This appeal has been filed by the appellant M/s. Desai Developers & Builders Pvt. Ltd.challenging the order dated 24.07.2014 passed by the State Consumer Disputes Redressal Commission, Maharashtra (in short ‘the State Commission’) in CC No.CC/02/234.2. Respondent No.1 filed a consumer complaint bearing No.CC/02/234 against the appellant and respondent No.2 in the year 2002. It is the case of the appellant that the appellant filed the written version on 12.6.2003 and ultimately the matter was adjourned sine die. When the matter was taken up after taking it out from the sine die list, respondent No.1 filed an application for taking on record the changed address of the appellant on 15.07.013. On 15.01.2014, the State Commission proceeded ex-parte against the opponent No.1/appellant herein and the matter was finally decided by the State Commission on 24.7.2014. The State Commission allowed the consumer complaint and passed the following order:-“1. Opponent No.1 is held guilty of deficiency in service.2. Opponent No.1 shall obtain full Occupancy Certificate from the Opponent No.2 and hand-over it to the Complainant and convey the property in favour of the Complainant Society within six months from the date of this order. In default, Opponent No.1 should pay Rs.1,000/- per day till compliance.3. Opponent No.1 is directed to pay to the Complainant Society, an amount of Rs.7,02,818/- on account of water charges, an amount of Rs.54,947/- on account of forfeitable deposit, an amount of Rs.6,82,650/- on account of property-tax and Rs.14,056/- towards refund of amount paid by the Members of the Complainant Society towards formation and registration of the society within six months from the date of this order. Thus, the Opponent No.1 shall pay to the Complainant Society, a total amount of Rs.14,54,465/- together with interest thereon @9% p.a. from the date of filing of the complaint viz. 19th July, 2002 till realization. However, it is hereby made clear that if the amount is not paid within the stipulated period then, it shall carry interest @ 12% p.a.4. Opponent No.1 shall also pay to the Complainant costs of the complaint quantified at Rs.10,000/-.5. No order as against the Opponent No.2 as no relief was sought as against the Opponent No.2.3. Hence the present appeal.4. Heard the learned counsel for the parties and perused the record. Learned counsel for the appellant stated that the written statement was filed by the appellant/opponent no.1 on 12.06.2003 and when the matter was taken up after sine die, it seems that the written statement was not available on record and State Commission again gave opportunity to both the parties to file the copies of the written statement vide its order dated 18.11.2013, which reads as under:-“It is brought to our knowledge that written versions are filed by the opponents, but copies of the same are not on record. Only one compilation is before the Commission. Two sets are to be filed by the Complainant. Opponent No.2 is ready to file copy of written version on record. Re-issue notice to the Opponent No.1. On appearance of the Opponent No.1, there will be clarification about the copy of written version filed by the Opponent No.1. Hence, adjourned for return of notice to 15/01/2014.”5. It was pointed out by the learned counsel for the appellant that no notice was served on the appellant as the address was got changed by the complainant. Thus, vide order dated 15.1.2014 the State Commission ordered the complaint to proceed ex-parte against the opponent no.1/appellant herein. As the appellant was not aware of this order, therefore, this order could not be challenged. The State Commission finally allowed the complaint vide its order dated 24.7.2014. Thus, the order of the State Commission dated 24.7.2014 is without considering the written statement filed by the appellant.6. Learned counsel stated that the order dated 14.8.2003 of the Registrar reads as under:-“Compl; absentOP. No.1 absentO.P.No.2 absent. Next Date 23/10/03Sd.For RegistrarMessenger ShriVinod Prest. He stated that Co has postedW.S. by Courier & file in registry and taken onRecord. Next date 23/10/03Sd.For Registrar.”7. From the above order, the learned counsel states that this proves that the written statement was taken on record. The learned counsel further stated that after that opposite party no.2 also filed their written statement on 11.03.2004. Then on 24.6.2004 Registrar has made the following noting:-“Mrs. Archana Kakde, Adv. For Complainant, Op 1 by Mrs. F.J.Gai for Mr. J.B.Gai, A.R. Op.2 absent. All formalities completed except rejoinder of Complainant. For hearing adjourned to 15/10/2004.”8. From the above observation of the Registrar, it is clear that all the formalities were complete and only rejoinder was to be filed by the complainant. It implies that the written statement of opponent no.1/appellant herein was already filed. The learned counsel also argued that from the observation of the State Commission dated 18.11.2013 as mentioned earlier also, it is clear that the State Commission also agreed that the written statement was filed from the side of the appellant/opposite