Som Nath Sharma filed a consumer case on 03 Oct 2016 against Parsvnath Developers in the StateCommission Consumer Court. The case no is CC/272/2016 and the judgment uploaded on 04 Oct 2016.
Chandigarh
StateCommission
CC/272/2016
Som Nath Sharma - Complainant(s)
Versus
Parsvnath Developers - Opp.Party(s)
HPS Kochhar,Adv.
03 Oct 2016
ORDER
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
U.T., CHANDIGARH
Complaint case No.
:
272 of 2016
Date of Institution
:
15.06.2016
Date of Decision
:
03.10.2016
Som Nath Sharma aged 87 years, son of Late Sh.P.M. Sharma, resident of House No.434, Sector 44-A, Chandigarh.
Krishna Sharma, aged 84 years wife of Som Nath Sharma, resident of House No.434, Sector 44-A, Chandigarh.
……Complainant
V e r s u s
Parsvnath Developers, SCO No.1, Sector 26, Madhya Marg, Chandigarh, through its Manager.
Second Address:-Site of Parsvnath Developers, Sector 20, Panchkula, Haryana, through its Manager.
Parsvnath Developers, Corporate Office, 6th Floor, Arunachal Building, 19, Barakhamba Road, New Delhi-110001, through its Manager.
Parsvnath Developers, Registered Office, Parsvnath Metro Tower, Near Shahadra Metro Station, Shahadra, Delhi-110032, through its Manager.
Real Pro Assets Private Limited, SCO No.218-219, Sector 34, Chandigarh, through its Manager.
.... Opposite Parties
Complaint under Section 17 of the Consumer Protection Act, 1986.
BEFORE: JUSTICE JASBIR SINGH (RETD.), PRESIDENT.
MR. DEV RAJ, MEMBER
MRS. PADMA PANDEY, MEMBER
Argued by: Sh. H.P.S. Kochhar, Advocate for the complainant.
Sh. Aftab Singh Khara, Advocate for Opposite Parties No.1 to 3, alongwith Sh.Yudhvir Arora, Senior Manager.
JUSTICE JASBIR SINGH (RETD.), PRESIDENT
The complainants are senior citizens. To fulfill their dream of living in a healthy environment, they wanted to purchase a residential unit, in the periphery of Chandigarh. They came across promises and advertisements made by opposite parties no.1 to 3, through print media, to launch their project namely “Parsvnath Royale Panchkula”, Sector 20, Chandigarh. On 01.01.2011, they paid an amount of Rs.15,04,000/-, in cash, to opposite party no.4, which was acting as an agent of opposite parties no.1 to 3, to market above mentioned project. Opposite party no.4 issued receipt dated 01.01.2011 Annexure C-5, showing booking of flat bearing no.202, T-5, 3BHK plus servant room, measuring 1780 square feet area. Thereafter, an amount of Rs.8,90,100/- was paid on 04.01.2011. Buyer’s Agreement was signed between the parties on 08.02.2011. Basic sale price of the unit was fixed at Rs.57.85 lacs. Formal allotment letter was issued on 09.02.2011. As per Clause 10(a) of the Agreement, possession of the unit was agreed to be handed over within a period of 36 months of the commencement of construction with grace period of six months. As per Clause 10 (c) it was undertaken by opposite parties no.1 to 3 to compensate the complainants, in case of delay in handing over possession of the unit, by making payment of Rs.53.80Ps. per square meter of the super area of the unit, per month. It was further stated that as and when payment was due, it was made through cheques. Visits to the site showed that construction was stopped. Noticing the same, complainant no.1 wrote a letter to the opposite parties on 20.01.2012 to start construction. Earlier also, similar letters were written on 12.08.2011 and 19.09.2011. During correspondence, it was brought to the notice of the complainants that opposite party no.4 has closed his office and that he was only a broker to whom brokerage was paid. Thereafter, again an amount of Rs.5,96,375/- was paid on 18.07.2012. Again on 08.12.2012, 19.03.2013 and 27.12.2013, Rs.5,96,375/- each, were paid by the complainants. It was stated that in all, till filing of the complaint, the complainants have paid an amount of Rs.53,70,013.37Ps., towards price of the unit. It came to the notice of the complainants that construction at the spot is not in progress; the opposite parties have changed layout plan of the site and many amendments have been made in the original proposal, without getting consent from the complainants. The material used in construction was of inferior quality. Sensing that possession of the unit is not possible in near future, they filed this complaint, seeking refund of amount paid by them, alongwith compensation and litigation expenses.
