PER JUSTICE SHAM SUNDER (RETD.), PRESIDENT
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This order shall dispose of the aforesaid two First Appeal Nos. 76 of 2015 titled as M/s Chandigarh Overseas Private Limited, and another Vs. Easow Mathew and 35 of 2015 titled as Easow Mathew Vs. Chandigarh Overseas Private Limited, arising out of the common order dated 05.12.2014, rendered by the District Consumer Disputes Redressal Forum-1, U.T., Chandigarh (hereinafter to be called as the District Forum only), vide which, it accepted the complaint, filed by the complainant (now appellant in in First Appeal No. 35 of 2015), and directed the Opposite Parties (now appellants in First Appeal No. 76 of 2015), as under:-
"In view of the above discussion the present complaint is allowed and the opposite parties are, jointly and severally, directed to pay to the Complainant as under :-
[i] To pay the buy-back amount of Rs.7.50 lac to the complainant. [ii] To pay the amount @ Rs.50/- per sq. ft. per month of the super area w.e.f. 19.01.2010 till the refund of buy back amount (excluding the amount already paid, if any), as per clause 28 of the agreement.
[iii] To pay Rs.50,000/- as compensation for mental agony and harassment. [iv] To pay Rs.10,000/- as costs of litigation.
This order be complied with by the opposite parties, within 30 days from the date of receipt of its certified copy, failing which the amounts at Sr.No.(i) to (iii) above shall carry interest @12% per annum from the date of filing of this Complaint i.e. 19.03.2014, till actual payment, besides payment of litigation costs."
2. The facts, in brief, are that in the year 2006, Opposite Party No.1, launched a project, under the name and style of "Fashion Technology Park" in Sector 90, Mohali. It was stated that the Opposite Parties widely publicized their offer of selling units, in the Industrial Knowledge (Fashion Technology Park), Sector 90, Mohali. The intending allottees were provided with the Information Memorandum, for small investors. It was further stated that since the complainant wanted to do his independent business, for earning his livelihood, by way of self employment, agreed to purchase a 100 sq. ft. unit, in the said project, as such, he submitted an application form, on 17.10.2006, alongwith booking amount to the tune of Rs.1,25,000/. The complainant was allotted Design studio No.12, on 5th Floor, Block A-2, in the said project. It was further stated that the total cost of the unit, in question, was Rs.5,00,000/-, out of which the complainant had paid Rs.4,75,000/-. The remaining amount of Rs.25,000/- was to be paid at the time of possession of the Fashion Studio. It was further stated that the Developer Buyer Agreement (Annexure C-5) and Lease Agreement (Annexure C-6) were also executed between the parties. It was further stated that, at the time of entering into both the Agreements, on 31.12.2006, the Opposite Parties also informed the complainant, that he could avail of the buy-back option, in respect of the said unit. As such, the complainant was offered buy-back of the unit @ Rs.7.50 lacs per unit. It was further stated that the complainant exercised the said buy-back option, before the stipulated date, vide letter dated 04.08.2009 (Annexure C-7). In response, the Opposite Parties assured the complainant that the buy-back option would be honoured by 30.06.2010, but they failed to do so. It was further stated that even compensation, as per Clause 28 of the Developer Buyer Agreement, was not paid by the Opposite Parties.
3. 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, directing the Opposite Parties, to pay Rs.7.50 lacs, on account of the buy-back option, accepted by him, alongwith interest @18% P.A.; compensation/penalty @Rs.50/- per square feet, per month, for the period of delay, alongwith interest @18% P.A.; lease rent to the tune of Rs.30,000/-, per month, from 31.12.2008, alongwith interest @18% P.A. till realization; compensation, to the tune of Rs.2 lacs, for mental agony, physical harassment, deficiency in rendering service and adoption of unfair trade
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practice; and cost of litigation, to the tune of Rs.25,000/-.
4. The Opposite Parties were served, through publication, in the newspaper, but despite that, none put in appearance, on their behalf, as a result whereof, they were proceeded against exparte, by the District Forum, on 30.10.2014.
