STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

Ravinder Pal Singh, resident of H.No. 2353, Sector 35-C, Chandigarh.

……Appellant

V e r s u s

1.      Ashutosh Goyal @ Ashu Goyal, son of Late Sh. Harish Chand Goyal, aged 35 years, resident of House No. 419, Sector 20-A, Chandigarh. (Complainant in the original complaint)

2.      M/s Shivcon Infrastructures Enterprises Ltd. (Formerly

known as M/s Shiva Homes & Construction Ltd.), through its Managing Director, Regd. Office at Plot No.37, New Timber Market, Sector 26, Chandigarh. (Opposite Party No.1, in the original complaint)

3.      Mr. Parveen Sharma, Director, M/s Shivcon Infrastructures Enterprises Ltd., Village Khanpur, Tehsil Kharar, District Mohali (Punjab) and resident of H.No. 608, Sector 12-A, Panchkula (Haryana). (Opposite Party No.2 in the original complaint)

4.      Ashok Kumar, Director, M/s Shivcon Infrastructures Enterprises Ltd., resident of H.No. 375, Sector 15, Panchkula (Haryana). (Opposite Party No.3 in the original complaint)

5.      Capt. Kanwar Sat Pal Singh, Director, M/s Shivcon Infrastructures Enterprises Ltd., resident of H.No. 2322, Sector 44-C, Chandigarh. (Opposite Party No.5 in the original complaint)

                                                                       ....Respondents

Appeal under Section 15 of the Consumer Protection Act, 1986.

BEFORE: JUSTICE SHAM SUNDER, PRESIDENT.

              MRS. NEENA SANDHU, MEMBER.

Argued by:   Sh.Deepak Aggarwal, Advocate for the applicant/ appellant.

PER  JUSTICE SHAM SUNDER, PRESIDENT

1.             This appeal is directed against the order dated 01.01.2009, rendered by the District Consumer Disputes Redressal Forum- I, U.T.,  Chandigarh (hereinafter to be called as the District Forum only) vide which, it accepted the complaint, and directed the Opposite Parties, as under:-

“In view of above discussion, we are of the opinion that the present complaint must succeed. The same is accordingly, allowed.  The OPs are directed to refund to the Complainant a sum of Rs.6.50 lacs along with interest @9% per annum on the aforesaid amount from the date of the respective deposits till realization, along with a compensation of Rs.10,000/- for mental agony and harassment suffered by him at the hands of OPs and for adopting an unfair trade practice by the OPs. The order shall be complied with by the OPs within 30 days from the receipt of the copy of the order, failing which they will be liable to pay the amount along with penal interest @12% per annum from the date of filing of the complaint i.e. 12.06.2008, till realization.   The OPs shall also pay costs of litigation, which is quantified at Rs.500/’’.

