APPEARED AT THE TIME OF ARGUMENTS For the Appellants | : | Mrs. Rekha Aggarwal, Advocate Mr. Nauman Haq, Advocate | For the Respondent | : | Ms. Shweta Pareek Roy, Advocate |
PRONOUNCED ON : 22nd MAY 2018 O R D E R PER DR. B.C. GUPTA, MEMBER This first appeal has been filed under section 19, read with section 21(a)(ii) of the Consumer Protection Act, 1986 against the impugned order dated 21.11.2014, passed by the Rajasthan State Consumer Disputes Redressal Commission (hereinafter referred to as ‘the State Commission’) vide which, the consumer complaint No. 93/2013 filed by the complainant/present respondent was allowed and a direction was given to the appellant/opposite party (OP) builder to refund amount of
₹26 lakh deposited by the complainant with them, alongwith interest @12% p.a. and also to pay a compensation of ₹10 lakh against mental agony and ₹20,000/- as cost of litigation. 2. Briefly stated, the facts of the case are that the respondent/complainant Manju Joshi deposited a sum of ₹26 lakh in April 2013 with the opposite party/appellant Divya Aashirwad Properties Limited for purchase of a shop measuring 230 sq. ft. However, the OP Builder failed to offer the possession of the shop by the promised date, i.e., 30.06.2013. The complainant filed the consumer complaint in question, seeking refund of the amount deposited, i.e., ₹26 lakh alongwith interest @12% p.a. and compensation on various counts. The complaint was resisted by the OP Builder by filing their written reply before the State Commission, in which they stated that the complainant did not fall under the category of consumer and hence, the complaint was not admissible. It was also stated that no assured guarantee had been given to the complainant about the delivery of possession etc. Moreover, the complainant had failed to deposit the balance amount, although the shop in question was ready for delivery of possession. 3. Vide impugned order dated 21.11.2014, the State Commission decided the consumer complaint in favour of the complainant. It has been stated in the said order that the appellant/OP did not appear before the State Commission after the filing of their written statement. The case was, therefore, decided after hearing the complainant only. 4. During arguments before us, the learned counsel for the appellants/OP submitted that the counsel for the appellant stopped appearing in the case before the State Commission, without giving any intimation to them and hence, the right of the appellant/OP to file evidence was closed. The learned counsel further stated that they had made a formal complaint against the said counsel before the Bar Council of Rajasthan and a copy of the same had been produced on record, alongwith the memo of appeal. The learned counsel submitted that keeping into account the conduct of their counsel, they should not be allowed to suffer and should be provided an opportunity to contest their case on merits before the State Commission. 5. Per contra, the learned counsel for the respondent/complainant stated that a perusal of the dates and events in the case revealed that the respondent/complainant was well aware about the progress of the case. It was her duty, therefore, to make alternative arrangements for the defence of the case before the State Commission. The learned counsel further stated that her hard-earned money was lying deposited with the appellant/OP since 2013, resulting into a lot of mental harassment and agony to her. 6. We have examined the entire material on record and given a thoughtful consideration to the arguments advanced before us. 7. A perusal of the material on record and the impugned order of the State Commission makes it clear that the appellants/OPs did file their written reply to the complaint before the State Commission, but thereafter, they failed to ensure follow-up of the case before that Commission. A perusal of the copies of the orders, revealed that on 09.07.2014, the evidence affidavit was filed by the Advocate for the complainant and the matter was adjourned to 25.07.2014 for filing the evidence affidavit of the OP. On the next two dates, i.e., 25.07.2014 and 22.08.2014, it has been recorded that the Advocates were not appearing. Thereafter, the Advocate appeared for the OP on 17.09.2014 and sought adjournment to file his evidence affidavit. However, after that date, there was no appearance for the OPs before the State Commission. 8. It has been made clear by the learned counsel for appellant that they filed a formal complaint against their advocate before the Bar Council of Rajasthan for taking suitable action against him. 9. In the light of these facts, we consider it expedient in the interest of justice, equity and fair play that the appellants/OPs should be given a fair chance to appear before the State Commission and an opportunity to file evidence in their favour and lead oral arguments as well. The present appeal is, therefore, allowed, the impugned order passed by the State Commission is set aside and the matter is remitted back to the State Commission with the directions that they should afford a fresh opportunity to both the parties to present their case before them and then take decision in accordance with law. There shall be no order as to costs. |
