STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

1]     Emaar MGF Land Pvt. Ltd., SCO 122-123, Sector 17-C, Chandigarh, through its Managing Director.

2]     Emaar MGF Land Pvt. Ltd., ECE House, #28, Kasturba Gandhi Marg, New Delhi through its Director.

……Appellants

V e r s u s

Lalit Arora s/o Sh. Vir Bhan Arora, R/o H.No.778, Sector 8, Panchkula.

              ....Respondent

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

BEFORE: JUSTICE SHAM SUNDER, PRESIDENT.

              MRS. NEENA SANDHU, MEMBER.

Argued by:  Sh.Manish Yadav, Advocate, Proxy for Sh.Sanjeev                    Sharma, Advocate for the appellants.

              Sh.Subhash Sharma, Advocate for the respondent.

PER  JUSTICE SHAM SUNDER, PRESIDENT

1.               This appeal is directed against the order dated 21.10.2011, 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 (now appellants), as under:-

“As a result of the above discussion, the complaint is allowed and the OPs are directed to pay interest @12% p.a. over amount of Rs.35,21,604/-, deposited by the Complainant with the OPs from the respective date of deposit, till the date of handing over the possession of the Plot in question. The OPs shall also pay Rs.25,000/- as compensation for causing mental and physical harassment to the Complainant & adopting unfair trade practice, along with litigation costs assessed at Rs.10,000/-“.

2.               The facts, in brief, are that the complainant was allotted Plot No.516 measuring 300 Sq. yards in Mohali Hills. Prior to allotment, the complainant filled the Advance Registration Form, and also enclosed a cheque as basic price @ Rs.10,000/- per sq. yards + E.D.C., as applicable per sq. yard as per the prevailing rate on allotment of PLC, if applicable. It was stated that the same was accepted by the Opposite Parties. It was further stated that the Opposite Parties, at the time of issuance of allotment letter/Plot Buyer`s Agreement  dated 20.06.2007, mentioned the rate of the plot at Rs.11,500/- per sq. yard instead of Rs.10,000/- per sq. yard, which was against the terms and condition of the Advance Registration Form. It was further stated that the complainant, approached the Opposite Parties,  a number of times, and requested them, not to charge the price of the plot @ Rs.11,500/-. It was further stated that the Opposite Parties, assured the complainant, that the excess amount, would be adjusted, in future installments, but they failed to do so. It was further stated that the complainant had deposited Rs.35,21,604/- against the due installments till 17.03.2009. It was further stated that when the complainant, visited the project site, it was found, that no development work like roads, sewerage, electricity poles and other basic amenities, had been carried out. It was further stated that,  according to the agreement dated 20.06.2007, the project was to be completed within two years, which period expired on 19.06.2009. It was further stated that neither the possession of the plot was handed over to the complainant, by that date, or even thereafter, nor the complainant was compensated for the delay in delivering the possession. A legal notice dated 27.01.2011, was served upon the Opposite Parties, but to no avail. It was further stated that the aforesaid acts of the Opposite Parties, amounted to deficiency, in rendering service, as also indulgence into unfair trade practice. 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), claiming various reliefs, was filed.

3.               The Opposite Parties, put in appearance, through their Counsel,  and took a number of dates/adjournments for filing reply and evidence, subject to payment of costs but failed do so. Ultimately, none appeared, on behalf of the Opposite Parties and they were proceeded against exparte.

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

5.               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 paragraph of the instant order. 

6.               Feeling aggrieved, the instant appeal, has been filed by the appellants/Opposite Parties.

7.               We have heard the Counsel for the parties, and, have gone through the evidence and record of the case, carefully. 

8.               The Counsel for the appellants, submitted that the absence of the Opposite Parties, in the District Forum, was neither deliberate nor intentional, but due to the reason, beyond their control. He further submitted that the Opposite Parties, be granted two opportunities, to submit their written version and lead evidence. He further submitted that the Opposite Parties were condemned unheard. He further submitted that the order of the District Forum, thus, being illegal and invalid, is liable to be set aside.

9.               The Counsel for the respondents submitted that the Opposite Parties were granted full opportunity to file their written version and evidence, but they failed to avail of the same, but, on the other hand, absented from the proceedings and were proceeded against exparte. He further submitted that the Opposite Parties were not condemned unheard.

10.            After giving our thoughtful consideration, to the contentions, advanced by the Counsel for the parties and the evidence, on record, we are of the considered opinion, that the appeal is liable to be dismissed, for the reasons to be recorded hereinafter. The perusal of the District Forum record, clearly goes to show that on 11.05.2011, the first date of hearing, in the complaint, Sh.Ashish Sarup, Advocate, appeared on behalf of the Opposite Parties, and filed memorandum of appearance. The complaint was adjourned to 26.05.2011, for filing vakalatnama, reply and evidence, by way of affidavit, on behalf of the Opposite Parties. On 26.05.2011, vakalatnama was filed by Sh.Ashish Sarup, Advocate, on behalf of the Opposite Parties. He further sought date for filing reply and evidence, which was granted, subject to costs of Rs.300/-, and the complaint was adjourned to 28.06.2011. On 28.06.2011, costs were not paid. Again a date for filing reply and evidence, was sought, which was granted subject to payment of additional costs of Rs.500/-, and the complaint was adjourned to 12.07.2011, for filing reply and evidence, on behalf of the Opposite Parties and for payment of costs i.e. Rs.800/-. On 12.07.2011, costs of Rs.800/- were paid, but reply and evidence, were not filed. An adjournment was sought, which was granted subject to further payment of costs of Rs.500/-, , as well as for filing of reply and evidence, on behalf of the Opposite Parties. The complaint was adjourned to 02.08.2011. On 02.08.2011, none appeared on behalf of the Opposite Parties, and, accordingly, they were proceeded against exparte. The complaint was adjourned to 19.08.2011, for filing exparte evidence by the complainant, if any, and oral arguments. On 19.08.2011, an application was moved by the Counsel for the Opposite Parties, for setting aside the exparte order dated 02.08.2011. The Counsel for the complainant, stated that he had no objection, as a result whereof, the exparte order was set aside, subject to payment of costs of Rs.500/-, which was paid, on that date itself, and previous costs of Rs.500/- were also paid. The complaint was adjourned to 01.09.2011, for filing of reply and evidence, on behalf of the Opposite Parties. On 19.09.2011, none appeared, on behalf of the Opposite Parties, and, accordingly, they were proceeded against exparte, and the complaint was adjourned to 28.09.2011, for filing exparte evidence, if any, and, oral arguments by the complainant.  On 28.09.2011, arguments were heard and the complaint was adjourned to 21.10.2011 for orders. On 21.10.2011, the complaint was accepted, in the manner referred to, in the opening paragraph of the instant order.

