National Consumer Disputes Redressal
A.P. Industrial Infrastructure ... vs Prabhakar Solipuram & 3 Ors. on 19 February, 2016
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI FIRST APPEAL NO. 766 OF 2013 (Against the Order dated 19/09/2013 in Complaint No. 30/2012 of the State Commission Andhra Pradesh) WITH IA/2668/2015,IA/6915/2013 1. M/S. EMAAR MGF LAND LTD. Through its Authorized Signatory, Having its Registered office at ECE House 28, Kasturba Gandhi Marg, New Delhi-110 001. ...........Appellant(s) Versus 1. SWEENIE REDDY LOKA & ANR. R/o 301, Palanati Nilayam, SBI Officers Colony, Bahg Amaberpet Hyderabad-500 013, Andhra Pradesh. 2. Mr. Radhive Reddy, S/o Podduturi Hanmanth Reddy, R/o 301, Palanati Nilayam, SBI Officers Colony, Bagh Amberpet, Hyderabad-500 013, Andhra Pradesh. ...........Respondent(s) FIRST APPEAL NO. 767 OF 2013 (Against the Order dated 19/09/2013 in Complaint No. 40/2012 of the State Commission Andhra Pradesh) WITH
IA/2668/2015,IA/6915/2013 1. EMAAR MGF LAND LTD. Through its Authoized Signatory, Having its Registered office at ECE House 28, Kasturba Gandhi Marg, New Delhi-110 001. ...........Appellant(s) Versus 1. PRABHAKAR REDDY SOLIPURAM & ANR. Solipuram, R/o Villa No.A-8, Hill Ridge Vilas Gachibowli, Hyderabad, Andhra Pradesh 2. Mrs. Veena Reddy Solipuram, W/o Mr. Prabhakar Reddy Solipuram, R/o Villa No.A-8, Hill Ridge Vilas Gachibowli, Hyderabad, Andhra Pradesh ...........Respondent(s) FIRST APPEAL NO. 772 OF 2013 (Against the Order dated 19/09/2013 in Complaint No. 30/2012 of the State Commission Andhra Pradesh) WITH IA/2668/2015,IA/6915/2013 1. A.P. INDUSTRIAL INFRASTRUCTURE CORPORATION LTD. Repreented by its Managing Director, Having its office situated at Parishram Bhavan, 6th Floor, Fathehmaidan Road, Basheerbagh, Hyderabad, Andhra Pradesh. ...........Appellant(s) Versus 1. SWEENIE REDDY LOKA & 3 ORS. R/o 104, Gouri Apartments, Urdu Hall Lane, Hyderabad, Andhra Pradeshu 2. RADHIVE REDDY S/o. Sh. P. Hanmanth Reddy, R/o. 104, Gouri Apartments, Urdu Hall Lane Hyderabad A.P. 3. M/S. EMAAR HILLS TOWNSHIP PVT. LTD. Authorised Signatory MR. G.V. Vijay Raghav, S/o. Sh. G. Hara Gopal Krishna, R/o. Flat No. 313, My Home Mount View Apatments, Navodaya Colony, Yellareddyguda Hyderabad A.P. 4. M/S. EMAAR MGF LAND LTDA. Authorised Signatory, MR. G.V. Vijay Raghav.
S/o. SH. G. Hara Gopal Krishana, R/o. Flat No. 313, My Home Mount View Apatments, Navodaya Colony, Yellareddyguda Hyderabad A.P. 5. GOVT. OF ANDHRA PRADESH Rep. Its Principal Secretary Revenue, Secretariat Building Secretariat Hyderabad A.P. ...........Respondent(s) FIRST APPEAL NO. 773 OF 2013 (Against the Order dated 19/09/2013 in Complaint No. 40/2012 of the State Commission Andhra Pradesh) WITH IA/2668/2015,IA/6915/2013 1. A.P. INDUSTRIAL INFRASTRUCTURE CORPORATION LTD. Rep. by its Managing Director, Having its office Situated at Parishram Bhavan, 6th Floor, Fatehmaidan Road, Basheerbagh, Hyderabad Andhra Pradesh ...........Appellant(s) Versus 1. PRABHAKAR SOLIPURAM & 3 ORS. S/O LATE S.L.N. REDDY, R/O. VILLA NO. E-8, HILL RIDGE VILLAS, GACHIBOWLI, HYDERABAD ANDHRA PRADESH 2. MRS. VEENA W/O. PRABHAKAR SOLIPURAM R/O. VILLA NO. E-8, HILL RIDGE VILLAS GACHIBOWLI, HYDERABAD ANDHRA PRADESH 3. M/S. EMAAR HILLS TOWNSHIP PVT. LTD., REP. BY ITS AUTHORISED SIGATORY, G.V. VIJAY RAGHAV, S/O. G. HERE GOPAL KRISHNA, FLAT NO. 313, MY HOME MOUNT VIEW PARTMENTS, NAVODAYA COLONY, YELLAREDDYGUDA HYDERABAD. A.P 4. M/S. EMAAR MGF LAND LTD., REG. OFFICE AT ECE HOUSE, 28, KASTURIBA GANDHI MARG, NEW DELHI 5. GOVT. OF ANDHRA PRADESH Rep. by its Principal Secretary Revenue, Secretariat Building Secretariat Hyderabad A.P. ...........Respondent(s) FIRST APPEAL NO. 818 OF 2013 (Against the Order dated 19/09/2013 in Complaint No. 30/2012 of the State Commission Andhra Pradesh) WITH IA/2668/2015,IA/6915/2013 1. EMAAR HILLS TOWNSHIP PRIVATE LIMITED HAVING ITS REGISTERED OFFICE AT BOULDERS, HILLS GOLF AND COUNTRY CLUB, OPPOSITE ISB, MANIKONDA VILLAGE, GACHIBOWLI HYDERABAD-500032 ...........Appellant(s) Versus 1. SWEENIE REDDY & 4 ORS. R/O. 104, GOURI APARTMENTS, URDU HALL LANE, HYDERABAD-500029 2. P. RADHIVE REDDY R/O. 104, GOURI APARTMENTS, URDU HALL LANE, HYDERABAD-500029 ANDHRA PRADESH 3. GOVERNMENT OF ANDHRA PRADESH REP.BY ITS PRINCIPAL SECRETARY (REVENUE), SECRETARIAT BUILDINGS, SECRETARIAT, HYDERABAD ANDHRA PRADESH 4. A.P. INDUSTRIAL INFRASTRUCTURE CORPORATION LIMITED, REP. BY ITS MANAGING DIRECTOR, (APIIC), PARISHRAM BHAVAN, 6TH FLOOR, FATEHMAIDAN ROAD, BASHEERBAGH, HYDERABAD ANDHRA PRADESH 5. EMAAR MGF LAND LIMITED, HAVING ITS REGISTERED OFFICE, AT ECE HOUSE, 28, KASTURIBA GANDHI MARG, NEW DELHI-110001 ...........Respondent(s) FIRST APPEAL NO. 819 OF 2013 (Against the Order dated 19/09/2013 in Complaint No. 40/2012 of the State Commission None) WITH IA/2668/2015,IA/6915/2013 1. EMAAR HILLS TOWNSHIP PRIVATE LIMITED HAVINGB ITS REGISTERED OFFICE AT BOULDERS, HILLS GOLF AND COUNTRY CLUB, OPPOSITE ISB, MANIKONDA VILLAGE, GACHIBOWLI, HYDERABAD ANDHRA PRADEHS ...........Appellant(s) Versus 1. PRABHAKAR SPLOIPURAM & 4 ORS. R/O.VILLA NO. E-8, HILL RIDGE VILLAS, GACHI BOWLI, HYDERABAD ANDHRA PRADESH 2. MRS. VEENA W/O. PRABHAKAR SPLOIPURAM, R/O. VILLA NO. E-8, HILL RIDGE VILLAS, GACHI BOWLI, HYDERABAD ANDHRA PRADESH 3. GOVERNMENT OF ANDHRA PRADESH REP. BY ITS PRINCIPAL SECRETARY (REVENUE), SECRETARIAT BUILDINGS, SECRETARIAT, HYDERABAD ANDHRA PRADESH 4. A.P. INDUSTRIAL INFRATRUCTURE CORPORATION LIMITED REP. BY ITS MANAGING DIRECTOR, (APIIC), PARISHRAM BHAVAN, 6TH FLOOR, FATEHMAIDAN ROAD, BASHEERBAGH, HYDERABAD ANDHRA PRADESH 5. EMAAR MGF LAND LIMITED HAVING ITS REGISTERED OFFICE AT ECE HOUSE, 28, KASTURBA GANDHI MARG, NEW DELHI-110001 ...........Respondent(s) BEFORE: HON'BLE MR. JUSTICE V.B. GUPTA, PRESIDING MEMBER HON'BLE MR. PREM NARAIN, MEMBER For the Appellant : Mr. Amit Mahajan, Adv. with Ms. Neha Jain, Adv.
Mr. Y. Rajagopala Rao, Adv.
