PURVANKARA LIMITED REP. BY ITS AUTHORISED SIGNATORY filed a consumer case on 05 Nov 2024 against THANGAVEL PALANIVEL, S/O. THANGAVEL, WORKING AS DEPUTY DIRECTOR, UNITED NATIONS DEVELOPMENT PROGRAM, in the StateCommission Consumer Court. The case no is A/305/2024 and the judgment uploaded on 25 Nov 2024.
IN THE TAMIL NADU STATE CONSUMER DISPUTES REDRESSAL COMMISSION, CHENNAI.
Present:Hon’ble Thiru. Justice R.SUBBIAH ... PRESIDENT
F.A. No.305 of 2024
(Against the Order, dated 01.12.2022, in C.C. No.109 of 2022, on the file of the DCDRC - Nagapattinam)
Orders, dt: 05.11.2024
Puravankara Limited,
Rep. by its Authorized Signatory,
Reg. Office: 130/1, Ulsoor Rd.,
Bengaluru-560042.
Chennai Branch: 33, 2nd Street,
S Beach Ave, MRC Nagar,
Raja Annamalai Puram,
Chennai 600 028. … Appellant/Opp. Party
Vs.
1.Thangavel Palanivel
2.P.Poonguzhali Palanivel,
Both are residing at
F6, VGS Golden Roof Apartments,
122 – East Car Street,
Chidambaram.
Both rep. by their Power Agent
3.M.Shanmugam,
S/o.Muthukrishnan,
F6, VGS Golden Roof Apartments,
122, East Car Street,
Chidambaram-608 001. … Respondents/Complainants
For Appellant : M/s.R.Sathish Kumar
R1 & R2 appeared as party in person – through VC.
This First Appeal came up for final hearing on 05.11.2024 and, after hearing the arguments of the counsel for the appellant and that of the 1st Respondent, who appeared as party in person-through VC, and perusing the materials on record and having stood over for consideration till this day, this Commission passes the following:-
O R D E R (Open Court)
R.Subbiah, J. – President.
Aggrieved by the ex parte order, dated 01.12.2022, passed by the DCDRC, Nagapattinam, in allowing the complaint filed by the respondents herein as complainants in C.C. No.109 of 2022, wherein they alleged service deficiency against the Opposite Party/Builder/appellant herein that there was a delay of about 3 long years in handing over the Apartment booked by them, and in consequently directing the OP to pay to the complainants Rs.10 lakh for delay in delivery of possession, Rs.1 lakh towards replacing the faulty main door, Rs.2 lakh for not allotting a covered car parking space and Rs.2 lakh towards damages, mental agony, etc, besides a sum of Rs.1 lakh towards litigation expenses, the Builder has come up with the present Appeal.
2. In brief, the case of the complainants is that the OP had made digital advertisement about the launching of an elite residential enclave called Purva Windermere in Pallikaranai with a specific assurance that, upon completion of Phase-I of the Project, apartments in the said phase would be delivered to the customers by 31st December-2013; that, on 22.08.2011, the complainants had booked a 3 bed-room apartment/C5-603 with covered Car Parking Space and a construction agreement, dated 26.12.2011, was also entered into between the parties and, as per the said Agreement, the OP should deliver the apartment to the complainants by 31st March – 2014, but, due to the OP’s inefficiency, the delivery was effected after a delay of about 3 years, that was only on 31.08.2017, that too after insisting upon the complainants to sign a declaration-cum-undertaking and, despite taking such long time, the apartment was not delivered in a livable condition due to drainage issues and seepage problems; that, owing to the delay, the complainants suffered mentally and financially and hence, they sought for compensation and the said plea was rejected by the OP by their communication dated 29.08.2017; that, even during March 2017, the complainants had sought to change the main Door which was in a very ugly shape, but, the OPs simply fixed a wooden plate at the bottom and repaired it, which is another instance of deficiency; and that instead of allotting the car parking space in C5 Block which houses the apartment of the complainants, the OP allotted the said space at D5 tower and therefore, the OP has to either provide a covered car parking slot in the C5 Block or allot an additional space in front of the said Block. After giving lengthy details of the sequence of events revolving around the allegations of deficiency and unfair trade practice and by stating that the legal notice issued by them on 04.06.2018 evoked no response from the OPs, the complainants ultimately sought for in the complaint to direct the OPs to pay compensation under different heads as detailed therein.
Per contra, the counter-case of the OP in their written version, in nutshell, is that, while on the one hand the contractual obligations governing the parties provide under clause-15 of the construction agreement that the date stipulated for delivery of the Apartment is subject to variation on account of force majeure or other reasons beyond the control of the builder, on the other hand, the complainants committed defaults in payment and failed to co-operate by performing their part of obligation which paved way for the delay in delivery. Further, despite delayed payments on the part of the complainants, they took delivery of possession on 31.08.2017 itself and hence, the allegation is wholly unsustainable.
