KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION

VAZHUTHACAUD, THIRUVANANTHAPURAM

APPEAL No.05/2017

JUDGEMENT DATED: 05.10.2023

(Against the Order in C.C.No.786/2015 of CDRF, Thrissur)

PRESENT:

APPELLANTS:

(by Adv. R. Santhosh)

Vs.

RESPONDENT:

(by Adv. N.O. Inasu)

JUDGEMENT

SRI. K.R. RADHAKRISHNAN :  MEMBER

          This is an appeal filed under Section 15 of the Consumer Protection Act, 1986 against the order in C.C.No.786/2015 on the file of the Consumer Disputes Redressal Forum, Thrissur (hereinafter referred to as the District Commission for short).  As per the order dated 31.03.2016, the District Commission allowed the complaint and directed the opposite parties to return Rs.19,08,000/-(Rupees Nineteen Lakh Eight Thousand) to the complainant within one month from the date of receipt of the order failing which the complainant is entitled to get 12% interest till realisation.

          2.       The averments contained in the complaint in brief are as follows:  The opposite parties had given an advertisement in Malayala Manorama daily regarding their villa project. Attracted by the said advertisement, the complainant booked a villa by paying an amount of Rs.6,00,000/-(Rupees Six Lakhs) on 27.12.2013 to the second opposite party.  Later the opposite parties informed that the project cannot be materialized as they did not get necessary permissions to construct the house as shown in newspaper advertisement. Thereafter, they entered into an agreement to construct a house in the property owned by the respondent/complainant. The complainant had agreed to pay Rs.17,43,104/-(Rupees Seventeen Lakhs Forty Three Thousand One Hundred and Four) plus service tax for construction.  The complainant paid Rs.10,00,000/-(Rupees Ten Lakhs) in July 2014 to the opposite parties.  But after collecting the   amount and other records, the opposite parties failed to construct the house as agreed.  As the opposite parties did not keep their promise to construct the house, complainant had to suffer severe mental agony, monetary loss and hardships and hence he filed the complaint to get back Rs.16,00,000/-(Rupees Sixteen Lakhs) with compensation,  interest and costs from the opposite parties.

3.       Complainant filed proof affidavit and marked five documents as Exhibits P1 to P5. Despite notice the opposite parties did not appear and file their version. Hence, they were set exparte. As the opposite parties were declared exparte, there was no oral or documentary evidence on their side. Hence the complaint has been allowed by the District Commission placing reliance on the unchallenged evidence available in this case against them. Aggrieved by the said order the first and second opposite parties have filed this appeal.

4.       Heard both sides and perused the records. The contention of the appellants is that   no notice was duly served to the appellants/opposite parties in their address from the District Commission. According to them, subsequent to the execution of the agreement with the respondent/complainant, the office of the appellants/respondents had been shifted to a different place.  The second appellant/second opposite party resigned from the 1^st appellant/1^st opposite party on 17.04.2015.  But the District Commission mistakenly found that the notice to the opposite parties was properly served and set the appellants/opposite parties
exparte. The appellants/opposite parties are only liable to construct a house in the style shown in the advertisement published by the appellants and for which no amount was received from the respondent/complainant. There was delay in processing the necessary permits and license to construct the building in the property by the concerned authorities.   Since the appellants/opposite parties were absent, the District Commission passed the exparte order on 31.03.2016..  According to the appellants, no reasonable opportunity was afforded to them to put forward their case before the District Commission.  It was submitted that the appellants have cogent evidence to prove their case and therefore, it is necessary that an opportunity is provided to them to place and prove their case. The learned counsel for the appellants prayed for allowing the appeal and setting aside the order of the District Commission.

5.       The learned counsel for the respondent/complainant submitted that they have paid the amount as claimed and the appellants/opposite parties cheated him by not constructing the house as promised. It is not true that appellants were not aware about the proceedings before the District Commission. They deliberately ignored it to avoid the liability. Hence, he prayed to dismiss the appeal and confirm the order of the District Commission.

            6.     We have considered the submissions and examined the records. This is a case in which the opposite parties/appellants did not appear before the District commission and file their version despite receipt of notice. The significant issue in this case is regarding service of notice to the opposite parties and their non-appearance before the District Commission. The District Commission has stated in paragraph 9 of the order appealed against that though notice had been served on the opposite parties they did not turn up and hence they were set exparte. The said paragraph is reproduced below:

 “Being noticed on the complaint, notice was properly issued to both the parties.  The 2^nd opposite party unclaimed the notice issued from the District Forum.  The notice was properly served on the 1^st opposite party.  Hence both the opposite parties were set ex-parte and the case was posted for complainant’s evidence.” 

          We observe that the notice was sent to the opposite parties in the address shown in the agreement. In case of change in their address, it is obligatory on the part of the appellants to give instructions to the postal authorities to deal with the communications received in their previous address given in the agreement.  Therefore, the stand taken by the appellants that they were unaware about the order of the District Commission cannot be accepted. Absolutely, no evidence has been produced by the opposite parties to show that the observation of the District Commission is erroneous in any manner.