5. The complainant led evidence, in support of his case.
6. After hearing the Counsel for the complainant, and, on going through the evidence, and record of the case, the District Forum, accepted the complaint, in the manner, referred to, in the opening para of the instant order.
7. Feeling aggrieved, First Appeal No. 76 of 2015 titled as M/s Chandigarh Overseas Private Limited, and another Vs. Easow Mathew was filed by the appellants/Opposite Parties, on the ground, that the order impugned, was liable to be set aside, and the case deserved to the remanded back, for fresh decision. and First Appeal No. 35 of 2015 titled as Easow Mathew Vs. Chandigarh Overseas Private Limited, was filed by the appellant/complainant, for modification of the order impugned, by granting interest @9% P.A., on the awarded amount of Rs.7.50 lacs, from 18.01.2010 till realization.
8. We have heard the Counsel for the parties, in both the appeals, and, have gone through the evidence, and record of the case, carefully.
9. The Counsel for the appellants/Opposite Parties, in First Appeal No. 76 of 2015 titled as M/s Chandigarh Overseas Private Limited, and another Vs. Easow Mathew submitted that, no doubt, none put in appearance on behalf of the Opposite Parties, on 30.10.2014, when the consumer complaint was called, as a result whereof, they were proceeded against exparte, whereafter the impugned order dated 05.12.2014 was passed by the District Forum, after hearing the Counsel for the complainant only. He further submitted that the Opposite Parties were wrongly proceeded against exparte on 30.10.2014, by the District Forum, while holding that despite its service through publication, none put in appearance, on their behalf, resulting into passing of the impugned order dated 05.12.2014. He further submitted that, on the other hand, the Opposite Parties were never duly served, on account of the wrong address, having been furnished by the complainant, in the consumer complaint. He further submitted that the Opposite Parties had ceased operating their business, at the address given by the complainant, in the consumer complaint, since February 2014, in pursuance of the ejectment order dated 21.10.2013 Annexure A-3, passed by the Hon'ble Court of Ms.Dazy Bangarh PCS, Rent Controller, Chandigarh, in Rent Petition No.84 of 2012. He further submitted that otherwise also, there were various crucial questions, which arose for determination, in the consumer complaint. He further submitted that, in the absence of affording an opportunity, to the Opposite Parties, to submit their written version, and furnish evidence, by way of affidavit(s), these crucial questions, could not be properly decided. He further submitted that the order of the District Forum is liable to be set aside, and the case deserves to the remanded back, for fresh decision.
10. On the other hand, the Counsel for the appellant/complainant, in First Appeal No. 35 of 2015 titled as Easow Mathew Vs. Chandigarh Overseas Private Limited, submitted that since the Opposite Parties were duly served, through publication, yet, no authorized representative, on their behalf, put in appearance, no ground, whatsoever, is made out, to set aside the order impugned, and afford an opportunity to them, to file their written version, and lead evidence. He further submitted that, on the other hand, the order impugned passed by the District Forum, needs modification, to the extent of granting interest @9% P.A., on the awarded amount of Rs.7.50 lacs, from 18.01.2010 till realization.
11. After giving our thoughtful consideration, to the contentions, advanced by the Counsel for the parties, and the record, we are of the considered opinion, that First Appeal No. 76 of 2015 titled as M/s Chandigarh Overseas Private Limited, and another Vs. Easow Mathew is liable to be accepted, and the complaint deserves to be remanded back to the District Forum, for fresh decision, for the reasons, to be recorded hereinafter. It is evident, from the District Forum file, that on 21.03.2014, notice for the service of the Opposite Parties, was sent for 02.05.2014. On 02.05.2014, since the said notice sent, was received back, unserved, with the report "left without address" as such, the complainant was directed by the District Forum, to furnish fresh address of the Opposite Parties, within a week, so that notice could be issued to them, for 12.06.2014. Fresh address of the Opposite Parties was not furnished by the complainant. However, the Opposite Parties, could not be served, in the ordinary manner. Ultimately, on 11.09.2014, a request for service of the Opposite Parties through publication, was made by the Counsel for the complainant. As such, vide order dated
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23.09.2014, the Opposite Parties were finally ordered to be served through publication, in the newspaper "Daily Chardikalan, Patiala", for 30.10.2014. As stated above, on 30.10.2014, when none put in appearance, on behalf of the Opposite Parties, despite service through publication, they were proceeded against exparte, by the District Forum. In our considered opinion, the Opposite Parties could not be said to have been duly served. As such, they were wrongly proceeded against exparte.