Upon notice, reply was filed by opposite parties no.1 to 3. Sale of unit to the complainants against price mentioned was admitted. It was also admitted that for payment ‘construction linked payment plan’ was adopted by the complainants. It was further stated that construction work at the site was in progress and delay was caused due to global meltdown, which was beyond control of opposite parties no.1 to 3. It was averred that on account of global meltdown, opposite parties faced financial crunch. Requisite compensation for delay will be paid in terms of Clause 10 (c) of the Agreement, at the time of delivery of possession of the unit. It was further stated that vide letter dated 14.07.2015, the complainants were intimated that due to recession in market, construction work was delayed. It was further stated that now the construction work is in full swing and is about to complete shortly. Territorial jurisdiction of this Commission was disputed. It was averred that it is a case of contract between the parties and the dispute can be settled by Civil Court only. It was further stated that time was not essence of the contract. Only promise was made to make an attempt to hand over possession of the unit within 36 months plus six months grace period. Qua amount paid, no positive reply was given.
Before going into the merits of case, we will look into the controversy, as to how much amount was paid by the complainants to the opposite parties, for purchase of the unit, in question. In the prayer Clause, it is stated that in all, the complainants have paid an amount of Rs.53,70,013.37Ps., towards price of the unit. The said amount includes an amount of Rs.15,04,000/- which allegedly was paid by the complainants to opposite party no.4, being an agent of opposite parties no.1 to 3, to purchase the flat in question. To say so, reliance was placed upon receipt issued by opposite party no.4 on 01.01.2011 Annexure C-5. Notice in this complaint was issued on 17.06.2016. Qua opposite party no.4 report came that no such firm is available at the given address. Facing with situation, Counsel for the complainants stated, at that stage, that it is not necessary to summon opposite party no.4. On 08.08.2016, when this matter was being heard, it was stated by the opposite parties no.1 to 3 that an amount of Rs.15,04,000/- paid by the complainants, to opposite party no.4 was never received by them. Taking note of above averment, Managing Director of opposite parties no.1 to 3 was directed to file an affidavit, disclosing as to whether the said amount was ultimately received by opposite parties no.1 to 3 or not. If not received, on what basis the flat was reserved/allotted in favour of the complainants and further how many bookings were received by opposite parties no.1 to 3 through opposite party no.4. Customer ledger/statement of account was also directed to be placed on record. In response to above order, an affidavit dated 08.09.2016 of Sh.Sanjeev Kumar Jain, Managing Director of opposite parties no.1 to 3, was placed on record. To the queries raised by this Commission, it was deposed as under:-
“That in the present Complaint, the Complainant has alleged to make the payment of Rs.15,04,000/- (Rupees Fifteen Lakhs Four Thousand Only) to the Opposite Party No.4. The said amount has not been ultimately received by the Opposite Parties No.1 to 3 (Parsvnath Developers Limited).
That the allotment of the Flat was made in favour of the Complainant as the Complainant had applied to the Opposite Party No.1 to 3 for booking of the same and paid a sum of Rs.8,90,100/- (Rupees Eight Lakhs Ninety Thousand One Hundred Only) on 04.01.2011 as booking amount to the Opposite parties No.1 to 3 (Parsvnath Developers Limited). The Copy of the Application Form dated 04.01.2011 is annexed herewith and marked as Annexure-D
I say that the Opposite Party No.1 to 3 received the total bookings of 195 Flats in the Project through the Opposite Party No.4.
