State Consumer Disputes Redressal Commission
Yashpal Saggi vs Omaxe on 20 July, 2012
BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-I, U
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
U.T., CHANDIGARH
Appeal
Case No.
:
107 of 2012
Date
of Institution
:
02.04.2012
Date
of Decision
:
20.07.2012
1.
Yashpal Saggi S/o Late Sh.M.L.Saggi,
2.
Asha Saggi, W/o Yashpal Saggi,
Both residents of 1630, Sector-7, Chandigarh.
--Appellants
Versus
1. M/s
Omaxe Limited through its MD, registered Office 7, Local Shopping
Centre, Kalkaji, New Delhi.
2. M/s
Omaxe Limited, SCO No.143-114, Ist floor, Sector-8, Madhya Marg, Chandigarh through its Branch Manager.
3. Lakshmi Real Estates through its proprietor
SCO No.1132-1133, Sector-22, Chandigarh.
....Respondents.
Appeal U/s 15 of
Consumer Protection Act, 1986
BEFORE: JUSTICE
SHAM SUNDER(Retd), PRESIDENT.
MRS. NEENA SANDHU,
MEMBER.
Present:
Sh.Rajesh Sood, Advocate for the appellants.
Sh.Vishal Goel, Advocate, proxy for Sh.Munish Gupta, Advocate for respondents No.1 & 2.
Respondent No.3 already ex parte.
PER JUSTICE SHAM SUNDER(Retd), PRESIDENT This appeal is directed against the order dated 13.3.2012, rendered by the District Consumer Disputes Redressal Forum-I, UT, Chandigarh (hereinafter to be called as the District Forum only), vide which it dismissed the complaint in default of appearance of the complainants (now appellants).
2. The facts, in brief, are that the complainants, vide application form annexure C1, applied for allotment of residential flat/apartment No.417, 4th floor, having super area of 1185 sq.ft. (110.09 sq.mts) in Gulmohar Tower, in a Group Housing Project known as Omaxe Parkwoods, launched by the Opposite Parties(now respondents). The complainants were to pay Rs.16,41,343/- as price of the flat, apart from the expenses, on account of car parking amounting to Rs.one lac, Club membership amounting to Rs.25,000/- and security(IMFS) Rs.20,000/-. The specification/type of flat/scheme was given as Imperial. The complainants received letter dated 5.5.2007 from Opposite Party No.2, intimating them that they were being sent copies of the agreement, which was to be executed between the parties. On receipt of the agreement, the complainants and the authorized representative of the Opposite Parties signed the same. The complainants made payment, as per the payment plan depicted in Annexure C3 agreement. It was stated that according to Condition No.28(a) of Annexure C3 agreement dated 27.6.2007, the construction of flat was to be completed within 18 months, from the date of signing the same. In case of delay in construction, the Opposite Parties, were liable to pay Rs.5/-per sq.ft. of the super area per month, for the period of delay, to the complainants. The complainants received letter dated 5.5.2007, from Opposite Party No.2 intimating them about the detail of amount due against them. Thereafter, the complainants, received letter dated 19.5.2007, vide which they were again intimated about the amount due against them. They were also intimated about the shifting of project Omaxe Parkwoods Baddi from Delhi to Chandigarh.
The complainants, in all, paid Rs.16,31,777/-, on 15.4.2007 and 19.6.2007 respectively. The complainants had been approaching the Opposite Parties continuously and requesting them to complete the construction and hand over possession of the flat to them by 31.12.2008, the date fixed for delivery of such possession, in the agreement, but to no avail. It was further stated that, by not constructing the flat, and delivering its possession, the Opposite Parties were not only deficient, in rendering service, but also indulged into unfair trade practice. When the grievance of the complainants, was not redressed, left with no alternative, a complaint under Section 12 of the Consumer Protection Act, 1986 (hereinafter to be called as the Act only) was filed by them, directing the Opposite Parties to handover possession of the flat to them ;
pay interest @ 18% p.a. on the total amount of Rs.16,31,777/- deposited by them; to pay Rs.5 lacs as damages and Rs.25,000/- as litigation expenses.
3. The complaint was admitted vide order dated 21.2.2012 and notice was ordered to be issued to the Opposite Parties for 13.3.2012.
4. On 13.3.2012, the complaint was called twice, but none entered appearance, on behalf of the complainants, as a result whereof, at 4.00 p.m. the same was dismissed in default of their appearance.
5. Feeling aggrieved, the instant appeal, was filed by the appellants/ complainants.
6. We have heard the Counsel for the parties, and have gone through the record of the case, carefully.
7. The Counsel for the appellants, submitted that, Sh.Y.P.Saggi, one of the complainants, had filed another complaint titled as Y.P.Saggi Vs Omaxe Ltd., which was fixed before District Forum-II on 21.2.2012. On that date, notice was issued to the Opposite Parties for 2.4.2012. He further submitted that, he noted down the wrong date as 2.4.2012, on the brief as also in his diary, in the complaint, which was pending in District Forum(I). He further submitted that when he received the order dated 13.3.2012 passed by District Forum(I), U.T. Chandigarh, he came to know that the complaint had been dismissed in default of appearance of the complainants. He further submitted that it was, on account of noting down the wrong date, in the complaint, that neither the complainants, nor he could appear on 13.3.2012, before the District Forum. It was further submitted that the absence of the complainants or their Counsel on 13.3.2012, was neither intentional, nor deliberate, but for the reasons, aforesaid. It was further submitted that the order, being illegal, is liable to be set aside.