Whatever defects including the door issue was duly attended and rectified fully and having signed the receipt at the time of taking delivery to the effect that the defects noted have been attended/rectified fully, the allegation made in that regard is absolutely untenable.
Similarly, in the light of clause V-26 of the Construction Agreement which states among other things that the allotment of car parks shall be made by the Vendor as per its procedure and for orderly use of the area allocated for such use and none of the purchasers will be entitled to demand allotment of any particular parking area or seek preference in such allotments, the allotment of car parking space is not accorded as per the purchaser’s choice but based on inter-seniority of the owners drawn as per the date of first instalment of sale/construction received or date of agreement. Therefore, when the complainant has no right to seek car parking space at his own choice, no question of service deficiency arises.
By denying all other allegations as vexatious and untenable, the OP sought for dismissal of the complaint.
3. The complaint was originally filed before the DCDRC, Chennai-South, and taken on file as C.C. No.97 of 2019 and for speedy disposal, during 2022, the case was transferred to the file of the DCDRC – Nagapattinam, where it was taken on file after being re-numbered as C.C. No.109 of 2022 and disposed of by way of an ex-parte order, dated 01.12.2022, allowing the claim as mentioned above and aggrieved by the same, the OP/Builder has come up with this Appeal.
4. Learned counsel for the complainant submits that when the case was originally pending before the DCDRC, Chennai-South, the OP duly participated in the proceedings upto the stage of filing their written version. While so, during 2022, when the matter was transferred to the file of the lower Commission at Nagapattinam, the Builder had shifted their Office from the earlier place and as a consequence thereof, they could not receive any notice; as such, no occasion had arisen for them to file their proof affidavit/documents/written arguments or to make appearance to submit oral submissions before the District Commission. Therefore, non-appearance or no representation was neither deliberate nor intentional. While so, on 01.12.2022, the District Commission passed the ex-parte order granting relief to the complainants, who, on the strength of the same, have initiated execution proceedings in E.A. No.76 of 2023 in which the District Commission hurriedly issued an NBW and only during the progress of the Execution Proceedings, it came to the notice of the OP that the complaint was transferred to the present lower Commission and that an ex-parte order was passed therein, giving room for the complainants to initiate the execution proceedings that are still pending. In that scenario, soon after coming to know of the above sequence of events, the present Appeal is preferred.
After so stating, learned counsel adds that the facts involved as well as the documents filed by the complainants would clearly speak aloud that they have no case at all for the simple reason that they are defaulters, who were not prompt in honouring their part of the obligation under the contract particularly during the finishing stage and that it is only their deliberate evasiveness in paying the instalments at crucial timings served as the prime reason for the delay in handing over the possession.
Secondly, the issue regarding the main door was attended and rectified well before delivery despite delay in payments and, in fact, at the time of delivery, the complainants had signed the Receipt dated 31.08.2017 acknowledging that the apartment is in good condition and free of any defect, as per the construction agreement. Deliberately, the complainants had presented the sequence of events in the averments, in a jumbled manner only with a view to fish in troubled waters. Citing the door issue raised on 14.03.2017 after the same becoming redundant at the time of delivery on 30.08.2017 only shows the over-smartness of the complainants indicating that their intention is only to extract money from the builder under one pretext or the other.
Thirdly, the construction agreement is very clear that allotment of car parking area would be as per the regulations that revolve around first come first serve basis and importantly, the car parking slot allotted to the complainant in D Block is in close proximity to the apartment in C Block and that being so, having signed the agreement/terms with their eyes wide open, they have no locus standi to allege any service deficiency in the segment of allotment of car parking area.
While so, very strangely, the District Commission, after giving a very shallow picture of the case of the respective sides and presenting some excerpts from the written version to make it appear as if the OP is at fault, jumped into a wrong conclusion that the OPs committed service deficiency, while the facts and records speak completely otherwise. Further, a reading of the order makes it appear as if both sides contested the case, whereas, there was no representation for the OP as the notice did not reach them at all. Without even presenting the relevant facts involved and sifting the materials properly, the District Commission exhibited a sense of unprecedented hurry in allowing the claim that too in a cryptic & extraneous manner and, apart from that, in the Execution Proceedings, NBW had been ordered readily which only shows that the District Commission acted with closed eyes and sustaining its order would only cause grave injustice to the OP and hence, it is absolutely necessary, in the interests of justice, to allow the appeal by setting aside the impugned order; learned counsel pleaded ultimately.