12. It may be stated here that, no doubt, after proceeding the Opposite Parties exparte, on 30.10.2014, and on hearing the Counsel for the complainant, the impugned order dated 05.12.2014, was passed by the District Forum. However, it may be stated here, that there are certain crucial and significant disputed issues/questions, involved in the case, which require adjudication, on merits, after the Opposite Parties are afforded an opportunity, to submit their written version, and lead evidence, by way of affidavit(s). Those disputed questions are, as to whether, the consumer complaint was maintainable before the District Forum; as to whether, the complainant falls within the definition of a consumer; as to whether, the Information Memorandum for Small Investors, Annexure C-1 was provided by the Opposite Parties or not, as the same did not bear their signatures; as to whether, possession of the unit, in question, was offered to the complainant or not; as to whether, compensation/penalty, as per Clause 28 of the Developer Buyer Agreement Annexure C-5 was paid by the Opposite Parties, to the complainant or not; as to whether, there was any breach of the terms and conditions of the Agreement, on the part of the complainant or not; as to whether, the option of buy-back offer was actually extended by the Opposite Parties, to the complainant or not; and as to whether, there was stay in relation to the construction in the project by the Additional District and Sessions Judge, Chandigarh, if so, what were the consequences of such stay. All these questions, being very material, can only be properly decided, if the Opposite Parties, are afforded an opportunity, to file written version, and lead evidence, by way of affidavit(s).
13. Otherwise also, it is settled principle of law, that every lis should normally be decided, on merits, by affording an opportunity to the parties of putting forth their version, and leading evidence. 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 hand-maid of justice, meant to advance the cause thereof, than to thwart the same. In our considered opinion, it is a fit case, in which the order of the District Forum, deserves to be set aside, and the case is required to be remanded back to it, for fresh decision, on merits, in accordance with law.
14. According to Section 13 (3A) of the Act, every endeavour should be made to decide the complaint, within three months, from the date of service of the Opposite Party, 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). In the instant case, the said period has already expired much earlier. For whatever reason may be, the case is being remanded back to the District Forum, for fresh decision, on merits, after considering the crucial and significant questions, referred to above. Due to this reason, certainly delay, in the final disposal of the complaint, on merits, shall be caused. Such delay is solely attributable to the Opposite Parties. The appellants/Opposite Parties, are, thus, liable to be burdened with costs. Rs.5,000/-, as cost, if imposed upon the appellants/Opposite Parties, in our considered opinion, shall meet the ends of justice.
15. For the reasons recorded above, First Appeal No. 76 of 2015 titled as M/s Chandigarh Overseas Private Limited, and another Vs. Easow Mathew is accepted. The order impugned is set aside. The case is remanded back, to the District Forum, with a direction to afford one reasonable opportunity, to the Opposite Parties/appellants, to submit their written version, and lead evidence, by way of affidavit(s), thereafter permit the complainant/respondent, if need be, to lead evidence, in rebuttal, by way of affidavit(s), and then decide the same (case), afresh, on merits, in accordance with the provisions of the Act. The appellants/Opposite Parties, in First Appeal No. 76 of 2015 titled as M/s Chandigarh Overseas Private Limited, and another Vs. Easow Mathew are, however, burdened with costs of Rs.5,000/-. Payment of costs, by the appellants/Opposite Parties, to the respondent/ complainant, shall be a condition precedent. In other words, the costs shall be paid, before the written version and evidence, are filed, by the appellants/Opposite Parties.