7.       The District commission declared the opposite parties as ex-parte as per Section 13(2) (b) (ii) of the Consumer Protection Act, 1986, which is reproduced below:

“13 (2) The District commission shall, if the complaint admitted by it under section 12 relates to goods in respect of which the procedure specified in sub-section (1) cannot be followed, or if the complaint relates to any services,-

(a) refer a copy of such complaint to the opposite party directing him to give his version of the case within a period of thirty days or such extended period not exceeding fifteen days as may be granted by the District Forum;

(b) where the opposite party, on receipt of a copy of the complaint, referred to him under clause (a) denies or disputes the allegations contained in the complaint, or omits or fails to take any action to represent his case within the time given by the District Forum, the district Forum shall proceed to settle the consumer dispute –

1. on the basis of evidence brought to its notice by the complainant and the opposite party, if the opposite party denies or disputes the allegations contained in the complaint, or
2. ex-parte on the basis of evidence brought to its notice by the complainant, where the opposite party omits or fails to take any action to represent his case within the time given by the Forum.”

In view of the above specific provision, we do not find any error in the ex-parte order passed by the District Commission.  The order of the District Commission is as per the provisions of the Act and we do not find any reason to interfere with the order of the District Commission. 

8.       As already discussed, this is a case in which no version has been filed by the appellants, though they had received notice from the District Commission.  Therefore, in view of the dictum laid down by the Constitution Bench of the Apex Court in New India Assurance Co. Ltd. Vs. Hilli Multipurpose Cold Storage Pvt. Ltd. (2020)5 SCC 757, it is not possible for them to file a written version now and hence no purpose will be served if the case is remanded to the District Commission for fresh disposal.

9.       This case was filed prior to the above judgment of the Constitution Bench.  Applicability of the decision in the cases prior to the said judgment is discussed by the apex court in M/s Daddy Builders Pvt Ltd & Another Vs Manisha Bhargava {SLP (Civil) No 1240 of 2021dated 11.02.2021}. In this case the apex court have observed that consumer Commissions have no jurisdiction to accept written statement filed beyond the statutory period even in cases prior to the decision dated 04.03.2020 in New India Assurance Ltd. Vs. Hilli Multipurpose Cold Storage Pvt. Ltd. (2020)5 SCC 757 and the exemption is available only in those old cases where the delay in filing the version was already condoned. Para 4 and 5 of the judgment of the apex court are reproduced below:

“4. Having heard learned counsel appearing on behalf of the petitioners and so far as the question whether the date on which the State Commission passed the order, then on that date, whether the State Commission has the power to condone the delay beyond 45 days for filing the written statement under Section 13 of the Act is concerned, as such, the said issue whether the State Commission has the power to condone the delay beyond 45 days is now no tres integra in view of the Constitution Bench decision of this Court in the case of New India Assurance Company Limited v. Hilli Multipurpose Cold Storage Pvt. Ltd. reported in (2020) 5 SCC 757. However, it is submitted by the learned counsel appearing on behalf of the petitioners that as in paragraph 63 it is observed that the said judgment shall be applicable prospectively and therefore the said decision shall not be applicable to the complaint which was filed prior to the said judgment and/or the said decision shall not be applicable to the application for condonation of delay filed before the said decision.

However, the aforesaid cannot be accepted. It is required to be noted that as per the decision of this Court in the case of J.J. Merchant v. Shrinath Chaturvedi, reported in (2002) 6 SCC 635, which was a three Judge Bench decision, consumer fora has no power to extend the time for filing a reply/written statement beyond the period prescribed under the Act. However, thereafter, despite the above three Judge Bench decision, a contrary view was taken by a two Judge Bench and therefore the matter was referred to the five Judge Bench and the Constitution Bench has reiterated the view taken in the case of J.J. Merchant (supra) and has again reiterated that the consumer fora has no power and/or jurisdiction to accept the written statement beyond the statutory period prescribed under the Act, i.e., 45 days in all. However, it was found that in view of the order passed by this Court in Reliance General Insurance Co. Ltd. (supra) dated 10.02.2017, pending the decision of the larger Bench, in some of the cases, the State Commission might have condoned the  delay in filing the written statement filed beyond the stipulated time of 45 days and all those orders condoning the delay and accepting the written statements shall not be affected, this Court observed in paragraph 63 that the decision of the Constitution Bench shall be applicable prospectively. We say so because one of us was a party to the said decision of the Constitution Bench.”

“5.  ………………..In any case, in view of the earlier decision of this Court in the case of J.J. Merchant (supra) and the subsequent authoritative decision of the Constitution Bench of this Court in the case of New India Assurance Company Limited v. Hilli Multipurpose Cold Storage Pvt. Ltd. (2020) 5 SCC 757, consumer fora has no jurisdiction and/or power to accept the written statement beyond the period of 45 days, we see no reason to interfere with the impugned order passed by the learned National Commission.”

10.     From the above observations it is evident that the Constitution Bench decision of apex Court in the case of New India Assurance Company Limited v. Hilli Multipurpose Cold Storage Pvt. Ltd.   shall be applicable to the complaints which were filed prior to the said judgment as well.  The prospective application of the decision in old cases is relevant only in those cases where the delay in filing the version was already condoned as per the decision of the apex court in the case of Reliance General Insurance Co. Ltd. v. M/s Mampee Timbers & Hardwares Pvt. Ltd. (Diary No. 2365 of 2017 decided on 10.02.2017).   Hence, in this case the appellants cannot be permitted to file their written version now.

 In view of the foregoing discussion, we do not find any merit in the appeal.  In the result the appeal is dismissed and the order dated 31.03.2016 of the District Commission is confirmed.  There is no order as to costs. 

SL