Chandigarh

StateCommission

RP/21/2022

Kulwant Rai - Complainant(s)

Versus

M/s Altus Space Builders Pvt. Ltd. - Opp.Party(s)

Sh. Sandeep Bharadwaj Adv.

19 Dec 2022

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

Kulwant Rai S/o Sh. Balbir Singh R/o 278/3, Kila Sih, Shahbad, District Kurukshetra

…Petitioner/Complainant

V e r s u s

1. M/s Altus Space Builders Pvt. Ltd., SCO No. 22, 1st Floor, Phase-10, Mohali through its Authorized Signatory.
2. M/s Altus Space Builders Pvt.Ltd., SCO 846, Sector 22-A, Chandigarh through Sh. Jatinder Pal Singh S/o Sh. Ajit Singh, Channel Partner/authorized signatory of M/s Altus Space Builders Pvt., Ltd., CEO of Ajeet Associates.
3. M/s Altus Space Builders Private Limited, SCO No.22, 1st Floor, Phase 10, S.A.S.Nagar, Mohali through Sh.Sanjay Carol Harrison s/o Sh. R.V.S.Harrison.
4. Harpreet Singh, Managing Director of M/s Altus Space Builders Pvt. Ltd., SCO No. 22 FF, Phase-10, Mohali.
5. Mohinder Singh, Managing Director of M/s Altus Space Builders Pvt. Ltd., SCO No. 22 FF, Phase-10, Mohali.
6. Hardev Kaur Sran, Additional Director of M/s Altus Space Builders Pvt. Ltd., SCO No. 22 FF, Phase-10, Mohali.
7. Jaswinder Singh Director of M/s Altus Space Builders Pvt. Ltd., SCO No. 22 FF, Phase-10, Mohali.
8. Gurtej Singh Sran, Additional Director of M/s Altus Space Builders Pvt. Ltd., SCO No. 22 FF, Phase-10, Mohali.

E-mail:-  altusoffice@yahoo.in

              altusoffice@yahoo.co.in

              info@altusnewchandigarh.in

….Respondents/opposite parties

Present:-     Sh. Sandeep Bhardwaj, Advocate for the petitioner.

                   Sh.Ajay Sharma, Advocate for respondents.

JUSTICE RAJ SHEKHAR ATTRI, PRESIDENT.

                   This revision petition has been filed by the petitioner/complainant-Kulwant Rai challenging the orders dated 07.09.2022 and 07.10.2022, passed by the District Consumer Disputes Redressal Commission-II, U.T., Chandigarh  (in short the District Commission), vide which more than 45 days time has been given to the opposite parties for filing reply and evidence to the consumer complaint filed by him.

2.           Before proceeding further, we would like to give brief facts of the case. On 10.02.2022, consumer complaint bearing no.138 of 2022 was filed by the complainant-Kulwant Rai seeking following reliefs:-

 “…..[i) To handover the physical possession of the plot no. 263" Phase - II in "Muirwoods Ecocity", along with all basic amenities such as sewerage, water electricity and development work and also proper demarcation and levelling such as passage/road for ingress and outgress, internal and external development along with completion and occupation certificate issued by GMADA/PUDA without raising any demand as entire sale consideration i.e. BSP, Charges, PLC has already been paid by the complainant.

ii) To refund an amount of Rs. 16,25,000/- received in excess towards BSP of the plot as the BSP as per agreement is at the rate of Rs. 8500*250 whereas the amount received is at the rate of Rs.15000*250 along with interest @18% from the date of deposit till realizations.

iii) To refund the amount of charges received in excess i.e. Rs.4,69,250/- in contravention to the demand made and approved by the Government authorities along with interest @18% from the date of receipt till realization.

iv) To pay compensation as provided in Section 39(k) of the Act i.e. minimum of 25% of the cost of plot since complaints are suffering at the hands of the opposite parties for the last 9 years.

v) To pay compensation as agreed in clause 5.10 of the agreement. To pay interest @18% on the deposited amount i.e. Rs. 21,25,000/- from the agreed date of possession i.e. 20.11.2017 till the handing over the actual physical possession of the plot no. 263 "Muirwoods Ecocity" Phase -II measuring 250 sq.yds along with all amenities along with completion and occupation certificate issued by GMADA.