2.             The facts, in brief, are that the complainant (now respondent no.1), acting on the representations, made by the Opposite Parties, for the allotment of a flat, in their proposed housing project at Baddi (H.P), booked the same (flat), comprising 2 Bedrooms, One Hall, Kitchen and Bathrooms, by paying initial deposit of Rs.1.00 lac, vide cheque dated 25.10.2005, (infact 26.10.2005), Annexure C-1. Another sum of Rs.5.50 lacs was deposited, vide cheque dated 24.12.2005 (Annexure C-2), towards the balance payment of 50% of the price of the flat. Lateron, the complainant came to know, that no housing project had been allotted or approved, in favour of the Opposite Parties. He then approached the Opposite Parties, a number of times, with a view to ascertain, the status of their project, in which he booked the aforesaid flat, but to no avail. Ultimately, he sought refund, vide letter dated 02.05.2006 (Annexure C-3). After great persuasion, the Opposite Parties, agreed to pay Rs.6.50 lacs, alongwith interest, in lieu of the amount, deposited by the complainant. With a view to discharge their part liability, the Opposite Parties, issued a cheque dated 17.1.2007, in the sum of Rs.50,000/-, drawn on the State Bank of Bikaner and Jaipur, Panchkula, in favour of the complainant. When the cheque was presented, through the banker, i.e. State Bank of India, Sector 20, Chandigarh, the same  was dishonored, on account of insufficient funds, vide dishonor memo  dated 25.01.2007 Annexure C-4.  At the instance of the Opposite Parties, the complainant, again presented the said cheque on 11.7.2007, through his bankers, aforesaid. It was again returned, as the same stood dishonored, by the bankers of the Opposite Parties, on account of insufficient funds.  Thereafter, Opposite Party No.2, on his behalf, and, on behalf of the remaining Opposite Parties, had issued a cheque dated 31.3.2007, drawn on the  State Bank of India, Attawa, Chandigarh, amounting to Rs.6.50 lacs, towards the discharge of their joint and several liability, but when this cheque was presented for encashment on 11.7.2007, the same also stood dishonored, by the bankers of the Opposite Parties,  on account of insufficient funds, in their account, vide memo dated 13.7.2007 Annexure C-8, alongwith which the cheque dated 31.03.2007 Annexure C-7, was attached. Faced with such a piquant situation, the complainant served a legal notice dated 13.8.2007, upon the Opposite Parties, to discharge their legal liability, and to make the payment, alongwith up-to-date interest, but to no avail. It was stated that the aforesaid acts of the Opposite Parties, amounted to deficiency, in rendering service, as also indulgence into unfair trade practice.  It was further stated that the complainant, deposited his hard earned money, with the Opposite Parties,  for the purchase of the flat aforesaid, but neither the possession of the same was delivered to him, nor the amount was refunded, as a result whereof, he underwent a lot of mental agony, physical harassment and suffered the monetary loss. When the grievance of the complainant, 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), for the refund of amount, deposited by him, alongwith interest and compensation, was filed.

3.             Despite service, neither Opposite Party No.3, nor his duly authorized representative, put in appearance, as a result whereof, he was proceeded against ex-parte on 10.09.2008.

4.             Opposite Parties No. 1,2,4 and 5, could not be served, in the ordinary manner. Ultimately, they were ordered to be served through publication, in the newspaper having wide circulation. Even, after the publication of notice, in the newspaper, neither Opposite Parties No.1,2,4 and 5, nor their duly authorized representative(s), put in appearance, as a result whereof, they were proceeded against ex-parte.

5.             The complainant led evidence, in support of his case.

6.             After hearing the Counsel for the complainant,  and, on going through the evidence, and record of the case, the District Forum, accepted the complaint, in the manner, referred to, in the opening para of the instant order. 

7.             Feeling aggrieved, the instant appeal, was filed by the appellant/ Opposite Party No.4.

8.             Alongwith the appeal, an application, under Section 5 of Limitation Act, for condonation of delay of 51 days, as per the applicant/appellant (1106 days as per the office report), in filing the same (appeal), was moved, by the applicant/appellant/opposite party no.4. It was stated that the applicant/appellant, was neither the Director of “M/s Shivcon Infrastructures Enterprises Limited” nor was a  resident of H.No.2353, Sector 35C, Chandigarh, on 20.12.2008, when the notice was published, in the newspaper. It was further stated that, on that date, the applicant/appellant, was residing at house no.1638, Sector 51-B, ESIC Society, Chandigarh. It was further stated that the applicant/appellant, acquired the knowledge of the contents of the order dated 01.01.2009, passed in Consumer Complaint No.669 of 2008, only on getting the certified copy of the said order, as the notice was served on his wife. It was further stated that the said notice was not accompanied, by a copy of the execution application or the order dated 01.01.2009. It was further stated that the summons of Criminal Petition No.5 of 2010, were served on his wife, only on 24.11.2011, at the time when he (applicant/appellant), was in Distt. Una (H.P.), where he has been carrying on the business of steel furniture, since 2008. It was further stated that the applicant/appellant, came to Chandigarh, on 25.11.2011, and engaged the services of Sh.Sanjeev K.Dhiman, Advocate. It was further stated that Sh.Sanjeev K.Dhiman, applied for inspection of the Court file and to get the necessary documents, as per the procedure, through his junior Sh.Sunil, Advocate. Thereafter, due to illness of the father of Sh.Sanjeev K.Dhiman, Advocate, he could not proceed further, in the matter. Ultimately, on 06.12.2011, the father of Sh.Sanjeev K. Dhiman, Advocate, expired. It was further stated that the applicant/appellant, unaware of the above fact, tried to contact Sh.Sanjeev K.Dhiman, Advocate, but to no avail. Ultimately, Sh.Sanjeev K.Dhiman, Advocate, intimated the applicant/appellant, in the last week of December, 2012, that due to the death of his father, he would not be in a position to challenge the order dated 01.01.2009. It was further stated that, under these circumstances, the applicant/appellant, engaged the services of the present Counsel. It was further stated that the new Counsel, engaged by the applicant/appellant, applied for the copies of all the documents including the order sheet (zimine orders), final order etc., before the District Forum-I, U.T., Chandigarh, and was able to get the same on 17.01.2012. It was further stated that, as such, the delay of 51 days, as per the applicant/appellant (1106 days as per the office report), was neither intentional nor deliberate.  Accordingly, a prayer, referred to, at the outset of this paragraph, was made.