That till date the Opposite Party No.1 to 3 has received a sum of Rs.44,62,390/- towards the cost of the flat including service tax. The Copy of ledger of the Complainants maintained by the Company is annexed herewith and marked as Annexure-E”
Account statement was also placed on record. It is specifically stated that an amount of Rs.15,04,000/- was not received by opposite parties no.1 to 3 from opposite party no.4. Flat was booked on payment of an amount of Rs.8,90,100/-. Copy of application form moved on 14.01.2011 was also placed on record as Annexure-D. It was specifically stated that till the time of filing that affidavit, the opposite parties no.1 to 3 have received Rs.44,62,390/- towards cost of the flat, including service tax. To say so, reference was made to account statement Annexure-E attached with that affidavit. Faced with above mentioned facts, and noting that some miscalculation has been made by the complainants, in raising their demand of refund, we thought it appropriate to know, as to how much exact amount was paid by the complainants other than disputed amount of Rs.15,04,000/- as on 27.09.2016, following order was passed by this Commission:-
“At the time of arguments, it is indicated that in the prayer clause, relief sought is only for refund of an amount of Rs.53,70,013.37Ps. There is a dispute qua receipt of payment of Rs.15,04,000/-. If we deduct that amount, the payable amount, as per prayer made, would come to Rs.38,66,013/-. It is stated at bar that complainant No.1 is 88 years of age and he has wrongly given the figure of amount paid besides alleged claim towards Rs.15,04,000/-, it is stated that the actual amount paid, other than Rs.15,04,000/- (which is in dispute),comes to Rs.44,62,390/- inclusive of service tax etc. At the time of arguments, Sh. Yudhvir Arora, Senior Manager of Opposite Parties No.1 to 3, who is present in Court, by making reference to affidavit of Sh. Sanjeev Kumar Jain, Managing Director of Parsvnath Developers Ltd., dated 08.09.2015 and accounts statement annexed with it, states that the amount payable other than the disputed amount of Rs.15,04,000/-, receipt of which is denied, would come to Rs.44,62,390/-.
Under the above circumstances, Sh. Som Nath Sharma, complainant No.1 states that he will seek independent remedy for recovery of Rs.15,04,000/- before competent court of law. Let his claim be confined to refund of Rs.44,62,390/- with interest from the respective dates of deposit.
To the prayer made, no objection has been raised by the Counsel for Opposite Parties No.1 o 3.”
Arguments were also heard on that date and the complaint was reserved for orders.
Under above circumstances, we leave it open to the complainants to claim an amount of Rs.15,04,000/- from opposite parties no.1 to 3 and/or opposite party no.4 namely Real Pro Assets Private Limited, on the basis of receipt placed on record.
It is admitted on record that besides that amount, the complainants have paid an amount of Rs.44,62,390/- including service tax etc. In view of facts and circumstances stated above, we will look into the prayer of the complainants only qua refund of amount of Rs.44,62,390/- with interest, compensation etc., as claimed by them.
It is not in dispute that the Buyer’s Agreement was entered into between the parties on 08.02.2011. As per provisions of Clause 10 (a) possession of the constructed unit was to be delivered within a period of 36 months from the date of start of construction plus six months grace period. Admittedly, till the time of filing this complaint, on 15.06.2016, possession of the unit was not even offered to the complainants. At the time of arguments, no firm date was given, as to when possession is likely to be delivered to the complainants. It appears that delivery of possession is not in sight, even in next one year ahead. Under above circumstances, it can safely be said that by making false promise and not delivering possession of a unit, which was booked as far as back in the year 2011, opposite parties no.1 to 3 are guilty of rendering deficient service.
Counsel for opposite parties no.1 to 3 made an attempt to wriggle out of the situation by stating that construction could not be completed on account of global meltdown. It is very significant to mention here that once opposite parties no.1 to 3 have already received more than 80% of the sale consideration, towards the unit(s), from the allottee(s), then it does not lie in their mouth, that they faced extreme financial hardship, due to global meltdown in the market, as far as the project, in question, is concerned. It is not that opposite parties no.1 to 3 were, in the first instance, required to develop the project, by arranging funds out of their own sources, and, thereafter, the units were to be sold to the allottees, on future payment basis. Had this been the case of opposite parties no.1 to 3, only in those circumstances, the plea with regard to facing extreme financial hardship on account of global meltdown would have been considered to be correct, by this Commission.
