Chandigarh

StateCommission

A/143/2015

Colonel S K Malhotra - Complainant(s)

Versus

Emaar MGF Land Limited - Opp.Party(s)

A.S.Walia, Adv.

24 Jun 2015

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

First Appeal No.	:	143 of 2015
Date of Institution	:	23.06.2015
Date of Decision	:	24.06.2015

 

1. Colonel SK Malhotra, son of Maj. C.L. Malhotra, resident of D-57, Army Flats, MDC, Sector 4, Panchkula.
2. Ms.Krishna Malhotra, wife of Colonel SK Malhotra, resident of D-57, Army Flats, MDC, Sector 4, Panchkula.

……Appellants/Complainants

V e r s u s

Emaar MGF Land Limited, SCO 120-122, Sector 17-C, Chandigarh.

              ....Respondent/Opposite Party

 

Appeal under Section 15 of the Consumer Protection Act, 1986.

 

BEFORE: JUSTICE SHAM SUNDER (RETD.), PRESIDENT.

                MR. DEV RAJ, MEMBER.

                MRS. PADMA PANDEY, MEMBER

 

Argued by:Sh.A.S. Walia, Advocate for the appellants.                            Sh. Sanjeev Sharma, Advocate for the respondent.

 

PER JUSTICE SHAM SUNDER (RETD.), PRESIDENT

            This appeal is directed against the order dated 14.05.2015, rendered by the District Consumer Disputes Redressal Forum-I, U.T., Chandigarh (hereinafter to be called as the District Forum only) vide which, it dismissed the consumer complaint bearing No.94 of 2015, in default of appearance of the complainants (now appellants).