5. Per contra, Respondent No.1 herein/complainant appearing through Video Conference has argued that it is only due to the absence of the OP before the DCDRC, Chennai-North, the matter was kept adjourned for more than three years without any noticeable progress. After transfer of the case to the file of the present lower commission at Nagapattinam also, despite issuance of notice, the OP evinced no interest either to file proof affidavit or to appear for the proceedings and ultimately, the Commission below, after examining the materials made available and also appreciating the contents of the Written Version of the OP, granted relief to the complainants. Consequently, upon the complainants moving the Execution Application, once again the OP failed to appear despite issuance of notice and such conduct impelled the Commission to issue NBW against them and only at this stage, the OP has rushed to this Commission by taking this appeal. If really the Builder have good defence, they could have contested at least the Execution Proceedings but the glaring failure and escapism on their part only show that they lack bona fides.
Reference is made to a handful of decisions including the one rendered by the Apex Court in Basawaraj & Ors. Vs. The Spl. Land Acquisition Officer (AIR 2014 SC 746) and attention is drawn to the following passage there-from-
“Sufficient cause is the cause for which defendant could not be blamed for his absence. The meaning of the word "sufficient" is "adequate" or "enough", inasmuch as may be necessary to answer the purpose intended. Therefore, the word "sufficient" embraces no more than that which provides a platitude, which when the act done suffices to accomplish the purpose intended in the facts and circumstances existing in a case, duly examined from the view point of a reasonable standard of a cautious man. In this context, "sufficient cause" means that the party should not have acted in a negligent manner or there was a want of bona fide on its part in view of the facts and circumstances of a case or it cannot be alleged that the party has "not acted diligently" or "remained inactive". However, the facts and circumstances of each case must afford sufficient ground to enable the Court concerned to exercise discretion for the reason that whenever the Court exercises discretion, it has to be exercised judiciously. The applicant must satisfy the Court that he was prevented by any “sufficient cause” from prosecuting his case, and unless a satisfactory explanation is furnished, the Court should not allow the application for condonation of delay. The court has to examine whether the mistake is bona fide or was merely a device to cover an ulterior purpose….”,
in order to stress his point that condonation of delay is not an inherent right but necessitates the person seeking it to present a valid explanation for each day of delay and establish a reasonable ground for not approaching the Forum within the prescribed limitation period. In the present case, the OP has moved this Commission belatedly and the complainants, who harvested an order giving relief to them, are not able to enjoy the fruits of the same due to the obstacle created by the OP in the form of this appeal which is nothing but a dilatory tactics to evade the execution process and entertaining such claim would defeat the very purpose of expeditious disposal mechanism engineered in the statute and accordingly, he sought for dismissal of the appeal.
6. In the light of the arguments of both sides and the materials made available, the only point that needs to be answered is -
“ whether, in the given factual scenario, the ex parte order passed by the District Commission is sustainable or not? ”.
First of all, it must be pointed out that, although the order under challenge is an ex parte order, the projection one gets from a perusal thereof is that the District Commission has heard both sides, since the pre-amble portion there-of mentions thus:-
“The Complainants’ counsel Mr. K. Balasubramanian, the Opposite Party’s counsel M/s. R.Sathish Kumar. After careful perusal of both sides documents, arguments and ….”
This only shows that the District Commission has not exercised ordinary diligence even to verify the very basic details of appearance and the status of documents since the actuality is that the OP was not represented and that no document was yet marked by them. Secondly, the District Commission being the original authority to deal with the complaint, it ought to have exhaustively presented all the material averments from the complaint as well as the written version and detailed the particulars of relief sought for by the complainant, but, what is reflected is some scanty statements of both sides without even giving the description of the relief sought for. Thirdly, although the complainants were said to have been represented, the Commission below took no efforts brief the submissions. Fourthly, while discussing the issues framed by it, the Commission selectively mentioned some excerpts here and there from the Written Version to conclude in a very absurd manner that the same is treated by it as the admission of the OP. Fifthly, in a very strange manner, an observation has been made that the OP has to prove their case in terms of Section 101 of the Indian Evidence Act. All these things only go to show non-application of mind on the part of the District Commission which was in a great rush and hurry to order the complaint ex-parte without even reading the averments fully or sifting the facts/issues from the available materials. By such unusual approach, the District Commission went completely astray deviating from the established practice and procedure that the onus to appreciate the facts and records becomes very heavy upon it when the other side is absent and the case is thought to be fit for granting the relief.