vi) To refund the difference amount along with interest @18% in case the measurement of plot is found to be less than 250sq.yds during the physical possession and actual demarcation of the plot.

vi) To provide all facilities at the site as promised in the Brochure C-1.

vi) To pay compensation of Rs. 5 lacs on account of mental agony, physical harassment, deficiency in service, unfair trade practice and financial loss caused to the complainant.

vii. To pay cost of litigation to the tune of Rs.1 lac to the complainant.…..”

3.           Complaint for the first time was heard on 18.02.2022 and following order was passed by the District Commission:-

“…Heard. Be registered. Admit. Notice be issued to OP(s) through registered A.D Cover for 27.5.2022. ……”

4.           Thus,  very first date (27.05.2022) of more than three months and 09 days was given by the District Commission. On 27.05.2022, since service of opposite parties no.1 and 3 to 8 was complete, as such, the complaint was adjourned to 07.09.2022 for filing reply and evidence on their behalf i.e. again more than three months and 09 days were granted by the District Commission for filing reply and evidence. However, instead of filing reply and evidence on the date fixed i.e. 07.09.2022, opposite parties no.1 and 3 to 8 filed  application for dismissal of complaint due to non-joinder and mis-joinder of necessary parties and sought time to file reply and evidence. As such, the District Commission again adjourned the complaint to 07.10.2022 for filing reply and evidence on behalf of opposite parties no.1 and 3 to 8, while granting them last opportunity. On 07.10.2022, reply and evidence, was filed on behalf opposite parties no.1 and 3 to 8 and at the same time since none put in appearance on behalf of opposite party no.2, it was proceeded against exparte. Following order was passed by the District Commission on 07.10.2022:-

“…… Authority letter, reply and evidence on behalf of OPs  No.1,3 and 8. Copy be supplied.  The counsel for the complainant has objected the same and stated that  the reply has been filed beyond the stipulated period. 

          The counsel for the complainant has also filed reply to the application of OPs No. 1, 3 to 8.  Copy be supplied.

          None appeared on behalf of OP No.2. Notice sent to OP No.2 through regd. post on 23.2.2022 has not been received back served/unserved till date. Since more than 30 days have elapsed, therefore, OP No.2 is presumed  to have been served. Called several times since morning, but none has appeared on behalf of OP No.2. Hence, OP No.2 is proceeded as exparte.

          Now for filing rejoinder by the complainant to come up on 8.12.2022. The application of OPs No. 1, 3 to 8 shall also be considered on the date fixed.………”

5.           In this revision petition both these orders i.e. 07.09.2022 and 07.10.2022 have been challenged by the petitioner/complainant on the ground that the District Commission has no jurisdiction to extend the maximum period of 45 days (30 days plus 15 days) for filing reply and evidence, as per the provisions of the CPA 2019 and also in view of the ratio of law laid down by the Hon’ble Supreme Court in New India Assurance Company Limited v. Hilli Multipurpose Cold Storage Private Limited,  and the Hon’ble National Commission in Srinivas Rao Vs R. Nagesh & Anr., First Appeal No. 678 of 2021, decided on 01.07.2022.
6.           We have heard the contesting parties and have gone through the entire material available on record.
7.           At the time of arguments and also as mentioned in his written arguments, Counsel for the petitioner/complainant submitted that though the District Commission has no jurisdiction to extend the  maximum period of 45 days (30 days plus 15 days) for filing reply and evidence by the opposite parties, yet, the District Commission by doing so and granting number of dates for the purpose has violated the provisions of CPA 2019 and also the ratio of law laid down in New India Assurance Company Limited and Srinivas Rao cases (supra)
8.           On the other hand, counsel for the respondents/opposite parties submitted that infact complete paper book was supplied to the respondents only on 06.09.2022 and thereafter, application for dismissal of complaint was filed on 07.09.2022 and reply and evidence was filed on 07.10.2022 on the  directions of the District Commission only. He further argued that as per the mandate rendered by the Hon’ble Supreme Court, a specific mention is required to be made in the summons with regard to directions to be given to the party opposite to file reply and evidence within a period of 30 days but nothing has been mentioned by the District Commission in that regard, in the summons. It was further argued by him that the District Commission was well within  the knowledge ratio of law laid down in New India Assurance company Limited and Srinivas Rao cases (supra), wherein it was specifically stated that the Commission has no jurisdiction to extend the period of 45 days for filing reply and evidence but since the District Commission has extended the same till 07.10.2022, as such, there is no fault of opposite parties no.1 and 3 to 8 in filing reply and evidence on 07.10.2020.
9.           After hearing rival contentions of the parties and going through the material available on record, we are of the considered opinion that this revision petition deserves to be allowed for the reasons stated hereinafter.
10.           In this case, following questions arise for consideration:-
    1. Whether, in the summons/notice, the District Commission has specifically directed the opposite parties to file reply and evidence on the next date fixed in the case or not?
    2. Whether the District Commission has any jurisdiction to extend the period of 45 days for filing reply and evidence?
    3. In case, it is observed that the District Commission has no jurisdiction, whether, reply and evidence should be returned to opposite parties no.1 and 3 to 8?