2.       The facts, in brief, are that the complainants were allotted a residential unit No.J3-F-504, in Tower No.J, having super built area of 1750 sq. ft., in the project of the Opposite Party, namely “The Views”,  Mohali, Punjab. It was stated that the basic sale price  of the said unit was Rs.51,62,500/-. It was further stated that despite making payment of the entire sale consideration, including the miscellaneous, registration and stamp charges, the Opposite Party failed to deliver possession of the unit, in question, what to speak of registration of sale deed thereof. It was further stated that, not only this, the Opposite Party had also charged club membership charges, from the complainants, despite the fact that the same were optional. It was further stated that, as such, the complainants requested the Opposite Party, to refund the amount of Rs.6 lacs, paid by them, for the registration of sale deed, in respect of the unit, in question, so that they could get the same done of their own, but to no avail.
3.       It was further stated that the aforesaid acts of the Opposite Party, amounted to deficiency, in rendering service, as also indulgence into unfair trade practice. When the grievance of the complainants was not redressed, left with no alternative, a complaint under Section 12 of the Consumer Protection Act, 1986 (hereinafter to be called as the Act only), was filed, seeking various reliefs, against the Opposite Party.
4.       On 14.05.2015,  the complaint  was called many times, but none entered appearance, on behalf of the complainants, as a result whereof, the same was dismissed in default of their appearance.
5.       Feeling aggrieved, the instant appeal, was filed by the appellants/complainants, against the order dated 14.05.2015.
6.       We have heard the Counsel for the parties, and have gone through the record of the case, carefully.
7.       Sh. A.S. Walia, Counsel for the appellants/complainants, who was also Counsel, in the main complaint, submitted that, no doubt, on 14.05.2015, none put in appearance, on behalf of the complainants, as a result whereof, the consumer complaint was dismissed in default of their appearance. He further submitted that, inadvertently, he noted down the wrong date, as 15.05.2015, instead of the actual date i.e. 14.05.2015, in the diary and on the brief of the case, as a result whereof, he could not put in appearance, in the said Forum, on that date, at the time, when the case was called. He further submitted that the said fact was discovered, by him, when he appeared before the District Forum, on 15.05.2015, and by that date, the consumer complaint had already been dismissed in default of appearance of the complainants. He further submitted that, on account of the reasons aforesaid, neither he, nor the complainants, could appear in the District Forum, on 14.05.2015, when the complaint was called. He further submitted that the absence of the complainants, on 14.05.2015, was neither intentional, nor deliberate, but for the reasons, referred to above. He further submitted that, in case, the order impugned is not set aside, irreparable injury is likely to occasion, to the appellants/ complainants, as in that event, they would be condemned unheard. He further submitted that, thus, the order of the District Forum, being illegal, is liable to be set aside.
8.       On the other hand, the Counsel for the respondent, submitted that, the absence of the complainants (now appellants), on 14.05.2015, in the District Forum, was intentional and deliberate, as they were not interested in pursuing their case. He further submitted that the order of the District Forum, being legal and valid, is liable to be upheld..
9.       After giving our thoughtful consideration, to the rival contentions, advanced by the Counsel for the parties and, on going through the record, we are of the  considered opinion, that the appeal deserves  to be accepted, and the case is liable to be remanded back, for fresh decision, on merits, in accordance with law, for the reasons, to be recorded hereinafter.  It may be stated here, that perusal of the District Forum record reveals that vide order dated 13.02.2015, notice was ordered to be issued to the Opposite Party, for 30.03.2015, by the District Forum.  On 30.03.2015, vakalatnama, on behalf of the Opposite Party, was filed. Thereafter, the consumer complaint, was adjourned to 23.04.2015, for written reply and evidence, on behalf of the Opposite Party. On 23.04.2015, instead of filing written reply and evidence, an application for dismissal of the consumer complaint, was filed by the Opposite Party. As such, the complaint was adjourned to 14.05.2015, for reply and consideration, on the said application. However, as stated above, on the said date i.e. 14.05.2015, the complaint was called many times, but none entered appearance, on behalf of the complainants, as a result whereof, the same was dismissed in default of their appearance, by the District Forum.  It may be stated here, that it could be said that on 14.05.2015, the complaint was, at the initial stage, when the complainants, or their Counsel, did not put in appearance, as a result whereof, the same (complaint) was dismissed, in default of their appearance, by the District Forum. Even the written reply and evidence, by way of affidavit(s) had not been filed by the Opposite Party, by 14.05.2015. In our considered opinion, in the interest of justice, the District Forum should have granted one more opportunity, to the complainants, but it did not, and straightway dismissed the complaint in default.
10.       It is settled principle of law, that every lis should normally be decided, on merits, than by resorting to the hyper- technicalities. When the hyper-technicalities, and the substantial justice, are pitted against each other, then the latter shall prevail over the former. The procedure, is, in the ultimate, the handmaid of justice, meant to advance the cause thereof, than to thwart the same.
11.       No doubt, there was negligence, on the part of the Counsel for the complainants, as he did not confirm the correct date (14.05.2015), which was given, in the complaint, by the District Forum. He could have confirmed the date, from the Reader of the District Forum, but he failed to do so. Since, the Counsel did not take the requisite measures, referred to above, negligence was attributable to him. It is settled principle of law, that for the negligence or inadvertence of the Counsel, the party should not suffer. In our considered opinion, an opportunity should be afforded to the complainants, to prosecute the complaint, so that the same could be decided, on merits, and the rights of the Parties are finally determined by one Forum, one way or the other. In this view of the matter, the order impugned is liable to be set aside.
12.       On account of the negligence of the complainants or their Counsel, delay in the disposal of complaint, on merits, was caused.  According to Section 13 (3A) of the Act, an endeavour should be made to decide the complaint, within three months, from the date of service of the Opposite Party(s), except the one, in which the goods are required to be sent to the Laboratory for examination. In that event, an endeavour should be made to decide the complaint, within a period of 5 months, from the date of service of the Opposite Party(s). The complaint had been filed on 11.02.2015. A period of three months, has already lapsed. Since, the case is being remanded back, certainly further delay shall be caused, in the disposal thereof. For causing delay, in the disposal of complaint, on merits, the appellants are required to be burdened with costs.
13.       For the reasons recorded above, the appeal is accepted.  The order impugned is set aside. The complaint is remanded back to the District Forum, with a direction to restore the same, to its original number, proceed further,  from the stage, at which, it was dismissed  in default of appearance of the complainants, and decide the same, afresh, on merits, in accordance with the provisions of the Act.  However, the appellants/complainants are burdened with costs of Rs.3,000/- for causing delay, in the disposal of complaint, afresh, on merits. The payment of costs, to the respondent/Opposite Party, shall be a condition precedent. 
14.       The Parties are directed to appear before District Forum (I) on 06.07.2015, at 10.30 A.M., for further proceedings. 
15.       The District Forum record, alongwith a certified copy of the order, be sent back immediately, so as to reach there, well before the date and time fixed i.e. 06.07.2015, at 10.30 A.M.
16.       Certified copies of this order, be sent to the parties, free of charge.
17.       The file be consigned to the Record Room, after due completion.

Pronounced.

24.06.2015

Sd/-

[JUSTICE SHAM SUNDER (RETD.)]

PRESIDENT

 

 

Sd/-

(DEV RAJ)

MEMBER

 

 

Sd/-

(PADMA PANDEY)

      MEMBER

Rg