Chandigarh

StateCommission

A/49/2023

SUMESH CHAWLA - Complainant(s)

Versus

SHIV KUMAR - Opp.Party(s)

PUSHPINDER KAUSHAL

14 Aug 2023

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

 

 

Appeal No.	:	49 of 2023
Date of Institution	:	24.03.2023
Date of Decision	:	14.08.2023

 

 

 

 

 

Sumesh Chawla, aged about 52 years s/o Late Sh. Brij Lal r/o House NO.4967, Pancham Society, Sector-68, Mohali, Punjab.

……Appellant.

Versus

1]       Shiv Kumar, Bye Pass Road, Near Veterinary Hospital, Amloh, District Fatehgarh Sahib, Punjab.

…Respondent/Complainant.

2]       Chandigarh Overseas Private Limited, SCO 196-197, Top Floor, Sector 34-A, Chandigarh (UT) through its Managing Director/Authorized Signatory;

          2^nd Address: C/o Mona Greens, Mona Township Pvt. Ltd., VIP Road, Opposite Dominos, Zirakpur, District Mohali.

3]       Mr. Tejinder Pal Setia & Sagar Setia, Director, Chandigarh Overseas Private Limited, C/o Mona Greens, Mona Township Pvt. Ltd., VIP Road, Opposite Dominos, Zirakpur, District Mohali through its Director Mr. Sagar Setia.

          2^nd Address:

          House No.438, Bhera Enclave, Paschim Vihar, New Delhi.

 …..Proforma Respondents.

 

BEFORE:  JUSTICE RAJ SHEKHAR ATTRI, PRESIDENT.

              MR. RAJESH K. ARYA, MEMBER

 

ARGUED BY :-

 

Sh. Pushpinder Kaushal, Advocate for the appellant.

Sh. Gaurav Bhardwaj, Advocate for respondent No.1/ complainant.

Respondents No.2 & 3 already exparte vide order dated 03.05.2023.

 

PER  RAJESH  K. ARYA, MEMBER

        This appeal has been filed by Sh. Sumesh Chawla, Director of Green Field Sites Management Pvt. Ltd.-Opposite Party No.2 (appellant herein) seeking setting aside of order dated 20.06.2019 passed by the District Commission, vide which, it was proceeded against exparte and also final order dated 05.06.2020 passed by the same District Consumer Disputes Redressal Commission-II, U.T., Chandigarh (in short ‘District Commission’), whereby consumer complaint bearing No.685 of 2018 filed by the complainant – Sh. Shiv Kumar (respondent herein) has been allowed directing the appellant alongwith other opposite parties/proforma respondents as under:-

“6.     In view of the above discussion, the present complaint deserves to be partly allowed and the same is accordingly allowed. The opposite parties are directed as under ;-

1. to refund the amount of Rs.3.75 lacs  to the complainant with interest @ 9% p.a. from the  respective date(s) of  deposits till its realization. 
2. to pay Rs.50,000/- to the complainant as compensation for mental agony and physical harassment.
3. to pay costs of litigation of  Rs.11,000/- to the complainant.   

          This order be complied with by the Opposite Parties, within 45 days from the date of receipt of its certified copy, failing which the amount at Sr.No.(i) & (ii) shall carry interest @9 % per annum from the date of this order till actual payment besides payment of litigation costs.”

2]     Briefly stated the facts before the District Commission, as narrated in the impugned order are as under:-

