National Consumer Disputes Redressal
M/S Mehta Build Con. Ltd. vs Kanta Rani & Ors. on 6 January, 2012
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION, NEW DELHI REVISION PETITION NO. 4523 OF 2009 (From the order dated 12.11.2009 in Appeal No.108/2009 of the State Commission UT Chandigarh) M/s Mehta Build Con. Ltd. Through its Director Vinod Mehta, H.N. 376, Sector 46-A, Chandigarh Petitioner Versus 1. Kanta Rani W/o Chander Prakash alias Pampai 2. Chander Prakash alias Pampai Both R/o Fazilka 3. J.S. Dwellers (P) Ltd. Through Sh. Sandeep Singh Sabbarwal, H.No. 1385, Sector 34-A, Chandigarh .. Respondents BEFORE HONBLE MR. SURESH CHANDRA, PRESIDING MEMBER For the Petitioner : Mr. Deepak Aggarwal, Advocate For the Respondents : NEMO (Ex-parte) DATED: JANUARY 6, 2012 ORDER
PER SURESH CHANDRA, MEMBER This revision petition has been filed by M/s Mehta Build Con. Ltd. who was opposite party No.1. Respondents No.1 & 2 are complainants and respondent No.3 is opposite party No.2 before the District Forum.
2. Briefly stated, the opposite parties vide receipts No.661 dated 28.1.2006 and 667 dated 28.1.2006 received Rs.25,000/- from each of the two complainants on account of pre-launch booking for their upcoming project, namely, Crescent Apartment in Kharar, District Mohali. When considerable period had passed but neither any project had been started nor any documents of title were being shown to the complainants, the two complainants filed a joint complaint before the District Forum praying for refund of their deposit and compensation. Reply was filed to the complaint by OP No.1/petitioner who pleaded that it had not received any amount from the complainants and had not issued any receipts in question on account of pre-launch booking as alleged in the complaint. It was further submitted that OP No.1 had no concern with the complainants with reference to the deal/contract, if any, executed between the complainants and OP No.2. Denying other material contentions raised in the complaint, it was pleaded by OP No.1 that there was no deficiency in service on its part and prayed for dismissal of the complaint. OP No.2 could not be served.
3. On appraisal of the issues and evidence adduced, the District Forum dismissed the complaint vide its order dated 19.1.2009.
4. Aggrieved by the aforesaid order of the District Forum, the complainants challenged the same before the State Consumer Disputes Redressal Commission UT Chandigarh (State Commission for short) by filing an appeal against this order. The State Commission vide its impugned order dated 12.11.2009 set aside the order of the District Forum and allowed the appeal which has now been challenged by the petitioner through the present revision petition.
5. We have heard Mr. Deepak Aggarwal, learned counsel for the petitioner. None has appeared for respondents in respect of whom notice was issued through publication under substituted service. They have, therefore, been proceeded ex-parte.
6. Besides reiterating that the receipts in question had been issued by OP No.2/respondent No.3 and that the petitioner was not a partner in the project for which the booking was allegedly done by OP No.2 and that petitioners name does not figure in the copy of the brochure filed by the complainants with the District Forum, the main contention of learned counsel for the petitioner before us is that the impugned order is perverse since it is based on facts and documents which have been brought before the State Commission by the complainants for the first time without their being produced before the District Forum. In this context, learned counsel for the petitioner specifically pointed out that the State Commission failed to take into consideration the contents of the affidavit dated 4.11.2009 of the petitioner filed before the State Commission, in which it has been submitted that 7 documents specified at page 2 of the affidavit at serial Nos. (a) to (g) have been introduced for the first time in appeal and that too without any application seeking permission of the State Commission to do so. This is contrary to the law laid down by the Apex Court in the case of M/s Modern Insulators Ltd. vs. Oriental Insurance Co. Ltd. AIR 2000 (SC) 1014 in which it has been held that in an appeal, the parties cannot urge new facts. Placing reliance on the ratio of this case, learned counsel argued that the impugned order cannot be sustained in the eye of law and hence deserves to be set aside. He pointed out that a copy of the affidavit of the petitioner before the State Commission is placed at page 62 of the paper book.
