Chandigarh

StateCommission

A/73/2015

Gurbhajan Singh - Complainant(s)

Versus

Unitech Limited - Opp.Party(s)

Vishal Goel, Adv.

08 Apr 2015

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

                                                      

First Appeal No.	:	73 of 2015
Date of Institution	:	25.03.2015
Date of Decision	:	08.04.2015

 

Gurbhajan Singh son of Sh. Gurnam Singh, resident of House No.503, Sector 69, Mohali, Now at Flat No.301, Block C-1, SCL Housing Colony, Silicon Enclave, Sector 71, S.A.S. Nagar, Mohali.

……Appellant/Complainant

V e r s u s

1. Unitech Limited, Uniworld City, Sector 106, Mohali, through its Authorized Officer.
2. Unitech Limited, Real Estate Division, SCO 189-90-91, Sector 17-C, Chandigarh, through its Authorized Officer.
3. Unitech Limited, Real Estate Division (Marketing), 5^th Floor, Tower-A, Signature Towers, South City 1, NH-8, Gurgaon, through its Managing Director.

              ....Respondents/Opposite Parties

Appeal under Section 15 of the Consumer Protection Act, 1986.

BEFORE: JUSTICE SHAM SUNDER (RETD.), PRESIDENT.

                MR. DEV RAJ, MEMBER.

                MRS. PADMA PANDEY, MEMBER

 

Argued by:Sh. Vishal Goel, Advocate for the appellant.

                 Smt. Vertika H.Singh, Advocate for the respondents.

 

PER JUSTICE SHAM SUNDER (RETD.), PRESIDENT

             This appeal is directed against the order dated 10.03.2015, rendered by the District Consumer Disputes Redressal Forum-II, U.T., Chandigarh (hereinafter to be called as the District Forum only), vide which, it dismissed the Consumer Complaint bearing No.33 of 2015, in default of appearance of the complainant (now appellant).

