National Consumer Disputes Redressal
Kad Housing Pvt. Ltd. & Anr. vs M.L. Varma & Anr. on 22 February, 2018
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI MISCELLANEOUS APPLICATION NO. 209 OF 2017 IN
FA/540/2017 1. KAD HOUSING PVT. LTD. & ANR. ...........Appellants(s) Versus 1. M.L. VARMA & ANR. ...........Respondent(s)
BEFORE: HON'BLE MR. DR. B.C. GUPTA,PRESIDING MEMBER HON'BLE MR. DR. S.M. KANTIKAR,MEMBER
For the Appellant : For the Respondent :
Dated : 22 Feb 2018 ORDER
APPEARED AT THE TIME OF ARGUMENTS
For the Appellants
:
Mr. Kapil Kher, Advocate
For the Respondents
:
Mr. Vishnu Mehra, Advocate
Mr. Satya Mitra, Advocate
PRONOUNCED ON : 22nd FEBRUARY 2018
O R D E R
PER DR. B.C. GUPTA, MEMBER First appeal no. 540/2017 has been filed under section 19, read with section 21(a)(ii) of the Consumer Protection Act, 1986 against the impugned order dated 23.12.2016, passed by the Delhi State Consumer Disputes Redressal Commission (hereinafter referred to as 'the State Commission') in consumer complaint no. C-550/2014, vide which, the appellants were not permitted to file their written version to the consumer complaint filed by the respondents/complainants on record.
2. The facts of the case are that the respondents/complainants filed consumer complaint no. C-550/14 before the State Commission, alleging deficiency in service on the part of the appellants builders/opposite parties (OPs) in not delivering the premises in question to them in accordance with the terms and conditions of the memorandum of understanding entered between the parties, despite the full consideration having been paid to them. A prayer was made in the said consumer complaint that the OPs should be directed to pay the monthly assured return to them in accordance with the terms and conditions of the MOU alongwith interest thereon. During proceedings before the State Commission on the said consumer complaint, interim order dated 14.01.2016 was passed by them, which states as follows:-
"No one has appeared on behalf of the OPs despite awaiting. Even on the last date of hearing, no one had appeared on behalf of the OPs. Both the OPs are proceeded ex-parte.
Let complainant file ex-parte evidence by way of affidavit within six weeks.
Re-list on 11.05.2016."
3. Being aggrieved against the above order of the State Commission, the appellants/OPs challenged the same by way of FA No. 214/2016 before this Commission. The said appeal was decided by this Commission vide order dated 17.11.2016, in which it was stated as follows:-
"In the interest of justice, however, the prayer made by the appellants in the appeal, seeking permission to participate in proceedings before the Delhi State Commission is granted. The present appeal is, therefore, allowed and the State Commission is directed to allow the appellants/OPs to join the proceedings before them. In so far as their right to file written version/evidence is concerned, the State Commission shall take decision in accordance with law."
4. In pursuance of the above order, the matter was heard by the State Commission on 23.12.2016, when the following order was passed:-
"OP has filed WS which is objected by counsel for complainant on the plea that right to file WS has already been closed vide order dated 14.01.2016. The counsel for OP states that though National Commission dismissed FA No. 214/16 against the order dated 14.01.2016 passed by this Commission, vide order dated 17.11.2016 in the last line of the order, it has been mentioned that so far right to file WS/evidence is concerned, State Commission shall take decision in accordance with law.
To my mind, this does not amount to permit OP to file WS otherwise the very purpose of appellate authority would be defeated vide which appeal has been decided. The WS is taken 'of' the record.
Re-notify for final arguments on 31.03.2017."
5. Being aggrieved against the above order of the State Commission, the appellants/OPs have filed the present appeal no. 540/2017. Notice of the appeal was issued to the respondents, who put in appearance through their counsel.
6. During hearing of the matter on 11.04.2017, it was felt that there was an inherent contradiction in the said order and hence, the following order was passed:-
"2. The order of the State Commission suffers from inherent contradiction. On one hand, the State Commission has observed that the remand order passed by the National Commission does not amount to permit the OP to file the written statement, on the other hand, the State Commission has ordered that the written statement be taken on record.