9.             We have heard the Counsel for the applicant/appellant, on the application for condonation of delay, as also, in the main appeal, and, have gone through the evidence, and record of the case, carefully. 

10.           The Counsel for the applicant/appellant, submitted that since the applicant/appellant, was not residing, at the address mentioned, in the complaint, the question of his due service, did not at all arise. He further submitted that the substituted service could only be effected, after recording satisfaction, by the District Forum, that the service of the Opposite Parties, could not be effected, in the ordinary manner. He further submitted that,  no such satisfaction was recorded by the District Forum. He further submitted that, under these circumstances, the substituted service through publication, in “The India Express”, could not be said to be due service. He further submitted that, as soon as, the applicant/appellant, came to know of passing of the order dated 01.01.2009, passed in Consumer Complaint No.669 of 2008, he applied for the copies of the documents, aforesaid, and filed the appeal. He further submitted that, under these circumstances, the report of the office, that there was a delay of 1106 days, in filing the appeal, was not correct. On merits of the appeal, he  submitted that the cheque dated 31.03.2007, in the sum of Rs.6,50,000/-, in favour of the complainant/respondent no.1, was issued, by Opposite Party No.2(now respondent No.3),  in his personal capacity/account, and, as such, he was personally liable, for the same. He further submitted that, thus, there is sufficient cause for condonation of delay. He further submitted that the order dated 01.01.2009, passed in Consumer Complaint No.669 of 2008, being violative of the principles of natural justice, is liable to be set aside.

11.         The first question, that falls for consideration, is, as to when, the certified copy of the order dated 01.01.2009, pronounced, in the Consumer Complaint, was received by the applicant/appellant. As per the office report, certified copy of the said order, was sent, free-of-charge, to Opposite Party No.4/applicant/appellant, through courier on 02.01.2009, at the last known address,  given in the heading of the complaint. The order was duly served, and proof of delivery, duly signed was received from the Courier Agency. The office, after deducting 30 days, from 02.01.2009, when copy of the order, free of charge was sent through the Courier, to Opposite Party No.4/applicant/appellant, made a report that there was a delay of 1106 days, in filing the appeal. The submission of the Counsel for the applicant/appellant,  that there was a delay of 51 days only, as per the averments, made by him, in the application, being devoid of merit, must fail and the same stands rejected.

12.         The next question, that arises, for consideration, is, as to whether, there is a sufficient cause for condonation of delay of 1106 days, in filing the appeal, under Section 15 of the Act. It was held in Smt.Tara Wanti Vs State of Haryana through the Collector, Kurukshetra AIR 1995 Punjab & Haryana 32, a case decided by a Full Bench of the  Punjab & Haryana High Court,  that sufficient cause, within the meaning of Section 5 of the Limitation Act, must be a cause, which is beyond the control of

the party, invoking the aid of the Section, and the test to be applied, would be to see, as to whether, it was a bona-fide cause, in as much as, nothing could be considered to be bonafide, which is not done, with due care and attention. In  New Bank of India Vs. M/s Marvels (India): 93 (2001) DLT 558, Delhi High Court   held as under ;

“No doubt the words “sufficient cause” should receive liberal construction so as to advance substantial justice. However, when it is found that the applicants were most negligent in defending the case and their non-action and want of bonafides are clearly imputable, the Court would not help such a party. After all “sufficient cause” is an elastic expression for which no hard and fast guide-lines can be given and Court has to decide on the facts of each case as to whether the defendant who has suffered ex-parte decree has been able to satisfactorily show sufficient cause for non- appearance and in examining this aspect, cumulative effect of all the relevant factors is to be seen.”