11.           First coming to the notice/summons issued by the District Commission, it may be stated here that bare perusal of the said notice transpires that it was issued on 22.02.2022 by the President, District Commission-II,  U.T., Chandigarh to the opposite parties and copy of the same was sent through speed post. Contents of the said notice are reproduced hereunder:-

“……WHEREAS complainant, has instituted Complaint against you, you are hereby required to appear before this Commission –II (Hall No.3) person or by pleader duly instructed and able to answer all material questions relating to the complaint, on 27 May 2022 at 10:30 A.M. to answer the claim, and on the day fixed for disposal of the complaint.(copy as per Enclosed.)

PLEASE TAKE NOTICE that, in default of your appearance on the date fixed, the complaint will be heard and determined in your absence.

REPLY to the complaint shall be filled on that day with a copy to the complaint in advance.

Given under my hand and seal of the Commission - II this 22 February 2022.…..”

It clearly transpires from the said notice that it has been specifically mentioned by the District Commission that the opposite parties are to appear in person or through pleader duly instructed and able to answer all material questions relating to the complaint, on 27 May 2022 at 10:30 A.M. to answer the claim, and on the day fixed for disposal of the complaint and copy of the complaint is enclosed.

12.           On 27.05.2022, opposite parties no.1 and 3 to 8 appeared through their counsel. They never raised any dispute regarding non receipt of complete paper book. No such objection was ever raised on 07.09.2022 or 07.10.2022. Thus, at this stage, the opposite parties are debarred from taking a plea that complete paper book had not been supplied to them alongwith notice/summons aforesaid. Thus, it is observed that the opposite parties were specifically directed to file reply and evidence to the complaint on 27.05.2022 at 10.30 a.m. and admittedly it was not filed on the said date (27.05.2022).
13.           Now coming to the second question, as to whether, the District Commission has any jurisdiction to extend the period of 45 days for filing reply and evidence? It may be stated here that the Constitution Bench of the Hon’ble Supreme Court in New India Assurance company Limited v. Hilli Multipurpose Cold Storage Private Limited,  has clearly held that the consumer commissions have no power and/or jurisdiction to accept the written statement beyond the statutory period prescribed under the Act i.e., 45 days in all. Relevant part of the said order is reproduced hereunder:-

 “……28. It is true that “justice hurried is justice buried”. But in the same breath it is also said that “justice delayed is justice denied”. The legislature has chosen the latter, and for a good reason. It goes with the objective sought to be achieved by the Consumer Protection Act, which is to provide speedy justice to the consumer. It is not that sufficient time to file a response to the complaint has been denied to the opposite party. It is just that discretion of extension of time beyond 15 days (after the 30 days’ period) has been curtailed and consequences for the same have been provided under Section 13(2)(b)(ii) of the Consumer Protection Act. It may be that in some cases the opposite party could face hardship because of such provision, yet for achieving the object of the Act, which is speedy and simple redressal of consumer disputes, hardship which may be caused to a party has to be ignored……”

