Delhi

StateCommission

FA/618/2013

ZION PROMOTORS & DEVELOPERS (P) LTD. - Complainant(s)

Versus

AJAY KR. MADAN & ANR. - Opp.Party(s)

28 Apr 2016

ORDER

IN THE STATE COMMISSION : DELHI

(Constituted under Section 9 of the Consumer Protection Act, 1986)

 

 

Date of Decision: 28.04.2016

 

 

First Appeal No.618/2013

(Arising out of the order dated 01.07.2009 passed in Complaint Case No.303/2009 by the District Consumer Redressal Forum (New Delhi)

 

In the matter of:

 

Zion Promoters and Developments Pvt. Ltd.,

K-108, Artium Hotel View,

Suraj Kund Road, Faridabad,

Haryana.

                           ....Appellant

 

Versus

 

1. Sh. Ajay Kumar Madan,

C/o Sarai Nangia,

D-48, Defence Colony,

New Delhi -110048

 

2. Sanjay Nagpal Estates,

GF-31A, Inderprakash Building,

21, Barakhamba Road,

New Delhi -110001

….….....Respondents

 

 

CORAM

 

Justice Veena Birbal, President.

Ms. Salma Noor, Member.

 

 

1.    Whether reporters of local newspaper be allowed to see the judgment?

 

2.    To be referred to the reporter or not?

 

 

 

 Justice Veena Birbal, President

 

 

 

1. This is an appeal under Section 15 of the Consumer Protection Act 1986 (in short the Act) wherein challenge is made to an order dated 01.07.2009 in C.C. No.303/2009 passed by the Consumer Disputes Redressal Forum(New Delhi), (in short the District Forum), whereby the complaint filed by the respondent No.1/complainant has been allowed and following directions are issued:

 

1. OP No.1 and 2(jointly) will pay to the complainant an amount of Rs.9,41,281/- as prayed in the complaint.

 

2. On account of mental agony and harassment, OP will pay Rs.2,00,000/- to the complainant as compensation.

 

3. OP will pay Rs.10,000/- to the complainant towards the cost of litigation.

 

2. The main ground of the challenge is that the appellant/OP No.2 was never served before the District Forum.
3. It is stated that the respondent No.1/complainant had filed a complaint before the District Forum alleging therein that he had booked a three bedroom flat measuring 1900 sq. ft. with the appellant/OP No.2 and had paid a sum of Rs.9,41,281/- against the receipt issued to the respondent No.1/complainant. It was alleged that since the flat was not being constructed the respondent No.1/complainant approached for refund. Since refund was not given a complaint was filed before the District Forum.
4. It is stated that vide order dated 31.03.2009 the appellant/OP No.2 was proceeded ex-parte by assuming that service has been effected upon it. It is stated that on the basis of the courier receipt it was taken that the appellant/OP No.2 had been served. It is stated that the courier was sent at a wrong address as such the same was never received by the appellant/OP No.2. It is further stated that the appellant/OP No.2 had come to know of the passing of the impugned order only when the execution notice was served upon it.
5. We have perused the District Forum record as well as the order-sheet of the Ld. District Forum concerning the present case. The entire order-sheet reads as under:

 

           “25.02.09

          

Pr. Complainant. Heard. Admitted. Issue notice dasti to OP for 31.03.2009.

 

           “31.03.2009

           Present: counsel for comp.

           None for OP.

          

Case called several times even at the end of the list. None respond to call from the OP. OP is proceeded against ex-parte. Now re-list for 06.04.09 ex-parte evidence of comp.

 

1.  

Pr. Counsel for the complainant. Exparte evidence filed on behalf of the complainant. List for written arguments and oral arguments on 1.5.09.

 

1.  

 

Written arguments filed. Heard oral arguments. Reserve for orders.

 

1.  

 

Order pronounced and attached. File be consigned to Records.”

 

 

6. Perusal of the record shows that the complaint was filed on 25.02.2009, and was disposed of on 01.07.2009. The District Forum has acted in haste in disposing of the complaint without satisfying itself as to whether service has been effected on appellant/OP No.2 or not. There is nothing on record to show that the appellant/OP No.2 was served before the Ld. District Forum. On the very first date, a dasti notice was given. There is no affidavit of the respondent No.1/complainant in what manner he had got the service effected on the appellant/OP NO.2. There is no courier receipt also on record. On the very first date dasti notice is given. No attempt is made to serve appellant/OP No2 by registered post/speed post.
7. Counsel for the respondent No.1/complainant after some arguments, in all fairness has conceded that impugned order is liable to be set aside and the appellant/OP No.2 be given a chance to contest the case on merits.
8. Considering the material on record, we do not find anything on record by which it can be taken that appellant/OP No.2 was served with the notice of complaint.. In these circumstances as well as the consent given by the respondent/complainant, we accept this appeal and set aside the impugned order and remand back the matter to the District Forum for deciding it afresh.
9. Let the parties appear before District Forum on 11.07.2016. It is clarified that the District Forum shall issue fresh notice to OP No.1 i.e. Sanjay Nagpal Estates before proceeding further in the matter.
10. Since present case is an old matter and the complaint is of 2009, the District Forum shall make all endeavours to dispose of it within a period of six months.
11. The appeal stands allowed.
12. Copy of this order be given to the parties and be also sent to the District Forum(New Delhi) for information and keeping it on record for compliance

           File be consigned to Record Room.

 

 

(Justice Veena Birbal)

•  

 

(Salma Noor)

Member