State Consumer Disputes Redressal Commission
Candida Constructions & Another vs Rajendrakumar Atmaram Kantak & Others on 24 November, 2015
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BEFORE THE GOA STATE CONSUMER DISPUTES
REDRESSAL COMMISSION,
PANAJI - GOA
FA No. 48/2015
1. M/s. Candida Constructions,
C/o Shri. Vincent Fernandes,
S/o Filiphino Fernandes,
R/o Near Fish Market, Curchorem Goa.
2. Mrs. Maria Julieta Fernandes,
R/o H. No. 252, Bogmalo Bimtom,
Near Coconut Treek,
Bogmalo, Vasco, Goa. ........Appellants
Vs.
Mr. Rajendrakumar Atmaram Kantak,
Residing at Candida Enclave,
Near Curchorem Masjid,
Next to Curchorem Children's Park,
Curchorem Goa.
2. Mr. Rajesh Sawant Dessai,
Aged 41 years,
Residing at SF/1, Candida Enclave,
Near Curchorem Masjid,
Next to Curchorem Children's Park,
Curchorem Goa.
3. Shri. Liakat Khan,
Aged 60 years,
Residing at Candida Enclave,
Near Curchorem Masjid,
Next to Curchorem Children's Park,
Curchorem Goa.
4. Shri. Sedine Fernandes,
Aged 34 years,
Residing at Candida Enclave,
Near Curchorem Masjid,
Next to Curchorem Children's Park,
Curchorem Goa.
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5. Shri. Sayed Hyder Khan,
Aged 40 years,
Residing at Candida Enclave,
Near Curchorem Masjid,
Next to Curchorem Children's Park,
Curchorem Goa.
6. Shri. Peter Francis Antao,
Aged 59 years,
Represented by his power of Attorney Holder
Mrs. Patsy Antao,
Residing at Candida Enclave,
Near Curchorem Masjid,
Next to Curchorem Children's Park,
Curchorem Goa. .....Respondents
Appellants/OPs are represented by Adv. Ms. Sandra Fernandes e D'Souza.
Respondents/Complainants are represented by Adv. Shri. M. Prabhudesai.
Coram: Shri. Justice N.A. Britto, President
Smt. Vidhya R. Gurav, Member
Dated: 24/11/2015
ORDER
[Per Justice Shri. N. A. Britto, President] The OPs in C.C. No. 38/13 have filed this appeal, and, it is directed against order dated 29/6/15 by which their application dated 25/3/15 for oral cross examination has been dismissed.
2. The complainants are six of the nine flat owners who have purchased their respective flats under different agreements, in a building known as Candida Residency put up by OP No. 1, Builder. As per the OPs the complainants have been in occupation of the said flats for the last about seven years.
3. This appeal was adjourned at the request of both the parties for umpteen times and it appears that at one stage they arrived at a 3 settlement and sought time for the execution of the sale deed. The OPs are willing to execute the sale deed in favour of the complainants in respect of flats occupied by them with proportionate undivided right to an area of 500 sq.mts. of plot NO. 67 of survey No. 11/1 of Cacora village, as they have done in the case of complainant No. 4, but the complainants insistthat proportionate undivided rights in respect of the flats should be in an area of 887.50 sq.mts. We leave it at that.
4. As this FA could not be settled by the parties it was fixed on 19/11/15 for final arguments. Ms. D'Souza, the lr. advocate of the OPs chose to remain absent. We have heard arguments from Lr. Adv. Shri. M. Prabhudessai on behalf of the complainants and have perused the records.
5. The record would show that the complainants filed a joint complaint on 9/7/13 for various reliefs, including compensation for mental torture, etc. Direction for execution of a sale deed is not one of the reliefs sought by them. The OPs were duly served with notice of the complaint but did not file their written version within the time prescribed and as such by order dated 10/11/14 of the Lr. District Forum the written version filed by them has been ordered to be excluded from consideration. The said order has attained finality, as it was not challenged within the time prescribed.
