National Consumer Disputes Redressal
M/S. M - Tech Developers Ltd. & 2 Ors. vs Mainalini Ravela on 21 April, 2015
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI FIRST APPEAL NO. 244 OF 2013 (Against the Order dated 28/01/2013 in Complaint No. 146/2010 of the State Commission Delhi) WITH IA/2049/2013,IA/7354/2014,IA/8144/2013 1. M/S. M - TECH DEVELOPERS LTD. & 2 ORS. Rgd. office at: 144/2 Ashram, Mathura Road, NEW DELHI-110014 2. MAHENDRA SHARMA Chairman of M/s-Tech Developers Ltd., RGD. Office at : 144/2 Ashram, Mathura Road, NEW DELHI-110014 3. AMIT KUMAR JHA Managing Director of M/s-Tech Developers Ltd., RGD. Office at : 144/2 Ashram, Mathura Road, NEW DELHI-110014 ...........Appellant(s) Versus 1. VANDANA GOYAL FAMILY TRUST R/O. 13/34/WEA, Karol Bagh, NEW DELHI-110005 ...........Respondent(s) FIRST APPEAL NO. 245 OF 2013 (Against the Order dated 28/01/2013 in Complaint No. 146/2010 of the State Commission Delhi) WITH
IA/2049/2013,IA/7354/2014,IA/8144/2013 1. M/S. M - TECH DEVELOPERS LTD. & 2 ORS. Rgd. office at: 144/2 Ashram, Mathura Road, NEW DELHI-110014 2. MAHENDRA SHARMA Chairman of M/s-Tech Developers Ltd., RGD. Office at : 144/2 Ashram, Mathura Road, NEW DELHI-110014 3. AMIT KUMAR JHA Managing Director of M/s-Tech Developers Ltd., RGD. Office at : 144/2 Ashram, Mathura Road, NEW DELHI-110014 ...........Appellant(s) Versus 1. NEIL GOYAL FAMILY TRUST R/o. 13/34 WEA, Krol Bagh, NEW DELHI-110005 ...........Respondent(s) FIRST APPEAL NO. 246 OF 2013 (Against the Order dated 28/01/2013 in Complaint No. 147/2010 of the State Commission Delhi) WITH IA/2049/2013,IA/7354/2014,IA/8144/2013 1. M/S. M - TECH DEVELOPERS LTD. & 2 ORS. Rgd. office at: 144/2 Ashram, Mathura Road, NEW DELHI-110014 2. MAHENDRA SHARMA Chairman of M/s-Tech Developers Ltd., RGD. Office at : 144/2 Ashram, Mathura Road, NEW DELHI-110014 3. AMIT KUMAR JHA Managing Director of M/s-Tech Developers Ltd., RGD. Office at : 144/2 Ashram, Mathura Road, NEW DELHI-110014 ...........Appellant(s) Versus 1. TARUN AND SONS R/O. 13/34/WEA, Karol Bagh, NEW DELHI-110005 ...........Respondent(s) FIRST APPEAL NO. 247 OF 2013 (Against the Order dated 28/01/2013 in Complaint No. 148/2010 of the State Commission Delhi) WITH IA/2049/2013,IA/7354/2014,IA/8144/2013 1. M/S. M - TECH DEVELOPERS LTD. & 2 ORS.