13.         In  Oriental Insurance Co. Ltd. vs. Kailash Devi & Ors. AIR 1994 Punjab and Haryana 45, it was held as under;

“There is no denying the fact that the expression sufficient cause should normally be construed liberally so as to advance substantial justice, but that would be in a case where no negligence or inaction or want of bonafides is imputable to the applicant. The discretion to condone the delay is to be exercised judicially i.e. one of is not to be swayed by sympathy or benevolence.”

14.                   Keeping in view the principle of law, laid down, in the aforesaid cases, it is to be seen, as to whether, the applicant/appellant, has  been able to establish that it was, on account of the circumstances, beyond his control, that he could not file the appeal, in time. The appeal could be filed within 30 days, from the date of receipt of a copy of the order. As stated above, a copy of the order, was presumed to have been received by Opposite Party No.4/applicant/appellant, within 30 days from 02.01.2009, when it was despatched to him, and proof of delivery, in respect thereof, was duly received. The case of the applicant/appellant/Opposite Party No.4, that he had not come to know of the order, before 24.11.2011, is not prima-facie established, from any document, on record. The delay of 1106 days, which is beyond three years, than  the normal period of filing an appeal U/s 15 of the Act, was on account of  the complete inaction, and lack of bonafides, attributable to  the applicant/appellant. The cause, set up, by the applicant/appellant, in the application, for condonation of delay, could not be said to be such, as was beyond his control, which prevented him, from filing the appeal in time. The delay in filing the appeal was, thus, intentional and deliberate. The Counsel for the applicant/appellant, therefore, failed to prove any sufficient cause, in filing the appeal, after such a long delay of 1106 days. Since, no sufficient cause is constituted, from the averments, contained in the application, the delay of 1106 days cannot be condoned. The application is, thus, liable to be dismissed. 

15.         The next question, that arises, for consideration, is, as to whether, even if, sufficient cause is shown, it is obligatory on the Commission to condone the delay. The answer to this question, is in the negative. In  Ram Lal and Ors. Vs. Rewa Coalfields Ltd., AIR 1962 Supreme Court 361, it was  held as under ;

“It is, however, necessary to emphasize that even after sufficient cause has been shown a party is not entitled to the condonation of delay in question as a matter of right. The proof of a sufficient cause is a discretionary jurisdiction vested in the Court by S.5. If sufficient cause is not proved nothing further has to be done; the application for condonation has to be dismissed on that ground alone. If sufficient cause is shown then the Court has to enquire whether in its discretion it should condone the delay. This aspect of the matter naturally introduces the consideration of all relevant facts and it is at this stage that diligence of the party or its bona fides may fall for consideration; but the scope of the enquiry while exercising the discretionary power after sufficient cause is shown would naturally be limited only to such facts as the Court may regard as relevant.”

