Reserved

State Consumer Disputes Redressal Commission

U.P. Lucknow.

Appeal No. 303  OF  2020

Varanasi Development Authority.                       …Appellant.

Versus

Mr. Jogendra Singh s/o Heera Singh,

R/o H.No.H-28, Lalpur Awas Yojna,

Phase-2, Chandmari, Varanasi.                       .…Respondent.

Present:-

1- Hon’ble Sri Govardhan  Yadav, Presiding Member.

2- Hon’ble Sri Rajendra  Singh, Member.

Sri Saket Srivastava, Ld. counsel for the appellant.

Sri Sushil Kumar Sharma, Ld. Counsel for the respondent.

Date     24.02.2021

JUDGMENT

Sri Rajendra  Singh,  Member-  Appellant Varanasi Development Authority has preferred this appeal against exparte judgment and order dated 18.6.2020 passed by the Ld. District Commission, Varanasi in complaint case no.118 of 2018.

The brief facts of the appeal are that the respondent applied to purchase a HIG  house through application no. 1437 and deposited registration amount of Rs.30,000.00 by draft no.373848 which was issued by Uco Bank on 13.10.1994. The approximate price of the HIG no.H-28 was Rs.3,70,660.00 and being a corner one an additional cost of Rs.18,530.00 was also charged and the prepaid lease rent was Rs.11,790.00. The condition for the payment was that, that 25% of the total amount of house and corner charges including prepaid lease rent mentioned as above, after deducting the registration amount of Rs.30,000.00, the exact figure of amount Rs.92,970.00, was to be paid till 10.1.1995 and  75% of the balance amount with interest  was payable in 32 quarterly instalments as per letter dated 9.12.1994. The respondent did not pay the amount of Rs.92,970.00 which was mentioned in the demand letter dated 9.12.1994 and

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without prior permission the respondent deposited Rs.74,440.00 on 6.1.1995. The rest amount of Rs.18,530.00 was to be deposited within 4 days till 10.1.1995 but the respondent did not pay the balance amount continuously for two years and therefore, he failed to comply with the letter dated 9.12.1994 due to  his fault for which he is liable for punitive interest. The appellant sent first reminder on 7.1.1997 for payment of balance amount of Rs.18,530.00. After one and half year the appellant sent second reminder on 1.6.1998 for payment of balance amount but the respondent did not pay any attention. The third reminder was sent on 4.7.1998 for payment and clearance of all dues.

The respondent requested appellant for allowing him to take possession and assured the appellant that all the dues will be timely deposited with 19% interest with quarterly instalment of Rs.26,203.00 which was started from November, 1998. On request of the respondent, the appellant handed over the possession to the respondent in good faith through possession letter dated 14.9.1999. Before registration, as well as before taking possession, the respondent had inspected the house and being fully satisfied with the construction, he accepted the terms and condition and took possession of the house. Neither at the time of registration nor at the time of taking possession he raised any complaint of poor quality of construction. The respondent signed the agreement on 24.10.1998 and now the respondent cannot blame the appellant regarding construction issue. After taking possession of the said house, the respondent stopped paying the instalments and started committing irregularities. The fourth reminder has been sent to respondent on 11.7.2000 for depositing Rs.1,83,356.89 including dues, interest and punitive interest till 20.7.2000. It was not the total cost of the house. The respondent approached the appellant in 2002 and requested for settlement under OTS scheme. The appellant calculated the cost of the house as per norms and Rs.5,49,063.22 came as due amount till 30.6.2000 about which the respondent was informed but he failed to avail the benefit of OTS scheme 2000.