Rgd. office at: 144/2 Ashram, Mathura Road, NEW DELHI-110014 2. MAHENDRA SHARMA Chairman of M/s-Tech Developers Ltd., RGD. Office at : 144/2 Ashram, Mathura Road, NEW DELHI-110014 3. AMIT KUMAR JHA Managing Director of M/s-Tech Developers Ltd., RGD. Office at : 144/2 Ashram, Mathura Road, NEW DELHI-110014 ...........Appellant(s) Versus 1. TARUN GOYAL S/O. GIRI RAJ GOYAL, R/O. 13/34/WEA, Karol Bagh, NEW DELHI-110005 ...........Respondent(s) FIRST APPEAL NO. 248 OF 2013 (Against the Order dated 28/01/2013 in Complaint No. 149/2010 of the State Commission Delhi) WITH IA/2049/2013,IA/7354/2014,IA/8144/2013 1. M/S. M - TECH DEVELOPERS LTD. & 2 ORS. Rgd. office at: 144/2 Ashram, Mathura Road, NEW DELHI-110014 2. MAHENDRA SHARMA Chairman of M/s-Tech Developers Ltd., RGD. Office at : 144/2 Ashram, Mathura Road, NEW DELHI-110014 3. AMIT KUMAR JHA Managing Director of M/s-Tech Developers Ltd., RGD. Office at : 144/2 Ashram, Mathura Road, NEW DELHI-110014 ...........Appellant(s) Versus 1. GIRI RAJ GOYAL & SONS (H.U.F.) R/O. 13/34/WEA, Karol Bagh, NEW DELHI-110005 ...........Respondent(s) FIRST APPEAL NO. 249 OF 2013 (Against the Order dated 28/01/2013 in Complaint No. 191/2010 of the State Commission Delhi) WITH IA/2049/2013,IA/7354/2014,IA/8144/2013 1. M/S. M - TECH DEVELOPERS LTD. & 2 ORS. Rgd. office at: 144/2 Ashram, Mathura Road, NEW DELHI-110014 2. MAHENDRA SHARMA Chairman of M/s-Tech Developers Ltd., RGD. Office at : 144/2 Ashram, Mathura Road, NEW DELHI-110014 3. AMIT KUMAR JHA Managing Director of M/s-Tech Developers Ltd., RGD. Office at : 144/2 Ashram, Mathura Road, NEW DELHI-110014 ...........Appellant(s) Versus 1. M/S. MECSPERT SYSTEMS PVT. LTD. R/O. D-II/2210, VASANT KUNJ, NEW DELHI-110070 ...........Respondent(s) FIRST APPEAL NO. 250 OF 2013 (Against the Order dated 28/01/2013 in Complaint No. 192/2010 of the State Commission Delhi) WITH IA/2049/2013,IA/7354/2014,IA/8144/2013 1. M/S. M - TECH DEVELOPERS LTD. & 2 ORS. Rgd. office at: 144/2 Ashram, Mathura Road, NEW DELHI-110014 2. MAHENDRA SHARMA Chairman of M/s-Tech Developers Ltd., RGD. Office at : 144/2 Ashram, Mathura Road, NEW DELHI-110014 3. AMIT KUMAR JHA Managing Director of M/s-Tech Developers Ltd., RGD. Office at : 144/2 Ashram, Mathura Road, NEW DELHI-110014 ...........Appellant(s) Versus 1. MAINALINI RAVELA R/O. D-II/2210, VASANT KUNJ, NEW DELHI-110070 ...........Respondent(s) FIRST APPEAL NO. 251 OF 2013 (Against the Order dated 28/01/2013 in Complaint No. 193/2010 of the State Commission Delhi) WITH IA/2049/2013,IA/7354/2014,IA/8144/2013 1. M/S. M - TECH DEVELOPERS LTD. & 2 ORS. Rgd. office at: 144/2 Ashram, Mathura Road, NEW DELHI-110014 2. MAHENDRA SHARMA Chairman of M/s-Tech Developers Ltd., RGD. Office at : 144/2 Ashram, Mathura Road, NEW DELHI-110014 3. AMIT KUMAR JHA Managing Director of M/s-Tech Developers Ltd., RGD. Office at : 144/2 Ashram, Mathura Road, NEW DELHI-110014 ...........Appellant(s) Versus 1. R. INDIRA SAROJINI W/O. SH. RUSSIN BHASKARUDU, R/O. D-II/2210, VASANT KUNJ, NEW DELHI-110070 ...........Respondent(s) FIRST APPEAL NO. 252 OF 2013 (Against the Order dated 28/01/2013 in Complaint No. 194/2010 of the State Commission Delhi) WITH IA/2049/2013,IA/7354/2014,IA/8144/2013 1. M/S. M - TECH DEVELOPERS LTD. & 2 ORS. Rgd. office at: 144/2 Ashram, Mathura Road, NEW DELHI-110014 2. MAHENDRA SHARMA Chairman of M/s-Tech Developers Ltd., RGD. Office at : 144/2 Ashram, Mathura Road, NEW DELHI-110014 3. AMIT KUMAR JHA Managing Director of M/s-Tech Developers Ltd., RGD. Office at : 144/2 Ashram, Mathura Road, NEW DELHI-110014 ...........Appellant(s) Versus 1. M/S. MECSPERT SYSTEMS PVT. LTD. R/O. D-II/2210, VASANT KUNJ, NEW DELHI-110070 ...........Respondent(s) FIRST APPEAL NO. 253 OF 2013 (Against the Order dated 28/01/2013 in Complaint No. 195/2010 of the State Commission Delhi) WITH IA/2049/2013,IA/7354/2014,IA/8144/2013 1. M/S. M - TECH DEVELOPERS LTD. & 2 ORS. Rgd. office at: 144/2 Ashram, Mathura Road, NEW DELHI-110014 2. MAHENDRA SHARMA Chairman of M/s-Tech Developers Ltd., RGD. Office at : 144/2 Ashram, Mathura Road, NEW DELHI-110014 3. AMIT KUMAR JHA Managing Director of M/s-Tech Developers Ltd., RGD. Office at : 144/2 Ashram, Mathura Road, NEW DELHI-110014 ...........Appellant(s) Versus 1. M/S. MECSPERT SYSTEMS PVT. LTD. R/O. D-II/2210, VASANT KUNJ, NEW DELHI-110070 ...........Respondent(s) BEFORE: HON'BLE MR. JUSTICE D.K. JAIN, PRESIDENT HON'BLE MR. VINAY KUMAR, MEMBER HON'BLE MRS. M. SHREESHA, MEMBER For the Appellant : For the Appellants : Mr. R.N. Mittal, Sr. Advocate with in all the appeals Ms. Amita Gupta, Advocate and Mr. Gaurav Bhardwaj, Advocate. For the Respondent : For Respondents : Mr. Akshay Bhatia, Advocate and In all the appeals Mr. Bharat Sharma, Advocate.