8. On the other hand, the Counsel for the respondents, submitted that the absence of the complainants(now appellants) on 13.3.2012, when the complaint was fixed for the service of the Opposite Parties, was intentional and deliberate. He further submitted that the complainants have the remedy of filing a fresh complaint, on the same of cause action. He further submitted that the order, being legal and valid, is liable to be upheld.
9. After giving our thoughtful consideration, to the rival contentions, advanced by the Counsel for the parties, and, on going through the record, we are of the considered opinion, that the appeal deserves to be accepted, and the case is liable to be remanded back, for fresh decision, in accordance with law, for the reasons, to be recorded hereinafter. As stated above, the complaint was admitted on 21.2.2012 and notice was ordered to be issued to the Opposite Parties for 13.3.2012. On 13.3.2012, Opposite Parties No.1 & 2 put in appearance, through their Counsel, but none on behalf of the complainants was present. The complaint was, thus, at the initial stage.
On 13.3.2012, no effective proceedings were required to be conducted as the complaint had only been adjourned to that for the service of the Opposite Parties. Alongwith the Memorandum of Appeal, the Counsel for the appellants has filed his affidavit that he wrongly noted down the date as 2.4.2012, in the instant case, which was given in another complaint filed by one of the complainants, in District Forum-II. He also submitted alongwith the Memorandum of Appeal, copies of diary annexure A-1 dated 21.2.2012, A2 dated 13.3.2012 and A3 dated 2.4.2012.
10. It is settled principle of law, that every lis should normally be decided, on merits, than by resorting to the hyper- technicalities. When the hyper- technicalities and the substantial justice , are pitted against each other, then the latter will prevail over the former. The procedure, is, in the ultimate, the handmaid of justice, meant to advance the cause thereof, than to thwart the same. Since the complaint was fixed for 13.3.2012, at the preliminary stage, for service of the Opposite Parties, the District Forum could adjourn it to some other date, for the purpose of filing of evidence, by way of affidavits of the parties. No doubt, there was negligence, on the part of the Counsel for the complainants, as he did not confirm the date, which was given in the complaint on 21.2.2012. It is settled principle of law that for the negligence or inadvertence of the Counsel, the party should not suffer. In our considered opinion, an opportunity should be afforded to the complainants to prosecute the complaint, so that the same could be decided on merits, and the rights of the parties are determined by one Forum, on merits, one way or the other. In this view of the matter, the order impugned is liable to be set aside and the case deserves to be remanded back for fresh decision, on merits.
11. On account of inadvertence or negligence of the complainants or their Counsel, the delay in the disposal of the complaint, on merits, was caused. According to Section 13 (3A) of the Act, every complaint is required to be decided within three months, from the date of appearance of the Opposite Parties, except the one, in which the goods are required to be sent to the Laboratory for examination. In that event, the complaint is required to be decided within a period of 5 months, from the date of appearance of the Opposite Parties. The complaint had been admitted on 21.2.2012. A period of three months, has already lapsed, much earlier. For causing delay, in the disposal of the complaint, on merits, the appellants are required to be burdened with costs.
12. The Counsel for the respondents, however, submitted that, the appellants/complainants, have the remedy to file a fresh complaint, and, as such, the order impugned cannot be set aside. The submission of the Counsel for the respondents, in this regard, does not merit acceptance. Since, the complaint was dismissed, in default of appearance of the complainants on 13.3.2012, they have availed of the legal remedy of filing the instant appeal, against the said order. Once they chose the remedy, which was available to them, by way of filing an appeal against the order dated 13.3.2012, it would not be in the fitness of things, to direct them to withdraw the appeal and file a second complaint, on the same cause of action. The submission of the Counsel for the respondents, in this regard, being devoid of merit, stands rejected.
13. For the reasons recorded above, the appeal is accepted. The order impugned is set aside. The complaint is remanded back to the District Forum, with a direction to restore the same, to its original number, proceed further, from the stage, at which, it was dismissed in default of appearance of the complainants and decide the same on merits, in accordance with the provisions of law. However, the appellants/complainants are burdened with costs of Rs.3000/-, for causing delay in the disposal of complaint. The payment of costs shall be a condition precedent.
14. The parties are directed to appear before the District Forum (I) on 27.7.2012 at 10.30 A.M. for further proceedings.
15. The District Forum record, alongwith a certified copy of the order, be sent back immediately, so as to reach there, well before the date fixed.
16. Certified Copies of this order be sent to the parties, free of charge.
17. The file be consigned to the Record Room, after compliance.
Sd/-
Pronounced. (Justice Sham Sunder)(Retd) July20,2012 President.
Sd/- (Neena Sandhu) Member STATE COMMISSION (Appeal No.107 of 2012) Present: Sh.Rajesh Sood, Advocate for the appellants.
Sh.Vishal Goel, Advocate, proxy for Sh.Munish Gupta, Advocate for the respondents.
Dated: 20.7.2012 ORDER Vide our detailed order of the even date, recorded separately, the appeal has been accepted, and the order impugned has been set aside. The case has been remanded back to the District Forum for fresh decision. The parties have been directed to appear before the District Forum on 27.7.2012 at 10.30A.M. for further proceedings.
(Neena Sandhu) (Justice Sham Sunder)(Retd) Member President