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The respondent again approached the appellant in 2002 for OTS facility. The appellant calculated the cost as per norms and Rs.8,16,205.20 came as due till 4.10.2002. The appellant provided the facility of depositing 50% of the amount till 15.10.2002 but again the respondent failed to avail this facility also. In spite of depositing the balance amount, the respondent filed a writ petition no.10771/2003, Yogendra Singh vs. VDA in the Hon’ble High Court, Allahabad. The Hon’ble High Court gave findings that the plaintiff has remedy in common law  regarding breach of contract but such relief cannot be enforced by way of writ petition. Thereafter, the respondent Jogender Singh filed civil suit no.1281/2017 which is still pending in civil court of Varanasi. The respondent, concealing the fact of the order of the Hon’ble High Court and pendency of civil suit, filed a complaint no.118/2018 before the ld. District Commission, Varanasi who without giving any opportunity of hearing to the appellant and without jurisdiction passed an exparte judgment dated 28.2.2019. The respondent Mr. Jogender Singh filed appeal no.401/2019 for enhancement of remedies against the order passed by ld. District Commission, Varanasi. In the said appeal the respondent Varanasi Development Authority filed written statement before the Hon’ble State Commission and raised the point of civil suit and order dated 13.12.2016 passed by the Hon’ble High Court. Hon’ble State Commission after hearing both parties was pleased to decide the aforesaid appeal by its order dated 16.3.2020 quashing the impugned order of the Ld. District Commission, Varanasi and directed the District Commission, Varanasi to decide the complaint case after providing the opportunity of hearing and evidence to both the parties.

The appellant Varanasi Development Authority appointed an advocate for presenting the written statement and evidence before the Ld. District Commission on the fixed date of hearing i.e. 27.4.2020. The Ld. District Commission, Varanasi released a general notice regarding adjournment of cases in the wake of COVID-19 and the next date 17.1.2020 was fixed. The appellant surprised to know that the complaint

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case no.118 of 2018 was decided exparte on 18.6.2020 though the case was not fixed on that date. After examining the record, it was found that in place of fixed date of hearing 17.7.2020, the Ld. District Commission, Varanasi with collusion of the respondent/complainant in an arbitrary manner and without any knowledge or without giving any notice to Varanasi Development Authority fixed hearing dates on 16.6.2020, 17.6.2020 and 18.6.2020. The Ld. District Commission, Varanasi adopted arbitrary and illegal procedure and again passed an exparte order on 18.6.2020 whereas the date for hearing was fixed on 17.7.2020. It is clear that the ld. District Commission, Varanasi has flouted the order dated 16.3.2020 passed by the Hon’ble State Commission. The act of ld. District Commission is contrary to natural justice. It is also pertinent to mention that in order to prevent to spread of COVID-19, a notice regarding nationwide lock down from 1.6.2020 to 30.6.2020 was released by the Home Ministry of Government of India on 30.5.2020. The ld. District Commission without giving any attention to public concern, ignored the situation of lock-down and passed the order in an arbitrary manner. The appellant is a government organization and it remains dedicated to the service of society and adhere to laws. In the above situation, there is no deficiency in service on the part of the appellant. So, the impugned judgment and order dated 18.6.2020 is liable to be set aside.

The said judgment is an exparte and has been passed in contradiction of the order dated 16.3.2020 of the Hon’ble State Commission. The order dated 18.6.2020 is bad in the eyes of law and not maintainable according to legal points as the matter is sub judice before the competent civil court, Varanasi. As per the guidelines of the Hon’ble High Court, Allahabad, the dispute is related to breach of contract and the consumer court has no jurisdiction to entertain such type of matters. The appellant followed the government norms and adopted the procedure to charge according to DM circle rate and also charged compound interest and the appellant did not make any deficiency against the respondent, therefore, it most

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respectfully prayed that this Hon’ble State Commission may kindly be pleased to quash the order dated 18.6.2020 in complaint no.118 of 2018.

We have heard both the parties councils and went through the buildings, evidences, documents filed by the parties.