Mr. Atul Sharma, Adv. with Ms. Isha J. Kumar, Adv. For the Respondent : Mr. Suyodhan Byrapaneni, Adv. for R-1 & R-2 Mr. Y. Rajagopala Rao, Adv. for R-3 & R-4 Mr. Atul Sharma, Adv. with Ms. Isha J. Kumar, Adv. for R-5 Mr. Suyodhan Byrapaneni, Adv. for R-1& R-2 Mr. Atul Sharma, Adv. with Ms. Isha J. Kumar, Adv. for R-3 & R-4 Mr. Suyodhan Byrapaneni, Adv. for R-1 & R-2 Mr. Y. Rajagopala Rao, Adv. for R-3 and R-4 Dated : 19 Feb 2016 ORDER
In above appeals filed by Appellants/Opposite Parties, there is challenge to impugned order dated 19.09.2013, passed by A.P. State Consumer Disputes Redressal Commission, Hyderabad(for short, 'State Commission') in Consumer Complaints Nos.30 & 40 of 2012, filed by Complainants/Respondent Nos.1 & 2.
2. Brief facts are, that Complainants--Smt. Sweenie Reddy and Mr. Radhive Reddy filed Consumer Complaint No.30 of 2012, whereas Complainants--Prabhakar Solipuram and Mrs. Veena, filed Consumer Complaint No.40 of 2012 against appellants, alleging deficiency on their part in not completing the construction of respective flats booked by them. Hence, complainants sought refund of the amount deposited by them.
3. Appellants were issued notice of the Complaints by the State Commission. Appellants in (F.A. Nos. 772 and 773 of 2013) appeared before the State Commission and appellant no.1 filed its written version and contested the complaints.
4. On the other hand, notices issued to Appellants in (F.A. Nos. 766 and 767 of 2013 and F.A. Nos. 818 and 819 of 2013) were returned back with the endorsement 'Left'. The State Commission in this regard, made following observations ;
"The notice sent by this Commission to Ops 3 & 4 were returned with an endorsement 'Left'. Since they are sent to last know addresses, service of notices held sufficient by virtue of Section 28(A) (3) of the Consumer Protection Act. None appeared for Ops 3 & 4 No representation."
5. Thereafter, State Commission after taking into consideration affidavit of evidence of complainants and O.P. Nos.1 and 2, allowed the complaints against O.P. Nos. 2 to 4, jointly and severally. Against O.P.No.1, complaint was dismissed.
6. Before us, appellants in (F.A. Nos.772 and 773 of 2013) have challenged the impugned order on merits, whereas appellants in (F.A. Nos.766 and 767 of 2013 and F.A. Nos. 818 and 819 of 2013) have challenged it on the ground, that they were never served before the State Commission. Since, no service was effected upon them in accordance with provisions of law, therefore impugned order is liable to be set aside.
7. We have heard learned counsel for parties and gone through the record.
8. The short question which arise for consideration is as to whether endorsement "Left" on the notice is a sufficient service as per Section 28 (A) (3) of the Act or not.
9. The Construction Agreement dated 31.10.2008 was executed between Appellants of (F.A. Nos.766 & 767 of 2013 and FA Nos. 818 and 819) and Complainants. Relevant portion of it giving the names of authorized signatory and address of parties states;
"This Agreement [hereinafter referred to as "Agreement:] is executed at Hyderabad on the 31st Day of October, 2008 BETWEEN M/S. EMAAR HILLS TOWNSHIP PRIVATE LIMITED, a Company incorporated under the Companies Act, 1956, having itS Registered Office at No.137, ANR Centre, Road No.1, Banjara Hills, Hyderbad-50034, represented by its Authorized signatory, Mr. G.V. Vijay Raghav(hereinafter referred to as the "OWNER", which expression shall whenever the context so requires or admits mean and include its successor-in-title and assigns);
M/S. EMAAR MGF LAND LIMITED a Company incorporated under the Companies Act, 1956, having its Registered Office at ECE House, 28, Kasturba Gandhi Marg, New Delhi-110001 represented by its Authorized signatory, Jami Satish (hereinafter referred to as the "DEVELOPER CUM GENERAL POWER OF ATTORNEY", which expression shall wherever the context so requires or admits mean and include its successor-in-title and assigns);
AND Mrs. SWEENIE REDDY LOKA aged about 29 years W/o Mr. P. Radhive Reddy residing at 301, Palanati Nilayam, SBI Officers Colony, Bagh Amberpet, Hyderabad-500013 having Permanent Account Number. ABNPL5549F and Mr. RADHIVE REDDY aged about 32 years s/o Mr. Podduturi Hanmanth Reddy residing at 301, Palanati Nilayam, SBI Officers Colony, Bagh Amberpet, Hyderabad-500013 having Permanent Account Number. AGOPR6105P (hereinafter referred as to as the "PURCHASER" which expression shall wherever the context so requires or admits, mean and include, his/her/their legal heirs executors, administrators and assigns);
10. As per above agreement, on behalf of M/S. Emaar Hills Townships Private Limited, Appellants of (F.A. Nos. 818 & 819 of 2013) it was signed by its authorized signatory, Mr. G.V. Vijay Raghav, whereas on behalf of M/s. MGF Land Limited. Appellants of (FA No. 766 and 767 of 2013) it was signed by its authorized signatory, Mr. Jami Satish.
