1.      This revision petition has been filed against the order dated 19.07.2012 of the State Consumer Disputes Redressal Commission, UT, Chandigarh, (in short ‘the State Commission’) passed in First Appeal No.120 of 2012.

2.      Brief facts of the case are that the respondent No.1, Unitech Limited initiated a project in the name of Unitech Habitat, Greator Noida, District Gautam Budh Nagar, Uttar Pradesh for which it appointed its authorised agent respondent No.2, J.D. Realtors Ltd. for sale and marketing of the said project in north region at Chandigarh.  The petitioner/complainant deposited Rs.6,50,000/- on 14.06.2006 to purchase the flat of area between 1400 and 1900 sq.ft.  The respondent No.1 issued letter on 07.11.2006 allotting apartment No.204, floor 2 of super area 194.7248 square meters (approx. 2096 sq. feet.).  The petitioner sent notice dated 31.03.2010 seeking from the respondents for refund of amount with interest as the respondent failed to refund the said amount within a reasonable time.  The respondent sent further demand in respect of the flat allotted to the petitioner, without replying the legal notice.  Finally the petitioner filed a consumer complaint No.381 of 2011 before the District Consumer Disputes Redressal, Forum, Chandigarh, (in short ‘the District Forum’).  The District Forum, vide its order dated 02.03.2012 allowed the complaint as under:-

“16.  From the above analysis of the case as well as thoroughly considering the pleadings and viewing the evidences & documents filed by both the parties, consequently, it is proved beyond doubt, that the deficiency in service, on the part of OPs, is writ large, as the OPs have failed to refund the initial amount deposited by the complainant i.e. Rs.6.50 lacs, as requested.  Therefore, we opine that the complaint must succeed, as it has lot of merit, weight and substance.  The same is accordingly allowed.  The OPs are, jointly & severally, directed to refund a sum of Rs.6.50 lacs, along with interest @ 12% per annum from the date of deposit/encashment i.e. 20.06.2006 till its actual payment to the complainant, apart from Rs.15,000/- as litigation cost.

        This order be complied with by the OP, within one month, from the date of receipt of the copy of the order, failing which they would be liable to pay the above awarded amount, alongwith interest @15% p.a. instead of 12% p.a., from the date of deposit/encashment i.e. 20.06.2006 till its actual payment to the complainant, besides paying Rs.15,000/- as litigation cost.

        Certified copies of this order be sent to the parties free of charge.  The file be consigned.”

3.      Aggrieved by the order of the District Forum, the respondent No.1/Opposite Party No.1 filed an appeal before the State Commission. The State Commission proceeded ex-parte against the petitioner herein and allowed the appeal vide its order dated 19.07.2012 and the complaint was dismissed.

4.      Hence the revision petition.

5.      Heard the learned counsel for the parties. The learned counsel for the petitioner stated that after booking the flat, petitioner never received any notice from the builder/developer to deposit further amounts.  At the time of booking, he was given an understanding that flat of area between 1400 to 1900sq. ft. will be allotted, but in the letter of allotment the super area of the flat has been shown as 194.728 sq. meters (approx. 2096 sq. ft).  The petitioner also went to site and found that there was no construction on the site. After this, the petitioner requested for refund of the deposited amount.  Instead of refunding the amount, the developer/builder kept on sending notices for demand.  Then the complaint was filed before the District Forum, which was allowed and the opposite parties were ordered to refund the deposited amount along with interest.  However, in the appeal filed by the opposite party No.1, the State Commission has allowed the appeal and the complaint has been dismissed.  The fact is that the appeal was not contested by the petitioner as he was proceeded ex-parte before the State Commission. As his complaint was allowed by the District Forum and the State Commission has reversed the order passed by the District Forum in its ex-parte order dated 19-07-2012, the petitioner deserves an opportunity to put forward his case before the State Commission as he has not been heard by the State Commission.  The petitioner had admitted that the notice sent by the State Commission was received by the wife of the petitioner, but she forget to tell the petitioner about that notice and thus the petitioner could not attend to the court matter before the State Commission. The petitioner came to know of the impugned order during the execution proceedings filed by the petitioner.  The learned counsel for the petitioner prayed that the revision petition may be allowed an opportunity be granted to the petitioner to put forward his case on merits before the State Commission. 

6.      On the other hand, learned counsel for the respondent No.1 stated that the State Commission has observed in the impugned order that notice of the appeal was duly served upon respondent Nos.1 & 2 (petitioner herein & respondent No.2), but neither they, nor any legally authorised representative on their behalf put in appearance.  Accordingly, respondent Nos.1 & 2 (petitioner herein and respondent No.2 herein) were preceded against ex-parte.  From this observation, it is clear that the notice was duly served upon the petitioner.  Petitioner has also accepted in his revision petition that the notice was not brought to his knowledge by his wife.  If the notice is served and the party does not appear, there is no other option but to proceed ex-parte against that party. The order of the State Commission is based on merits.  The petitioner did not pay any instalment after the initial booking amount, which was in the form of earnest money, whereas, the schedule of payment was attached with the agreement itself and the payment of instalments was in a time bound manner.  As per Clause 2.g of Agreement, the earnest money was to be forfeited, if the payments are not made by the petitioner.  In the present case, the petitioner has himself admitted that demand notices were sent by the respondent No.1 and therefore, it cannot be said that he was not aware of making the payments when the booking was made.  The size was not exactly certain when the booking was made,  but later on, the allotment letter was given mentioning the flat size as 2096 sq.ft., which was very close to the size told at the time of booking which was between 1400 and 1900 sq.ft.  The State Commission has agreed with the forfeiture of the earnest money/booking amount deposited by the petitioner.  Hence, petitioner does not have any claim on merits and the State Commission has rightly dismissed the complaint.

7.      We have carefully considered the arguments advanced by the learned counsel for both the parties and have examined the record.  It is admitted by both the parties that an amount of Rs.6,50,000/- was deposited for booking of a flat by the petitioner and finally due to various reasons, the petitioner asked for refund of deposited amount along with interest.  The District Forum has allowed the complaint and ordered refund of the deposited amount along with interest @12% per annum.  It is true that the petitioner has been proceeded ex-parte before the State Commission.  Though there has been negligence on the part of the petitioner that he remained absent in spite of the notice having been received by his wife, the fact of the matter remains that the order of the District Forum, which was in favour of the petitioner has been reversed by the State Commission without hearing the petitioner as he was proceeded ex-parte.  Though for ex-parte order the petitioner himself is responsible, but as the State Commission does not have right to recall its own ex-parte order, we feel that in the interest of justice, petitioner should be provided an opportunity of presenting his case before the State Commission on merits.  Thus, we allow the revision petition at the cost of Rs.10,000/- (Rupees Ten Thousand Only) to be deposited by the petitioner in the Consumer Legal Aid Account of the State Commission.  The order dated 19.07.2012 of the State Commission is set aside and State Commission is directed to decide the appeal afresh after giving opportunity to both the parties of being heard.  The cost of Rs.10,000/- (Rupees Ten Thousand Only) be deposited by the petitioner in the Consumer Legal Aid Account of the State Commission on or before the next date of appearance before the State Commission.   Parties to appear before the State Commission on 22.02.2017.