16.         It is evident, from the principle of law, laid down, in Ram Lal & Ors.’s case (supra), that even if, sufficient cause is shown, then the Court has to enquire, whether, in its discretion, it should condone the delay. This aspect of the matter, requires the Commission, to take into consideration, all the relevant factors, and it is, at this stage, that diligence of the party(s) or its/their bonafides, may fall for consideration. In the instant case, as stated above, despite strenuous efforts, having been made by the District Forum, to effect service through Registered A.D. Cover, upon  Opposite Parties No.1,2,4 and 5, it failed to do so. Accordingly, Opposite Parties1,2,4 and 5, were served through publication in “The India Express”, at their last known address, given in the heading of the complaint. It is further, evident, from the record, that with a view to execute the order dated 01.01.2009, an execution application was filed by the complainant, under Section 27 of the Act. In that application, Opposite Party No.3, Ashok Kumar, to whom the show cause notice was issued, refused to accept the same. Opposite Party No.3, was, thus, declared to be duly served, but he did not appear. Accordingly, he was proceeded against exparte. Opposite Party No.5, another Director of the Company, namely Capt. Kanwar Sat Pal Singh, appeared through Counsel, and the execution application was adjourned, from time to time. Ultimately, none appeared, on behalf of Opposite Party No.5, and he was proceeded against ex-parte. Show cause notices upon Opposite Parties No.2 and 4, were not served. Show cause notices were ordered to be again served upon them. Opposite Party No.4 (now applicant/appellant), has not so far appeared in the Execution Application, in pursuance of the show cause notice. Ultimately, vide order dated 12.07.2010, Ashok Kumar, Opposite Party No.3 and Capt. Kanwar Sat Pal Singh, Opposite Party No.5, were sentenced to undergo imprisonment for 2 years each and to pay a fine of Rs.10,000/- each and in default of payment of fine, each of them, was directed to further undergo imprisonment for 6 months each  Capt. Kanwar Sat Pal Singh, one of the Directors of the Company, who was Opposite Party No. 5, in the original complaint, filed an appeal u/s 27A of the Act, against the order dated 12.07.2010, before this Commission, which was dismissed vide order date 28.07.2011. Still feeling aggrieved, he(Opposite Party No.5), filed Revision Petition No.3333/2011, in the National Consumer Disputes Redressal Commission, New Delhi, titled as Kanwar Sat Pal Singh Vs. Ashutosh Goyal @ Ashu Goyal & Ors.,  which was also dismissed, vide order dated 09.11.2011. Despite all this, Kanwar Sat Pal Singh, has not so far surrendered, before the District Forum, for undergoing the sentence, awarded to him, and non-bailable warrants, are being issued against him. It, therefore, could not be said that if one Director, who was also ex-parte, in the complaint, in the District Forum, came to know of the order dated 01.01.2009, in the year 2010, the other Directors, did not come to know of the passing of the same (order dated 01.01.2009), immediately, after the same was rendered. Not only this, even it is evident from the record, that a cheque in the sum of Rs.50,000/- in the first instance, towards the discharge of partial liability, was issued, in favour of the complainant, by the Company, through  one of its Directors, which on presentation, was  dishonored. Another cheque of Rs.6,50,000/-, the amount deposited by the complainant, was issued by the Company, through one of its Directors. When the same was presented, before the bankers, it was again dishonored. Right from the very beginning, the conduct of the Opposite Parties, was blameworthy. They were out and out to harass the complainant, right from the very beginning by resorting to dubious means. The order dated 01.01.2009, has not so far been executed and the complainant has been suffering a lot. The conduct of the Opposite Parties (including Opposite Party No.4/applicant/appellant), right from the very beginning is not aboveboard.  The principle of law, laid down in Ram Lal & Others’ case(supra),  is fully applicable to the instant case.   This is, therefore, not a fit case, in which this Commission should exercise its discretion, in favour of the applicant/appellant, in condoning the delay.

