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Metropolis Land Holdings (P) Ltd., Punjab v/s Anil Kumar

    Revision Petition No. 3433 of 2016
    Decided On, 24 July 2020
    At, National Consumer Disputes Redressal Commission NCDRC
    For the Petitioner: Gunjan Rishi, Advocate. For the Respondent: Updip Singh, Advocate.

Judgment Text

By way of this revision petition Metropolis land holdings private limited has challenged the order dated 1st September 2016 passed by the State Consumer Disputes Redressal Commission, Punjab (in short ‘the State Commission) in First Appeal No. 196 of 2016.

2. Brief facts relevant for the disposal of the present revision petition are that the respondent complainant filed a consumer complaint before the District Forum Amritsar alleging that respondent had paid a total amount of Rs.14, 48,000/- to the petitioner out of the total consideration amount of Rs.38,25,000/- for purchase of a flat in the petitioner's project. It was alleged that the possession was to be given within one year however, the possession was not handed over to the complainant and the project was also not progressing. The District Forum first issued a notice for 26th June 2015 and again for 17th July 2015. On this day the District Forum found that despite service the opposite party was not present and therefore the District Forum proceeded ex-parte against the opposite party. Finally, the District Forum allowed the complaint ex-parte on 8th January 2016 and directed the opposite party to refund Rs.14,48,000/- along with 9% p.a interest from the date of last payment i.e. from 11th May 2012.

3. Aggrieved by the order of the District Forum, the petitioner preferred an appeal before the State Commission which was dismissed vide it's order dated 1st September 2016.

4. Hence the present revision petition.

5. Heard the learned counsel for both the parties and perused record. The learned counsel for the petitioner has stated that though the District Forum has not recorded any reason for assuming service on the petitioner in its order dated 17th July 2015, however, it has been found out that the notice was served on one Pradeep Sharma who has been stated to be manager of the petitioner by the process server. The fact is that there was no employee by the name of Pradeep Sharma in the whole setup of the petitioner. Thus, the service has been managed by the complainant himself and the District Forum as well as the State Commission have accepted the same. It was clearly mentioned in the memo of appeal that no such employee by the name of Pradeep Sharma was ever employed by the petitioner but the State Commission has not accepted the same. The petitioner had also filed the list of its employees duly certified by the chartered accountant but even this proof has not been accepted by the State Commission. No prejudice would have been caused to the complainant, had the State Commission remanded the matter to the District Forum for deciding the complaint after hearing the defense of the petitioner. However, the State Commission dismissed the appeal and also did not consider merit of the appeal.

6. On the other hand, the learned counsel for the respondent complainant stated that if Pradeep Sharma was not an employee of the petitioner then, the petitioner should have filed a complaint with the police against Pradeep Sharma who has also filed an affidavit confirming the service. The fact is that the project was not proceeding and the petitioner neither refunded the amount paid by the complainant nor assured any progress in the project. In such situation, the District Forum has rightly ordered the refund of the paid amount.

7. I have carefully considered the arguments advanced by the learned counsel for both the parties and examined the material on record. The basic thrust of the argument of the learned counsel for the Petitioner is that the report of service by the peon of the District Forum is not correct as the notice has been served on one Pradeep Sharma who has been stated to be manager of the petitioner whereas the petitioner has never employed any person by the name of Pradeep Sharma. The State Commission has observed the following in this regard:-

“8. In order to prove that no such Pardeep Sharma was ever employed by the opposite party, it has placed reliance upon the certificate of Sanjeev Khanna & Company, Chartered Accountants; which was annexed with the appeal, as Annexure A-5. As per this certificate, which was certified to be true and correct, as per the Books of Accounts produced before him and other relevant information provided to him, the opposite party had employed the following persons, who had been paid the monthly salaries upto 31.01.2016:

i) Mr. Harkanwal Singh site Engineer Rs.24,000/- P.M.

ii) Mr. Aman Kumar Accountant Rs.7,000/- P.M.

iii) Mr. Munish Kumar Peon Rs.4,500/- P.M.”

Admittedly, the opposite party is a developer and the complaint pertained to a flat in residential project; named, “Metropolis Tower”. It cannot be believed that such a Company would be employing only three persons. The Chartered Accountant cannot be said to be the best witness to tell or disclose the names of the employees of the Company and he can only tell about the accounts thereof. The best witness to disclose the names of the employees was the Managing Director himself; whose affidavit was annexed with the appeal. He nowhere deposed in that affidavit that Pardeep Sharma was never employed by the opposite party, as Manager. In these circumstances, we do not find any ground to disbelieve the endorsement made by Pardeep Sharma on the summons, as the Manager of the opposite party. The service of summons upon him, as Manager of the opposite party, was valid service upon the opposite party. Therefore, there is no ground for setting aside the impugned order, on the ground that the opposite party was never served and was wrongly proceeded against ex-parte by the District Forum. There is no merit in this appeal and the same is hereby dismissed.”

8. I agree with the observation of the State Commission that a developer cannot have only three employees in his office and moreover, the name of the manager has not been given in the list of employees. Developers generally have a manager on every site. Thus, the list of employees given by the petitioner is not believable. This whole thing casts aspersion on the story of the petitioner. Thus, I do not find any error in the finding of the State Commission regarding service on the petitioner.

9. In the present case, the District Forum has observed that complainant has deposited Rs.14,48,000/- with the opposite party and neither the project has been completed nor

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the possession has been handed over to the complainant by the opposite party. The petitioner has not denied the receipt of Rs.14,48,000/- before this Commission and the order of the District Forum is only to refund this amount along with 9% per annum interest from the date of last payment i.e. from 11th May 2012. The order is clearly not a harsh order on the petitioner and the interest rate applied by the District Forum is quite reasonable. In these circumstances, I do not find any basis to interfere with the order passed by the State Commission. 10. Based on the above discussion, I do not find any merit in the revision petition and accordingly the revision petition No. 3433 of 2016 is dismissed.