If really the contents of the Written Version are so stingy to reflect only those aspects that are specifically mentioned in the order of the District Commission, one may not wonder at the ultimate conclusion reached by the lower Commission and in lavishly granting the compensation, but the reality is, the written version speaks about various crucial details that the delay in delivery of possession was also due to the reason that, even during 2017, the complainants committed default in paying the instalments and such factum is spoken out by the complainants themselves in their averments at para No.6 of the Complaint to the effect –
“…. On 20.08.2017 – just before paying their last instalment for the apartment to the Opposite party, complainants have requested the Opposite Party to adjust complainants’ dues against the compensation for the long delay in delivering the apartment.”
When payment of instalments and progress in construction always pace together like two horses of the cart, the District Commission ought to have appreciated the pivotal issue of default as well, and assessed the veracity of the OP’s stand that the complainants are defaulters. Further, when the other grievances of the complainants regarding Main Door issue and improper allotment of Car Parking Slot are also equally met in the written version by referring to the acknowledgement receipt, dated 31.08.2017, and relevant clauses of the Construction Agreement, the District Forum should have properly analysed the points arising there-from in the light of the materials made available before it. But unfortunately, by selectively giving few irrelevant excerpts from the written version to hold that it assumed the same to be the admission of the OP, the District Commission completely went off the track and it drafted a very bland Order in a digressing manner and the patent flaws therein render it absolutely unsustainable.
No doubt, the very basis of the CP Act is expeditious disposal of the cases, but it does not mean that the Commission can just proceed to dispose of the case without even briefing material averments of the contesting parties and discussing the substantial issues in a real manner. When the summary proceedings involved in consumer proceedings are not strictly governed by procedural law as well as rigid rules of evidence and, apart from the materials of the complainant, what equally weighs on the other side of the scale is the papers of the OP, due adherence to the principles of natural justice in consonance with the doctrine of audi alteram partem is absolutely necessary and, if the other side does not turn up despite issuance of notice, it is obligatory upon the Commission, to deal with all points of defence raised in the written version that equally meets the allegations of the complainant and to assign valid reasons for discarding the defence and ordering the claim. Here, the District Commission exerted no effort to do so and the drafting of the order as well as the manner in which the case has been approached by it is really disappointing. In the present instance where -
there is no single reason visible to justify the impugned order.Having regard to the entire realm of facts and available records that clearly suggest involvement of substantial issues as adverted to above that need to be addressed by careful assessment which the lower Commission failed to do, the arguments of speedy disposal and failure of the OPs to contest the case are rendered absolutely meaningless.The concept of speedy disposal does not mean passing of whimsical orders in a hurried manner that suffer from material irregularities and glaring flaws which would only render the whole order a nullity and the present impugned order being one of that kind, the same has to be set aside as also the consequential execution proceedings arising there-from.
At the same time, also, we are not able to receive as such the submission of the appellants that it was due to shifting of their office from the previous place to a new address, notice could not be served upon them and the said factum prevented them from timely contesting the proceedings before the new Commission. The reason is, the postal acknowledgment clearly shows that the notice issued by the District Commission at Nagapattinam for the proceedings on 29.07.2022 was served at the address of the appellant’s counsel and it also carries the signature of the recipient, dated 19.07.2022. Therefore, the said reason is nothing but a lame excuse, which is although an obstacle to allow the appeal, it is for the reason that justice has not been done in this case by not adjudicating the real issues involved, this Commission is inclined to remand the matter back to the lower commission for fresh disposal. However, adverting to the slackness on the part of the appellant, even during the course of previous hearing on 30.10.2024, it was made clear that such exercise is subject to the condition that the appellant pays costs of Rs.5,000/- (Rupees five thousand only) to the Legal Aid Account of the State Commission and it is now informed that the appellant has made the said payment by way of Demand Draft drawn in favour of the Registrar, State Commission, Chennai and, as such, the condition has been complied with.
7. In the result, the appeal is allowed by setting aside the impugned order, dated 01.12.2022, passed by the DCDRC, Nagapattinam, in C.C. No.109 of 2022 and annulling the execution proceedings in E.A. No.76 of 2023 and the matter is remitted back to the file of the lower Commission for fresh disposal, with a direction to the parties to appear before the said Commission on 20.11.2024, on which date, the OP shall be ready with their proof affidavit and written arguments/documents, if any, whereupon, the Commission shall take steps for final disposal of the case and pass fair orders by dealing with all core/substantial issues, on merits and in accordance with law, as expeditiously as possible, preferably on or before 31.01.2025.
REGISTRY IS DIRECTED TO DESPATCH THE ENTIRE CASE PAPERS TO THE DCDRC-NAGAPATTINAM, FORTHWITH.
Sd\-
R.SUBBIAH, J.
PRESIDENT.
ISM/TNSCDRC/Chennai/Orders/OCTOBER/2024.
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