3. The aforesaid contradiction cannot be reconciled. The reasons for condoning the delay and taking the written statement on record are not detailed. The impugned order being a non-speaking order cannot be sustained. I accordingly set aside the order and remand the matter back to the State Commission to decide the issue of right of the OP to file written statement in accordance with law, by passing a reasoned order. Both the parties are directed to appear before the State Commission on 8.5.2017.
4. The first appeal stands disposed of.
Sd/-
(DR. S.M. KANTIKAR) MEMBER"
7. The above order was passed under the impression that the State Commission had ordered that the written version of the appellants should be taken " on" record. In the said order dated 23.12.2016, the word " of" has been used and not the word "off". It was, therefore, held that the State Commission had ordered that WS should be taken on record. After passing of the above order dated 11.04.2017, MA No. 209/2017 was filed by the respondents/complainants, seeking rectification/modification of the order dated 11.04.2017. It was stated that the word "of" (OFF sic) had been misread as "on" and hence, the order dated 11.04.2017 be rectified/modified.
8. From a perusal of the material on record, as well as the assertion made by the learned counsel for both the parties, it is evident that vide impugned interim order dated 23.12.2016, the State Commission had refused to take the written version filed by the appellants/OPs on record. Miscellaneous Application no. 209/2017 is, therefore, allowed and the order passed by this Commission on 11.04.2017 is recalled.
9. The learned counsel for the parties have been heard in detail. It was explained by the learned counsel for the appellants that during proceedings before the State Commission, a notice was first sent to them in the month of July 2015, but the said notice could not be served upon them. Thereafter, another notice was issued for their service on 05.11.2015, which was duly received in their offices at different addresses on 07.11.2015, 09.11.2015 etc. In pursuance of the said notice, they were supposed to appear before the State Commission on 02.12.2015. However, they could not put appearance before the State Commission on 02.12.2015. The State Commission adjourned the matter on that date and directed the appellants/OPs to file their written version within four weeks with an advance copy to the complainants and the case was fixed for hearing on 14.01.2016. Since the OPs had no information about the hearing on that date, they did not appear before the State Commission on 14.01.2016 and were proceeded against exparte. The learned counsel stated that as per the practice in the State Commission, the paper-book of the case was not sent with the notice issued by that Commission. Since the paper-book was not provided to them, they could not have filed the written version to the complaint. The learned counsel stated that when they learnt about the order dated 14.01.2016 passed by the State Commission, they made an application for obtaining certified copy of the paper-book from the Registry of the State Commission, which was provided to them on 16.02.16. They filed an appeal against the said order as FA No. 214/2016 before this Commission, which was allowed on 17.11.2016. The said order of the National Commission was issued by the office on 07.12.2016 and the next date of hearing before the State Commission was 23.12.2016. The learned counsel stated that as per the directions given by this Commission in the order dated 17.11.2016, the State Commission was required to take decision about the filing of the written version in accordance with law. They appeared before the State Commission on 23.12.2016 and filed the written version, but the State Commission did not take the said written version on record. This action on the part of the State Commission was wholly unwarranted and against law, because they had filed their written version within 15 days of the order issued by the National Commission. Before that date, they never had any opportunity of filing the written version before the State Commission, because they were not in possession of the paper-book of the case. The learned counsel stated that the present appeal should, therefore, be accepted and the State Commission should be ordered to take their written version on record.
10. Per contra, the learned counsel for the respondents argued at length that the appellants/OPs had nowhere stated in the earlier appeal, i.e., FA No. 214/2016 filed by them that they had not received a copy of the consumer complaint. The learned counsel stated that the arguments being led by the learned counsel for the appellants at this stage were just "afterthought". According to the learned counsel, the appellants/OPs had received the copy of the paper-book on 16.02.16 and hence, they should have filed the reply to the complaint within 30 days of 16.02.2016. Moreover, the appellants/OPs had not filed any application for condonation of delay in filing the written version. The learned counsel further stated that after passing of order dated 17.11.2016, this Commission had become "functus officio". The present appeal is, therefore, not maintainable before this Commission.