16. In view of the decision rendered in First Appeal No. 76 of 2015 titled as M/s Chandigarh Overseas Private Limited, and another Vs. Easow Mathew, First Appeal No. 35 of 2015 titled as Easow
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Mathew Vs. Chandigarh Overseas Private Limited,is dismissed with no order as to costs, as having been rendered infructuous.
17. Certified copy of this order be placed in First Appeal No. 35 of 2015 titled as Easow Mathew Vs. Chandigarh Overseas Private Limited.
18. The parties, in both the appeals are directed to appear, before District Forum (I) on 17.04.2015, 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. 17.04.2015, at 10.30 A.M.
20. Certified copies of this order, be sent to the parties, free of charge.
21. The files be consigned to Record Room, after completion. Pronounced.
01.04.2015_
Sd/-
[JUSTICE SHAM SUNDER (RETD.)]
PRESIDENT
Sd/-
(DEV RAJ)
MEMBER
Sd/-
(PADMA PANDEY)
MEMBER
Rg
STATE COMMISSION
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(First Appeal No. 76 of 2015)
Argued by: Sh. Surjeet Bhadu, Advocate for the applicants/ appellants. Sh. Ravinder Pal Singh, Advocate for the respondent
Dated the 1st day of April 2015
ORDER
Alongwith the appeal, an application for condonation of delay of 2 days (as per the office report 78 days), in filing the same (appeal) has been moved, by the applicants/appellants, stating therein, that since they had shifted their premises, in February 2014, in pursuance of the order dated 21.10.2013 Annexure A-3, passed by the Hon'ble Court of Ms.Dazy Bangarh PCS, Rent Controller, Chandigarh, in Rent Petition No.84 of 2012, as such, neither the summons in the consumer complaint nor the free certified copy of the order impugned was received by them. It was further stated that, it was only on 24.02.2015, when the applicants/appellants, received notice to appear on 24.02.2015, before this Hon'ble Commission, in First Appeal No.35 of 2015, filed by the appellant/ complainant that they came to know about the order dated 05.12.2014. It was further stated that, thereafter, the applicants/appellants applied for certified copy of the order impugned, for filing the instant appeal. It was further stated that, thereafter, the appeal was immediately filed in this Commission. It was further stated that, it was, under these circumstances, that delay of 2 days (as per the office report 78 days), in filing the appeal occurred. It was further stated that the delay, in filing the appeal, was neither intentional, nor wilful. Accordingly, the prayer, referred to above, was made.
2. However, as per the office report, there was delay of 78 days, in filing the appeal.
3. Notice of this application, was given to the respondent/complainant, to which reply was not filed by him. However, the Counsel for the respondent/complainant, stated that no sufficient cause was constituted for condoning the delay.
4. Arguments, on the application were heard
5. No doubt, there is delay of 2 days (as per the office report 78 days), in filing the appeal. The question arises, as to whether, the delay was intentional, or on account of the reasons, beyond the control of the applicants/appellants. Before discussing this question, let us have a look at law, laid down by the Hon'ble Supreme Court and the Delhi High Court, regarding the condonation of delay. In Lanka Venkateswarlu (D) By Lrs. vs State Of A.P. and Ors., A.I.R. 2011 S.C. 1199: (2011)
4 S.C.C. 190, the Apex Court held as under:-
(i). The Courts generally adopt a liberal approach in considering the application for condonation of delay on the ground of sufficient cause under Section 5 of the Limitation Act. (ii). Rules of limitation are not meant to destroy the rights of parties. They are meant to see that the parties do not resort to dilatory tactics, but seek their remedy promptly. (iii). Once a valuable right has accrued in favour of one party as a result of the failure of the other party to explain the delay by showing sufficient cause and its own conduct, it will
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be unreasonable to take away that. (iv). Whilst considering applications for condonation of delay under Section 5 of the Limitation Act, the Courts do not enjoy unlimited and unbridled discretionary powers. All discretionary powers, especially judicial powers, have to be exercised within reasonable bounds, known to the law".
