At, Delhi State Consumer Disputes Redressal Commission New Delhi
By, THE HONOURABLE MRS. JUSTICE VEENA BIRBAL
By, PRESIDENT & THE HONOURABLE MS. SALMA NOOR
For the Appearing Parties: ------.
Salma Noor, Member
1. Present appeal has been filed against the order dated 08.02.2011 passed by Ld. District Forum-II, Udyog Sadan, Qutab Institutional Area, New Delhi-110016 in Complaint Case No. 1250/2007. Vide impugned order Ld. District Forum allowed the complaint of the respondent/complainant and directed the appellant No.1/OP company to pay to the respondent/complainant a sum of Rs. 51,000/- alongwith interest @ 9% p.a. Besides this appellant No.1/OP was also directed to pay compensation to the tune of Rs. 25,000/- for mental torture and harassment caused to the respondent/complainant and Rs. 5000/- towards litigation charges was also awarded. Two other orders dated 16.07.2013 and 12.11.2013 passed in Execution Case No. 149/2011 are also challenged in this appeal.
2. Brief facts of the case are that the respondent/complainant had booked a plot measuring 100 square yards in one of the projects of the appellant/OP company under the name and style of ‘Drona City-Dehradun’ launched by LVL City Group on 31.12.2006. The respondent/complainant vide cheque paid a sum of Rs. 51,000/- alongwith his application form. Respondent/complainant vide receipt dated 30.12.2006 paid an amount of Rs. 51,000/- to the appellant/OP company. Grievance of the respondent/complainant before the Ld. District Forum was that he was neither given any plot nor his amount was refunded to him despite number of reminders given to the appellant/OP Company.
3. Aggrieved by the inaction on the part of the appellant/OP company, respondent/complainant had filed the complaint before the Ld. District Forum seeking refund of the amount of Rs. 51,000/- deposited by him with the appellant/OP company alongwith interest @ 9% p.a. and had also made prayer for compensation for having caused mental agony and harassment to him.
4. Defence raised by the appellant/OP company before the Ld. District Forum was that the delay in project in question was caused due to the unforeseen reasons like delay in approval from a competent authority and delay in execution of contracts by concerned landlords in the respective areas. It was further submitted by the appellant/OP company that the property in question was then included in the ‘Master Plan’ of the appropriate authority as ‘Residential’ and therefore appellant/OP was in the process of revival of the project vis-a-vis repayment of money who did not want to continue further.
5. After filing written version appellant/OP company stopped appearing and he was proceeded ex-parte vide order dated 30.10.2009.
6. Thereafter the respondent/complainant filed rejoinder and evidence by way of affidavit. Respondent/complainant also filed written arguments before the Ld. District Forum. After considering the pleadings of the parties and the evidence of the respondent/complainant, the Ld. District Forum passed an award in favour of the respondent/complainant and directed the appellant/OP company to pay a sum of Rs. 51,000/- to the respondent/complainant alongwith interest @ 9% p.a. and also granted compensation to the tune of Rs. 25,000/- for mental agony and harassment and Rs. 5000/- towards cost of litigation.
7. Aggrieved by the aforesaid ex-parte judgement of the Ld. District Forum on 08.02.2011, the appellant/OP has filed the appeal before this Commission.
8. We have heard the counsels for the parties and perused the record.
9. There is no dispute between the parties that the respondent/complainant had paid Rs. 51,000/- to the appellant/OP towards allotment of the plot of 100 sq. yards which was never allotted to the respondent/complainant. The appellant/OP in its written statement itself admitted that the proposed project of the Company in Dehradun was delayed due to delay in approval from the appropriate authority vis-a-vis the dispute with the respective landlord of the area. Meaning that the appellant/OP was not having a sanctioned project when applications were invited for allotment of the plot from investors including respondent/complainant. In our view such act of the appellant/OP amounts to unfair trade practice and deficiency in service on the part of the appellant/OP. It is not the case of the appellant/OP that the respondent/complainant was a defaulter or did not make payment to appellant/OP. The respondent/complainant had trusted the appellant/OP and deposited the amount from time to time as demanded by the appellant/OP. The appellant/OP has also challenged the judgement of the Ld. District Forum on the ground that the appellant/OP company was proceeded ex-parte before the Ld. District Forum without there being any fault on its part. The record shows that the appellant/OP company itself chose not to appear before the Ld. District Forum after filing written version. There is no explanation as to why it failed to appear subsequently. Once it had walked out of the proceedings of its own, it has to face the consequences.
10. The other ground taken by the appellant/OP that the appellant company was not a wilful defaulter but was a victim of circumstances. We do not agree with this also because when the appellant/OP project was not approved by the appropriate authority and the appellant/OP was having a dispute with the respective landlord, it ought not have invited the applications for allotment of the plots and having kept the invertors money for such a long time. The appellant/OP never started the project and even now they are not in a mood to refund the money and eventually pulling the respondent/complainant into litigation.
11. The impugned order is also challenged as it is contended on behalf of appellant Nos.- 2 & 3 that they were never served before the Ld. District Forum. We may mention that the consumer complaint was filed against appellant-1/OP company only by the respondent/complainant. The appellant No. 2 is the director of the appellant/OP company. As per appellant No. 3, Smt. Alpana Aggarwal, she is wife of ex-director and has succeeded to his shareholding after his death. In these circumstances they were not to be served separately. Further, appellants- 2 & 3 have appeared in execution proceedings i.e. Execution Case No. 149/2011 and appellant-2 has given an undertaking that he will pay 50% of the principle amount in the above matter by 16th December, 2013 and the remaining amount by 1st week of February, 2014 in compliance of the orders of the Ld. District Forum dated 08.02.2011 and 07.11.2013.
12. It may also be mentioned that during the pendency of this appeal, the appellant/OP had approached the Hon’ble National Commission by filing Revision Petition No. 1047/2014 against the order of this Commission dated 03.01.2014. By the said order the impugned order passed by the Ld. District Forum and undertaking of appellant No.2 was kept in abeyance provided the appellant/OP pays half of decretal amount in 15 days and remaining half within 3 months from the said order. The aforesaid Revision Petition was dismissed by the Hon’ble National Commission vide order dated 18.02.2014 with cost of Rs. 10,000/-.
13. We may also mention that appellants have challenged three orders in this appeal i.e. order dated 08.02.2011 of Ld. District Forum passed in Case No. 1250/2007 and orders dated 16.07.2013 and 12.11.2013 respectively passed in Execution Case No. 149/2011. The appellant/OP ought to have filed separate appeal against e
Please Login To View The Full Judgment!
ach of the impugned order. Further the appeal against order dated 08.02.2011 has been filed after a delay of 2 years and 8 months. Further, the appeal against order dated 16.07.2013 is also barred by limitation as there is delay of about 3 months in filing the appeal. The present appeal is not accompanied by any application for condonation of delay. 14. In any event we have examined the appeal on merits as has been discussed above. We find no illegality or infirmity in the orders passed by the Ld. District Forum. 15. The appeal is accordingly dismissed. There is no order as to costs. 16. Copy of the order be made available to the parties free of cost as per rules and thereafter the file be consigned to Records. 17. FDR, if any, deposited by the appellant be released as per rules.