BEFORE:

HON’BLE MR. SUBHASH CHANDRA, PRESIDING MEMBER

HON’BLE DR. SADHNA SHANKER, MEMBER

For the Appellant                Mr Vaibhav Dabas, Advocate 

For the Respondent             Mr Nikhil Jain, Advocate

ORDER

PER SUBHASH CHANDRA

1.      This appeal under Section 19 of the Consumer Protection Act, 1986 (in short, the “Act”) is directed against the order dated 07.09.2018 of the Uttar Pradesh State Consumer Disputes Redressal Commission, Lucknow in Complaint no. 320 of 2019 allowing the complaint and directing the appellants/opposite parties who were placed ex parte to jointly and severally pay Rs 14,03,785/- to the respondents/complainants with interest @ 18% p.a. from the date of respective deposits till the date of actual payment along with compensation of Rs 1,00,000/- for deficiency in service and litigation cost of Rs 10,000/-.

2.     Interim Application No. 17988 of 2019 filed with the First Appeal seeking condonation of delay of 404 days in the filing of the appeal was considered and arguments of the parties were heard on the preliminary issue of applicability of limitation under Section 24A of the Act. We have heard the learned counsel for the parties on the issue of the delay in the filing of the appeal and perused the records.

3.     The relevant facts of the case, in brief, are that respondent no. 2 was allotted Flat No. M/07/01 in the appellant’s residential project “Celebrity Meadows”, Sushant Golf City, Lucknow, UP for a sale consideration of Rs 38,39,384/- and paid Rs 1,92,020/- to appellant no. 1 as allotment charges. Thereafter Rs 12,11,765/- was paid on 29.08.2011. Respondent no. 1 was added as a joint allottee. Appellant requested allottees to shift to Block B which was agreed to on 16.12.2014 and Flat B/06/01 was allotted and a Flat Buyers Agreement was also executed. According to the appellants, the respondent did not make any further payments after the payment of Rs 14,03,785/-. Appellant contends that respondents made false allegations of the construction work getting stalled and filed Complaint Case No. 320 of 2016 before the State Commission seeking possession or refund of the deposited amount with interest. This complaint case was disposed by the State Commission vide order dated 07.09.2018 wherein the appellants were placed ex parte as they failed to appear. This order is impugned before us praying to set aside the same.

4.      On behalf of the appellant it was argued that the complaint was instituted before the State Commission on 05.09.2016 and notices were issued on 24.10.2016. When the matter was heard on 30.01.2017, the State Commission noted that the notice issued by registered post dated 24.01.2017 had not been received back and therefore concluded that the appellants had been served notice. Thereafter, on 14.02.2017 the State Commission while directing respondents to lead their evidence did not direct notice to be served on the appellants and on 24.07.2018 reserved orders which were pronounced on 07.09.2018. While arguing on IA No. 17988 of 2019, learned counsel for the appellant submitted that the notice issued had been presumed to have been served even though there was no evidence for the same and the order pronounced after placing the appellants ex parte as was evident from the impugned order. It was contended that this was violative of his right to be heard and that the impugned order was therefore bad in law. The State Commission was stated to have erred in presuming service as completed. It was submitted that the appellants were a company based in Delhi and that the service of notice was not ensured by the State Commission which erred in placing the appellants ex parte and hearing and adjudicating the matter in their absence.   

5.      Per contra, the contention of the respondents is that the appellants stood served and that the State Commission’s order was in order. It was further contended that the present appeal was inordinately delayed by 404 days and that the appellant’s case that it had no knowledge of the impugned order till 15.10.2019 when execution proceedings commenced was incorrect. It was argued that the First Appeal was barred under Section 24A of the Act as it was beyond the prescribed period for the filing of an appeal. Reliance was placed on the judgments of the Hon’ble Supreme Court in R.B. Ramalingam Vs. R.B. Bhavaneshwari, (2009) 1 CLT 188 (SC) to contend that the appellant failed to act with due diligence in prosecuting his case and Ram Lal Vs. Rewa Coalfields Ltd., AIR 1962 SC 361 and Basawaraj Vs. The Spl. Land Acquisition Officer, AIR 2013 SCW 6510 to contend that sufficient cause had not been shown to establish the appellant’s bona fides with respect to explaining the delay in filing the appeal. Reliance was also placed on Anshul Aggarwal Vs. New Okhla Industrial Development Authority, (2011) 14 SCC 578 that the Act provides for a special period of limitation in order to meet the objective of expeditious disposal.

6.      The State Commission in Complaint No. 320 of 2016 has held that:

Notices have been issued to opposite parties through registered post which were not returned unserved. Therefore, after expiry of 30 days service of notices on opposite parties was presumed sufficient. But opposite parties neither turned out nor filed written statement to oppose the complaint. As such the case has been proceeded ex party against opposite parties.

[Emphasis supplied]

7.      From the foregoing it is manifest that the State Commission has admittedly acted on the presumption that the appellants had been served the notice in respect of the complaint filed. It is not in dispute that the notice was not served since the impugned order specifically records that notice was presumed served after waiting for 30 days. The State Commission has clearly fallen in error in not ensuring whether the notice was actually served on the appellant. Without ensuring that same, the placing of the appellants ex parte and adjudication of the case without ensuring the appellants an opportunity of being heard in the matter is against the law and cannot be sustained. We therefore find merit in the appeal and consider that there are sufficient reasons to warrant interference in the impugned order.

8.      In view of the foregoing, this first appeal is liable to succeed. Accordingly, the appeal is allowed and the order of the State Commission is set aside. The matter is remitted to the State Commission with the direction to hear the matter after due notice to the parties concerned and to decide it on merits as per law, preferably within a period of 4 months.

9.      In the circumstances of the case, there shall be no order as to costs. Pending IAs, if any, stand disposed of with this order.