State Consumer Disputes Redressal Commission
Satwant Kaur Sangha vs M/S Chandigarh Overseas Private ... on 21 December, 2020
Daily Order State Consumer Disputes Redressal Commission U.T., Chandigarh. Miscellaneous Application No.644 of 2020 in Complaint Case No. 444 of 2018 1. Satwant Kaur Sangha wife of Late Capt. Gurpreet Singh Sangha R/o Income Tax Office, Sanghha Complex, Mr. Ambedkar Nagar, Batala Road, Gurdaspur, Pb. 2. Gursimran Kaur W/o Sh. Siddarth Chandra R/o Flat No.601, Block no.38, Heritage City, M. G. Road, Gurgaon, Haryana. ...Complainants. Versus M/s Chandigarh Overseas Private Limited through its MD/directors, S.C.O. No.196-197, Sector 34-A, Top Floor, Chandigarh. Now Shifted at:- Fashion Technology Park, Adjacent to BSF Housing Colony, Sector 90, SAS Nagar, Mohali. ....Opposite Party. Complaint U/s 17 of Consumer Protection Act, 1986. PRESENT (THROUGH VIDEO CONFERENCING) - Counsel for the complainant : Sh. Amarbir Dhaliwal. Counsel for the opposite party: Sh. D. S. Sobti, Advocate. Miscellaneous Application No.645 of 2020 in Complaint Case No.27 of 2019 Satwant Kaur Sangha wife of Late Capt. Gurpreet Singh Sangha R/o Income Tax Office, Sanghha Complex, Mr. Ambedkar Nagar, Batala Road, Gurdaspur, Pb. ...Complainant. Versus M/s Chandigarh Overseas Private Limited through its MD/Directors, Sh. Hardyal Singh Mann, Director, Sh. Tejinder Pal Seta and Sh. Sanjeev Makol. Head Office: S.C.O. no.196-197, Sector 34-A, Top Floor, Chandigarh. Sh. Hardyal Singh Mann, Director, M/s Chandigarh Overseas Private Limited, Site Office - Industrial Knowledge (Fashion Technology) Park, Sector 90, SAS Nagar, Mohali. Sh. Tejinder Pal Setia, Director, M/s Chandigarh Overseas Private Limited, Site Office - Industrial Knowledge (Fashion Technology) Park, Sector 90, SAS Nagar, Mohali. Sh. Sanjeev Makol, Director, M/s Chandigarh Overseas Private Limited, Site Office - Industrial Knowledge (Fashion Technology) Park, Sector 90, SAS Nagar, Mohali. M/s Accord Infra Developers Pvt. Ld., SCO 64, First Floor, Sec-32-C, Chandigarh - 160031, India. Sh. Amit Puri, Director, M/s Accord Infra Developers Pvt. Ld., SCO 64, First Floor, Sec-32-C, Chandigarh - 160031, India. ....Opposite Parties. Complaint U/s 17 of Consumer Protection Act, 1986. PRESENT (THROUGH VIDEO CONFERENCING) - Counsel for the complainant : Sh. Amarbir Dhaliwal. Counsel for opposite parties No.1, 3 & 4: Sh. D. S. Sobti, Advocate. Opposite parties No.2, 5 & 6 exparte vide order dated 23.10.2019. BEFORE: JUSTICE RAJ SHEKHAR ATTRI, PRESIDENT PADMA PANDEY, MEMBER RAJESH K. ARYA, MEMBER Dated: 21/12/2020 ORDER
PER RAJESH K. ARYA, MEMBER.
Vide this common order, we would like to dispose of above captioned twin miscellaneous applications (bearing Nos.644 of 2020 and 645 of 2020, filed by opposite party No.1 and opposite parties No.1, 3 & 4, in consumer complaints bearing No.444 of 2018 and 27 of 2019 respectively), for cross examination of the complainants, as common question of law and facts arises therein.
2. For passing order, we are taking up the file of Miscellaneous Application bearing Nos.644 of 2020 filed by opposite party No.1 in consumer complaint No.444 of 2018.
3. Cross-examination of the complainants has been sought by opposite party No.1 on the ground that the complainants have relied upon various receipts which according to them are false, forged and fabricated; and that those documents could not be relied upon in summary proceedings unless an opportunity is given to opposite party No.1 for rebutting the same. According to opposite party No.1, the said receipts cannot be taken as a gospel truth and requires cross-examination of the complainants.
