Heard the learned counsel for both the parties in the matter.

2.     This revision petition has been filed by the petitioner challenging the order dated 24.07.2013 passed by the Uttar Pradesh State Consumer Disputes Redressal Commission, Lucknow (‘the State Commission’) in Appeal No.1766 of 1997 wherein the order dated 20.08.1997 of the District Consumer Disputes Redressal Forum, Ghaizabad (‘the District Forum’) passed in complaint no. 539 of 1995, has been upheld.

3.     Learned counsel for the petitioner states that the District Forum without following the provision of Section 13 (c) of the Consumer Protection Act, 1986, has accepted the report of the Engineer which was procured by the complainant himself for a fee and therefore, it was not an independent and unbiased report. The District Forum should have appointed an independent Local Commissioner to inspect the property in question for deciding the short comings in the property. Learned counsel for the petitioner further stated that when the complainant did not pay the installments, the allotment was cancelled on 27.11.1996 and the amount of 10% which was about Rs.30,000/- was deducted and the remaining amount was refunded to the complainant in terms of the contract. The District Forum, however, allowed the refund of this 10% amount along with 18% per annum interest. The petitioner /opposite party preferred an appeal before the State Commission and the State Commission dismissed the appeal vide its order dated 24.07.2013 and upheld the order of the District Forum.

4.     Hence, the present revision petition.

5.     Learned counsel for the petitioner has stated that the deduction was made as per the provisions of the agreement entered into between the parties and the District Forum has relied on the report of an Engineer which was procured by the complainant for a fee which was not an independent report, as Local Commissioner was not appointed by the District Forum. The opposite party did not get any opportunity to counter this report before the District Forum.

6.     On the other hand, the learned counsel for the respondent/ complainant stated that this report is of 18.01.1997 and the same was filed before the District Forum in support of the claims of the complainant. It was the duty of the opposite party to have objected to this report, however, no objection was raised before the District Forum against this report. Therefore, the District Forum has accepted this report and ordered for refund of the remaining 10% amount along with interest.

7.     We have carefully considered the arguments advanced by the learned counsel for the parties and have examined the record. It is seen that the copies of the evidence filed by both the parties before the District Forum have not been filed by the petitioner in the matter before this Commission. Further, the learned counsel for the petitioner is not able to clarify whether this report was part of the evidence of the complainant or this was separately filed. No benefit can be given to the petitioner for not filing the relevant record of the District Forum in the revision petition before this Commission. Both the fora below have given concurrent finding of fact and the facts cannot be reassessed at the revision stage against the concurrent finding given by the fora below as held by the Hon’ble Supreme Court in the case of Mrs Rubi (Chandra) Dutta vs M/s United India Insurance Co. Ltd., 2011 (3) Scale 654 wherein the following has been observed:-

“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.”

8.     It is seen that against a total consideration of Rs.2,99,000/-, an amount of Rs.1,64,000/- was already paid by the complainant and therefore, substantive amount had been paid by the complainant before the cancellation. Otherwise, also, deduction of the earnest money can be allowed only if there is loss to the opposite party as held by the Hon’ble Supreme Court in the case of M/s. Kailash Nath Associates Vs. Delhi Development Authority & Anr., in Civil Appeal No.193 of 2015, decided on January 09, 2015, wherein the following has been observed:-

 “29.     Based on the facts of this case, it would be arbitrary for the DDA to forfeit the earnest money on two fundamental grounds. First, there is no breach of contract on the part of the appellant as has been held above. And second, DDA not having been put to any loss, even if DDA could insist on a contractual stipulation in its favour, it would be arbitrary to allow DDA as a public authority to appropriate Rs.78,00,000/- (Rupees Seventy Eight Lakhs) without any loss being caused. It is clear, therefore, that Article 14 would apply in the field of contract in this case and the finding of the Division Bench on this aspect is hereby reversed.”

9.     The petitioner has not shown any proof that the petitioner has suffered any loss due to this cancellation which was an act on the part of the petitioner itself and therefore, the justification for deduction of earnest money was not there particularly in the light of the report of the Engineer which has been accepted by both the fora below.

10.   However, we feel that interest of 18% per annum is on a very high side and the current trend is to refund the amount along with 9% per annum interest as held by the Hon’ble Supreme Court in DLF Homes Panchkula Pvt. Ltd. & Anr. Vs. D S Dhanda, ETC; Sudesh Goyal, ETC, 2019 Law Suit (SC) 1207. Therefore, this amount be refunded along with 9% per annum interest instead of 18% per annum interest as ordered by the District Forum.

11.   Based on the above discussion, the revision petition is partly allowed and the order dated 20.08.1997 of the District Forum is modified to the extent that refund of the amount of 10% which is about Rs.30,000/- be paid to the respondent/complainant along with 9% per annum interest instead of 18% per annum interest from the date as ordered by the District Forum till the actual payment.     The order of the District Forum as modified by this order be complied with by the petitioner within 45 days from today.