STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

1.    M/s Emaar MGF Land Limited having its registered       office at ECE House, 28 K.G. Marg, New Delhi -110001        (Earlier at MGF House, Sector 17-B, Asaf Ali Road,    New        Delhi-110002) through its Managing Director.

2.    Manager, M/s Emaar MGF Land Limited, Regional   Office, SCO No.120-122, 1^st Floor, Sector 17-C,   Chandigarh.

……Appellants/Opposite Parties

V e r s u s

Shikha Verma, w/o Sh. Amit Verma, Plot No.33, Basement, Main Silver City, Zirakpur, District S.A.S. Nagar.

              ....Respondent/complainant

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

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

                MRS. NEENA SANDHU, MEMBER.

Argued by: Sh. Ashim Aggarwal, Advocate for the appellants.

              Sh. Manish Joshi, Advocate for the respondent.

PER JUSTICE SHAM SUNDER (RETD.), PRESIDENT

              This appeal is directed against the order dated 20.04.2012,  rendered by the District Consumer Disputes Redressal Forum-I, U.T., Chandigarh (hereinafter to be called as the District Forum only) vide which, it accepted the complaint, filed by the complainant (now respondent) and directed the Opposite Parties (now appellants), as under:-

“As a result of the above discussion, the complaint is allowed and the Ops are directed to refund the booking amount of Rs.5 lacs to the complainant. The Ops are also directed to pay a sum of Rs.20,000/- to the complainant as compensation for mental agony and harassment and Rs.10,000/- as costs of litigation.

This order be complied with by the OPs within one month from the date of receipt of its certified copy, failing which, OPs shall be liable to refund the awarded amount to the complainant along with interest @ 12% p.a. from the date of filing of the complaint, till its realization, besides Rs.10,000/- as costs of litigation”.

2.             The facts, in brief, are that the complainant booked a residential unit, in Sector 109 in the Project namely “The Bungalows” and paid the booking amount of Rs.5 lacs to the Opposite Parties, but they did not issue the receipt and allotment letter. It was stated that the Opposite Parties, vide letter dated 31.8.2009, acknowledged the receipt of booking amount of Rs.5 lacs. It was further stated that, at the time of booking, the Opposite Parties, assured the complainant, to hand over physical possession of the unit, within a period of 2 years, but after a lapse of one year, no construction work had started at the site. In this view of the matter, the complainant requested Opposite Party No.2, vide letter dated 22.9.2009, to refund the booking amount, but the said request was kept pending. It was further stated that the Buyer’s Agreement was signed by the complainant on 5.11.2009 and sent to the Opposite Parties. The complainant requested the Opposite parties, to provide all the documents, including the Buyer`s Agreement, but they did not supply the same, to her, at that time. Ultimately, the Buyer`s Agreement was handed over to the complainant, on 20.01.2011. Thereafter, she requested the Opposite Parties, to refund the amount deposited by her, towards the price of the said unit, but no reply was received from them. It was further stated that neither the construction was raised, nor the question of delivery of possession, within the stipulated period of the residential unit, to the complainant could, thus, arise, nor refund of the booking amount was made to the complainant, despite several requests. It was further stated that the aforesaid acts of the Opposite Parties, amounted to deficiency, in rendering service, as also indulgence into unfair trade practice. When the grievance of the complainant, 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, directing the Opposite Parties, to refund the booking amount of Rs.5,00,000/-, alongwith interest, from August2009; pay compensation, for causing mental agony and physical harassment to him, to the tune of Rs. 2 lacs; and pay cost of litigation, to the tune of Rs.20,000/-

3.             Initially, the Counsel for the Opposite Parties, put in appearance, but reply and evidence was not filed. Later on, none appeared, on their behalf. Accordingly, the Opposite Parties, were proceeded against exparte, by the District Forum, vide order dated  07.03.2012.

4.             The complainant led evidence, in support of her case.

5.             After hearing the Counsel for complainant, and, on going through the evidence, and record of the case, the District Forum, accepted the complaint, in the manner, referred to, in the opening para of the instant order. 

6.             Feeling aggrieved, the instant appeal, has been filed by the appellants/Opposite Parties.

7.             We have heard the Counsel for the parties, and, have gone through the evidence, and record of the case, carefully. 

8.             The Counsel for the appellants, submitted that, no doubt, the Opposite Parties, appeared before the District Forum, and, on the request of their Counsel, dates were granted, with or without costs, for filing reply and leading evidence, by way of affidavit(s). He further submitted that, on 07.03.2012, when the Counsel for the Opposite Parties could not appear, they (Opposite Parties) were proceeded against exparte. He further submitted that, thereafter, an application was filed by the Counsel for the Opposite Parties, for setting aside the exparte order dated 07.03.2012, as is evident, from the order sheet dated 16.03.2012, and the complaint was adjourned to 22.03.2012, for reply and consideration of the said application. He further submitted that, on 22.03.2012, reply to the application was filed by the complainant, and the case was adjourned to 10.04.2012, to file the affidavits, to support the application and reply. He further submitted that on 10.04.2012, on the request of the Counsel for the parties, the District Forum recorded that there were chances of settlement, and, thus, the case was referred to the Lok Adalat, for 20.04.2012. He further submitted that, instead of deciding the application, for setting aside the exparte order dated 07.03.2012, the District Forum heard arguments of the complainant, on 20.04.2012 and pronounced the orders, in the main complaint. He further submitted that the Opposite Parties, were, thus, condemned unheard, and, as such the principles of natural justice were not adhered to. He further submitted that the order of the District Forum, thus, being illegal and invalid, is liable to be set aside.

