(Delivered on 24/03/2022)

PER SHRI A. Z. KHWAJA, HON’BLE JUDICIAL MEMBER.

1.         Appellants- Amar Asha Co-operative Housing Society Ltd.  have preferred the present appeal under Section 15 of the Consumer Protection Act, 1986  feeling aggrieved by the  impugned order dated 20/03/2019  passed by the learned District Consumer Commission, Nagpur in Consumer Complaint No. CC/344/2017 whereby the  complaint  filed by complainant /respondent -  Shri Mansaram Dodkuji Shende  came to be  allowed exparte and  direction was given to  appellants to return the value  of the plot sold to the respondent  along with  6% interest  and awarding compensation  and litigation  expenses.  (Appellant shall hereinafter be referred as Opposite Party  and respondents as Complainant for the sake of convenience)

2.         Short facts leading to filing of the present appeal may be narrated as under,

            Complainant/respondent – Shri Mansaram Dodkuji Shende  claims to be resident  of Plot No. 191, Satyasai Society, Dattawadi, Nagpur. Opposite party  namely  Amar Asha Co-operative Housing  Society  Ltd. Is a Co-operative Housing Society duly registered  under the provisions  of Maharashtra Co-operative  Society  Act, 1960 and bearing  Registration No. NGP/ASG/1231/1984. Opposite party namely Amar Asha Co-operative Housing Society Ltd. is dealing in the business of selling plots after preparing a proper layout and obtaining necessary sanction. Complainant has alleged that he agreed to purchase one plot No. 154/8, admeasuring 1200 Sq. fts.,  at Mouza – Dabha, Khasara No. 165/166 for sum of Rs. 900/- and accordingly  on 19/03/1987 the  opposite party No. 1 namely  the President , Amar Asha Co-operative Housing  Society  Ltd.  executed a sale deed  in respect of the plot as per the map attached to the  sale deed.  Complainant – Shri Mansaram Dodkuji Shende  thereafter  requested to the opposite party  to also hand over the possession  but the opposite party  was avoiding to  hand over the possession  on one  ground or  other.  The complainant  subsequently  came  to known that  in fact the said plot was owned by   another  person  Mr. Vinayak R.  Agrawal and  name of opposite party Amar Asha Co-operative Housing  Society  Ltd.   Name was not at all recorded in the property card. The complainant  has alleged that   he was very keen to purchase the plot and  thereafter  was to construct the  house  and for this purpose  complainant  had also  made  necessary  monetory  provision  for the same  but  he came to know that  the Opposite party  was never the owner and he had come to be cheated. The complainant also found that the opposite party namely Amar Asha Co-operative Housing Society Ltd.  had also committed  deficiency  in  service and Unfair Trade Practice. The complainant therefore issued notice to the opposite parties on 18/12/2014.  Complainant thereafter filed the Consumer Complaint under Section 12 of the Consumer Protection Act, 1986 alleging deficiency in service and also claiming necessary reliefs.

3.         After the  filing of the  consumer complaint  under  the Section 12 of the Consumer Protection Act, 1986, due notices were issued to the  Opposite party Nos. 1 to 3 as  prescribed  by law and  the same were duly  served upon  the opposite party Nos. 1 to 3.  However, opposite party Nos. 1 to 3 failed to appear despite service of notice upon them and also failed to file written version and so the complaint  proceeded exparte against the  opposite party Nos. 1 to 3/appellants.

4.         The complainant thereafter led the evidence by way of affidavit supported with necessary documents.  Learned District Consumer Commission, Nagpur went through  the evidence led  by the  complainant  as well as documents and  after appreciating  the evidence  on record the learned District Consumer Commission, Nagpur partly allowed the complaint  and directed the opposite party Nos. 1 to 3 to pay the   consideration  of the plot as per the  prevailing Government  rate along with interest at the rate of 6% p.a.  The learned District Consumer Commission, Nagpur also  directed the opposite party Nos. 1 to 3 to pay Rs. 50,000/- by way of  compensation  towards  mental  and physical  harassment  and to pay Rs. 10,000/- towards  litigation  cost. It is against this exparte judgment and order dated 20/03/2019 passed by the learned District Consumer Commission, Nagpur that the present appellants /opposite party Nos. 1 to 3 have come up in appeal. On the basis of the facts stated above  only point  which  arises  for our determination  is as  under  with  our finding recorded  thereon and reasons  to follow: 

Reasons for findings

5.         At the outset it is necessary to point out that the present  petitioners- Amar Asha Co-operative Housing  Society  Ltd.   had preferred the revision  petition No. 679/2021 before the Hon’ble National Consumer Commission challenging the  order dated 09/12/2019 in appeal No. A/19/275. It appears  that  the said  revision  petition  No. 679/2021 came to be disposed  of by the Hon’ble Consumer National Commission with direction to  dispose of the present  appeal  within  a period of three months .