6. In N. Balakrishnan v. M. Krishnamurthy . (1998) 7 Supreme Court Cases 123, there was a delay of 883 days, in filing application, for setting aside exparte decree, for which application for condonation of delay was filed, the Apex Court held as under:-
"It is axiomatic that condonation of delay is a matter of discretion of the court. Section 5 of the Limitation Act does not say that such discretion can be exercised only if the delay is within a certain limit. Length of delay is no matter, acceptability of the explanation is the only criterion. Sometimes delay of the shortest range may be uncondonable due to a want of acceptable explanation whereas in certain other cases, delay of a very long range can be condoned as the explanation thereof is satisfactory. Once the court accepts the explanation as sufficient, it is the result of positive exercise of discretion and normally the superior court should not disturb such finding, much less in revisional jurisdiction, unless the exercise of discretion was on wholly untenable grounds or arbitrary or perverse. But it is a different matter when the first court refuses to condone the delay. In such cases, the superior court would be free to consider the cause shown for the delay afresh and it is open to such superior court to come to its own finding even untrammeled by the conclusion of the lower court.
10. The primary function of a court is to adjudicate the dispute between the parties and to advance substantial justice. The time- limit fixed for approaching the court in different situations is not because on the expiry of such time a bad cause would transform into a good cause."
The Court further observed in paragraphs 11, 12 and 13 which run thus:-
"11. Rules of limitation are not meant to destroy the rights of parties. They are meant to see that parties do not resort to dilatory tactics, but seek their remedy promptly. The object of providing a legal remedy is to repair the damage caused by reason of legal injury. The law of limitation fixes a lifespan for such legal remedy for the redress of the legal injury so suffered. Time is precious and wasted time would never revisit. During the efflux of time, newer causes would sprout up necessitating newer persons to seek legal remedy by approaching the courts. So a lifespan must be fixed for each remedy. Unending period for launching the remedy may lead to unending uncertainty and consequential anarchy. The law of limitation is thus founded on public policy. It is enshrined in the maxim interest reipublicae up sit finis litium (it is for the general welfare that a period be put to litigation). Rules of limitation are not meant to destroy the rights of the parties. They are meant to see that parties do not resort to dilatory tactics but seek their remedy promptly. The idea is that every legal remedy must be kept alive for a legislatively fixed period of time.
12. A Court knows that refusal to condone delay would result in foreclosing a suitor from putting forth his cause. There is no presumption that delay in approaching the court is always deliberate. This Court has held that the words "sufficient cause" under Section 5 of the Limitation Act should receive a liberal construction so as to advance substantial justice vide Shakuntala Devi Jain v. Kuntal Kumari (1969) 1 SCR 1006 and State of W.B. v. Administrator, Howrah Municipality (1972) 1 SCC 366.
13. It must be remembered that in every case of delay, there can be some lapse on the part of the litigant concerned. That alone is not enough to turn down his plea and to shut the door against him. If the explanation does not smack of mala fides or it is not put forth as part of a
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dilatory strategy, the court must show utmost consideration to the suitor. But when there is reasonable ground to think that the delay was occasioned by the party deliberately to gain time, then the court should lean against acceptance of the explanation. While condoning the delay, the court should not forget the opposite party altogether. It must be borne in mind that he is a loser and he too would have incurred quite large litigation expenses. "
7. In Jyotsana Sharda vs Gaurav Sharda, (2010-3) 159 P.L.R. D15,Delhi High Court, while condoning 52 days delay, in filing the appeal, observed as under:-
"No doubt, originally the Apex Court in Ram Lal Vs. Rewa Coalfield AIR 1962 SC 351 had held that while seeking condonation of delay under Section 5 of the Limitation Act the application must not only show as to why he did not file the appeal on the last day of limitation but he must explain each day's delay in filing the appeal. The later judgments of the Apex Court have considerably diluted this requirement of explaining each days delay by a party. The latest trend and the ratio cases which the Apex Court has laid down in the judgments is that the Court must adopt a liberal approach rather than pedantic approach while doing so. It must see the bonafides of the person who is preferring the appeal rather than seeing the quantum of delay which has been occasioned. Reliance in this regard can be placed on Collector, Land Acquisition, Anantnag and Anr. Vs. Mst. Katiji & Ors. AIR 1987 SC 1353".
