National Consumer Disputes Redressal
Spaze Towers Private Limited vs Promil Yogeshwar Trehan & Anr. on 23 February, 2022
Author: R.K. Agrawal
Bench: R.K. Agrawal
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI FIRST APPEAL NO. 58 OF 2021 (Against the Order dated 11/01/2020 in Complaint No. 934/2019 of the State Commission Delhi) 1. SPAZE TOWERS PRIVATE LIMITED THROUGH ITS AUTHORIZED REPRESENTATIVE , MR. CHANDRA SHEKHAR SHARMA, REGISTERED OFFICE AT : A-307, ANSAL CHAMBERS-I, 3, BHIKAJI CAMA PLACE, NEW DELHI-110066 ...........Appellant(s) Versus 1. PROMIL YOGESHWAR TREHAN & ANR. 2. UTPAL TREHAN S/O DR. MR. Y.N. TREHAN, RESIDENT OF D/1-121, JANAK PURI, NEW DELHI-110058 3. - - ...........Respondent(s)
BEFORE: HON'BLE MR. JUSTICE R.K. AGRAWAL,PRESIDENT HON'BLE MR. BINOY KUMAR,MEMBER For the Appellant : For the Appellant : Mr. Lokesh Bhola, Advocate For the Respondent : For the Respondents : Ms. Promil Yogeshwar Trehan, in person Dated : 23 Feb 2022 ORDER The present Appeal has been filed against the interim Order dated 11.01.2020 passed by the Delhi State Consumer Disputes Redressal Commission (hereinafter to be referred to as "State Commission"), whereby the Application, seeking permission to file additional documents, moved by Spaze Towers Private Limited (hereinafter referred to as the Appellant Builder) was dismissed.
Brief facts of the case are that Promil Yogeshwar Trehar and her son Mr. Utpal Trehan (hereinafter referred to as the Respondents) booked a Unit in the Project 'Space Buziness Park' to be developed by the Appellant Builder. Unit No. G-8 was provisionally allotted to the Respondents for a total sale consideration of ₹51,82,346/- vide allotment letter dated 22.01.2010 stating that the Builder Buyer Agreement shall be executed upon payment of at least 30% consideration. Despite reminders when the Respondents failed to make the payment of 30% of the Basic Consideration till Feb., 2013, i.e., after more than 3 ½ years from the date of booking, the Appellant Builder vide letter dated 19.02.2013 cancelled the provisional allotment of the said Unit and sent the Final Statement of Accounts after deducting 15% earnest money from the amount deposited by the Respondents.
Being aggrieved, the Respondents/Complainants filed Consumer Complaint before the State Commission. Reply was filed by the Appellant Builder. It is the say of the Appellant that without seeking permission of the State Commission, the Respondents/Complainants filed their Evidence by way of Affidavit alongwith 6 new sets of documents before the State Commission. The Appellant Builder filed Application seeking permission to place on record additional documents in support of the pleadings made by it in its Written Statement. Vide Order dated 11.01.2021, the State Commission dismissed the said Application filed by the Appellant Builder.
Feeling aggrieved by the Order dated 11.01.2021 passed by the State Commission, the Appellant Builder has filed the present Appeal before this Commission.
We have heard Mr. Lokesh Bhola, learned Counsel for the Appellant, Ms. Promil Yogeshwar Trehan, Respondent/Complainant in person and perused the material available on record.
The principle allowing or rejecting an amendment of the pleadings has emanated from Order 6 Rule 17 of the Code of Civil Procedure, which reads as under:
"17. Amendment of pleadings.--The court may at any stage of the proceedings allow either party to alter or amend his pleading in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties:
Provided that no application for amendment shall be allowed after the trial has commenced, unless the court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial."
From a bare perusal of Order 6 Rule 17 of the Code of Civil Procedure, it is clear that the court is conferred with power, at any stage of the proceedings, to allow alteration and amendments of the pleadings if it is of the view that such amendments may be necessary for determining the real question in controversy between the parties. The proviso to Order 6 Rule 17 of the Code, however, provides that no application for amendment shall be allowed after the trial has commenced unless the court comes to a conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial. However, proviso to Order 6 Rule 17 of the Code would not be applicable in the present case, as the trial has not yet been commenced in the matter.