17.         Coming to the merits of the appeal, in the first instance, it is to be decided, as to whether, the applicant/appellant, who was Opposite Party No.4, in the District Forum, was duly served or not. Consumer Complaint No.669 of 2008, was filed against (1) M/s Shivcon Infrastructures Enterprises Ltd. (2) Mr.Parveen Sharma, Director, M/s Shivcon Infrastructures Enterprises Ltd. (3) Mr. Ashok Kumar, Director, M/s Shivcon Infrastructures Enterprises Ltd. (4) Mr.Ravinder Pal Singh, Director, M/s Shivcon Infrastructures Enterprises Ltd. and (5) Capt. Kanwar Sat Pal Singh, Director, M/s Shivcon Infrastructures Enterprises Ltd.  The address of the applicant/appellant, who was Opposite Party No.4, in Consumer Complaint No.669 of 2008,  filed on 13.06.2008, was given as H.No. 2353, Sector 35-C, Chandigarh. It is evident, from the order dated 11.08.2008, passed by the District Forum, that Opposite Parties No.1,2,4 and 5, were not served, whereas, Opposite Party No.3, had not turned up, despite service. Accordingly, Opposite party No.3, was proceeded against ex-parte. It is further evident, from the order dated 10.09.2008, to which date, the complaint was adjourned, that Opposite Party No.4(applicant/appellant), was not served. A fresh notice was ordered to be issued, to Opposite Parties No.4(applicant/appellant) and 5, through Registered A.D. Covers for 15.10.2008 and it was also ordered  that the correct address of Opposite Parties No.1 and 2, be furnished. Registered A.D. Covers, sent for the service of Opposite Parties No.1 and 2, were received back un-served.  Again Opposite Parties No.1,2,4 and 5, were ordered to be summoned through Registered A.D. covers for 11.11.2008. Again, on 11.11.2008, Opposite Parties No.1,2,4 and 5, were not served, and the complaint was adjourned to 12.11.2008. It was on 12.11.2008, that the Counsel for the complainant, moved an application, for effecting substituted service of Opposite Parties No. 1,2,4 and 5. In the application, it was stated that the addresses of Opposite Parties No.1,2,4 and 5 given,  in the head note of the complaint, were their last known addresses to the complainant. It was further submitted by the Counsel for the complainant, that the service of Opposite Parties No. 1,2,4 and 5, was not possible, through an ordinary process.  It was, after taking into consideration, the said statement of the Counsel for the complainant, that the District Forum, ordered that the service of Opposite Parties No.1,2,4 and 5, be effected  through substituted means, by publication of the notice in the newspaper “The Indian Express” for 18.12.2008. Since, the publication charges were not deposited, by the complainant, the complaint was adjourned to 30.12.12008. On 30.12.2008, a notice duly published, in the newspaper namely “The Indian Express” dated 20.12.2008, was received. However, none appeared, on behalf of Opposite Parties No.1,2,4 and 5, despite service, whereafter, they were proceeded against ex-parte on 30.12.2008. Whatever the last known addresses of Opposite Parties No.1,2,4 and 5, were available, with the complainant, were given by him, in the head note of the complaint. Even in the memorandum of appeal, the appellant has given his address of H.No.2353, Sector 35-C, Chandigarh. The same address of Opposite Party No.4/appellant, was given in the complaint, by the complainant. Alongwith the memorandum of appeal, a copy of the receipt, regarding payment of premium of insurance dated 09.09.2008 of Ms. Isha, who is said to be the daughter of the applicant/appellant, was produced, according to which, her address was written as house no.1638, Sector 51-B, ESIC Society, Chandigarh. A copy of the learner`s  licence of said Ms.Isha, said to be the daughter of Ravinder Pal Singh, was also placed, on record, with the date of its issue as 19.09.2008, according to which also, the address given was house no.1638, Sector 51-B, ESIC Society, Chandigarh. Copy of the admit card of the Central Board of Secondary Education, Delhi, for  All India Engineering/Architecture Entrance Examination (AIEEE)-2009, also shows her address, as house no.1638, Sector 51-B, ESIC Society, Chandigarh. Copy of the Election Commission of India, Identity Card of Ravinder Pal Singh S/o Raghvir Singh, dated 10.02.2009, placed, on record, also shows his address as house no.1638, Sector, ESIC Society, Chandigarh. The complaint, in this case was filed on 13.06.2008. All these documents are later in date, than the filing of the complaint. Under these circumstances, it could not be said that, at the time of filing the complaint, the applicant/appellant/Opposite Party No.4, was not residing at the address given in the head note of the complaint. Several efforts were made for the service of Opposite Party No.4/applicant/appellant, through ordinary means, but he was not served. It was, only after being satisfied, that the service of Opposite Parties No.1,2,4 and 5, could not be effected,  through  ordinary means, that they were directed to be served through publication in “The Indian Express”. If, after filing of the complaint, Opposite Party No.4/applicant/appellant, had shifted to some other address, that did not mean, that he was not duly served. The substituted service, through publication in the Indian Express, at the last known address of Opposite Party No.4/applicant/appellant, therefore, could be said to be due service. It is, therefore, held that Opposite party No.4/applicant/appellant, was duly served through publication in “The Indian Express” for 30.12.2008.

