Heard learned counsel for both the sides.
2. This appeal is filed U/S-15 of erstwhile Consumer Protection Act,1986(herein-after called the Act). Hereinafter, the parties to this appeal shall be referred to with reference to their respective status before the learned District Forum.
3. The case of the complainant, in nutshell is that the OP-builder floated a housing scheme in the Mouza Sipasarubali,Puri in the name and style “1000-sands” in the year 2007-08. The complainant being motivated with the terms and conditions of the brochure, paid Rs.45,000/- to the OP on 04.05.2007 against the total consideration amount of Rs.11,22,000/-. Thereafter, a flat bearing No.118 in the ground floor, block- B2 having super built-up area of 586 sqft was allotted to the complainant. Accordingly an agreement was executed between the parties. The complainant further deposited Rs.1,23,300/- with the Ops and obtained receipt. But on 02.02.2008 the complainant received a letter from the OP to deposit rest of the amount. Since, there is deviation of condition of agreement by the complainant by asking for interest which is illegal and arbitrary, the complainant made correspondences with the OP. But cancellation notice was received and same was challenged in this case. As no reply to the letter dtd.11.03.2008 by the OP received, the complaint was filed.
4. The OP did not file written version but filed application under Section-8 of the Arbitration & Conciliation Act,1996 requesting the learned District Forum not to entertain the complaint case because of the arbitration clause in agreement. That petition was also rejected by the learned District Forum. Against that the matter was placed before this Commission which was rejected. Thereafter the OP neither filed the written version nor participated in the hearing. Therefore, there is no deficiency in service on the part of the OP.
.5. After hearing both the parties, learned District Forum passed the following order:-
Xxxx xxxx xxxx
“ In the result, the complaint is hereby allowed on merit against the Ops. The letter of cancellation of allotment of Apartment No.118,Block-B2 at Mouza Sipasarubali, in the name & style “1000 SANDS”,Puri, dated 01.03.2008, is hereby set aside. The Ops are further directed jointly & severally to execute registered sale deed in favour of the complainant after receiving the balance consideration money from him as per the agreement without charging any interest, within a period of three months from the date of communication of this order and in case, the complainant fails to pay the balance consideration amount, the Ops are at liberty to charge interest as per terms & conditions of the agreement. The litigation cost is assessed at Rs.2000/- payable by the Ops to the complainant. The order be executed by the Ops within the stipulated period of three months from the date of communication of this order, failing which the complainant is at liberty to execute the same against the Ops in accordance with law.”
6. Learned counsel for the appellant submitted that learned District Forum after rejecting the petition for review should have given opportunity to the present appellant who is OP in the complaint case to file written version and opportunity to participate in the hearing of the case. But the order was passed on merit. He submitted that the complainant has no cause of action to file the case before the learned District Forum,Khurda because the entire cause of action arose at Puri. He further submitted that he has right to claim interest for Rs.1,23,300/- to be paid after persuasing in appeal. Moreover, he submitted that cost of the flat for Rs.11,22,000/- is not paid. He further submitted for giving chance for hearing so that he can produce document. So, he submitted to set-aside the impugned order by allowing the appeal.
7. Learned counsel for the respondent submitted that he has promptly submitted all the money but the OP hesitated to deliver possession of the flat in question. Therefore, he supports the impugned order.
8. Considered the submission of learned counsel for the parties, perused the DFR and impugned order.
9. In fact the impugned order does not show that after disposal of the matter in District Forum, the appellant has come before the Commission in appeal and no opportunity has been given to appear before the District Forum to putforth his grievance. Normally revision is filed and after that parties are to take steps for disposal of case. But in the instant case there was necessity of appearance of both the parties. Therefore, it is duty of the learned District Commission to give opportunity to dispose of the matter on merit. However, without hearing the OP the District Forum has recorded in the operative portion of the order that the matter is disposed of on merit. Whether there is delay in payment of Rs.1,23,800/-, that can be established only adducing evidence.
10. Apart from this when the flat is allotted at Puri and cause of action arose at Puri, the question of adducing the fact and law by the OP though evidence is necessary. Therefore, for the benefit of both the parties, it is imperative to give chance to both the parties of being heard. Therefore, without expressing on the merit of the case, we hereby remand the matter by allowing the appeal with direction to the learned District Commission to allow the appellant to file written version and allow both the parties to adduce evidence, if any and dispose of the matter within a period of 60 days from the date of receipt of the order. Both the parties are directed to appear before the learned District Commission, Khurda at Bhubaneswar on 29.05.2023 to take further instruction.
The appeal is disposed of accordingly. No cost.
Free copy of the order be supplied to the respective parties or they may download same from the confonet or webtsite of this Commission to treat same as copy of order received from this Commission.
DFR be sent back forthwith.