7. Since learned counsel for the petitioner submitted that the aforesaid documents mentioned in the affidavit of the petitioner were considered for the first time in appeal by the State Commission and the impugned order is based on these documents, we have called for the record of the District Forum and the State Commission.
8. We have carefully considered the submissions and have also perused the record. On going through the record of the District Forum, we find that the documents specified at page 2 of the affidavit of the petitioner before the State Commission are part of the record of the District Forum. The paper book of the District Forum shows that document at serial No. (a) is at pages 54-59, documents at serial Nos. (b) & (c) at page 61, document at serial No. (d) at page 63, document at serial No. (e) at page 64 etc. It is, therefore, clear to us that the submission made by the petitioner in his affidavit is factually incorrect and hence the plea taken by learned counsel in this regard is rejected. Coming to other contentions and merits of this case, we find that in spite of the fact that all the documents were placed before the District Forum, the District Forum erred in ignoring them and failed to draw obvious inference from the contents thereof with reference to the facts and circumstances of the present case. Perusal of the impugned order shows that the State Commission has rightly set aside the order of the District Forum and unsuited the defence of the petitioner while allowing the appeal filed by the complainants. The State Commission has recorded the following reasons in support of the impugned order: -
In the appeal, the appellant averred that its golden law of the land that the fact once admitted cannot be withdrawn and in numbers of similar matter, OP No.1 Mehta Construction being partner of the firm has not only accepted his liability to refund the amount rather refunded the amount of consumer from his sole accounts. It is further contended that the District Forum has miserably failed to observe and wrongly accepted his new and self-contradictory version in the matter, claiming that he has no liability because the receipts are not reflecting his name. Thus the order deserves to be set aside inter alia on this score.
We have heard the learned counsel for the appellant and OP No.1. None appeared on behalf of OP No.2, neither before the District Forum nor before us. After hearing the learning counsel for the appellant and OP No.1 and after perusal of the record, we have come to the conclusion that OP No.1 cannot deny his liability in the present case. It is pertinent to note that the OP No.1 had settled some similar disputes in Lok Adalat by paying back the initial deposit amounts to some parties, who had knocked at the door of District Forum. The District Forum by using its good offices reconciled/settled the matter amongst the litigants in Lok Adalat and the OP No.1 repaid the amount, which was also collected by OP No.2. The receipts issued by M/s J.S. Dwellers the OP No.2 were produced before the Court by M/s Mehta Construction, the OP No.1 settled the dispute and paid Rs.25,000/- each to the complainant. Therefore, the OP No.1 cannot be allowed to take the different stand. The OP No.1 cannot be allowed to take a totally contradictory stand against the similar consumer qua the same grievance against the same OP. The liability of the OP is proved beyond doubt.
The District Forum has also erred in holding that the OP No.1 is not liable, as its name does not figure on the brochure, which shows that OP No.2 is the promoter. On perusal of the record, it was found that name of OP No.1, as equal promoter, finds mention on Page M of the brochure. Moreover, the document Apartment Buyer(s) Agreement was also signed by OP No.1, thus the liability of OP No.1 is proved on file.
9. We agree with the view taken by the State Commission in its impugned order. To us, it appears to be a case in which the two parties seem to have joined hands to collect booking amounts from innocent parties in a clandestine manner. A situation has now been created in which the innocent and ignorant parties have been deprived of their hard-earned money without allotment of property in question being insight. Admittedly, OP No.1 and OP No.2 were partners though it is now claimed that it was a different project. It is also not in dispute that OP No.1 has honoured a number of similar receipts issued by OP No.2 as per the documents placed on record. This being the position, we do not find any illegality or jurisdictional error in the well reasoned order of the State Commission which is based on finding of facts. There is, therefore, no merit in the revision petition. The same stands dismissed with no order as to costs.
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(SURESH CHANDRA) PRESIDING MEMBER Raj/