C.C. 194 of 2020 1
1st Additional Bench
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB, CHANDIGARH.
1. Consumer Complaint No.194 of 2020 Date of institution : 10.07.2020 Reserved on : 01.03.2023 Date of decision : 15.03.2023
S.K. Aggarwal S/o Late Sh. A.N. Aggarwal, R/o H.No.1074, Sec- 15, Panchkula.
….Complainant.
Versus
1. Manohar Infrastructure and Construction Pvt. Ltd, SCO 139- 141, Sector 17-C, Chandigarh through its Managing Director. Email id: corporationsolutions.ask@gmail.com.
2. Tarninder Singh Director, Manohar Infrastructure and Constructions Pvt. Ltd., SCO 139-141, Sector 17-C, Chandigarh. Email id:corporationsolutions.ask@gmail.com
3. Narinderbir Singh, Director, Manohar Infrastructure and Construction Pvt. Ltd., SCO 139-141, Sector 17-C, Chandigarh.
Email id: corporationsolutions.ask@gmail.com.
4. Sarabjeet Kaur Director, Manohar Infrastructure and Construction Pvt. Ltd., SCO 139-141, Sector 17-C, Chandigarh.
Email id: corporationsolutions.ask@gmail.com. ..…Opposite Parties.
2. Consumer Complaint No.195 of 2020 Date of institution : 10.07.2020 Reserved on : 01.03.2023 Date of decision : 15.03.2023
Surekha Pal W/o Sh. Amar Pal r/o H.No.1446 Sector-15, Panchkula at Present r/o H.No.1074,Sector-15, Panchkula ….Complainant.
Versus
1 Manohar Infrastructure and Construction Pvt. Ltd, SCO 139- 141, Sector 17-C, Chandigarh through its Managing Director. Email id: corporationsolutions.ask@gmail.com.
2. Tarninder Singh Director, Manohar Infrastructure and Constructions Pvt. Ltd., SCO 139-141, Sector 17-C, Chandigarh. Email id:corporationsolutions.ask@gmail.com
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3. Narinderbir Singh, Director, Manohar Infrastructure and Construction Pvt. Ltd., SCO 139-141, Sector 17-C, Chandigarh.
Email id: corporationsolutions.ask@gmail.com.
4. Sarabjeet Kaur Director, Manohar Infrastructure and Construction Pvt. Ltd., SCO 139-141, Sector 17-C, Chandigarh.
Email id: corporationsolutions.ask@gmail.com. ..…Opposite Parties.
Consumer Complaints under Section 17 of the Consumer Protection Act, 1986. Quorum:-
Mr. H.P.S. Mahal, Presiding Judicial Member, Mrs. Kiran Sibal, Member.
Present:-
For the complainant : Sh. Sanjeev Guptal, Adv. For opposite parties No.1 to 3 : Sh. I.P. Singh, Adv. For opposite party No.4 : Exparte
KIRAN SIBAL, MEMBER
This order will dispose of the above mentioned two (2) consumer complaints filed by the different complainants against the same builder/developer/opposite parties (in short 'OPs'), under Section 17 of the Consumer Protection Act, 1986 (in short, "the Act"), as similar questions of law and facts are involved in both the complaints. The facts are taken from C.C. No.194 of 2020 titled as
"S.K. Aggarwal Vs. Manohar Infrastructure and Construction Pvt. Ltd. & Ors.".
Consumer Complaint No.194 of 2020
The complainant has sought the following directions against the OPs:
i) to deliver the physical possession of the plot, execute and register the Sale Deed in favour of complainant and pay interest @ 12% per month from the date of
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deposit till the date of delivery of physical possession of the plot
AND/OR in alternative
Direct the opposite parties to refund an amount of Rs.13,50,000/- along with interest @ 18% per annum from the respective dates of deposit of the amount till the actual realization of the amount.
ii) to pay compensation in the sum of Rs.5,00,000/- on account of mental agony and physical harassment caused to the complainant.
iii) To pay cost of litigation to the tune of Rs.1,00,000/- to the complainant.