9.             On the other hand, the Counsel for the  respondent/complainant, submitted that a number of opportunities were granted to the Opposite Parties, to file reply and evidence, with or without costs, but they failed to do so. He further submitted that, ultimately, when none appeared, on behalf of the Opposite Parties, they were proceeded against exparte, and, later on, they filed application for setting aside the same. He further submitted that, reasonable opportunity was afforded to the Opposite Parties, to file reply and evidence, by way of affidavit(s), but they did not file the same. He further submitted that, it, therefore, could not be said the Opposite Parties were condemned unheard, or the principles of natural justice were not adhered to. He further submitted that the order of the District Forum, being legal and valid is liable to be upheld.

10.           After giving our thoughtful consideration, to the rival contentions, advanced by the Counsel for the parties,  and the evidence, on record, we are of the considered opinion, that the appeal is liable to be accepted, and the case deserves to be remanded back to the District Forum, for a fresh decision on merits, for the reasons to be recorded hereinafter. The perusal of the District Forum record, reveals that the Counsel for the Opposite Parties, put in appearance, and was afforded opportunity to file reply and evidence, by way of affidavit(s), with or without costs. On 07.03.2012, none appeared on behalf of the Opposite Parties, and they were proceeded against exparte, and the case was fixed for filing exparte evidence, if any, and oral arguments for 16.03.2012. On 16.03.2012, another advocate filed Vakalatnama, on behalf of the Opposite Parties, alongwith which an application for setting aside the exparte order dated 07.03.2012, was also moved and the case was adjourned to 22.03.2012, for filing reply and consideration of the same. It is further evident, that on 22.03.2012, reply to the application for setting aside exparte order dated 07.03.2012 was filed on behalf of the complainant, and the parties were directed to support the application and reply, by way of affidavits, and the case was adjourned to 10.04.2012. It is further evident, from the order sheet dated 10.04.2012, that the Counsel for the parties, submitted before the District Forum, that there were chances of amicable settlement, and, as such, the case was referred to the Lok Adalat for 20.04.2012. On 20.04.2012, none was present, on behalf of the Opposite Parties. The District Forum, did not go through the previous order sheets, to know that the case had only been fixed for consideration of the application for setting aside exparte order dated 07.03.2012, and, instead, heard arguments of the complainant, and pronounced the order. It was required of the District Forum, to decide the application, for setting aside the order dated 07.03.2012, in the first instance, so that the Opposite Parties, would have been afforded an opportunity, and, if they felt aggrieved against the said order, to approach the higher Forum, for setting aside the same. No doubt, earlier the Opposite Parties were granted some dates, for filing reply and evidence, with or without costs, yet, they did not file the same. The Opposite Parties were, therefore, at fault, to some extent, of taking dates, but not filing the reply and evidence, by way of affidavits. At the same time, it could be said that reasonable opportunity was not granted to the Opposite Parties, and the principles of natural justice were not adhered to, in letter and spirit. It is settled principle of law, that every lis, should normally be decided, on merits, than by default. The procedure, is, in the ultimate, the handmaid of justice, meant to advance the cause thereof, than to thwart the same. When the procedural wrangles, and the substantial justice, are pitted against each other, then the latter will prevail, over the former. Very important and significant points are involved, in the case, which require proper adjudication, on merits, after affording an opportunity to the Opposite Parties, to file reply and lead evidence. The Opposite Parties, no doubt, can be burdened with costs, for being negligent to some extent, during the course of conduct of proceedings, before the District Forum, by not filing reply and evidence. However, the substantial justice cannot be sacrificed, at the altar of technicalities. The order of the District Forum, being illegal and invalid is liable to be set aside.

11.           For the reasons recorded above, the appeal is accepted, with costs. The impugned order of the District Forum, is set aside. Consequently, the order dated 07.03.2012, which merged in the impugned order, also stands set aside. The complaint is remanded back to the District Forum, with a direction, to afford an opportunity to the Opposite Parties, to file reply and lead its evidence, by way of affidavit(s) and, if they do so, then give an opportunity to the complainant, to rebut the same, if required, and, thereafter, decide the complaint, afresh, on merits, in accordance with the provisions of law.  However, the Opposite Parties are burdened with costs of Rs.7,000/- for being negligent, during the conduct of proceedings, before the District Forum, by not filing the reply and evidence, by way of affidavit(s). The payment of costs, to the complainant, by the Opposite Parties, shall be a condition precedent.

12.           The entire exercise, aforesaid, shall be undertaken and completed within one and a half months, from 18.10.2012.

13.           The parties are directed to appear before the District Forum, on 18.10.2012 at 10.30.a.m., for further proceedings.

14.           The District Forum record, be sent back immediately, alongwith a certified copy of this order, so as to reach there, well before the date fixed.     

15.           Certified copies of this order, be sent to the parties, free of charge.

16.           The appeal file be consigned to Record Room, after completion.

Pronounced.

October 1, 2012

Sd/-

[JUSTICE SHAM SUNDER (RETD.)]

PRESIDENT

Sd/-

[NEENA SANDHU]

MEMBER

Rg