The respondent in his written argument has stated that the appeal is in time but as it has been filed on 14 August 2020 beyond the period of limitation though the certified copy was obtained on 01.07.2020. The respondent/complainant preferred an application with the appellant in 1994 for the purchase of one HIG house and he was allotted house number H– 28 at a price of ₹ 320,000/–. The impugned judgement passed by the learned district forum Varanasi dated 18.06.2020 in complainant’s number 118/2018 is proper and legal and there is no illegality or infirmity in the aforesaid judgment. The complainant had to deposit ₹ 81,180/– till 10 January 1995 and against this amount complainant had deposited ₹ 74,440/– through bank draft on 4 January 1995. When the complainant went to take the possession of the aforesaid allotted house he was shocked to see that the aforesaid house had many shortcomings as alleged in the complaint case. Complainant wrote many letters with regard to the above shortcomings but unfortunately the appellant did not take any action. The respondent to the possession of aforesaid allotted house on 14 September 1999 on the verbal assurance of a plant that the aforesaid shortcomings will be removed very soon though the house was in very bad condition.

The complainant deposited ₹ 22,270/– on 15 September 1998 in the office of the appellants towards the cost of the house. It is further submitted that the appellant had demanded ₹ 26,203/– as quarterly instalment through the letter of possession whereas ₹ 26,023/– was already waived off in November 1998. The complainant wrote many letters to the appellant requesting therein to fix the instalments on the basis of income of the complainant. Appellant had informed the

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complainant vide  letter dated 11 July 2000 that ₹ 183,356.89/– was outstanding against him which he had to deposit till 20 July 2000. The appellant had launched OTS scheme in year 2000 in the interest of allottees and as per said OTS scheme the penal interest on the deposit by the allottees was waived by the appellant. The respondent/complainant had applied for the same and in response to that appellant illegally showed the outstanding amount to be ₹ 549,063.22 30 June 2000. Subsequently to this the appellant sent another letter dated 11 May 2001 to the respondent according to which complainant had to deposit ₹ 330,587.86/– in respect of instalments till March 2001. Respondent then deposited ₹ 50,000/– on 12 number 2001 and ₹ 20,000 on 27 March 2002 and ₹ 10,000 on 5 August 2002, thus complainant deposited a total amount of ₹ 206,670/– in respect of the aforesaid allotted house.

The appellant launched an OTS scheme in August 2002 in the interest of allottees and as per the said OTS scheme the panel interest on the deposit by the allottees was waived by the appellant, if they apply for the same (aforesaid OTS scheme). The complainant again applied in the aforesaid OTS scheme and in response to that appellant again illegally indicated ₹ 816,205.20/– as outstanding against the complainant. It is relevant to mention here that the appellant had illegally demanded compound interest as stated in ground 4 of the Memo of Appeal instead of simple interest, which is illegal in the eyes of law and the complainant was asked to deposit Rs.4,08,102.60 which is the 50% of aforesaid amount of ₹ 8,16,205.20. It is further submitted that the appellant took Rs.4,37,700/– as total price of an identical HIG house allotted to one Shri Madan Mohan Srivastava, neighbour of respondent, situated adjacent to the complainant’s house (HIG – 27) in the year 2009 which very clearly shows that the appellant discriminated against the complainant.

The complainant had filed a writ petition number 10771 of 2003; Jogendra Singh  Vs  Varanasi  Development

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Authority; before Hon’ble High Court of judicature at Allahabad were in the Hon’ble court was pleased to observed that as it was a matter of accounting not related to dispute in terms and conditions of the contract the instant Writ Petition did not fall within the purview of article 226 of the Constitution of India and hence the writ petition was dismissed by means of order dated 13 December 2016. The complainant thereafter filed a civil suit number 1281 of 2017 before the District Court Varanasi  , the prayer and cause of action in which was different to the prayer made in complaint case number 18/2018 filed before The District Consumer Forum Varanasi, which is still pending and is fixed for 21^st October to 2020.