2. Brief facts, as set out in the complaint, are that complainant applied for a residential plot measuring 250 square yards @ Rs.18,000/- per Sq. yard in the project; namely, 'PALM SPRINGS" of opposite party No.1 i.e. Manohar Infrastructure and Construction Pvt. Ltd. for his personal use. At the time of application the complainant deposited Rs.13.5 lakh in total, vide cheques No.128548 dated 24.02.2011 for Rs.5,00,000/-, No.128549 dated 04.03.2011 for Rs.4,00,000/- drawn on Central Bank and cheque No.018692 dated 04.03.2011 for Rs.4,50,000/- drawn on State Bank of India. Opposite parties Nos.2 and 3 gave assurance that the project would be completed and the possession of the plot would be delivered within a span of 1 year and that the customers, who booked the plots at the earliest would be prime customers and would be given heavy discounts. The complainant and his family members used to visit after a period of 2-3 months but on site there was no development. On enquiry, the OPs used to assure that they will deliver the possession very
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soon. Even after one year, when there was no development on the site, then again complainant approached the OPs but again they assured that clearance from the government of Punjab will be received very soon and then project will be started immediately but all the assurance were proved to be false. Thereafter on 04.07.2015 complainant received a letter dated 01.07.2015 as reminder of letter dated 11.02.2014 from OPs No. 1 to 3 for making a demand of money. Whereas the complainant never received the letter dated 11.02.2014. The complainant approached the OPs on 05.07.2015, who demanded Rs.10,00,000/- from him. The complainant asked the OPs to at least show the development on the site and give allotment letter of plot but the OPs did not agree. Thereafter, on 27.07.2015 the complainant again received a letter from the OPs raising demand of money as per letter dated 11.02.2014. The complainant again approached the OPs on 28.07.2015 and requested for allotment of plot but OPs refused to issue the same. However, OPs stated that they received the CLU for 103 acres and assured to offer the plot number by December, 2015. But no plot numbering was given and even the basic infrastructure had not been completed by the OPs. The officials of the OPs kept on asking for the balance payment but the complainant told that already huge amount has been paid and the balance would be paid immediately, after allotment of the plot to him. The complainant had come to know that the OPs was not having the necessary permission from GMADA and the entire project was illegal and was advertised only to misappropriate the
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hard earned money of the poor customers. Ultimately on 29.01.2020, the complainant requested the OPs to refund his amount and also got prepared the documents regarding undertakings and surrender of the plot as per desire of the OPs. But the OPs also failed to refund the amount of Rs.13,50,000/- deposited by the complainant with them. The said act and conduct of the OPs amounts to deficiency in service and unfair trade practice on their part. Hence, the present complaint seeking all the relief as mentioned above.
3. Notice of the complaint has been issued to the OPs, but OP No.4 has not appeared despite service to contest this complaint. Hence, OP No.4 was proceeded against exparte vide order dated 01.09.2020.
4. Upon notice, opposite parties No.1 to 3 appeared and filed reply to the complaint, raising preliminary objections that the complainant had not approached this Commission with clean hands and is guilty of concealment of material facts as well as making false averments. The complaint is bad for non-joinder of necessary parties. The complaint is barred by delay and latches. The expression of interest was shown, vide application dated 24.02.2011, which was acknowledged thereafter and payment of Rs.13,50,000/- was made at that point of time. Thereafter, the complainant did not deposit any further amount as per the payment plan despite repeated requests and reminders in this regard. Thus, the claim for refund of the amount is barred by limitation as no demand for refund of the amount was raised within
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a period of three years from the date of deposit of the amount and there is no cause of action within the period of 2 years from the date of filing of the complaint. The complainant was issued notices from time to time to deposit further amount. The complainant neither visited the Project site, nor the office of the OP company in response to these notices and apart from this, he failed to deposit any further amount after the initial deposit of Rs.13,50,000/- at the time of showing expression of interest. This itself establishes the fact that the complainant was watching the market scenario and the plot was booked only for speculative purposes and not for any personal requirement. Thus, the complainant cannot be considered to be a 'consumer' as per the provisions of C.P. Act. As on date, the opposite parties have got all the requisite sanctions regarding the project and apart from this, the provisions of the PAPRA are not applicable. As such, no prejudice is being caused to the complainant in this regard. The complainant cannot run away from the allotment of the plot on the false plea that the complainant was not aware regarding the approvals to the opposite parties at the time of expression of interest. The complainant was duly informed regarding the status of the project at the time of expression of interest and thereafter, as and when necessary approvals such as sanction of the project, CLU and sanction of the layout plans etc. was granted by the competent authorities. The competent authority had earlier granted completion period till 13.06.2018, which was further extended to 13.06.2020 and as per Punjab Govt. Notification dated