party No.1, but the same was not available on record and the State Commission again issued notice to both the parties to file the copies of their written statement. This notice did not reach the appellant/opposite party no.1 as the address of opposite party no.1 was got changed by the respondent no.1/complainant. Opposite party no.2, however, filed the copy of their written statement. Vide order dated 15.1.2014, the State Commission observed the following:-“Opponent no.1 is duly served. However, he failed to file written version on record. Hence, the Complaint to proceed ex-parte against the Opponent No.1.”9. In the above circumstances, the appellant has been proceeded ex-parte before the State Commission and its written statement has not been considered by the State Commission. The State Commission finally allowed the complaint vide its order dated 24.07.2014.10. It was argued by the learned counsel for the appellant that from the record and observation of the Registrar as well as of the State Commission as mentioned above, it is clear that the written statement filed by opposite party no.1 was misplaced somewhere in the State Commission and the same has not been considered by the State Commission in adjudicating the complaint in question. The appellant should not be allowed to suffer from any lapse on the part of the Registry of the State Commission.11. On merits, the learned counsel for the appellant stated that the State Commission has directed the appellant to obtain the occupancy certificate and till that time to pay Rs.1,000/- per day to the complainant. Learned counsel informed that the occupancy certificate has been obtained. Another direction of the State Commission is in respect of registering the conveyance deed in favour of the complainant. The learned counsel for the appellant stated that a dispute is going on between one Mr. Jhavari and the appellant in respect of the ownership of the land. Until this dispute is decided in the civil suit which is already pending, conveyance deed cannot be registered in favour of the complainant as the tittle should be clear over the land. In this regard, learned counsel referred to an order of the Hon’ble High Court of Judicature at Bombay, Appeal no.331 of 1987, Surendra C. Jhavari & Ors. Vs. Bal Krishna S. Mirashi & Ors. dated 06.03.1987 and the learned counsel stated that the complainant is also a party in that civil suit and is fully aware about the pendency of the case. It was requested by the learned counsel for the appellant that the appellant should be allowed to file the copy of the written statement before the State Commission and the matter should be decided by the State Commission after considering the written statement filed by the appellant.12. On the other hand, the learned counsel for the respondent no.1/complainant stated that no written statement was filed by the appellant before the State Commission as the entry by the Registry only shows that the messenger Mr.Vinod informed the Registry that written statement was sent by courier and the same was filed in the Registry. The appellant has failed to show any receipt from the Registry in this regard. There is no clear date of filing of the written statement by the appellant/opposite party no.1 in the Registry. The Registrar has recorded his observation only on the basis of the statement given by the messenger Mr.Vinod. Even on the subsequent dates, there is no mention of the written statement filed by the opposite party no.1. Moreover, when the notice was given by the State Commission to file the copy of the written statement again, the appellant failed to file the same before the State Commission and thus, there was no question of considering the written statement of the appellant by the State Commission as the same was not available on record.13. As the matter has been finally decided by the State Commission, no purpose would be served if the matter is remanded to the State Commission after allowing the appellant to file the copy of the written statement. It was further argued that in the light of the judgment and order dated 04.03.2020 passed by the Hon’ble Supreme Court in Civil Appeal No.10941-10942 of 2013, New India Assurance Company Limited Vs. Hilli Multipurpose Cold Storage Pvt. Ltd., the appellant cannot be allowed to file the written statement now. The learned counsel for the respondent No.1/complainant further stated that part of the order of the State Commission has already been complied now as stated by the learned counsel for the appellant that occupation certificate has been received. The only part remains in respect of the conveyance deed in favour of the complainant. The learned counsel stated that the deed may be conditionally registered subject to outcome of the civil suit. The learned counsel further stated that the appellant has not filed the present position of the civil suit.14. We have carefully considered the arguments advanced by the learned counsel for both the parties and examined the record. The typed copy of the order dated 14.08.2003 though reads that written statement is taken on record (as quoted by the learned