18.         The Counsel for the applicant/appellant, placed reliance on Om Prakash, Petitioner Vs. Prakash Chand and others, Respondents,  AIR 2004 Allahabad 391 and M/s Sitaram Ramavtar, Appellants Vs. M/s Lohiya Murlidhar Meghraj, Respondents, AIR 1975 Rajasthan 121, in support of his contention, that substituted service was permissible, provided that the Court recorded reasons, after being fully satisfied, that service could not be effected, in an ordinary manner. There is, no dispute, with regard to the proposition of law laid down, in the aforesaid cases. It has been held, in the preceding paragraph, that the address of Opposite Party No.4, given in the head note of the complaint, was his last known address, available with the complainant. The copies of the documents, produced by the applicant/appellant/Opposite Party No.4, alongwith the memorandum of appeal, as discussed, in the foregoing paragraph, are later in date, than the filing of the complaint. It has also been discussed, in the foregoing paragraph, that strenuous efforts were made by the District Forum, to effect the service of Opposite Parties No.1,2,4 and 5, by sending the Registered A.D. Covers, again and again, but to no avail. It was, under these circumstances, that, on the basis of the application, moved by the Counsel for the complainant, and the submissions made by him, that the District Forum, was satisfied, that the service of Opposite Parties No.1,2,4 and 5, could not be effected, in the ordinary manner. Accordingly, they were ordered to be served through publication in “The Indian Express”. It was not the wrong address, which was given by the complainant. No document, has been placed on record, by the applicant/appellant/opposite party no.4, that, on the date, when the complaint was filed, he was not residing at the address given therein. The facts of the aforesaid cases, being distinguishable, from the facts of the instant case, no help, can be drawn by the Counsel for the applicant/appellant, therefrom. The submission of the Counsel for the applicant/appellant, that the applicant/appellant/ Opposite Party No.4, was not duly served, in the complaint, therefore, being devoid of merit, must fail and the same stands rejected.

19.         It is evident, from the evidence and record, that on representation, made by the Opposite Parties, for the allotment of a flat, the complainant applied for the same. He was allotted a flat comprising 2 Bedrooms, One Hall, Kitchen and Bathrooms, by making initial deposit of Rs.1.00 lac vide cheque dated 25.10.2005 (Annexure C-1). Another sum of Rs.5.50 lacs was deposited, vide cheque dated 24.12.2005 (Annexure C-2), towards balance payment of 50% of the price of the flat. Since, the complainant came to know that no housing project had been allotted or approved, in favour of the Opposite Parties, he approached them, a number of times, for the refund of his amount, whereafter, the Opposite Parties,  issued a cheque dated 17.1.2007 in the sum of Rs.50,000/- in partial discharge of their liability, which, on presentation, was dishonored, on account of insufficient funds, vide dishonor memo Annexure C-4. Again  a cheque of Rs.6.50 lacs, by a Director of the Opposite Parties, towards the discharge of their joint and several liability, was issued in favour of the complainant. When this cheque was presented for encashment on 11.7.2007, the same was again  dishonored by the bankers of the Opposite Parties,  on account of insufficient funds, in their account vide memo dated 13.7.2007 (Annexure C-8). Neither, the possession of the flat has been handed over to the complainant, nor the amount deposited by him, was refunded to him, though a period of more than six years has lapsed, since the date of allotment and initial deposit. . The complainant, thus, had to face a lot of mental agony and physical harassment, as also monetary loss. The Opposite Parties (including the appellant/Opposite Party No.4), were, thus, not only deficient, in rendering service to the complainant, but also indulged into unfair trade practice.

20.         No other point, was urged, by the Counsel for the applicant/appellant/Opposite Party No.4.

21.         The order passed by the District Forum, being based on the correct appreciation of evidence, and law, on the point, does not suffer from any illegality or perversity, warranting the interference of this Commission.

22.         For the reasons recorded above, the application for condonation of delay of 1106 days is dismissed. Consequently, the appeal, being barred by time, and on merits, is also dismissed, at the preliminary stage, with no order as to costs. The order of the District Forum is upheld.

23.         Certified Copies of this order be sent to the parties, free of charge.

24.         The file be consigned to Record Room, after completion

Pronounced.

March 1, 2012

Sd/-

 [JUSTICE SHAM SUNDER]

PRESIDENT

Sd/-

[NEENA SANDHU]

MEMBER

Rg.