“1.     In brief, the case of the complainant is that he was looking for a small unit to start his own business for earning his livelihood by way of self-employment and the OPs floated a scheme called “Small Investor Scheme” under the name and style of Industrial Knowledge (Fashion Technology Park), Sector 90, Mohali. The price of the unit was Rs.5 lakhs and he deposited Rs.1,25,000/- vide receipt dated 30.08.2006(Annexure C-1), Rs.1,25,000/- vide receipt dated 01.02.2007  (Annexure C-2) and Rs.1,25,000/-  through cheque dated 30.07.2007.  The Developer Buyer Agreement  and Lease agreement  were also executed between the complainant and OPs No.1 and 2 respectively.  It has further been averred that a sum of Rs.3.75 lakhs were deposited by him and the remaining Rs.1.25 lakhs were to be deposited at the time of delivery of the possession of the unit as per the scheduled attached with the Developer Buyer Agreement. The Developer Buyer Agreement and Lease Agreement were alleged to be in possession of the OPs.  It has further been averred that OP No.1 sent an update dated 22.06.2009 (Annexure C-3) vide which he was informed that the possession was likely to be delivered by 18.01.2010 and in case the same is not delivered then delayed compensation as per the agreement was to be paid by the OPs. Subsequently  OP No.2 sent a letter dated 22.06.2009 (Annexure C-4) vide which he was informed that  he is entitled to minimum lease rent of Rs.30000/- per month per unit until the space is not leased out and he was also given a buy back option as per the said letter.  It has further been averred that he did not exercise the buy back option as he wanted the possession of the unit so that he could earn his livelihood.  It has further been averred that as per Clause 18 of the agreement the possession was to be delivered after 30 months from the date of start of the construction and the same expired on 18.01.2010 as per the letter dated 22.06.2009.   According to the complainant, the OPs have neither delivered the possession nor paid the delayed compensation.  It has further been averred that as per Clause 28 of the agreement, the OPs were required to pay compensation of Rs.50/- sq. ft/month (Rs.5000 for 100 sq. feet/month) for delay in construction w.e.f. 18.01.2010.  It was also alleged that the OPs are also required to pay Rs.30000/- p.a. as minimum assured lease rental as per Clause 4.1 of the lease agreement.  It has further been averred that the OPs have neither delivered the possession of the unit nor refunded the deposited amount. Alleging that the aforesaid acts amount to deficiency in service and unfair trade practice on the part of the OPs, the complainant has filed the instant complaint. 

2.       OPs No.1 & 3, in their joint written statement, have pleaded that there is no letter of allotment or plot buyers agreement or any kind of contract whatsoever executed or entered between the complainant and OP No.1. It has further been pleaded that the payment was given voluntarily without any inducement with the aim of earning profit and on stipulations.  The company went into severe losses only due to force majeure conditions which was outside the control of OP No.1 and therefore, the money given by the complainant i.e. Rs.3.75 lakhs was only an unsecured loan/investment which cannot be recovered.  It has further been pleaded that the complainant even cannot file a civil suit for recovery.  It has further been pleaded that there is no relationship of  service provider and consumer between the parties.  Pleading that there is no deficiency in service or unfair trade practice on their part, OPs have prayed for dismissal of the complaint. 

3.          Despite due service through registered post, OP No.2 failed to put in appearance and as a result thereof it was ordered to be proceeded against exparte vide order dated 20.06.2019.”

3]             After hearing the parties and going through the material available on record, the District Commission allowed the complaint, as stated above. 

4]             Order dated 20.06.2019 passed by the District Commission, vide which the appellant was proceeded against exparte has been assailed on the ground that the complaint was filed on 04.12.2018 and the appellant is not residing at the address mentioned in the complaint. The appellant received the summons of execution on 13.02.2023 upon his address i.e. Flat No.4967, Pancham Society, Sector-68, Mohali for 28.03.2023. It has been submitted that the appellant applied for the certified copy of the impugned order on 23.02.2023, which was received on 01.03.2023, the appeal is filed without any further delay. It has been prayed that the exparte order dated 20.06.2019 passed by the District Commission against the appellant is bad in law, which is liable to set aside. 

5]     It may be stated here that for condonation of delay of 295 days as per office (940 days) in filing the appeal, the appellant has also filed a Miscellaneous Application No.261 of 2023 wherein above contention has been reiterated by the appellant. Apart from it has also been stated in the application that the appellant had never been communicated with the impugned final order dated 05.06.2020 earlier to 01.03.2023 as he was never served with the final order at any time in any manner.

6]     On the other hand, in the reply filed to the application for condonation of delay, respondent No.1/complainant has submitted that no ground for condonation of delay is made out as the appellant was duly served in the main complaint at the registered address and he chose not to appear and put his defence before the District Commission. It has further been stated that document, Annexure A-3, dated 02.09.2023 clearly proves that the office of the appellant and the other opposite parties is existing at the address mentioned i.e. SCO No.196-197, Sector 34-A, Chandigarh. It has further been stated that the in fact, there is a delay of 940 days in filing the appeal. Lastly prayer for dismissal of the application for condonation of delay has been made.