11.            The perusal of the aforesaid order sheets clearly goes to show that sufficient opportunity was granted to the Opposite Parties, to file their written version, as also, the evidence, by way of affidavits, but they failed to do so. The conduct of the Opposite Parties, as is evident from the aforesaid order sheets was throughout contumacious. They intentionally and deliberately, wasted the time of the District Forum, by seeking a number of dates for filing reply and evidence, by way of affidavits, but they failed to do so. Ultimately, they absented, as a result whereof, they were proceeded against exparte. Therefore, it could not be said that the Opposite Parties were condemned unheard. The District Forum was only required to afford a reasonable opportunity, to the Opposite Parties, to file reply, and lead evidence, by way of affidavits. Since a number of opportunities were granted to the Opposite Parties, as is evident from the aforesaid order sheets, but they failed to avail of the same, as a result whereof they were proceeded against exparte. Under these circumstances, it could not be said that the Opposite Parties were condemned unheard. The submission of the Counsel for the appellants, thus, being without merit, must fail, and the same stands rejected.

12.            The District Forum, was right, in coming to the conclusion, that, no doubt, in the Advance Registration Form, the rate of the plot, in question  was mentioned @Rs.10,000/- per sq. yard + EDC  as applicable. In the allotment letter, which was issued in favour of the complainant, the rate of the plot, in question, was mentioned as Rs.11,500/- per sq. yard. Not only this, in the Plot Buyer`s Agreement,  at page 31/15 of the District Forum file, to which the complainant was a signatory, the price of the plot, in question, was mentioned  as Rs.11,500/- per sq. yards. It means that the complainant consented to the price of the plot as Rs.11,500/- per square yard. Since the bilateral agreement, referred to above, was executed, between the parties, and the complainant signed the same, with eyes wide open, at this stage, he could not wriggle out of  the terms and conditions thereof. The findings of the District Forum, that the Opposite Parties, allotted the plot, in question, in favour of the complainant @Rs.11,500/- per sq. yard, as per the terms and conditions of the agreement, executed between the parties, therefore, being correct are affirmed.

13.            The District Forum was right, in coming to the conclusion, that since the possession of the plot, in question, after carrying out the complete development work, was not handed over to the complainant, by 19.06.2009, (the promised date as per agreement, referred to above) and the amount of Rs.35,21,604/-, deposited by him, was illegally and improperly, retained by the Opposite Parties,  for a sufficiently longer period, he was required to be compensated. The District Forum, was, thus, right in coming to the conclusion, that the complainant was entitled to interest @12% p.a. on the deposited amount of Rs.35,21,604/-,  from the respective dates of deposit, till handing over the possession of the plot, in question, after carrying out the complete development  work.

14.             The District Forum, took cognizance of the fact, that the complainant, underwent tremendous mental agony and physical harassment, on account of non-delivery of possession of the plot, in question. Keeping in view, the totality of facts and circumstances of the case, the District Forum, in our considered opinion, was right, in awarding compensation to the tune of Rs.25,000/-,  to the complainant, which could be said to be  reasonable, adequate, fair and just. The findings of the District Forum, in this regard, being correct are affirmed.

15.            By making misleading statement, to the complainant, to the effect, that possession of the plot, in question, would be delivered to him by 19.06.2009, after carrying out the complete development work, and, thereafter, not adhering to the said promise, the Opposite Parties, fleeced him(complainant), of his hard earned money. Knowing fully well, that they would not be able to deliver possession of the completely developed plot, to the complainant, on the promised date, the Opposite Parties, certainly adopted unfair trade practice. While awarding compensation to the tune of Rs.25,000/-, the District Forum, also took cognizance of this fact.

16.            The District Forum was, thus, right in holding that the Opposite Parties were deficient, in rendering service, as also indulged into unfair trade practice. The order of the District Forum, being legal and valid, is liable to be upheld.

17.            No other point, was urged, by the Counsel for the parties.

18.            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.

19.            For the reasons recorded above, the appeal, being devoid of merit, must fail, and the same is dismissed, with no order as to costs. The order of the District Forum is upheld.

20.            Certified copies of this order be sent to the parties, free of charge.

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

Pronounced.

04.04.2012

Sd/-

[JUSTICE SHAM SUNDER]

PRESIDENT

Sd/-

[NEENA SANDHU]

MEMBER

Rg