Even otherwise, the said difficulty/ground i.e. recession in the market/global meltdown would not fall under the definition of force majeure circumstances, for not completing the construction and development work at the site. A change in economic or market circumstances affecting the profitability of a contract or the circumstance, is not regarded as a force majeure condition. Neither any new legislation was enacted nor an existing rule, regulation or order was amended, stopping suspending or delaying the construction/development work of the project, in which flat(s)/plot(s) were agreed to be sold to the consumers. There was no civil commotion, war, enemy action, terrorist action, earthquake or any act of God, which could have delayed the completion of construction/development work in the project, within the time stipulated in the Agreement. A similar question fell for determination before the Hon'ble National Consumer Disputes Redressal Commission, New Delhi, in a case titled as Swaran Talwar & 2 others v. M/s Unitech Limited (along three connected complaints), 2015 (4) CPR 34. The National Commission, in that case, while rejecting the plea of the builder, held as under:-
“Coming to the pleas that there was recession in the economy and a disruption due to agitation by farmers and acute shortage of labour, etc., the following view taken by us In Satish Kumar Pandey (Supra) is relevant.
Neither any new legislation was enacted nor an existing rule, regulation or order was amended stopping suspending or delaying the construction of the complex in which apartments were agreed to be sold to the complainant. There is no allegation of any lock-out or strike by the labour at the site of the project. There is no allegation of any slow-down having been resorted to by the labourers of the opposite party or the contractors engaged by it at the site of the project. There was no civil commotion, war, enemy action, terrorist action, earthquake or any act of God which could have delayed the completion of the project within the time stipulated in the Buyers Agreement. It was contended by the counsel for the OP that the expression ‘slow down’ would include economic slow-down or recession in the Real Estate sector. I, however, find no merit in this contention. The word ‘slow down’ having been used alongwith the words lock-out and strike, I has to be read ejusdem generis with the words lock-out and strike and therefore, can mean only a slow down if resorted by the labourers engaged in construction of the project.”.
The principle of law laid down in the aforesaid case is fully applicable to the facts of the present case. Opposite parties no.1 to 3, therefore, cannot take shelter under the garb of force majeure Clause of the Agreement, for extension of period, for delivery of possession of the unit. In these circumstances, it is also held that time was essence of the contract, to which, opposite parties no.1 to 3 failed to abide and are now taking bald stand to evade their liability. By making a misleading statement, that possession of the unit, in question, would be delivered within a period of 36 months, from the date of start of construction with grace period of six months but on the other hand, by not abiding by the commitments made and at the same time, taking a bald stand that time was not essence of the contract, opposite parties no.1 to 3 were not only deficient in providing service but also indulged into unfair trade practice.
As far as the objection questioning territorial jurisdiction of this Commission to entertain and decide this complaint is concerned, the same deserves rejection. As per provisions of Section 17 of the Act, a complaint can be filed in a State Commission, within whose jurisdiction, some part of cause of action accrues to the complainants. It is stated that Agreement was signed at New Delhi. Payments were received at Panchkula in the office of opposite parties no.1 to 3. Even the flat is also situated at Panchkula, as such, no cause of action has accrued, within the territorial jurisdiction of this Commission, to entertain and decide the instant complaint. In this view of the matter, it is necessary to refer to a case titled as Ravinder Kumar Bajaj Vs. Parsvnath Developers Pvt. Ltd. & 3 Ors., First Appeal No. 515 of 2016, decided by the National Commission on 23.08.2016. In that case, qua project launched by the builder/opposite parties (also opposite parties no.1 to 3 in this case), at Rajpura, a complaint was filed by Sh. Ravinder Kumar Bajaj, before this Commission. The said complaint was dismissed for want of territorial jurisdiction, noting that only two payments were credited in the account of the opposite parties, in a bank at Chandigarh. By noting that neither the Agreement was signed at Chandigarh, nor substantial payment was received by the opposite parties at Chandigarh, the complaint was dismissed by this Commission. Sh. Ravinder Kumar Bajaj went in appeal before the National Commission, which was decided by it, vide order dated 23.08.2016, by noting that at one point of time, Company had a Branch Office at Chandigarh. Appeal was allowed by the National Commission, by observing as under:-
“Since in the Grounds of Appeal, a specific averment is made by the Appellant to the effect that in the year 2007, when the subject flat was booked, the Respondent Company did have a Branch office at Chandigarh, where the payments in respect of the project used to be received regularly, on a pointed query, learned Counsel appearing for the Company very fairly states, on instructions, that the stand of the Appellant is correct.
In light of the statement by learned Counsel for the Respondent Company, I am of the view that in the present case, the State Commission UT, Chandigarh has the Territorial Jurisdiction to adjudicate upon the Complaint filed by the Appellant.
