1.       This appeal has been filed under Section 19 of The Consumer Protection Act, 1986 in challenge to the Order dated 18.12.2019 of the State Commission in complaint no. 316 of 2018.

2.       Ms. Natasha Dalmia, learned counsel is present for the appellant (the ‘complainant’). Mr. Anubhav Taneja, learned counsel is present for the respondent (the ‘builder co.’).

3.       Perused the record.

The matter relates to a builder – buyer dispute. The complainant has alleged deficiency in service on the part of the builder co. and has prayed for refund of his deposited amount with interest along with lumpsum compensation and cost of litigation. The State Commission vide its impugned Order of 18.12.2019 has dismissed the complaint for want of prosecution.

4.       Learned counsel for the builder co. submits that he needs time to study the brief and requests for an adjournment.

Learned counsel for the complainant opposes adjournment, submitting that the appeal was filed long back in January 2021 and is being needlessly delayed on behalf of the builder co.

Ordinarily we do not grudge accommodating the learned counsel and avoid declining such request if it sounds genuine but this is not a matter in which any complex or complicated question of law or fact is involved at all. This is a simple matter of dismissal of the case by the forum below for reason of non-appearance of the complainant. The entreaty for adjournment does not appear to be a merited request and appears to be more in the nature of an attempt to defer the hearings anyhow. It is relevant that the Act 1986 is for “better protection of the interests of the consumers”, its Statement of Objects & Reasons says of “speedy and simple redressal to consumer disputes”. The ideal normative period to decide an appeal is 90 days of its admission (Section 19A of the Act 1986; Section 52 of the Act 2019). The present appeal was filed on 04.01.2021 and notice was ordered to be issued on 14.01.2021, almost two years back. The request for adjournment appears more to be an impedimentary stratagem to unnecessary procrastinate the matter rather than a genuine one and is thus declined politely.

5.       The appeal has been filed with admitted delay of 65 days.

Learned counsel for the complainant submits that genuine bonafide reasons for the delay have been summed-up in paras 3 and 4 of the application for condonation of delay. Part of the period of delay was also covered by the situation arising out of COVID-19. She further submits that an amount of Rs. 20,41,718/- was paid by the complainant to the builder co. but the builder co. neither offered possession of the subject unit nor refunded the deposited amount. Submission is that the delay was due to genuine reasons and also that the complainant will suffer from grave miscarriage of justice if the delay is not condoned and he is left remediless.

Learned counsel for the builder co. makes no submissions on this count.

Considering the reasons mentioned in paras 3 and 4 of the application for condonation of delay, considering the then COVID-19 situation, in the interest of justice, to prevent miscarriage of justice, sufficient cause to condone the delay is well forthcoming and as such the delay stands condoned.

6.       Coming to the substance of the case, the record shows that the matter relates to a builder – buyer dispute. The complainant has alleged deficiency in service on the part of the builder co. and has prayed for refund of his deposited amount with interest along with lumpsum compensation and cost of litigation. Vide its Order of 18.12.2019 the State Commission has dismissed the complaint for want of prosecution in the absence of the complainant. The said Order is reproduced below for reference:

          18.12.2019

Present : None for the complainant.

              None for the opposite parties.

              Today the case was listed for filing of written version. Today, neither the complainant nor his counsel has put in appearance before this Bench.

              Case called several times since morning but none has appeared on behalf of complainant. It is already 2:00 P.M. Waited sufficiently. No further wait is justified. It seems that the complainant is not interested in continuing with this present complaint. Hence, the present complaint is hereby dismissed for want of prosecution. File be consigned to the record room.

Learned counsel for the complainant submits that the complainant was dutifully pursuing his complaint before the State Commission. The non-appearance on 18.12.2019 was due to miscommunication of the date by the clerk of the learned counsel before the State Commission. The complainant has a good case on merit and wants opportunity to present his case before the State Commission. Submission is that the complainant will be irreparably prejudiced if the complaint is not restored and will be left remediless. 

Learned counsel for the builder co. makes no submissions in this regard.

Considering the nature of the dispute and the overall facts and circumstances of the case, it is felt to be just and conscionable that one more opportunity be provided to the complainant for getting the matter adjudicated on merit before the forum of first instance.

This Commission is consciously refraining from detailing the facts or critiquing the matter since the dispute has as yet to be adjudicated on merit and it does not wish to in any manner color the vision of the forum below.

7.       Sequel to the above, the Order dated 18.12.2019 of the State Commission is set aside and the complaint is restored to its original number before the State Commission.

The complainant is sternly advised to conduct his case properly with due diligence before the State Commission.

Needless to add, the builder co. shall be free to make all its submissions before the State Commission in the normal wont and conduct its defence as per the law.

8.       The complainant and the builder co. are directed to appear before the State Commission on 09.02.2023. The State Commission is requested to adjudicate the complaint, as per the procedure, on merit, in accordance with the law.

9.       The Registry is requested to send a copy each of this Order to both sides and to their learned counsel within three days. It is further requested to most immediately send a copy of this Order to the State Commission by the fastest mode available. The stenographer is requested to upload this Order on the website of this Commission immediately.