7]     It may be stated here that the sustainability of the final impugned order depends upon the decision to be formed by this Commission on the point of condonation of delay and order dated 20.06.2019 passed by the District Commission proceeding appellant/opposite party No.2 exparte is concerned. 

8]     Bare perusal of record of District Commission transpires that notice of complaint, for the first time, was sent to opposite party No.2 on 06.12.2018 for 11.01.2019, which was received back undelivered with the remarks “left” and on 11.01.2019, the complainant was directed to furnish correct address of opposite party No.2, which was accordingly filed i.e. M/s Greenfield Sites Management Pvt. Ltd., Industrial Knowledge (Fashion Technology Park), Sector 90, Opposite Lakhnour Cold Storage, SAS Nagar, Mohali, Punjab. On 06.03.2019, opposite party No.2 was attempted to be served on this fresh address but again, the same received back with the remarks “left”. Again, time was given to the complainant to place on record fresh address of opposite party No.2 up-to 02.05.2019. This time, the complainant gave the following address of opposite party No.2 and notice was sent on this address for 06.06.2019:-

:Green Field Sites Management Pvt. Ltd.,

H.No.1074, Sector-4, Panchkula through its Director Sh. Sumesh Chawla”

9]     Notice sent through regd. Post on the aforesaid address on 07.05.2019 was not received back served or unserved and by taking presumption of 30 days from the date of its issue, opposite party No.2 was proceeded against exparte. It may be stated here that it is the specific plea of the appellant that since it is not residing at the aforesaid address as provided by the complainant to the District Commission, as such, it never received any notice of complaint or the impugned order, which it obtained subsequently, when opposite party No.2 was served with the execution notice on its present address so supplied by the decree holder to the District Commission on 31.01.2023, which is given below:-

“Green Field Sites Management Pvt. Ltd., through its Director, Sh. Sumesh Chawla R/o Flat No.4967, Pancam Society, Sector-68, Mohali”

10]   Per record of District Commission, it is proved beyond doubt that the appellant was never served with the notice of complaint or the copy of impugned order was never received by the appellant on the address so mentioned by the complainant in its complaint i.e. H.No.1074, Sector 4, Panchkula or furnished subsequently from time to time. It was only during the execution proceedings that the appellant was served on its present address, which is same as the one furnished by the decree holder to the District Commission in execution proceedings. Thus, it is established on record that the appellant/opposite party No.2 was never in the knowledge of its proceeding exparte or passing of the final impugned order by the District Commission, which came to his knowledge only during execution proceedings. Therefore, in our considered view, opportunity of being heard and to file reply and evidence must be given to the appellant. Therefore, the impugned orders passed by the District Commission are not tenable in the eyes of law.

11]   In view of above, the delay in filing the appeal stands condoned. MA/261/2023 stands disposed of accordingly.

12]   In so far as MA/260/2023 filed by the appellant to place on record documents, Annexures A-2 to A-10 by way of additional evidence is concerned, the same is also allowed and the said documents are taken on record subject to just exceptions of the case. The District Commission will look into the admissibility of these documents at the time of deciding the complaint qua the appellant. MA/260/2023 stands disposed of accordingly.

13]   For the reasons recorded above, the appeal is allowed. The impugned orders dated 20.06.2019 and 05.06.2020 qua the appellant are set aside. Consumer Complaint No.685 of 2018 is remanded back to the District Commission-II, U.T., Chandigarh for decision afresh in so far as the appellant is concerned after giving due opportunity of filing reply and evidence to appellant/opposite party No.2.  

14]           The parties are directed to appear before the District Commission-II, U.T., Chandigarh on 04.09.2023.

15]           Complete record alongwith certified copy of this order be sent to the District Commission-II, U.T., Chandigarh, so as to reach there well before the date fixed.

16]           Certified copies of this order be sent to the parties free of charge. Copy of order be also sent to the parties/Counsel through email/whatsapp.

17]           File be consigned to Record Room after completion.

Pronounced.

14.08.2023.

[RAJ SHEKHAR ATTRI]

PRESIDENT

 

 

 

(RAJESH K. ARYA)

MEMBER

 

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