Resultantly, the Appeal is allowed; the impugned order is set aside and the Complaint is restored to the Board of the State Commission UT at Chandigarh for adjudication on merits in accordance with law.”
Order passed by this Commission was set aside and the matter was remitted back for hearing the complaint, on merits. In Sh. Ravinder Kumar Bajaj case (supra), admittedly, only two payments were credited in bank account maintained by the opposite parties. Even then, it was held by the National Commission that this Commission has territorial jurisdiction to entertain the complaint because at one time, a Branch Office was being maintained by the opposite parties in Chandigarh.
Position is the same in the present case. Opposite parties no.1 to 3 admittedly have Branch Office in Chandigarh, as shown in address, in memorandum of the parties. Perusal of record indicates that complainant no.1 had addressed many letters showing concern about progress of the project to the Branch office of the opposite parties no.1 to 3, situated in Chandigarh. Not only as above, as and when demands were raised, on many occasions the complainants have handed over cheques towards amount paid to the Officers at Branch Office of opposite parties no.1 to 3, at Chandigarh. This fact is apparently clear when we look into documents Annexures C-12 (page 72), C-16 (page 76), C-18 (page 79), C-23 (page 86), C-24 (page 87), C-30 (page 93), C-33 (page 96) and C-34 (page 98). As and when cheque was given, receipt has been executed. At some places, even stamp of office of opposite party no.1 in Chandigarh has been affixed. Above said facts clearly envisages that cause of action accrued to the complainants to file this complaint before this Commission, at Chandigarh. It is also proved that the Officers of opposite parties no.1 to 3, sitting in Branch Office at Chandigarh were dealing with the complainants qua the project, situated in Panchkula.
To save situation Sh.Aftab Singh Khara, Advocate, stated that the above Branch Office has only acted as facilitator and receiving amount through cheques, which it used to forward to the Office of opposite parties no.1 to 3 at Panchkula. Nothing more was done by the Branch Office at Chandigarh, as such, this complaint cannot be entertained by this Commission.
We are not going to accept above said contention. Especially noting judgment passed by the National Commission in the case of Sh. Ravinder Kumar Bajaj (supra) qua same very builder. It is proved on record that Officers of opposite parties no.1 to 3 sitting in Branch Office at Chandigarh were actively participating in marketing and propagating the project, in question. They were dealing with the complainants throughout, by receiving their letters qua progress at the spot and also accepted payment made through cheques. In view of above, objection raised in this regard, stands rejected.
Another objection was taken by opposite parties no.1 to 3, in their written version, that consumer complaint was not maintainable and only a suit, in the Civil Court was maintainable.
The complainants hired the services of opposite parties no.1 to 3 for purchasing the unit, in question, and they were allotted the same for consideration. According to clause 10 (a) of the Agreement, opposite parties no.1 to 3 were required to hand over possession of the unit, in question, to the complainants, within a maximum period of 43 months (36 months plus 6 months grace period) from the date of start of construction, after completing all the basic amenities. It was not that the complainants purchased the unit, in an open auction, on “as is where is basis”. Section 2 (1) (o) of the Act, defines service as under:-
“service” means service of any description which is made available to potential users and includes, but not limited to, the provision of facilities in connection with banking, financing insurance, transport, processing, supply of electrical or other energy, board or lodging or both, housing construction, entertainment, amusement or the purveying of news or other information, but does not include the rendering of any service free of charge or under a contract of personal service”
From the afore-extracted Section 2 (1) (o) of the Act, it is evident that housing construction, also comes within the definition of a service. In Narne Construction P. Ltd., etc. etc. Vs. Union Of India and Ors. Etc., II (2012) CPJ 4 (SC), it was held that when a person applies for the allotment of a building or site or for a flat constructed by the Development Authority and enters into an agreement with the Developer, or the Contractor, the nature of transaction is covered by the expression ‘service’ of any description. Housing construction or building activity carried on by a private or statutory body constitutes ‘service’ within the ambit of Section 2 (1) (o) of the Act. Similar principle of law, was laid down, in Haryana Agricultural Marketing Board Vs. Bishambar Dayal Goyal & Ors. (AIR 2014 S.C.1766). Under these circumstances, the complaint involves the consumer dispute, and the same is maintainable. Not only this, Section 3 of the Act, provides an alternative remedy. Even if, it is assumed that the complainants had a remedy to file a suit, in the Civil Court, the alternative remedy provided under Section 3 of the Act, could be availed of by them, as they fall within the definition of a consumer. In this view of the matter, the objection taken by opposite parties no.1 to 3 in their written version, being devoid of merit, must fail, and the same stands rejected.