The complaint case number 118/2018 was decided on 28^th February 2019 against which the complainant filed appeal number 401/219 in which vide final order dated 16 March 2020 this Hon’ble Commission while setting aside the judgement dated 28 February 2019 remanded the matter to the learned District Forum Varanasi, with the Direction to grant Opportunity to Varanasi Development Authority to file their Written Statement before the District Forum and thereafter grant opportunity of evidence and hearing to both the parties so that proper adjudication of the complaint case may take place. Though the district forum gave opportunity to the appellant for filing WS before it, after the appellant’s appearance before it, the appellant failed to file WS before the District Forum which act depicts deliberate omission on the part of the appellant. In compliance of the impugned judgement dated 18 June 2020 of the district Forum Varanasi, the respondent has deposited ₹ 164,000/– plus ₹ 20,000/– i.e, ₹ 184,000/– with the appellant on 07.07.2020 . The respondent had to deposit ₹ 370,670/– as price of the allotted house with the appellant. The respondent has deposited a total amount of Rs 4,42,770/-with the appellant till date i.e, ₹ 206,670/– by 05.08.2002 , plus ₹ 184,000/– on  plus ₹ 52,100 on 07.07.2020 plus ₹ 52,100/– on 20.08.2020.

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It is submitted that complaint case number 118/2018 was decided exparte on 18.06.2020 because sufficient opportunity was given to Varanasi Development Authority by the District Forum, when the appellant appeared before it, still the appellant failed to comply with the aforesaid appellate judgment and order dated 16^th March 2020 of this Commission, and did not file WS before the District Forum, hence there was no illegality in passing of the impugned judgment and order dated 18^th June 2020 passed by the District Forum Varanasi.

The plea of lockdown does not hold water as the pirokar of the appellant appeared before the District Forum on 16^th June 2020 and stated that WS will be filed by 17^th June 2020. The lockdown imposed by government was still 31^st May 2020 and in June the process of unlock was initiated and the appellant could have very well file WS before the district Forum, Varanasi. Thus it is crystal-clear that appellant was not interested in filing WS before the district Forum and it is also crystal-clear that appellant had committed gross defficiency in service by demanding higher amount from the respondent in the year 2002 by calculating interest upon interest on one hand and taking lesser amount that is ₹ 453,827/– from the neighbour of the complainant in the year 2009 four identical HIG house which amounts to discrimination.

The main point in dispute in this appeal is whether the ld. District Commission passed the judgment dated 18.6.2020 in complaint no.118 of 2018 without giving any opportunity to the appellant and violating the direction of the Hon’ble State Commission.

First, we perused the order sheet of the said case dated 27.4.2020 in which the next date has been fixed 16.6.2020. Order sheet dated 16.6.2020 shows that the peon of the opposite party (Varanasi Development Authority) is present and he stated that tomorrow his officer will come and will submit written statement, so the case was fixed on 17.6.2020.

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On that date, none appeared from the opposite party’s side, hence, ld. District Commission proceeded exparte and on 18.6.2020 exparte judgment was pronounced.

          This is the order sheet of the ld. District Commission and it cannot be questioned because it is passed during the judicial proceedings of the court.

          The contention put forward by the appellant that a general date was fixed in all the cases which were listed on 27.4.2020. But, the order sheet will prevail and not the list and above all, when office peon of the opposite party was present before the ld. District Commission on 16.6.2020, there is no question to retract from it. It shows that the opposite party was totally negligent in filing the written statement as assured by the Pairokar of the opposite party.

          Now we come to the judgment of the Hon’ble State Commission dated 16.3.2020 passed in appeal no.401 of 2019 in which the Hon’ble State Commission has accepted the appeal and set aside the judgment of the ld. District Commission dated 28.2.2019 and directed the District Commission for giving opportunity to the respondent/ opposite party for submitting its written statement and thereafter, to decide the complaint on merit. At that time the counsel for the opposite party was present before the Hon’ble State Commission. Both the parties were directed to appear before the District Commission on 27.4.2020. It means about after 40 days from the date of judgment of the appeal.