Dated : 21 Apr 2015 ORDER This batch of 10 Appeals by a Real Estate Developer, its Chairman and Managing Director, under Section 19 of the Consumer Protection Act, 1986 (for short "the Act") arises out of a common order dated 28.01.2013 passed by the State Consumer Disputes Redressal Commission, Delhi (for short "the State Commission") in Complaints No. 145 to 149 & 191 to 195 of 2010. By the impugned order, while partly allowing the Complaints preferred by the Respondents, the State Commission has directed the Appellants to deliver to the Respondents peaceful and complete possession of the Villas known as Camellia Garden-1 at Bhiwadi (Rajasthan) and also execute the Conveyance Deed in their favour within one month thereafter.
2. As a common issue is involved in all the Appeals and even the background facts are identical, these are being disposed of by this common order. However, in order to appreciate the controversy involved and rival stands therein, we shall briefly refer to the facts of Appeal No. 244/2013.
3. The genesis of the dispute emanates from a Buyer-Seller Agreement dated 15.07.2008, whereunder the Respondent had agreed to purchase a furnished luxury Villa on a plot area of 300 sq. yds. with a built-up area of 3000 sq. ft. at Bhiwadi (Rajasthan), advertised as Camellia Garden-I. The Villa was offered at a total cost of ₹37.50 lakhs. Subject to payment of full amount of consideration, the Appellant Company had committed to pay a minimum assured return of 12% p.a. on the deposited amount with effect from 15.07.2008, by way of post-dated cheques in terms of Clause 'B' of the said agreement. Clause 'D' of the agreement also postulated that in case a particular Villa is not constructed and an alternative Villa of the same type is not accepted by the allottee, the Company shall refund the actual amount received from the allottee with interest @ 8% p.a.
4. Admittedly, the possession of the Villa Could not be delivered by the stipulated time. Even the cheques, issued by the Appellants in favour of the Respondents towards assured return of 12% p.a. on the deposited amount, were dishonoured by the Bank on presentation, which resulted in filing of criminal complaints against the Appellants under Section 138 of Negotiable Instruments Act, 1881. Faced with the situation, after issuing a legal notice to the Appellants, alleging deficiency in service on their part as also breach of trust, forgery, etc., the Respondent filed Complaint against the Appellants, inter alia, praying for a direction to them to execute the title documents in respect of the allotted Villa along with interest @ 12% p.a. on the amount deposited by the Respondent. On admission of the Complaint, on 09.08.2010, the State Commission issued notices to the Appellants by Registered Acknowledgement due post, calling upon them to file their written version. Though the acknowledgement cards were received back in the office of the State Commission but they did not bear any stamp or signatures of the Appellants. However, on a statement being made on behalf of the Counsel for the Respondents, on affidavit, that when he had visited the office of the Appellants to serve 'dasti' notice, they refused to accept the same, the State Commission came to the conclusion that the Appellants were deliberately avoiding appearance. Accordingly, the State Commission took ex-parte proceedings against the Appellants and proceeded to dispose of the Complaint on merits on the basis of the documents filed by the Respondent and issued the afore-sated directions. Hence, the present Appeals.
