a till realization.

16. Pending application stands disposed of.

17. List for compliance on 5.10.2012