State Consumer Disputes Redressal Commission
Smt. Sangeeta Sarao. & Anr. vs M/S Omax Parkwoods Baddi. & Anr. on 9 March, 2015
H.P. STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
SHIMLA.
First Appeal No.378/2014
Date of Presentation: 29.10.2014
Date of Decision: 09.03.2015
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(1) Sangeeta Sarao, wife of Shri Sanjeev Kumar,
R/o H. No.138, Sector 45-A, Chandigarh, (U.T.)
(2) Sanjeev Kumar, son of Shri Gyan Chand,
R/o H. No.138, Sector 45-A, Chandigarh (U.T.)
........... Appellants.
Versus
(1) M/s. Omaxe Parkwoods, Baddi,
Village Chakakn & Billanwali Gujran,
Pargana Dharampur, Tehsil Nalagarh,
District Solan, H.P.,
Having its Office at S.C.O. No.143-144,
1st Floor, Sector 8-C, Madhya Marg,
Chandigarh,
Through its Authorized Signatory,
Shri Rajeev Choudhary.
(2) M/s. Omaxe Limited,
Registered Office at Omaxe House 7,
Local Shopping Centre, Kalkaji,
New Delhi-110 019,
Through its Managing Director.
........... Respondents.
..........................................................................................
Coram
Hon'ble Mr. Justice Surjit Singh, President
Hon'ble Mrs. Prem Chauhan, Member
Hon'ble Mr. Vijay Pal Khachi, Member
Whether approved for reporting?1 Yes.
1
Whether Reporters of the local papers may be allowed to see the order?
Sangeeta Sarao & Anr. Versus M/s. Omaxe Parkwoods, Baddi & Anr.
(F.A. No.378/2014)
________________________________________________________________________
For the Appellants: Mr. Gurmukh Singh, Advocate
For the Respondents: Mr. Digvijay Singh, Advocate.
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O R D E R:
Justice Surjit Singh, President (Oral) Appellants are aggrieved by the order dated 18.09.2014, of learned District Consumer Disputes Redressal Forum, Solan, whereby their complaint, under Section 12 of the Consumer Protection Act, 1986, which they filed against the respondents, has been dismissed. The reason given by the learned District Forum for dismissing the complaint is that appellants had earlier also filed a complaint, under Section 12 of the Consumer Protection Act, 1986, which was dismissed in default and in view of the precedent of the Hon'ble National Consumer Disputes Redressal Commission, in Ansal Housing and Construction Limited versus Indian Machinery Company, R.P. No.1931 of 2013, decided on 24.05.2013, subsequent complaint is not competent and maintainable. Another reason recorded by the learned District Forum is that contents of para-8 of the complaint, indicate that the Page 2 of 7 Sangeeta Sarao & Anr. Versus M/s. Omaxe Parkwoods, Baddi & Anr.
(F.A. No.378/2014) ________________________________________________________________________ flat had been booked by the appellants for commercial purpose.
2. Appellants filed a complaint, under Section 12 of the Consumer Protection Act, 1986, against the respondents, alleging that they had booked a flat which was yet to be constructed by the respondents at Baddi and paid a sum of `12,17,502/-, which was equivalent to 95% of the total money, payable on account of price of the flat, but neither the possession of the flat had been offered, within the time limit mentioned in the agreement, nor had any discount been given for delay in offering the possession. Appellants, therefore, sought a direction to the respondents to deliver possession of the flat and also to pay compensation for the delay caused.
3. Complaint was contested by the respondents, who were impleaded as opposite parties, on merits, as also on two preliminary objections, namely, the previous complaint on the same cause of action having been dismissed in default, the present complaint was not maintainable and the flat had not been intended to be purchased Page 3 of 7 Sangeeta Sarao & Anr. Versus M/s. Omaxe Parkwoods, Baddi & Anr.
(F.A. No.378/2014) ________________________________________________________________________ for personal use, but for making profit. Learned District Forum has dismissed the complaint, accepting these two pleas, based on preliminary objections, vide impugned order.
4. We have heard learned counsel for the parties and gone through the record.
5. Learned District Forum has placed reliance upon a precedent of the Hon'ble National Consumer Disputes Redressal Commission in R.P. No.1931 of 2013, titled Ansal Housing and Construction Limited versus Indian Machinery Company, decided on 24.05.2013, while upholding the respondents' objection that the second complaint is not maintainable.
6. Learned counsel representing the appellants has drawn our attention to a judgment of the Hon'ble Supreme Court in New India Assurance Company Limited versus R. Srinivasan 2000(2) Civil Court Cases 707 (S.C.), wherein it has been categorically ruled that provision of Order 9 Rule 9 (1) of the Code of Civil Procedure barring the filing of second suit, where the first suit is dismissed in default Page 4 of 7 Sangeeta Sarao & Anr. Versus M/s. Omaxe Parkwoods, Baddi & Anr.
(F.A. No.378/2014) ________________________________________________________________________ of appearance of the plaintiff, does not apply to the consumer complaints. Of course, it has also been observed in the said judgment that the complainant should have offered some explanation for not pursuing the earlier complaint, but in that case also as it appears from a reading of para-20 the complainant had not given any explanation. The Hon'ble Supreme Court looking into the facts and circumstances of the case, particularly the fact that respondent/opposite party had not disputed certain facts entitling the appellant/complainant to the relief, under the Consumer Protection Act, held that the subsequent complaint was maintainable.
7. In the present case also, though there is no explanation and not even a mention of the dismissal of earlier compliant, in default of appellants' appearance, yet the facts as pleaded by the appellants, viz. that they had booked a flat and had paid a huge amount of money, almost equivalent to 95% of the price of the flat, but the possession of the flat had not been offered, despite the expiry of time limit given in the agreement for delivery of Page 5 of 7 Sangeeta Sarao & Anr. Versus M/s. Omaxe Parkwoods, Baddi & Anr.
(F.A. No.378/2014) ________________________________________________________________________ possession, have not been disputed by the opposite parties and, therefore, as held by the Hon'ble Supreme Court in the above referred to judgment, vide para-20, the appellants' complaint should have been entertained and decided on merits, in the interest of justice.
8. As regards the second ground for dismissal of complaint based on the contents of para-8 of the complaint, upon which a reliance has been placed by the learned District Forum, to hold that flat had not been booked for self-use, but was booked for commercial purpose, suffice it to say that what the appellants have stated is that had they invested the money elsewhere, they would have earned some amount of money by way of interest. From this kind of pleading, it cannot be inferred that the flat was not intended to be used by the appellants for self-use. The plea could have been raised to enable the learned District Forum to assess the quantum of compensation. In any case without affording the parties opportunities to adduce evidence Page 6 of 7 Sangeeta Sarao & Anr. Versus M/s. Omaxe Parkwoods, Baddi & Anr.
(F.A. No.378/2014) ________________________________________________________________________ qua this aspect of the matter, a finding against the appellants ought not to have been recorded.
9. As a result of the above stated position, appeal is allowed, impugned order set aside and complaint is remanded to the learned District Forum, with the direction to decide the same afresh on merits.
10. Parties are directed to appear before the learned District Consumer Disputes Redressal Forum, Solan, on 20.04.2015.
11. A copy of the order be sent to each of the parties, free of cost, as per Rules.
(Justice Surjit Singh) President (Prem Chauhan) Member (Vijay Pal Khachi) Member March 09, 2015.
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