5. Mr. R.N. Mittal, Learned Senior Counsel and Ms. Amita Gupta, Advocate, strenuously urged that since the Acknowledgement Cards, received back in the office of the State Commission, did not bear the signatures of the addressees, the State Commission committed a serious error in presuming that the notices must have been served, merely on the basis of the statement of Counsel for the Respondent. It was contended that since the Appellants have been deprived of their valuable right to put forth their defence in the Complaint, the principles of natural justice demand that an opportunity be afforded to them to have their say before the State Commission. It was urged that the Appellants have a very strong case on merits inasmuch as, the Villas in question having been booked by the Respondents as an investment, they were not "Consumers" within the meaning of Section 2(1)(d) of the Act and therefore, the Complaints were per se not maintainable. Certain issues regarding the nature of financial transactions were also raised.
6. It is trite that the concept of "natural justice" can neither be put in a straitjacket nor is it a general rule of universal application. Rules of "natural justice" are not embodied rules either. The phrase "natural justice" is also not capable of precise definition. The underlying principle of natural justice, evolved under the Common Law, is to check arbitrary exercise of power by any Forum, judicial or administrative. The basic fact of "natural justice" is adherence to the English doctrine of audi alteram partem, which mandates that no one shall be condemned unheard, which essentially, embodies two attributes viz.; (i) notice of the case to be met; and (ii) opportunity to explain.
7. Therefore, the question for consideration in the present Appeals is whether in taking ex-parte proceedings against the Appellants by the State Commission on the basis of the afore-stated postal report, the maxim "audi alteram partem" stood violated, resulting in miscarriage of justice.?
8. In the absence of any averment by the Appellants to the effect that the address given on the envelopes containing notices, was not their correct address, we are not convinced with their stand that in the absence of signatures of the addressee on the acknowledgement card, a presumption in law about service of notice, could not be drawn. It is true that answer to the question, whether or not, the presumption of service of notice sent by post could be drawn, depends on the facts of each case. Nevertheless, when a letter is sent by registered post, the presumption of service applies with a greater force, more so, when there is no contest on the correctness of the address of the addressee, as in the present case. Having regard to the kind of relationship the Appellants had with the Respondent, particularly after facing criminal cases at their instance, we find it hard to believe that they were not aware of the filing of Complaints against them even after the visit of counsel for the Respondent to their premises. Yet we feel that having regard to the nature of the dispute between the parties, it would be in the interest of the Respondents/Complainants not to permit the Appellant to prolong the litigation on technical grounds. We feel that the modus operandi of the Appellants is to keep the Respondents engaged in litigation on technical points in order to buy time to refund even the admitted amounts, due to be refunded to them. We would not have doubted their bonafides had they refunded the admitted amounts along with contracted rate of interest, to the Respondents voluntarily when they had realized that because of insurmountable circumstances, as is being pleaded, it will not be possible for them to deliver possession of the allotted Villas. On the contrary, as noted above, the cheques issued by them to the Respondents towards the assured return of 12% in terms of Clause 'B' of the Buyer-Seller Agreements dated 15.07.2008, were dishonoured and they had to face criminal proceedings.
9. For all these reasons and to cut short the life of litigation, we are of the opinion that it would be expedient to grant an opportunity to the Appellants to have their say in the Complaints before the State Commission. Accordingly, we allow all the Appeals; set aside the impugned order and restore all the Complaints to the Board of the State Commission for fresh adjudication on merits, subject to the Appellants complying with the following directions:-
(i) as per the statement of accounts of all the Respondents filed by the Appellants, as on 30.04.2014, a total amount of ₹3,71,04,131.40 which includes interest @ 8% p.a. upto the said date, is due to all the Respondents collectively. The Appellants shall deposit in the State Commission the said sum of ₹3,71,04,131.40 along with interest @ 8% p.a. from 01.05.2014 to 31.03.2015, within six weeks from today;
(ii) the Appellants shall file their written version in all the Complaints within 45 days, the maximum time permitted under the Act;
(iii) they shall pay to each of the Respondents a sum of ₹10,000/- as costs before their written versions are taken on record; and
(iv) it will be open to the State Commission to consider the question of release of the amount, to be deposited in terms of this order, to the Respondents, after the written versions have been filed by the Appellants, on such terms and conditions as it may deem fit and proper.
10. It goes without saying that if the Appellants fail to deposit the amount mentioned above, these Appeals shall stand dismissed. Needless to add that we have not expressed any opinion on the merits of the contentions urged on behalf of the Appellants on the question of maintainability of the Complaints and the rival stands of the parties shall be evaluated on their own merit, uninfluenced by any observations above.
11. All the Appeals stand disposed of accordingly. Parties/their counsel are directed to appear before the State Commission on 15.05.2015 for further proceedings. The statutory deposits made by the Appellants shall stand transferred to the 'Consumer Welfare Fund'.
......................J D.K. JAIN PRESIDENT ...................... VINAY KUMAR MEMBER ...................... M. SHREESHA MEMBER