PER JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER

          Both these appeals arise out of single order of State Commission; hence, decided by common order.

2.      These appeals have been filed by appellant against order dated 15.12.2015 passed by the State Consumer Disputes Redressal Commission, Delhi (in short “the State Commission)  in Complaint Case No. C-290/2013 – Sanjay Singh Vs. Amrapali Zodiac Developers Pvt. Ltd. & Ors. and in Complt. No. 291/13 - Alok Kumar Jha Vs. Amrapali Zodiac Developers Pvt. Ltd. & Ors.by which, Managing Director of OP was directed to file affidavit.

3.      Brief facts of the case are that complainant/respondent filed separate complaints before learned State Commission with a prayer to direct OP to allot flat to the complainant and pay compensation of Rs. 30,00,000/-. OP filed separate reply and submitted that flats were allotted to complainants and complainants have made payment of only 5,68,984/- against total sale consideration of Rs.24,61,750/- and Rs.17,23,225/- is still outstanding.  It was further submitted that as complainant committed defaults in payment of instalments, allotment was cancelled and flat has been allotted to other person and OP has also received substantial amount towards the cost of flat from other person and prayed for dismissal of complaint.  Learned State Commission in the impugned order mentioned that Counsel for the complainant apprised that he was ready for settlement and for allotment of other flat in the same project, but Counsel for the OP apprised that all flats have been allotted and nothing is left and later on learned State Commission directed Managing Director of the OP to file affidavit in this regard. At the same time, complainant was permitted to file rejoinder and evidence by way of affidavit against which, these appeals have been filed.

4.      Heard learned Counsel for the parties finally at admission stage and perused record.

5.      Learned Counsel for the appellant submitted that learned State Commission has committed error in directing OP to file affidavit of Managing Director of OP without any occasion and OP is free to file any affidavit in rebuttal of complainant’s evidence; hence, appeal be allowed and impugned direction for filing affidavit of Managing Director be set aside. On the other hand, learned Counsel for the respondent submitted that learned State Commission had every right to call for information by way of affidavit from OP and order passed by learned State Commission is in accordance with law; hence, appeals be dismissed.

6.      Perusal of pleadings of parties reveals that complainant booked flat with OP and OP has cancelled allotment on account of default in making payment of instalments.  It appears that on 15.12.2015, learned Counsel for complainant apprised that he is ready for allotment of any other flat, but Counsel for OP apprised that all the flats have been allotted.  Even if there is any flat available, OP cannot be compelled by learned State Commission to allot that flat to the complainant unless complaint is allowed and OP is directed to allot same flat or alternate flat particularly when OP has pleaded that allotment was cancelled due to default in making payment of instalments and flat has already been allotted to new allotee.  It is the sweet will of the parties to adduce any evidence at proper stage and State Commission if not satisfied by that evidence or feels that party has withheld any material evidence. State Commission is free to draw adverse inference, but cannot ask OP to file affidavit even before evidence of complainant.

7.      In the light of above discussion, order directing Managing Director of OP to file affidavit simultaneously with evidence of complainant cannot be sustained and to this extent, impugned order is liable to set aside.

8.      Consequently, Appeal No. 160 of 2016 – Amrapali Zodiac Developers Pvt. Ltd. Vs. Sanjay Singh and Appeal No. 161 of 2016  - Amrapali Zodiac Developers Pvt. Ltd. Vs. Alok Kumar Jha filed by appellant is allowed and direction to Managing Director of OP to file affidavit by impugned order dated 15.12.2015 passed by the State Commission  in Complaint Case No. C-290/2013 – Sanjay Singh Vs. Amrapali Zodiac Developers Pvt. Ltd. & Ors. and in Complt. No. 291/13- Alok Kumar Jha Vs. Amrapali Zodiac Developers Pvt. Ltd. & Ors. is set aside with no order as to costs.