6. The Complainants Nos. 1 and 2 then produced their evidence on affidavits on 27/2/15 and the OPs thereafter filed their application on 25/3/15 for oral cross examination of the said complainant Nos. 1 and 2, which was replied to on 24/4/15, and which came to be dismissed by order dated 29/6/15, impugned in this appeal, which reads as follows:
4"It is seen that, the Opp No. 1 and 2 have not filed their written version within prescribed time, therefore, we find that the present application has no scope. In view of this we hereby dismiss the application with order to no costs."
7. From the memo of appeal, we find that the contention of the OPs is that only because the OPs were not able to file their written version within the time prescribed, there was no bar for them to test the veracity of the case of the complainants through cross examination. On the other hand, Lr. Adv. Shri. Prabhudessai on behalf of the complainants would submit that prayer (b) of the memo of appeal is not available to the OPs as the order dated 10/11/14 was not challenged by the OPs and therefore the OPs are not entitled to file written version and lead evidence. We are inclined to agree with him, as the order dated 10/11/14 has attained finality and therefore there is no question of the OP either filing a written version or leading evidence.
8. Lr. Adv. Shri. Prabhudessai then would submit that the OPs did not file the interrogatories alongwith their application dated 25/3/15 in case the OPs wanted to cross examine complainants Nos. 1 and 2 on interrogatories. Lr. advocate would submit that in a consumer complaint which is by way of summary proceedings there is no question of cross examining the complainants orally by putting the complainants in a witness box. Lr. Adv. Shri. Prabhudessai has placed reliance on Con Décor vs. Smt. Smritikana Ghose & anr. (Order of the National Commission dated 16/4/02 in RP No. 515/2002) and also on Neeraj Amarnath Dora vs. Nandan Hospital & ors., 2011 (3) CPR 162.
59. We have perused the said decision. In the case of Con Décor (supra), the Hon'ble National Commission, speaking through three Members held that it is for the Forum under the C.P. Act to consider whether at all cross examination is required or the matter could be disposed off on the basis of evidence by means of affidavits and each case depends on the facts of that case. The Hon'ble National Commission also held that when it is merely a question as to veracity of the statement of the witness, cross-examination cannot be permitted. In that case to contradict a party the party can certainly file his own affidavit or of any other witness. If cross-examination of a person is to be permitted in every case under the C.P. Act, the whole object of this Act would lost and there would hardly be any difference in proceedings before a Forum under the Act and a Civil Court. Many disputes involving high stakes and huge values are decided in writ jurisdiction by the High Courts and Supreme Court merely on the basis of affidavits.
10. Lr. Adv. Shri. Prabhudessai also has reservations in accepting the correctness of the impugned order dated 29/6/15. The OPs would certainly be right in contending that only because they have not been able to file their written version they cannot be allowed to test the veracity of the case of the complainants through cross examination. A perusal of the reply filed by the complainants on 24/4/15 would show that they had no objection in case the complainants were cross examined on interrogatories. The complainants stated in the said reply that if at all the OPs want to cross examine the complainants the OPs can file a questionnaire and they would answer the same.
11. Considering the peculiar facts and circumstances of the case, therefore, it would be in the interest of justice that the OPs cross 6 examine both the complainants who have filed their affidavits by delivering interrogatories to them. Consequently, we allow the appeal and set aside the impugned order dated 29/6/15 and partly allow the application dated 25/3/15 in that the OPs shall carry out the cross examination of the complainants by delivering interrogatories to them.
12. The parties are hereby directed to remain present before the Lr. District Forum on 4th December 2015 on which day the OPs shall deliver the interrogatories to be answered by the complainants; and the same shall be answered by the complainants within the next two weeks. The Lr. District Forum shall thereafter make an endeavor to dispose off the complaint as expeditiously as possible by following the mandate of sub-section (3A) of Section 13 of the C.P. Act, 1986.
Order accordingly.
[Smt. Vidhya R. Gurav] [Justice Shri N. A. Britto]
Member President
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