11. It is appellants' case that no notice was sent to them at their registered address. In fact, notice was sent to Mr. G.V. Vijay Raghav only at his Hyderabad address. The mere fact, that a legal notice was received by Mr. G.V. Vijay Raghav and replied by these appellants, would have no bearing as notice was required to be sent at their registered address. Thus, the impugned order is without jurisdiction and is liable to be set aside.
12. On the other hand it is Complainants' case, that legal notice dated 23.11.2011, sent to above appellants was received by them and same was duly replied through their advocate on 13.01.2013. Now, it does not lie in their mouth to take the stand, that no notice was sent to them. Since, appellants have chosen not to appear despite service, the State Commission rightly passed the impugned order
13. Section 28A of the Act, deals with service of notice etc, which read as under;
"[28A. Service of Notice, etc.-- (1) All notice, required by this Act to be served, shall be served in the manner hereinafter mentioned in sub-section (2).
(2). The service of notice may be made by delivering or transmitting a copy thereof by registered post acknowledgement due addressed to opposite party against whom complaint is made or to the complainant speed post or by such courier service as are approved by the District Forum, the State Commission or the National Commission, as the case may be, or by any other means of transmission of documents(including FAX message).
(3) When an acknowledgement or any other receipt purporting to be signed by the opposite party or his agent or by the complainant is received by the District Forum, the State Commission or the National Commission, as the case may be, or postal articles containing the notice is received back such District Forum, State Commission or the National Commission, with an endorsement purporting to have been made by a postal employee or by any person authorized by the courier service to the effect that the opposite party or his agent or complainant had refused to take delivery of the postal article containing the notice or had refused to accept the notice by any other means specified in sub-section (2) when tendered or transmitted to him, the District Forum or the State Commission or the national Commission, as the case may be, shall declare that the notice had been duly served on the opposite party or to the complainant.
Provided that where the notice was properly addressed, pre-paid and duly sent by registered post acknowledgement due, a declaration referred to in this sub-section shall be notwithstanding the fact that the acknowledgement has been lost or mislaid, or for any other reason, has not been received by the District Forum, the State Commission or the National Commission, as the case may be, within thirty days from the date of issue of notice.
(4) All notices required to be served on an opposite party or to complainant shall be deemed to be sufficiently served, if addressed in the case of the opposite party to the place where business or profession is carried and in case of complainant, the place where such person actually and voluntarily resides.]"
14. Above Section nowhere contain any provision, that endorsement 'Left' shall be proper service as per above provision of the Act.
15. The registered office address of Appellants' Company as per agreement is;
"Emaar MGF Land Limited, having its Registered Office at ECE House, 28, Kasturba Gandhi Marg, New Delhi-110001."
16. Admittedly, no notices were sent at this address. In fact, notice was sent by State Commission at the address of Mr. G. V. Vijay Raghav, Attorney of Appellant in (F.A. Nos. 818 & 819 of 2013). It is clear from the record, that Mr.G.V. Vijay Raghav has no concern with Appellant of (F.A. Nos. 766 and 767 of 2013), since agreement on behalf of this appellant was signed by its authorized signatory, Mr. Jammi Satish.
17. When notice has been received back with endorsement 'Left', the State Commission was bound to ask the complainants to furnish fresh address of the appellants if any, failing which it should have got Publication effected at the last known address of the appellants. No such procedure was followed by the State Commission, after notice was received back with endorsement 'Left'. Therefore, we have no hesitation in holding, that notices of the complaints were never not sent to the Appellants of (F.A. Nos.766 & 767 of 2013 and 818 and 819 of 2013) at their registered office address. Since, there was no service upon the appellants in accordance with provisions of law, under such circumstances, the impugned order is liable to be set aside as the same has been passed against all the appellants, jointly and severally.
18. Accordingly, we set aside the impugned order. Consequently, First Appeals Nos.766-767 and 818 & 819 of 2013) are allowed. The above matters are remanded back to the State Commission to decide the same afresh in accordance with provisions of law. Appellants shall file their written versions, within four weeks from today with copy to the complainants.
19. Parties are directed to appear before the State Commission on 14th April, 2016.
......................J V.B. GUPTA PRESIDING MEMBER ...................... PREM NARAIN MEMBER