Per Mr.Justice S.B.Mhase, Hon’ble President

Heard Mr.Uday Warunjikar-Advocate for the appellants.  Mr.Uday Wavikar-Advocate appears suo motu and waives notice on behalf of the respondents.  With consent of both the sides all these matters are disposed of finally at admission stage itself.  The appellants have taken exception to a common order dated 26/11/2010 passed in consumer complaint nos.37/10, 38/10, 193/2009, 194/2009, 195/2009, 196/2009, 197/2009, 198/2009, 199/2009, 200/2009 & 201/2009 by the District Consumer Disputes Redressal Forum, Central Mumbai.  By this common order even though original complainants are different, the appellant/original opponent is one and the same person, who is a builder and developer.  District Consumer Disputes Redressal Forum  has given direction to the appellant to form a Co-operative society of flat purchasers/complainants, to give Occupation Certificate and Completion Certificate and to execute the conveyance in favour of flat purchasers/complainants.  He has been further directed to make permanent arrangement in respect of drinking water and the lift or elevator.  He has been also directed to complete the incomplete work.  So far as the amounts which have been paid by the complainants to the opponents/appellants are concerned, it is directed that amounts towards maintenance may be deducted by the opponent/appellant and rest of the amounts may be paid to the complainants.  By way of compensation, it is directed that `3000/- be paid and by way of cost `5000/- be paid. 

          These appeals are filed by the original opponents.  However, there is delay of 4 days in filing the appeals.  Mr.Wavikar for respondents/ complainants fairly conceded that he has no objection for condonation of delay and, therefore, delay application filed in each appeal is allowed and the delay is condoned. Misc.application nos.16/2011 to 24/2011 stands disposed of accordingly.

          So far as main appeals are concerned, we need not go into the merits of the matters. Obviously, it has been brought to our notice that these matters were for hearing on arguments on 26/10/2010.  On that day the advocate for the complainants was present. However, advocate for the opponent was absent.  Opponent’s /appellant’s representative was present and in the presence of the said representative of the appellant, the arguments of the complainant’s advocate were heard.  However, Order sheet shows that all these complaints were adjourned for further hearing on 09/11/2010.  Thus, it follows that on 09/11/2010 arguments of the advocate for the opponent was to be heard.  Order sheet dated 09/11/2010 shows that on that date there was only one non judicial member of the Central Mumbai District Consumer Disputes Redressal Forum was present.  Therefore, it was not possible to have further hearing of the case.  It is noted that both the advocates are present.  However, case is adjourned for decision.  This step taken by the member is a wrong step.  If the member was not in a position to hear the case because President was not available, then case should have been kept for argument of the other side namely opponent/appellant.  However, erroneously case has been kept for the decision, closing the hearing. No doubt advocate for the opponent ought to have objected for such order sheet but not objecting will not also help the complainant in any manner.  What we find that procedure requires that other side should have been heard, unless consumer forum finds that other side is consistently absent protracting hearing of the case and thereby Consumer Forum closed the case for orders.  However, such is not the case on above referred two dates. Therefore, Mr.Warunjikar relying upon this order sheet submitted that fair opportunity was not given to the appellant/ original opponent and thereby, order is vitiated. 

          Mr.Wavikar who appears for the respondent fairly conceded that opportunity should have been given to the appellant’s advocate to argue the matter.  Therefore, under these circumstances it is necessary to set aside the impugned order and remand the matter to the Central Mumbai District Consumer Disputes Redressal Forum for hearing of the matter.

          Mr.Warunjikar submitted that he wanted to produce additional evidence by way of affidavit, however, the case was closed, therefore he could not present it. However, he submits that copies are ready with him.  Those original affidavits are also annexed in appeal compilation.  Copies of the same have been given to Mr.Wavikar –Advocate. Original affidavits which were to be filed before the District Consumer Disputes Redressal Forum have been produced in the first compilation.  The same may be returned back to the appellant keeping on record Xerox copy of the same.  We, therefore, pass following order:-

                                      ORDER

          Appeal nos.34/2011 to 42/2011 are partly allowed.

          The order passed by the District Consumer Disputes Redressal Forum, Central Mumbai in consumer complaint nos. 37/10, 38/10, 193/2009, 194/2009, 195/2009, 196/2009, 197/2009, 198/2009, 199/2009, 200/2009 & 201/2009 are hereby set aside and the complaints are remanded to District Consumer Disputes Redressal Forum, Central Mumbai to hear both sides and dispose of on merits.

          What we clarify that appellant/opponent may file these additional affidavits before the District Consumer Disputes Redressal Forum.  Mr.Wavikar may also file counter affidavit before the District Consumer Disputes Redressal Forum.  Both of them agree that the parties will remain present before the District Consumer Disputes Redressal Forum on 04/2/2011.  We clarify on our side that on a technical ground for not giving sufficient opportunity of hearing by way of arguments, matter has been remanded back.  We have not considered the matter on merits and it will be open for both the parties and for the District Consumer Disputes Redressal Forum to reconsider the matter on merits after considering the submissions made by both the counsels. By way of clarification it is further directed that after filing of the affidavits by both the sides, both the sides shall file brief notes of arguments as required under regulation no.13, two days earlier to the date fixed for arguments and, thereafter, District Consumer Disputes Redressal Forum shall decide the matter.  We direct the District Consumer Disputes Redressal Forum to dispose of the matter within a period of three weeks from 04/2/2011.  Amount which is deposited by the appellant in each appeal under the proviso of section 15 be returned to the appellant.

          Copies of the order be furnished to the parties.