4. Reply to this application was filed by the complainants wherein it has been stated that opposite party No.1 has not come to the court with clean hands and has willfully concealed and suppressed material facts from this Commission and as such, it deserves no relief whatsoever from this Commission. It has been further stated in the reply that the contents of the application are wrong, false, mis-projected, misleading, self-contradictory, concocted, vague and unsubstantiated and a bunch of lies. It has further been stated that the opposite parties may be put to strict proof of averments. It has further been stated that there is no provision of cross examination in the present proceedings. It has further been stated that strict principles of Code of Civil Procedure, 1908 and Indian Evidence Act are not applicable to the proceedings under the Consumer Protection Act, 1986, which are summary in nature. Reliance has been placed on the case of Malay Kumar Ganguly Vs. Dr. Sukumar Mukherjee & Ors, III (2009) CPJ 17 (SC) wherein the Hon'ble Supreme Court has held that even though the proceedings under the C. P. Act are judicial proceedings, they are not civil courts and hence disputes have to be tried in a summary manner, following the principles of natural justice and the provisions of Indian Evidence Act are not applicable to the consumer fora.
5. We have heard Counsel for the parties in detail on these applications.
6. Sh. D. S. Sobti, Advocate, Counsel for the opposite party argued that Payment Schedule (A) of Fashion Technology Park, Sector 90, Mohali (Annexure C-14) wherein, acknowledgement qua receipt of Full and Final payment and adjustment of early payment is a forged, fabricated and a procured document by the complainants in connivance with the erstwhile Directors of the Company. It was further argued that opposite party No.1 in its written statement has specifically denied the contents of Para 14 of the complaint, wherein the complainants while relying on Exhibit C-15 have stated that the complainants paid a total amount of Rs.35 Lakhs to the opposite party, which the opposite parties confirmed by mentioning the same on the Payment Schedule appended with the Buyer's Agreement dated 18.05.2010.
7. We have given our thoughtful consideration to the rival contentions and carefully gone through the material available on the record.
8. It is relevant to mention here that on 09.12.2020, the original Buyer Developer Agreement dated 18.05.2010, Specimen Affidavit of the complainants, dated NIL (unattested); Payment Schedule and Layout Plan of typical floor plan of one DU'S, were brought by the Counsel for the complainants before us, which were duly shown to Sh. D. S. Sobti, Advocate, Counsel for the opposite party.
9. First of all, coming to the pleadings of the parties in Para 7 of the complaint, the complainants have given detail of the payments made by them, which are reproduced hereunder:-
Sr. No. Amount Paid (Rs.) Date Receipt No./ Chq. No.
1.
50,000/-
14.01.2008 2371
2. 4,67,128/-
16.01.2008 2377
3. 50,000/-
11.02.2008 2395
4. 50,000/-
11.02.2008 2396
5. 5,30,130/-
11.02.2008 2397
6. 5,53,067/-
16.03.2008 2415
7. 2,50,000/-
28.03.2008 2429
8. 3,03,067/-
28.03.2008 2430
9. 75,000/-
30.04.2008 151959
10. 3,05,000/-
14.08.2008 059881
10. While replying to this part of the paragraph, the opposite party has given the following reply:-
"7. Contents of para No.7 are the receipt of payments mentioned in the table are a matter of fact and need no reply. So far as total of Rs.26,33,000 has been received by the Opposite party in their account."
11. Bare perusal of this paragraph of reply transpires that nowhere the opposite party has stated that the receipts are false and fabricated. Rather it is stated that those are matter of fact and they did not file their reply. However, the opposite party has admitted that the opposite party has received only an amount of Rs.26,33,000/- instead of Rs.35 LaKhs. Thus, this amount of Rs.26,33,000/- is admitted.
12. However, the opposite party has denied having received the cash amount of Rs.8,66,608/- as mentioned in Para 10 of its reply. It has been stated in Para 10 of the reply that no payment was received by the opposite party and those have been falsely claimed by the complainants. Even, this part of reply of the opposite party is evasive. Surprisingly, in Annexure C-15, Payment Schedule (at Page 76 of the record), which is stated to be the part of Buyer Developer Agreement dated 18.05.2010 (Annexure C-14), the opposite party has specifically given the following remarks:-
"Remarks if any:-
The Client has paid full & final amount of agreed price. Hence the above schedule is not applicable and the Provisional Allotment letter is being issued along-with now."
13. In this view of the matter, the entire agreed amount has been paid by the complainant. The opposite party had not placed on record the affidavit of the authorized signatory who has given the remarks for receiving the agreed amount, to rebut the same.