In the instant case the Appellant Builder moved Application before the State Commission seeking permission to file additional documents in support of the pleadings made by it in its Written Statement, but the said Application was dismissed by the State Commission. It is settled principle of law that the Admission made in Written Statement can be permitted to be explained and inconsistent pleas can be taken in Amendment Petition even after taking a definite stand in the Written Statement. The Hon'ble Supreme Court in "Sushil Kumar Jain vs. Manoj Kumar and Anr. [AIR 2009 SC 254]" has dealt with the issue and held as under:-
"11. Similar view has also been expressed in Usha Balashaheb Swami and Ors. v. Kiran Appaso Swami and Ors. MANU/SC/7318/2007: AIR2007SC1663. It is equally well settled that in the case of an amendment of a written statement, the Courts would be more liberal in allowing than that of a plaint as the question of prejudice would be far less in the former than in the latter and addition of a new ground of defence or substituting or altering a defence or taking inconsistent pleas in the written statement can also be allowed.
12. Keeping these principles in mind, let us now take up the question raised before us by the learned Counsel for the parties. As stated herein earlier, the admission made by a defendant in his written statement can be explained by filing the application for amendment of the same. This principle has been settled by this Court in Panchdeo Narain Srivastava v. K. Jyoti Sahay MANU/SC/0019/1983: AIR1983SC462, while considering this issue, held that the admission made by a party may be withdrawn or may be explained. It was observed in paragraph 3 of the said decision as follows:
An admission made by a party may be withdrawn or may be explained away. Therefore, it cannot be said that by amendment, an admission of fact cannot be withdrawn....
13. In view of our discussions made hereinabove and applying the principles laid down by this Court in the aforesaid decisions, we are therefore of the view that the High Court as well as the learned Rent Controller had acted illegally and with material irregularity in the exercise of its jurisdiction in not allowing the application for amendment of the written statement of the appellant.
14. Before parting with this judgment, a short submission as advanced by the learned Counsel for the respondents may be dealt with. Referring to the proviso to Order 6 Rule 17 of the CPC, the learned Counsel for the respondents argued that the proviso clearly bars that any application for amendment either of plaint or of written statement can be allowed after trial has commenced unless the Court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of the trial. Therefore, the learned Counsel for the respondents submitted that in view of the proviso to Order 6 Rule 17 of the CPC, the High Court as well as the Rent Controller had acted within their jurisdiction in rejecting the application for amendment of the written statement on the ground that the trial has already commenced and, therefore, no interference can be made in respect of the same.
15. We are unable to agree with this submission of the learned Counsel for the respondents. In this case, in our view, the trial has not yet commenced. In para 17, of Baldev Singh (Supra), this Court observed:
It appears from the records that the parties have yet to file their documentary evidence in the suit. From the record, it also appears that the suit was not on the verge of conclusion as found by the High Court and the Trial Court. That apart, commencement of trial as used in proviso to Order 6 Rule 17 in the Code of Civil Procedure must be understood in the limited sense as meaning the final hearing of the suit, examination of witnesses, filing of documents and addressing of arguments. As noted hereinafter, parties are yet to file their documents, we do not find any reason to reject the application for amendment of the written statement in view of proviso to Order 6 Rule 17 of the CPC which confers wide power and unfettered discretion to the Court to allow an amendment of the written statement at any stage of the proceedings.
16. In view of the aforesaid decision and in view of the admitted fact that not even the issues have yet been framed, documents have not yet been filed, evidence has not yet been adduced, we are of the view that the proviso to Order 6 Rule 17 of the CPC has no manner of application as the trial has not yet commenced.
17. Accordingly, the impugned order of the High Court as well as that of the Rent Controller, Chandigarh, is set aside. The application for amendment of the written statement is thus allowed. The Rent Controller, Chandigarh, is directed to permit amendment of the written statement and, thereafter, proceed with the hearing of the eviction proceeding. The Rent Controller, Chandigarh is directed to dispose of the ejectment proceeding within six months from the date of supply of a copy of this order to it."
For the reasons stated hereinabove, we are of the considered opinion that the State Commission erred in dismissing the Application filed by the Appellant Builder seeking permission to file additional documents in support of the pleadings made by it in its Written Statement. Consequently, the Order dated 11.01.2021 passed by the State Commission is set aside. Application filed by the Appellant Builder seeking permission to file the additional document is allowed and the additional documents filed by the Appellant Builder be taken on record of the State Commission. Appellant Builder is directed to supply copies of the additional documents to the Respondents/Complainants. Both the Parties are directed to appear before the State Commission on 16.03.2022 for further directions.
The First Appeal stands disposed off in above terms.
......................J R.K. AGRAWAL PRESIDENT ...................... BINOY KUMAR MEMBER