Chandigarh

StateCommission

A/31/2015

M/s Samar Estates Pvt. Ltd. - Complainant(s)

Versus

Smt. Darshna Devi - Opp.Party(s)

Munish Kapila, Adv.

02 Mar 2015

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

                                                                 

First Appeal No.	:	31 of 2015
Date of Institution	:	09.02.2015
Date of Decision	:	02/03/2015

 

M/s Samar Estates Pvt. Limited, Site Office: Ess Vee Apartments, Sector 20, Panchkula, through its Authorized Signatory Sh. Vinod Bagai son of Sh. Nand Lal.

……Appellant/Opposite Party

V e r s u s

Smt. Darshna Devi wife of Sh. Rakesh Kumar, resident of Kahangarh Road, Patran, District Patiala.

              ....Respondent/Complainant

 

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. Munish Kapila, Advocate for the appellant.

                   Sh. R.S. Modi, Advocate for the respondent.

 

PER JUSTICE SHAM SUNDER (RETD.), PRESIDENT

              This appeal is directed against the order dated 30.12.2014, rendered by the District Consumer Disputes Redressal Forum-II, 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 Party (now appellant), as under:-

“In view of the above discussion, the present complaint deserves to be allowed and the same is accordingly allowed. The Opposite Party is directed as under ;-

[a]     To refund Rs.16,92,500/- deposited by the complainant, along with interest @9% p.a. from the respective dates of deposit, till it is actually paid.

[b]    To pay Rs.25,000/- to the complainant on account of deficiency in service, unfair trade practice and causing mental agony and harassment; 

[c]      To pay Rs.10,000/- as cost of litigation;

The above said order shall be complied within 45 days of its receipt by the Opposite Party; thereafter, it shall be liable to pay interest @12% per annum on the amount mentioned at Sr.No.(a) from the respective deposits of the payment, till it is paid. The compensation amount mentioned at Sr. No.(b) shall carry interest @12% per annum from the date of this order, till it is paid, besides costs of litigation of Rs.10,000/-. "