          Now the question arises as to what is the time limit to file written statement. As per section 13(1)(a) of the Consumer Protection Act, 1986 which is reproduced hereunder:-

          “refer a copy of the admitted complaint, within twenty one days from the date of its admission to the opposite party mentioned in the complaint directing him to give his version of the case within a period of thirty days or such extended period not exceeding fifteen days as may be granted by the District Forum.”

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          In this respect the judgment passed by the constitutional bench of the Hon’ble Supreme Court which is reproduced here:-

            “In  the  case  of New India Assurance Co. Ltd vs Hilli Multipurpose Cold Storage ... Civil  Appeal No 10941­10942 OF 2013  & Many  other  Appeals , Judgement on 4 March, 2020 , Hon’ble Supreme Court ( Constitutional Bench ) held :

“40.  Now reverting to the provisions of the Consumer Protection Act, a conjoint reading of Clauses (a) and (b) of sub­ Section (2) of Section 13 would make the position absolutely clear that the commencing point of limitation of 30 days, under the aforesaid provisions, would be from the date of receipt of notice accompanied by a copy of the complaint, and not merely receipt of the notice, as the response has to be given, within the stipulated time, to the averments made in the complaint and unless a copy of the complaint is served on the opposite party, he would not be in a position to furnish its reply. Thus, mere service of notice, without service of the copy of the complaint, would not suffice and cannot be the commencing point of 30 days under the aforesaid Section of the Act. We may, however, clarify that the objection of not having received a copy of the complaint along with the notice should be raised on the first date itself and not thereafter, otherwise if permitted to be raised at any point later would defeat the very purpose of the Act, which is to provide simple and speedy redressal of consumer disputes.

41. To conclude, we hold that our answer to the first question is that the District Forum has no power to extend the time for filing the response to the complaint beyond the period of 15 days in addition to 30 days as is envisaged under Section 13 of the Consumer Protection Act; and the answer to the second question is that the commencing point of limitation of 30 days under Section 13 of the Consumer Protection Act would be from the date of receipt of the notice accompanied with the complaint by the opposite party, and not mere receipt of the notice of the complaint.”

          Now, it is clear that for the opposite party it is mandatory that he must file written statement within 30 days or if 15 days grace period is given by the Commission within 45 days but beyond these 45 days, written statement if filed cannot be taken on record.

          Now in the light of above mentioned provision and Hon’ble Supreme Court’s judgment when the opposite party

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 was present before the Hon’ble State Commission on 16.3.2020, it was his mandate duty to file his written statement on the first date i.e. 27.4.2020 when the case was taken up by the ld. District Commission. The District Commission fixed another date on 27.4.2020 i.e. 16.6.2020 on which date the Pairokar of the opposite party was personally present before the court and he assured the court that written statement will be filed on the very next date but it could not be filed. Thereafter, opportunity of filing written statement has come to an end.

          In the absence of written statement and opposite party, the ld. District Commission has passed the judgment dated 18.6.2020 which is not against law or provision of the Consumer Protection Act, 1986. The opposite party is not vigilant and it did not take the opportunity of filing written statement given by the Hon’ble State Commission. Hence, in the present scenario and considering all the circumstances, we are of the view that present appeal has no force and is liable to be dismissed.

ORDER

          Appeal is dismissed with costs. The judgment and order of the District Commission passed in complaint case no.118 of 2018 dated 18.6.2020 is hereby confirmed.

          Certified copy of this judgment be provided to the parties as per rules.  

     (Goverdhan Yadav)                           (Rajendra Singh)

     Presiding  Member                                     Member

Judgment dated/typed signed by us and pronounced in the open court.

          Consign to record.

      (Goverdhan Yadav)                         (Rajendra Singh)

      Presiding Member                                   Member

Jafri/Court 1