6.         Mr. A.K. Neware, learned advocate appearing for the appellants has challenged the impugned judgment and order dated 20/03/2019 passed by the learned District Consumer Commission, Nagpur on several counts.   At the outset, it is submitted by Mr. A.K. Neware, learned advocate for the appellants that  the  learned District Consumer Commission, Nagpur has not  properly  appreciated  the  evidence adduced  on record in proper  perspective and therefore has come to findings  which were  perverse  in nature. It is  also submitted by Mr. A.K. Neware, learned advocate for the appellants  that  the learned District Consumer Commission, Nagpur has not  at all taken into  consideration  the  documents  and papers filed on record and has also not  given  due opportunity to the appellants to file the written version  on record  nor  the opportunity  was granted to  lead  the evidence. According to Mr. A.K. Neware, learned  advocate for the appellants   there was change of the power  due to election  and  therefore the  notice issued by the learned District Consumer Commission, Nagpur were inadvertently  misconceived  to be the notice  of another  complaint and due to  numerous cases, due to  bonafide mistake  the  present  appellants  could not  file their  appearance in the present  complaint  and experte  judgment  came to be passed against  the present appellants. It is vehemently argued  by the  learned advocate for the appellants  that  there are  several  disputed questions  of fact and law  which are required to be adjudicated on merits  and for  which  opportunity  needs to be  granted to the appellants and so it is very much necessary  to remand the matter to the learned District Consumer Commission, Nagpur for  proper  adjudication  and for  giving  due  opportunity.  The learned advocate for the appellants  has submitted that  the  respondent  is not  likely  to suffer  any  loss but  irreparable loss  would be caused to the appellant  if no  proper  opportunity  is  granted to them  to  file their  written version  and  allow them to adduce their evidence on record.

7.         Mrs. Anuradha Deshpande, learned advocate appearing on behalf of the respondent/ complainant has strongly rebutted the contention advanced by Mr. A.K. Neware, learned advocate for the appellants.  Mrs. Anuradha Deshpande, learned advocate for the respondent has also strongly opposed the remand of the matter. The learned advocate for the respondent has submitted before us  that  ample opportunity  was  already granted to the appellants not only to file their  written version on record but also to led  the evidence but the appellants  have  behaved   in negligent  manner  and also did not  file the written  version despite  ample  time being   granted for the same.  The learned advocate for the respondent has drawn our attention to the fact that the notice of the Consumer Complaint was served to the appellants /opposite parties on 05/04/2018 but they failed to turn up till 04/08/2018 and therefore, the learned District Consumer Commission, Nagpur passed an order proceeding exparte against the present appellants /opposite parties.  The learned advocate for the respondent  has also pointed out that thereafter also  four dates were given  for  oral argument  and thereafter the impugned  order came to be passed  on 20/03/2019 by the learned District Consumer Commission, Nagpur.  The learned advocate for the respondent  has further  submitted that  the  complainant  had purchased  the plot with  the sole intention  to  construct  house for her  own use  but the appellants /opposite parties   played a fraud  and  fraudulently  executed  the  Sale deed  in favour  of the  complainant.

8.         In view of these submissions  made by  the learned advocate  for both the  parties, we have  carefully gone through  the  record as well as  impugned order  dated 20/03/2019 passed by the learned  District Consumer Commission, Nagpur. We have also given anxious    consideration to submissions made by the learned  advocate  for the  appellants as well as  learned advocate for the respondent.

9.         Mr. A.K. Neware, learned advocate for the appellants  has placed  heavy  reliance  upon the  series  of  judgments  delivered by the Hon’ble  Supreme Court as well as Hon’ble National Commission which  are as under:-

i.          R. Ezhilarsan Vs  Sresh Kumar, 2006, LawSuit (CO) 351

ii.          J.L. Verma Vs. Gaurunam Singh, IV(2007) CPJ 187

iii.         Sahakar Ayukt and Nimbhandhak Sahakari Sanstha Vs. Jagmohan Singh Chatrath, 2008 LawSuit (CO) 407

iv.        Neha Sharma Vs. Wills Lifestyle, 2011 LawSuit (CO) 999

v.         Atul Srivastava and others Vs. Pradeep Kumar and others, 2011 LawSuit (CO) 382

vi.        Paramount Health  Services(TPA) Pvt. Ltd. Vs. Shindrapal  Singh S/o. Sh. Laxman Singh, 2011 LawSuit (CO)71.

vii.        Amazon Seler Services Private Ltd. Vs. Dulal Ray Karamkar and others, III(2006) CPJ 6 (Tri).

viii.       FIIT JEE Limited Vs. Akansha Singh, IV (2011) CPJ 38.

ix.        Vikrant Chemico Industries  Pvt. Ltd. Vs. Kunal Singh, IV(2012) CPJ 8.

x.         National Federation  of Blind Vs. Sadanandan and  others, I(2012) CPJ 86.

xi.        Kanpur Development  Authority  Vs. Prakash Gupta and others, IV (2012) CPJ 13 (SC).