11. In reply, the learned counsel for the complainants stated that the State Commission, while sending notice to them had paid a tariff of ₹25/- only to the Postal Department, meaning thereby that the paper-book of the case had not been sent alongwith the notice, otherwise they would have paid a higher tariff on postage.
12. We have examined the entire material on record and given a thoughtful consideration to the arguments advanced before us.
13. The main issue for consideration in the matter is whether the appellants/OPs had failed to file their written version to the consumer complaint within the extended time of 45 days as laid down in section 13 of the Consumer Protection Act, 1986. It goes without saying that such period of 45 days shall start only, after the notice is duly served upon an opposite party, alongwith the paper-book of the case. It has been the practice in the Delhi State Commission to issue only a notice to the OPs, and the paper-book is provided to them on their first appearance before that Commission. The matter has been enquired on telephone from the Registrar of the Delhi State Commission and he confirmed that the practice in that Commission was to issue notice to the parties without paper-book, and such paper books were supplied to them on their first appearance before the Commission. In the present case, it has been stated by the appellants/OPs that they did receive the notice in early November 2015, in response to which, they were supposed to appear before the State Commission on 2.12.2015. However, for various reasons, they could not appear before the State Commission on 2.12.2015 and on the next date of hearing, i.e., 14.01.2016, they were ordered to be proceeded against exparte. The order dated 14.01.2016 has already been set aside by this Commission in appeal FA No. 214/2016 vide order passed on 17.11.2016. In the meantime, it has been stated by the appellants/OPs that on learning about the exparte order of 14.01.2016, they made an application for obtaining certified copy of the paper-book from the State Commission and received the same on 16.02.2016. It is clear, therefore, that since the appellants/OPs were not in possession of the paper-book, they could not have filed any reply before the State Commission, which had passed the order on 14.01.2016 for proceeding exparte against them.
14. The learned counsel for the respondents/OPs have pleaded that once the appellants/OPs had received copy of the paper-book on 16.02.2016, they should have filed their written version within 30 days of that date before the State Commission. However, we are not inclined to agree with this line of argument because vide order dated 14.01.2016, they had already been proceeded against exparte and hence, they had no opportunity to file the written version before the State Commission.
15. The learned counsel for the respondents/complainants has also tried to explain that the appellants/OPs had not taken the plea of non-receipt of paper-book in the earlier appeal filed by them before this Commission. On the other hand, the appellants/OPs have explained that after the order passed in FA 214/2016 by this Commission dated 17.11.2016 was issued on 07.12.2016, they had filed their written version before the State Commission on the first available opportunity, i.e., 23.12.2016. Once the order proceeding exparte against them had been set aside, and they had a right to be heard by the State Commission, they did not lose any opportunity to file the written version. Moreover, the said written version having been filed within 15 to 16 days of the issue of the order, was within time as permissible under section 13 of the Act.
16. Vide order dated 17.11.2016 as reproduced above, a direction has been given to the State Commission to take decision in accordance with law about the right of the OPs to file their written version/evidence. It was the duty of that Commission to pass a well-reasoned order about the acceptance/non-acceptance of the written version in accordance with the directions issued by this Commission. On the other hand, the State Commission vide their order dated 23.12.2016 simply stated that this Commission had not permitted the OPs to file written version and hence, the said written version shall not be taken on record. This order, on the face of it, is contrary to the directions issued by this Commission vide order dated 17.11.2016 and hence, it is perverse in the eyes of law.
17. Based on the discussion above, this appeal is accepted and the order passed by the State Commission on 23.12.2016 is set aside. The State Commission is directed to place on record the written version filed by the appellants/OPs and from that point onwards, take further steps for the disposal of the consumer complaint in accordance with the procedure laid down in law. There shall be no order as to costs.
...................... DR. B.C. GUPTA PRESIDING MEMBER ...................... DR. S.M. KANTIKAR MEMBER