The next question, that falls for consideration, is, as to whether, the complainants are entitled to refund of the amount of Rs.44,62,390/-. It is an admitted fact that opposite parties no.1 to 3 are unable to offer and deliver possession of the unit, in question, which was booked as far as back in 2011 and still firm date of delivery of possession of the unit, could not be given to them (complainants). The complainants cannot be made to wait for an indefinite period, for delivery of actual physical possession of the unit purchased by them. Opposite parties no.1 to 3 therefore, had no right to retain the hard-earned money of the complainants, deposited towards price of the unit, in question. The complainants are thus, entitled to get refund of amount of Rs.44,62,390/-. In view of above facts of the case, opposite parties no.1 to 3 are also under an obligation to compensate the complainants, for inflicting mental agony and causing physical harassment to them, as also escalation in prices.
It is to be further seen, as to whether, interest, on the amount refunded, can be granted in favour of the complainants. The amount of Rs.44,62,390/- (as held above), has been used by opposite parties no.1 to 3, for their own benefit. There is no dispute that for making delayed payments, opposite parties no.1 to 3 were charging heavy rate of interest @24% p.a., as per Clause 5 (b) of the Agreement, for the period of delay in making payment of instalments. It is well settled law that whenever money has been received by a party and when its refund is ordered, the right to get interest follows, as a matter of course. The obligation to refund money received and retained without right implies and carries with it, the said right. It was also so said by the Hon'ble Supreme Court of India, in UOI vs. Tata Chemicals Ltd (Supreme Court), (2014) 6 SCC 335 decided on March 20th, 2014 (2014) 6 SCC 335). In view of above, the complainants are certainly entitled to get refund of the amount of Rs.44,62,390/- alongwith interest @12% p.a. (simple), from the respective dates of deposits till realization.
Since, it has already been held that the complainants are entitled to refund of the amount deposited, alongwith interest and compensation, as such, the plea taken by opposite parties no.1 to 3 to the effect that they are ready to pay penalty amount for the period of delay, in delivery of possession cannot be considered, at this stage. If opposite parties no.1 to 3 are allowed to invoke the relevant Clause of the Agreement, in the instant case, regarding payment of penalty, that would amount to enriching them, at the cost of the complainants. The defence taken is accordingly rejected.
No other point was urged by Counsel for the parties.
For the reasons recorded above, the complaint is partly accepted, with costs, against opposite parties no.1 to 3. Opposite Parties No.1 to 3, are jointly and severally directed as under:-
To refund the amount of Rs.44,62,390/- to the complainants, alongwith interest @12% p.a., from the respective dates of deposits onwards.
To pay compensation, in the sum of Rs.1.25 lacs, for causing mental agony and physical harassment, to the complainants, as also escalation in prices.
To pay cost of litigation, to the tune of Rs.33,000/- (as prayed) to the complainants.
The payment of awarded amounts mentioned at sr.nos.(i) to (iii), shall be made, within a period of 02 months from the date of receipt of a certified copy of this order, failing which, the amount mentioned at sr.no.(i) shall carry penal interest @15% p.a., instead of @12%, from the respective dates of deposits onwards, and interest @12% p.a., on the amounts mentioned at sr.nos.(ii) and (iii), from the date of filing of this complaint, till realization.
However, it is made clear that, if the complainants have availed loan facility from any banking or financial institution, for making payment of installments towards the said unit, it will have the first charge of the amount payable, to the extent, the same is due to be paid by them (complainants).
Qua refund of Rs.15,04,000/- the complainants are free to avail any other legal remedy, against opposite party no.4 and/or opposite parties no.1 to 3.
Certified Copies of this order be sent to the parties, free of charge.
The file be consigned to Record Room, after completion
Pronounced.
03.10.2016
Sd/-
[JUSTICE JASBIR SINGH (RETD.)]
PRESIDENT
Sd/-
[DEV RAJ]
MEMBER
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(PADMA PANDEY)
MEMBER
Rg.
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