14.           Similar view was taken by the Hon’ble National Commission in Srinivas Rao Vs R. Nagesh & Anr., First Appeal No. 678 of 2021, decided on 01.07.2022. Relevant part of the said order is reproduced hereunder:-
    •  

15.           Thus, after going through the aforementioned dicta, it is very much clear that:-
    1. The opposite party(s) is obliged to file reply and evidence within a period of 30 days which is extendable only upto 15 days i.e. total 45 days from the date of service of summons alongwith copy of admitted complaint.
    2. Consumer Commissions have no jurisdiction to extend the period of 45 days for filing reply and evidence, as aforesaid.

16.           It may be stated here that at the very outset, we have observed that on the first day i.e. 18.02.2022, a long date has been given for 27.05.2022 i.e. more than 3 months and 9 days. Giving a date of more than 45 days violates the intention of legislature and the provisions of section 38 (2) (a) of CPA 2019 to file written reply and evidence within a period of 30 days which is extendable only for 15 days i.e. 45 days and also violates the ratio decidendi laid down in New India Assurance company Limited v. Hilli Multipurpose Cold Storage Private Limited’s  and Srinivas Rao’s cases (supra).
17.           Now coming to the conduct of the District Commission with regard to adjourning the matters for the period of more than three months on 27.05.2022. It seems that the District Commission was oblivious of the provisions of Section 38 (7) of CPA 2019 and that is why on 27.05.2022, the matter was liberally adjourned for long date i.e. 07.09.2022 for filing reply and evidence. The provisions of Section 38 (7) of CPA 2019 makes it mandatory that every complaint shall be disposed of as expeditiously as possible and endeavour shall be made to decide the complaint within a period of three months from the date of receipt of notice by opposite party where the complaint does not require analysis or testing of commodities and within five months if it requires analysis or testing of commodities. However, again on  07.09.2022, the matter was adjourned to 07.10.2022, giving last opportunity to file reply and evidence. 
18.           We are of the considered view that the District Commission(s) should refrain to adjourn the matters for filing reply and evidence beyond the period of 30 days or maximum upto total 45 days, so that the purpose of disposal of the cases, within a maximum period of three months, as provided under Section 38 (7) of CPA 2019 is not defeated.
19.           Therefore, we advise the District Commission(s), U.T., Chandigarh, to follow the provisions of Sections 38 (2) (a) and 38 (7) referred to above of CPA 2019 as well the decidendi laid down by the Hon’ble Supreme Court in New India Assurance company Limited v. Hilli Multipurpose Cold Storage Private Limited (supra) and National Commission in Srinivas Rao (supra), in future.
20.           It is significant to add here that although, order dated 18.02.2022 has not been challenged by the petitioner/complainant but it has been brought to our notice, being revisional authority, that on 18.02.2022 long date has been given. We do not appreciate this practice and direct the District Commission, to discontinue this practice forthwith.
21.           In view of peculiar facts and circumstances of this case, we allow this revision petition and set aside the orders dated 07.09.2022 and 07.10.2022. Resultantly, the written reply and evidence filed by opposite parties no.1 and 3 to 8 are ordered to be returned to them. However, we grant liberty to opposite parties no.1 and 3 to 8 to file written arguments, before the District Commission.
22.           The parties are directed to appear before the District Commission  concerned on 04.01.2023 for further proceedings.
23.           Application bearing no.814 of 2022 filed alongwith this revision petition stands disposed of, accordingly.
24.           Certified Copies of this order be sent to the parties, free of charge as well as to the District Commissions I and II, U.T., Chandigarh for strict compliance of the directions given above, in future.
25.           The file be consigned to Record Room, after completion.

Pronounced

19.12.2022

Sd/-

[JUSTICE RAJ SHEKHAR ATTRI]

PRESIDENT

Sd/-

 (RAJESH K. ARYA)

MEMBER

Rg.