2.        The facts, in brief, are that the complainant purchased Apartment No.E-802 (3 bed room with servant room) in Tower-E, 8th Floor, measuring 1725 Sq. ft., for a total sale consideration of Rs.67.70 lacs, in the Group Housing Project, floated by the Opposite Party, under the name and style “ESS VEE Apartments”, to be constructed and developed at Sector 20, Panchkula. The Apartment Buyer’s Agreement Annexure C-1, in respect of the said Apartment was also executed between the parties, on 25.08.2011. It was stated that, as per terms and conditions of the said Agreement, the Opposite Party was to complete construction of the project and handover physical possession of the unit, in question, within a period of 03 years i.e. by August 2014. It was further stated that the complainant deposited an amount of Rs.16,92,500/-, with the Opposite Party, towards part price of the said unit, as per the payment schedule. It was further stated that after receiving the huge amount of Rs.16,92,500/-, from the complainant, the Opposite Party, did not start the construction of Tower-E aforesaid. It was further stated that the complainant approached the Opposite Party, a number of times, with a request to start construction of the unit, in question, but it put off the matter, on one pretext or the other. It was further stated that, on the other hand, even in the absence of construction, the Opposite Party kept on demanding the remaining instalments, in respect of the said unit. It was further stated that vide letter dated 05.12.2013, it was intimated to the complainant, by the Opposite Party, that, in case, she did not pay the remaining instalments, her unit would be cancelled.
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 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 Party, to quash the notice dated 05.12.2013 Annexure C-5; refund the amount of Rs.16,92,500/-, alongwith interest @24% P.A., from the respective dates of deposits; pay compensation, to the tune of Rs.2 lacs, for mental agony and physical harassment; Rs.80,000/-, towards punitive damages; and cost of litigation, to the tune of Rs.22,000/-.
4.        Despite service through publication in the newspaper namely “Amar Ujala”, on 26.09.2014, none put in appearance, on behalf of the Opposite Party, as a result whereof, it was proceeded against exparte, by the District Forum,  on 20.11.2014.
5.        The complainant led evidence, in support of her case.
6.        After hearing the Counsel for the 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. 
7.        Feeling aggrieved, the instant appeal, has been filed by the appellant/Opposite Party.
8.        We have heard the Counsel for the parties, and, have gone through the evidence, and record of the case, carefully. 
9.        The Counsel for the appellant/Opposite Party, submitted that, no doubt, none put in appearance on behalf of the Opposite Party, on 20.11.2014, when the consumer complaint was called for, as a result whereof,  it was proceeded against exparte, whereafter the impugned order dated 30.12.2014 was passed by the District Forum, on hearing the Counsel for the complainant only. He further submitted that the Opposite Party was wrongly proceeded against exparte on 20.11.2014, by the District Forum, while holding that despite its service through publication, none put in appearance on its behalf, resulting into passing of the impugned order dated 30.12.2014. He further submitted that, on the other hand, the Opposite Party was never duly served, on account of the wrong address, having been furnished by the complainant, in the consumer complaint. He further submitted that  there were various crucial questions, which arose for determination, in the consumer complaint. He further submitted that, in the absence of affording an opportunity, to the Opposite Party, to submit its written version and furnish evidence, by way of affidavit(s), these crucial questions, could not be properly decided.  He further submitted that the order of the District Forum is liable to be set aside, and the case deserves to the remanded back, for fresh decision.
10.        On the other hand, the Counsel for the respondent/complainant, submitted that since the Opposite Party was duly served, through publication, yet, no authorized representative, on its behalf, put in appearance, no ground, whatsoever, is made out, to set aside the order impugned, and afford an opportunity to it, to file its written version, and lead evidence, by way of affidavit(s). He further submitted that the order of the District Forum, being legal and valid, is liable to be upheld.
11.        After giving our thoughtful consideration, to the   contentions, advanced by the Counsel for the parties, and the 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 fresh decision, for the reasons, to be recorded hereinafter. It is evident, from the District Forum file, that on 21.03.2014, notice for the service of the Opposite Party, was sent for 30.04.2014. On 30.04.2014, since the said notice sent through ordinary post, was received back,   unserved, with the report “left” as such, it was ordered to the complainant, by the District Forum, to furnish fresh address of the Opposite Party, within a week, so that notice could be issued to it, through registered A.D. cover, for 09.06.2014. On 09.06.2014, the Counsel for the complainant stated that the address of the Opposite Party, given in the complaint, was correct. A request for dasti notice for the service of the Opposite Party was also made. As such, it was ordered by the District Forum to issue fresh notice to the Opposite Party, through registered A.D. cover, as also through dasti, for 16.07.2014. However, on 16.07.2014, notice sent for the service of the Opposite Party, through registered A.D. cover was received back unserved, with the report “no such firm”. Despite dasti notice, the Opposite Party could not be served. Finally, an application for service of the Opposite Party through publication, in the newspaper “Daily Amar Ujala” Chandigarh, was moved by the Counsel for the complainant, on 04.09.2014. As such, the Opposite Party was finally ordered to be served through publication for 09.10.2014. Thereafter, the consumer complaint was adjourned to various dates, for appearance of the Opposite Party, in the District Forum. Finally, on 20.11.2014, when none put in appearance, on behalf of the Opposite Party, despite service through publication, it was proceeded against exparte, by the District Forum.
12.        It may be stated here that, no doubt, after proceeding the Opposite Party exparte, on 20.11.2014, and on hearing the Counsel for the complainant, the impugned order dated 30.12.2014, was passed by the District Forum. However, it may be stated here, that there are certain crucial and significant disputed issues/questions, involved in the case, which require adjudication, on merits, after the Opposite Party is afforded an opportunity, to put-forth its written version, and lead evidence, by way of affidavit(s). Those disputed questions are,  as to whether, the District Forum had territorial Jurisdiction, to entertain and decide the complaint, as the Apartment Buyer's Agreement, in respect of the unit, in question, was executed between the parties, at Panchkula; as to whether, any payment was made by the complainant at Chandigarh, as the payment receipts, placed on record, also reveal that the payment of part price in respect of the same (unit) was also made at Panchkula; as to whether, the payments, in respect of the said unit, were made on time, or the complainant was defaulter, in making the same; as to whether, any time was stipulated in the Agreement, for delivery of possession; as to whether, possession of the unit, in question, was offered to the complainant or not; as to whether, there was any breach of the terms and conditions of the Agreement, on the part of the complainant or not; and as to whether, the entire amount was required to be refunded to the complainant, or some part thereof was required to be forfeited, in case, she rescinded the contract, as per the terms and conditions of the Agreement. All these questions, being very material, can only be properly decided, if the Opposite Party, is afforded an opportunity, to file written version, and lead evidence, by way of affidavit(s).
13.         Otherwise also, it is settled principle of law, that every lis should normally be decided, on merits, by affording an opportunity to the parties of putting forth their version and leading evidence. 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 hand-maid of justice, meant to advance the cause thereof, than to thwart the same. In our considered opinion, it is a fit case, in which the order of the District Forum, deserves to be set aside, and the case is required to be remanded back to it, for fresh decision, on merits, in accordance with law.
14.        No doubt, it was, on account of the negligence of the Opposite Party, that despite service through publication, no representative, on its behalf, put in appearance, in the District Forum. According to Section 13 (3A) of the Act, every endeavour should be made to decide the complaint, within three months, from the date of service of the Opposite Party, except the one, in which the goods are required to be sent to the Laboratory for examination. In that event, the complaint is required to be decided, within a period of 5 months, from the date of service of the Opposite Party(s). In the instant case, the said period has already expired much earlier. On account of the negligence of the Opposite Party, the case is being remanded back to the District Forum, for fresh decision, on merits, after considering the crucial and significant questions, referred to above. Due to this reason, certainly delay, in the final disposal of complaint, on merits, shall be caused. Such delay is solely attributable to the Opposite Party. The appellant/Opposite Party, is, thus, liable to be burdened with costs. Rs.10,000/-, as cost, if imposed upon the appellant/Opposite Party, in our considered opinion, shall meet the ends of justice.
15.        For the reasons recorded above, the appeal is accepted. The order impugned is set aside. The case is remanded back, to the District Forum, with a direction to afford one reasonable opportunity, to the Opposite Party/ appellant, to submit its written version, and lead evidence, by way of affidavit(s), thereafter,  permit  the   complainant/respondent, if need be, to lead evidence, in rebuttal, by way of affidavit(s), and then decide the same (case), afresh, on merits, in accordance with the provisions of the Act. The appellant/Opposite Party, is, however, burdened with costs of Rs.10,000/-. Payment of costs, by the appellant/Opposite Party, to the respondent/ complainant, shall be a condition precedent. In other words, the costs shall be paid, before the written version and evidence, are filed, by the appellant/Opposite Party.
16.        The parties are directed to appear, before District Forum (II) on 12.03.2015, at 10.30 A.M., for further proceedings.
17.        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. 12.03.2015, at 10.30 A.M.
18.        Certified copies of this order, be sent to the parties, free of charge.
19.        The file be consigned to Record Room, after completion

Pronounced.

02/03/2015_

Sd/-

[JUSTICE SHAM SUNDER (RETD.)]

PRESIDENT

 

 

 

Sd/-

(DEV RAJ)

MEMBER

 

 

 

Sd/-

(PADMA PANDEY)

      MEMBER

 

 

Rg