counsel for the appellant above), however, the certified copy of this order as filed by the appellant does not show the last line as this seems to be a photocopy. As the learned counsel for the respondent has not claimed the typed copy to be untrue, we take the typed copy as correct. Further orders of the Registrar particularly the order dated 24.06.2004 of the Registrar and 18.11.2013 of the State Commission give the impression that both the opposite parties had filed the written statement. Clearly, the written statements filed by both the opposite parties were not available on record before the State Commission when the matter was taken up after taking it out from sine die list. Inspite of notice issued, the appellant herein/opponent No.1 could not file the copy of the written statement. It has been alleged by the appellant that the respondent No.1/complainant got address of appellant changed by submitting specific application before the State Commission and therefore, the notice was not served on the appellant. On the other hand, the learned counsel for the respondent No.1/complainant stated that the correct address of the opposite party no.1 was informed to the State Commission and notice was sent on the correct address. Be that as it may, the fact is that the appellant herein could not file the copy of the written statement before the State Commission and that is why State Commission could not consider its written statement.15. It is seen that the respondent No. 1 submitted an application for change of address of the opposite party No.1 and the new address was informed as follows:Desai Developers and Builders private limitedSita building 4th floorRam Maruti Road Dadar (West)Mumbai 400028.16. The appellant has filed a letter from the complainant dated 3rd March 2011 addressed to the opposite party No.1/appellant where the address is mentioned as follows:M/s Desai Developers and Builders private limited1, Vidhata,Ram Maruti RoadDadarr (West )Mumbai 40002817. In the present appeal, the address of the appellant is mentioned as 1,Vidhata, Ram Maruti Road Dadar West Mumbai which is the same as given in the application sent by the complainant to the opposite party in the year 2011. Thus, the change of address in the year 2013 seems less probable. Though the State Commission has recorded in its order dated 15.01.2014 that opponent No.1 is duly served, but no details of service have been given in this order. From these facts, we are constrained to believe that the service was not proper and therefore, the appellant could not place its earlier written statement on record before the State Commission.18. From the above discussion, it is clear that the opponent No.1/ the appellant herein had filed the written statement before the State Commission and the same was taken on record, however, it was misplaced when the matter was taken up after taking the case out of the sine-die list. The notice sent by the State Commission to the appellant to submit the copy of the earlier filed written statement again on record was not properly served. In these circumstances, it seems necessary that the State Commission should pass the order in the complaint case after considering the written statement filed by the appellant. Obviously, there would arise question of delay and the appellant may have to compensate the complainant for this delay. Clearly the appellant did not pursue the complaint filed against them. Even if notice was not received by the appellant, in the normal course, a party should monitor its case before
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the court where it was pending. Though the appellant has taken the plea of a civil suit pending, but the copy of the order of the Hon’ble High Court of Bombay that has been filed by the appellant is not complete. Even the present status of the civil suit has not been filed by the appellant. In these circumstances we have to remand the case for final adjudication by the State Commission after considering the written statement that was filed by the appellant in the year 2003. The appellant will file that copy before the State Commission before the date of appearance before the State Commission. Thus, the impugned order dated 24.07.2014 is set aside and the matter is remanded to the State Commission. In these circumstances, this remand order is being passed at a cost of Rs. 4 lakhs [rupees four lakhs] to be paid to the complainant by the appellant/opposite party No.1 on or before date of appearance before the State Commission. However, if expedient, the State Commission will have power to extend this period by maximum 30 days if need be. It is further made clear that if the appellant does not pay the cost to the complainant or deposit the cost with the State Commission in the stipulated period, this order shall lapse and impugned order of the State Commission shall become effective.19. As a long delay has happened due to keeping the case in sine-die list for about 8-9 years, the State Commission is requested to finalize the complaint case as quickly as possible. Parties to appear before the State Commission on 09.11.2020.