2.       The facts, in brief, are that the complainant purchased plot No.0028, measuring 358.80 square yards, in the project of the Opposite Parties, launched by them, under the name and style “Gardens”, Sector 97, Uniworld City, Mohali, Punjab. The total sale consideration of the said plot was to the tune of Rs.51,12,900/-.
3.       It was stated that the Buyer's Agreement dated 15.02.2011 Annexure C-1, in respect of the said plot, was executed between the parties. It was further stated that, however,  as per Article 4.a) of the Buyer's Agreement dated 15.02.2011 Annexure C-1, it was depicted that the Opposite Parties were to deliver possession of the plot, in question, to the  complainant within a period of 12 months, from the date of execution of the same (Agreement) i.e. by 14.02.2012. It was further stated that the complainant had paid the entire sale consideration of the said plot, to the Opposite Parties. It was further stated that despite payment of the entire sale consideration, the Opposite Parties failed to deliver possession of the said plot, by the stipulated date.
4.       It was further stated that, on 10.01.2014, the Opposite Parties delivered possession of the plot, in question, to the complainant, which was just a piece of land, as there were no basic amenities such as water, electricity, sewerage connection etc. etc., available at the site.
5.       It was further stated that, on the other hand, a separate Maintenance and Services Agreement dated 11.01.2014 Annexure C-4 was executed between the parties. It was further stated that as per Clause 3.1 of the Maintenance and Services Agreement dated 11.01.2014 Annexure C-4, the complainant was required to pay maintenance charges @Rs.2/- per square yard of the plot area, in advance, for three years, commencing from 01.04.2014.
6.       It was further stated that the complainant had constructed house on the said plot, and got completion certificate from the Greater Mohali Area and Development Authority (GMADA). It was further stated that thereafter, when the complainant wanted to shift in the said house, he could not do so, for want of basic amenities, in the area. 
7.       It was further stated that the aforesaid acts of the Opposite Parties, amounted to deficiency, in rendering service, as also indulgence into unfair trade practice. When the grievance of the complainant, was not redressed, left with no alternative, a complaint under Section 12 of the Consumer Protection Act, 1986 (hereinafter to be called as the Act only), was filed, seeking directions to the Opposite Parties, to provide basic amenities, as per the Agreements, aforesaid; pay compensation, to the tune of Rs.4,15,280/-, towards damages, mental agony and physical harassment; and Rs.22,000/- as cost of litigation. 
8.       On 10.03.2015, the complaint was called many times, but none entered appearance, on behalf of the complainant, as a result whereof, the same was dismissed in default of his appearance.
9.       Feeling aggrieved, the instant appeal, was filed by the appellant/complainant.
10.       We have heard the Counsel for the parties, and have gone through the record of the case, carefully.
11.       Sh. Vishal Goel, Counsel for the appellant/complainant, who was also Counsel, in the main complaint, submitted that, no doubt, on 10.03.2015, none put in appearance, on behalf of the complainant, as a result whereof, the consumer complaint was dismissed in default of his appearance. He further submitted that on 09.03.2015, due to sudden death of his (Sh. Vishal Goel, Counsel) uncle, he was busy in performing his last rights/funeral ceremony, which took place on 10.03.2015 (date fixed in the District Forum).  He further submitted that, on account of the reasons, aforesaid, none could appear in the District Forum, on 10.03.2015, when the complaint was called. He further submitted that his absence, on behalf of the complainant, in the District Forum, on 10.03.2015, was neither intentional, nor deliberate, but for the reasons, referred to above. He further submitted that, in case, the order impugned is not set aside, irreparable injury is likely to occasion, to the appellant/complainant, as in that event, he would be condemned unheard. He further submitted that, thus, the order of the District Forum, being illegal, is liable to be set aside.
12.       On the other hand, the Counsel for the respondents/Opposite Parties, submitted that, the absence of the complainant (now appellant), on 10.03.2015, in the District Forum, was intentional and deliberate. She further submitted that the complainant had the remedy of filing a fresh complaint, on the same cause of action. She further submitted that the order of the District Forum, being legal and valid, is liable to be upheld.  
13.       After giving our thoughtful consideration, to the contentions, advanced by the Counsel for the parties and, on going through the record, we are of the  considered opinion, that the appeal deserves  to be accepted, and the case is liable to be remanded back, for fresh decision, on merits, in accordance with law, for the reasons, to be recorded hereinafter.  It may be stated here, that perusal of the District Forum record, reveals that vide order dated 28.01.2015, notice was ordered to be issued to the Opposite Parties, for 10.03.2015, by the District Forum.  On 10.03.2015, none put in appearance, on behalf of the Opposite Parties. However, at the same time, as stated above, on the said date i.e. 10.03.2015, the complaint was called many times, but none entered appearance, on behalf of the complainant, as a result whereof, the same was dismissed in default of his appearance, by the District Forum. In our considered opinion, the complaint was, thus, at the initial stage. Even, the Opposite Parties had not put in appearance, by 10.03.2015, despite service through registered post. On 10.03.2015, the complainant was not to do anything. Therefore, the District Forum could adjourn the complaint, to some other date, but it hastily dismissed the same, on account of default of appearance of the complainant. It is settled principle of law, that every lis should normally be decided, on merits, than by resorting to the hyper- technicalities. When the hyper-technicalities, and the substantial justice, are pitted against each other, then the latter shall prevail over the former. The procedure, is, in the ultimate, the handmaid of justice, meant to advance the cause thereof, than to thwart the same.
14.       No doubt, there was negligence, on the part of the Counsel for the complainant, as he did not reach the District Forum, on 10.03.2015, when the consumer complaint was called for. However, if on 09.03.2015, due to the alleged sudden death of his (Sh. Vishal Goel, Counsel) uncle, he was busy in performing his last rights/funeral ceremony, which took place on 10.03.2015, it was required of him, to make a call and instruct his Junior Counsel, to put in appearance, or request it (District Forum), by moving an application, seeking exemption from appearance, on that date, but he failed to do so. Since, the Counsel did not take the requisite measures, referred to above, negligence was attributable to him. It is settled principle of law, that for the negligence or inadvertence of the Counsel, the party should not suffer. In our considered opinion, an opportunity should be afforded to the complainant, to prosecute the complaint, so that the same could be decided, on merits, and the rights of the Parties are finally determined by one Forum, one way or the other. In this view of the matter, the order impugned is liable to be set aside.
15.        On account of the negligence of the complainant or his Counsel, delay in the disposal of complaint, on merits, will be caused.  According to Section 13 (3A) of the Act, endeavour should be made to decide the complaint, within three months, from the date of service of the Opposite Party(s), except the one, in which the goods are required to be sent to the Laboratory for examination. In that event, the complaint is required to be decided, within a period of 5 months, from the date of service of the Opposite Party(s). The complaint had been filed on 23.01.2015. Since the complaint is being remanded back to the District Forum, delay will certainly be caused, in the disposal of same (complaint), on merits. Thus, the appellant/complainant is required to be burdened with costs.
16.        The Counsel for the respondents, however, submitted that, the appellant/complainant, has the remedy to file a fresh complaint, and, as such, the order impugned cannot be set aside. The submission of the Counsel for the respondents, in this regard, does not merit acceptance. Since, the complaint was dismissed, in default of appearance of the complainant, on 10.03.2015, he has availed of the legal remedy of filing the instant appeal, against the said order. The appellant chose the legal remedy, which was available to him, by way of filing the instant appeal, against the order dated 10.03.2015. Fresh complaint, on the same cause of action, was not legally maintainable. The submission of the Counsel for the respondents, in this regard, being devoid of merit, stands rejected.
17.           For the reasons recorded above, the appeal is accepted.  The order impugned is set aside. The complaint is remanded back to the District Forum, with a direction to restore the same, to its original number, proceed further,  from the stage, at which, it was dismissed in default of  appearance of the complainant,  and decide the same, afresh, on merits, in accordance with the provisions of the Act.  However, the appellant/complainant is burdened with costs of Rs.2,000/- for causing delay, in the disposal of complaint, afresh, on merits. The payment of costs to the respondents/Opposite Parties, shall be a condition precedent. 
18.       The Parties are directed to appear before District Forum (II) on 20.04.2015, at 10.30 A.M., for further proceedings. 
19.        The District Forum record, alongwith a certified copy of the order, be sent back immediately, so as to reach there, well before the date and time fixed i.e. 20.04.2015, at 10.30 A.M.
20.        Certified copies of this order, be sent to the parties, free of charge.
21.        The file be consigned to the Record Room, after due completion.

Pronounced.

08.04.2015

Sd/-

[JUSTICE SHAM SUNDER (RETD.)]

PRESIDENT

 

 

Sd/-

(DEV RAJ)

MEMBER

 

 

Sd/-

(PADMA PANDEY)

      MEMBER

 

 

Rg