xii.        Aditya Industries  Vs. Shivam Associates, II(2019) CPJ 18(Guj.)

xiii.       Paramount Health  Services Pvt. Ltd. Vs. Indrapal Singh  and others, (2012) CPJ 120.

xiv.      India Garage Rajarajan Vs.  Ramesh  Menon and others, II(2013) CPJ 55.

xv.       Kalsi Automob Soppie Vs. Dr. Ashutosh, I(2014) CPJ 137(Del).

xvi       Aviva Life Insurance  Company Vs. Nanita Yadav, III(2015) CPJ 81 (Har).

xvii       HDFC Ergo Insurance  Vs. Jasbir Kumar and others, I(2014) CPJ 121 (UT Chd.)

xviii.     Pawan  Shukla Vs. Mirkhana Pvt Ltd., III(2016) CPJ 85(NC).

 10.       On the basis of aforesaid  judgments on which  reliance  has been placed, it is submitted  by the  learned advocate for the appellants  that there are several  disputed questions of law and facts  which can be adjudicated  on merits only and  for this  purpose  it is very much  necessary  to  remand the present matter by  giving  opportunity  to the appellants  to file  written version  on record and also  to put up his case in the proper  manner.  Mrs. Anuradha Deshpande, learned advocate appearing  for the respondent  has opposed  the  submission   on the point of remand and has contended that  the impugned order is  passed on 20/03/2019 and the  complainant  who was the Consumer  would not get the fruits  of the complaint  filed by him if the matter is remanded.  On this aspect Mrs. Anuradha Deshpande, learned advocate for the respondent has also placed reliance  on several  judgments delivered  by the Hon’ble  Supreme Court as  well as National Commission which are as under and we have gone through  the same.

i.          New India Assurance Company Ltd. Vs. Hilli Multipurpose Cold Storage, decided by the Hon’ble Supreme Court          on 04/03/2020.

ii.          G.L. Narshimham Vs. B.S. Venkateshwarulu, reported in IV (2009) CPJ 113 (NC)

iii.         NCC Urban Infrastructure Vs. Ravikrishna Prasad, reported in  IV 2016 CPJ 1 (NC).

iv.        Madhu Puri Vs. Parshwanath  Developers, IV 2020 CPJ 91, Delhi.

v.         Nayak Parmar Associates Vs. Prakash Sanghvi, 1998 (I) CPR 125.

11.       Turning now to the judgments  on which reliance is placed by the appellants,    in all  these  case  exparte  order had came to be passed  against  the  appellants  and opportunity  was not granted to  present  its  case. It has been  observed  in the consistent  manner that  due  and proper  opportunity  should be granted  to the  parties to  present  its case.  Here in the present  case the present  appellants  have taken  a specific plea that  though  the notice was issued by the learned District Consumer Commission, Nagpur,  the notices  were inadvertently misconceived  to be the notices to the other  complaints and so bonafide mistake  had  taken  place and  appearance  could not be filed.  We are of the opinion that  the judgments on which reliance has been placed by the learned advocate for the appellants are squarely  applicable to the facts of the present case.  We have gone through  the record.  No doubt it is true that the impugned order was passed as far as back on 20/03/2019 by the learned District Consumer Commission, Nagpur. It is also  brought  to our  notice  that  the  appellants have themselves  remained  absent from 05/04/2018 to 20/03/2019 at the time of argument  thereby causing  delay. Be that  as it may, we are of the view that  in order  to   do substantial  justice  to both the parties in the light of law  laid down  and relied on by  the appellants, reasonable  opportunity  should be granted to the present  appellants to file written version on record and  also to allow  evidence by way of  affidavit  so that  substantial  justice can be  done and the complaint can be decided  and adjudicated on merits.  However, looking to the fact that much delay has already  taken placed and impugned order  was passed in the year 2019, we are of the view that   cost needs to be saddled upon the appellants and directions needs to be given to decide the complaint in an expeditious manner. Accordingly, we hold that the matter needs to be remanded to the learned District Consumer Commission, Nagpur with a direction  to the appellants  to file their  written version  within  two weeks of receipt of order as well as  evidence affidavit thereafter   on record after which the learned District Consumer Commission, Nagpur shall decide  the Consumer Complaint on merits.  As such we answer  the point No. 1  and 2 in affirmative and proceed to pass the following order;

ORDER

i.          Appeal is partly allowed subject to cost of Rs. 15,000/- to be paid to the respondent  within  two weeks from receipt  of the order.

ii.          Order passed by the learned District Consumer Commission, Nagpur on 20/03/2019 in consumer complaint No. CC/344/2017 is hereby  set aside and matter  is remanded back to the learned District Consumer Commission, Nagpur with direction  to  allow  the appellants  to file  written version within  15 days of receipt of order   and thereafter, to decide  the complaint afresh  in accordance  with law as  expeditiously  as possible.

iii.         Copy of order be furnished to both the parties, free of cost.