8. The principle of law, laid down, in the aforesaid cases, is fully applicable, to the facts of the instant case. It may be stated here, that the averments, contained in the application for condonation of delay, that since February 2014, in pursuance of the order dated 21.10.2013 Annexure A-3, passed by the Hon'ble Court of Ms.Dazy Bangarh PCS, Rent Controller, Chandigarh, in Rent Petition No.84 of 2012, the applicants/appellants, had shifted their premises, and, as such, neither the summons in the consumer complaint nor the free certified copy of the order impugned was received by them, and that it was only on 24.02.2015, when they (applicants/ appellants), received notice to appear on 24.02.2015, before this Hon'ble Commission, in First Appeal No.35 of 2015, filed by the appellant/complainant, that they came to know of the impugned order, are duly supported by their (applicants/appellants) affidavit. It is held that the Opposite Parties/appellants were not duly served, in the complaint, and, thus, were wrongly proceeded against exparte. No reliable document was also produced, on record, by the respondent that free certified copy of the impugned order was received by the applicants/appellants. Otherwise also, it is settled principle of law, that normally every lis, should be decided, on merits. When the substantial justice and the procedural wrangles are pitted against each other, then the former shall prevail over the latter. The main object of the Consumer Fora, is to dispense substantial justice, and not to throttle the same, by making it a sacrificial goat, at the altar of hyper-technicalities. Some lapse, on the part of the Counsel or the litigant alone is not enough to turn down their plea and shut the door against them. The explanation, furnished for delay in filing the appeal, does not smack of malafidies. When the explanation furnished for delay is bonafide, the Consumer Fora is required to adopt liberal approach, to condone the same, so as to ensure that the lis is decided, on merits, than by resorting to hyper-technicalities. There is, thus, sufficient cause, for condoning the delay. The application thus, deserves to be accepted.
9. For the reasons recorded above, the application for condonation of delay of 02 days, (as per the office report 78 days) in filing the appeal, is allowed, and the delay is, accordingly, condoned.
10. Admitted.
11. It be registered.
12. Arguments, in the main appeal already heard.
13. Vide our detailed order of the even date, recorded separately, First Appeal No. 76 of 2015 titled as M/s Chandigarh Overseas Private Limited, and another Vs. Easow Mathew has been accepted. The order impugned has been set aside. The case has been remanded back, to the District Forum, with a direction to afford one reasonable opportunity, to the Opposite Parties/appellants, to submit their written version, and lead evidence, by way of affidavit(s), thereafter permit the complainant/respondent, if need be, to lead evidence, in rebuttal, by way of affidavit(s), and then
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decide the same (case), afresh, on merits, in accordance with the provisions of the Act. The appellants/Opposite Parties, in First Appeal No. 76 of 2015 titled as M/s Chandigarh Overseas Private Limited, and another Vs. Easow Mathew have been burdened with costs of Rs.5,000/-.
14. In view of the decision rendered in First Appeal No. 76 of 2015 titled as M/s Chandigarh Overseas Private Limited, and another Vs. Easow Mathew, First Appeal No. 35 of 2015 titled as Easow Mathew Vs. Chandigarh Overseas Private Limited, has been dismissed with no order as to costs, as having been rendered infructuous.
15. Certified copy of this order has been ordered to be placed in First Appeal No. 35 of 2015 titled as Easow Mathew Vs. Chandigarh Overseas Private Limited,.
16. The parties, in both the appeals have been directed to appear, before District Forum (I) on 17.04.2015, at 10.30 A.M., for further proceedings.
17. The District Forum record, alongwith a certified copy of the order, has been ordered to be sent back immediately, so as to reach there, well before the date and time fixed i.e. 17.04.2015, at 10.30
A.M.
18. Certified copies of this order, be sent to the parties, free of charge. Sd/- Sd/- Sd/-
(DEV RAJ) (JUSTICE SHAM SUNDER (RETD.)) (PADMA PANDEY)
MEMBER
PRESIDENT
MEMBER
Rg.
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