14. Similarly, in the connected complaint case bearing No.27 of 2019, the complainant has sought refund of Rs.27,10,000/-, which she paid to the opposite parties, alongwith interest. Out of this amount, opposite parties No.1, 3 & 4 have specifically denied receipt of amounts of Rs.50,000/-, Rs.75,000/-, Rs.75,000/- and Rs.2,60,000/- alleged to have been paid on 17.02.2008, 26.03.2008, 29.03.2008 and 19.05.2010 by the complainants through cheques. The complainant has placed on record all the receipts qua the amounts paid by him totaling Rs.27,10,000/- including above disputed amounts, duly issued by the authorised signatory of the Company i.e. Chandigarh Overseas Private Limited. Thus, in view of observations made in the preceding paragraphs, in this case also, the entire agreed amount has been paid by the complainant.
15. It may also be stated here that Consumer Protection Act, 1986 (in short '1986 Act') envisages summary procedure but due to such delays, 1986 Act become worse than civil proceedings. In the case of Con Dor Rep. by its Managing Partner vs Smt. Smritikana Ghose & Anr., Revision Petition No.518 of 2002 decided on 16.04.2020, the Hon'ble National Consumer Disputes Redressal Commission, New Delhi, after going through different provisions of Consumer Protection Act, 1986, has observed that the scope of cross-examinaton before consumer fora is highly limited and it can be taken as an exception.
The relevant part of above said dicta is as under:-
"We would, therefore, hold that cross-examination of a witness or a party before a forum under the Consumer Protection Act is not a rule. It is only an exception. When reputation of a person, like a medical practioner in the case of alleged medical negligence is involved, he will have a right to cross-examine any person alleging professional negligence against him. When it is merely a question as to veracity of the statement of the witness, cross-examination cannot be permitted. In that case to contradict a party can certainly file his own affidavit or of any other witness. If cross-examination of a person is to be permitted in every case under the Consumer Protection Act, the whole object of this Act would be lost and there would hardly be any difference in proceedings before a Forum under the Act and a Civil Court. Many disputes involving high stakes and huge values are decided in writ jurisdiction by the High Courts and Supreme Court merely on the basis of affidavits. It, therefore does not appeal to reason that when Consumer Protection Act permits evidence to be led by means of affidavits right of cross-examination must be resorted to in every case. A forum under Consumer Protection Act must exercise extreme caution in permitting cross-examination. We, therefore, do not find any merit in any of the questions raised by the petitioner. This petition is, therefore, dismissed."
16. In the aforesaid case, the District Forum allowed the complaint, which order was affirmed by the Andhra Pradesh State Consumer Disputes Redressal Commission. The order passed by Andhra Pradesh State Commission was challenged by the opposite party (petitioner) before the Hon'ble National Commission on three grounds out of which, one of the ground was that the petitioner was not given right to cross-examine the local commissioner, a lawyer, who was appointed to report on the work done by the petitioner in the flat. The complaint before the District Forum was fixed for hearing after number of adjournments, when petitioner came up with an application for permission to cross-examine the local commissioner. District Forum did not agree to the request of the petitioner for cross-examination of the local commissioner. State Commission also observed that instead of persisting his right to cross-examine the local commissioner, petitioner should have filed his own estimate of the work done with supporting evidence.
17. Before the Hon'ble National Commission, it was argued by the Counsel for the petitioner that the principles of natural justice have been violated inasmuch as local commissioner did not adjourn his visit and petitioner was denied the right of cross-examination.
18. The Hon'ble National Commission observed that the statute could not have intended that all of them had to be examined in open court and subjected to cross-examination, for then, the proceedings of the Commission would be interminable. It was further felt by Hon'ble National Commission that the Act contemplated a quick disposal of the business before the Commission, for otherwise the object behind it might have been defeated. It is only in extreme cases, cross-examination is to be permitted. One of the examples, as have been given therein, is when reputation of a person, like the medical practitioner where the medical negligence is involved.
19. For the reasons recorded above, we do not find any merit in both the applications bearing No.644 of 2020 & 645 of 2020 and the same are dismissed with no orders as to costs.
20. Put up on 07.01.2021 for arguments.
21. Copy of this order be placed in the connected complaint bearing No.27 of 2019.
22. Copy of order be also sent to the parties/their Counsel through email/whatsapp.
[RAJ SHEKHAR ATTRI] PRESIDENT [ PADMA PANDEY] MEMBER [ RAJESH K. ARYA] MEMBER Ad