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30.01.2020, it is extended upto 31.12.2022 towards the project of the opposite parties and it is for the complainant to come forward to execute the Plot Buyer's Agreement and comply with the terms and conditions. Even otherwise, no prejudice could be caused to the complainant if at the initial stage, the opposite party- Company was not having permission from the competent authority since a valid title can be transferred in the name of the complainant after allotment of the plot as all the permissions have been granted to the MEGA project of the OPs-Company. Thus, the plea of the complainant that there was earlier violation of any provisions of the PAPRA Act, is not sustainable in the eyes of law especially when the project has also been given exemption from the applicability of the provisions of PAPRA, vide Notification dated 25.01.2017 and thereafter, having been registered under the RERA Act, vide Registration Certificate dated 15.09.2017. There are complicated questions of facts and law involved in the present case, which are required to be adjudicated upon by way of regular trial/civil suit. The issues raised in the present complaint cannot be decided by way of summary proceedings. The opposite party- Company had acquired land for the Mega Project which was to be launched in the New Chandigarh, which falls within the State of Punjab. The OP-Company submitted an application for the Mega Housing Project as per the Industrial Policy notified by the Punjab Government and the minimum investment was to the tune of Rs.319.75 crores. The project was later on sanctioned and more land was added to the project from time to time and agreements
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were executed in this regard with the competent authority. The project was approved by the competent authority on 22.03.2013 and thereafter formal agreement was signed and executed with the Government on 14.06.2013. After addition of more land, total area of the project came to be 234.37 acres, with an investment of Rs.845 Crores was sanctioned. The latest Supplementary Agreement in this regard was executed on 16.06.2016. The competent authority has granted completion period for the entire project upto 13.06.2018. Thereafter, the layout plans stood approved and CLU was sanctioned by competent authority. As per photographs annexed with the reply, landscaping, electricity lines, internal roads, street lighting, open green spaces, sewerage and other development works are near completion. Possession of the plots is being delivered to the applicants, who have executed the Plot Buyer's Agreement. The Sale Deeds are also being executed and duly registered in the office of Sub Registrar after completion of all the formalities in favour of those allottees, who have executed the Plot Buyer's Agreement. The opposite party- Company is a reputed Builder with a good standing in the Real Estate Sector and is committed to deliver possession and honour its commitments towards all allottees/complainants. It was further pleaded that the project of the opposite parties has been duly registered under the provisions of Real Estate (Regulation and Development) Act, 2016 (in short, "RERA"), and there was no violation of the provisions of RERA or PAPRA. There is no deficiency in service on the part of the opposite parties and the
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complainant is not entitled to any relief. On merits, similar pleas, as raised in preliminary objections, have been reiterated and it is prayed that the complaint be dismissed.
5. In order to prove his case, the complaint filed his affidavit along with documents copies of documents i.e. application form Ex. C-1, statement of account Ex. C-2, letter dated 01.07.2015 Ex. C-3, letter dated 24.07.2015 Ex. C-4, newspaper cuttings Ex. C-5 & C-6 and order dated 20.03.2019 Ex. C-7. In rebuttal, OPs No.1 to 3 filed affidavit of Dhanwant Singh Sidhu, Authorized Officer, along with copies of documents Ex. O-1 to O-15.
6. We have heard learned counsel for the complainant and OPs No.1 to 3 and have carefully gone through the record of the case.
7. Learned counsel for the complainant vehemently contended that the complainant paid a sum of Rs.13,500,00/- to the opposite parties towards booking of the plot, in question, in his name, but the OPs failed to issue any allotment letter nor executed the Plot Buyer's Agreement nor any other document concerning the plot, in question, in his favour. No development has been made by them at the project site. Even the CLU was not obtained by them before launching the project and the same was obtained much after the receipt of booking amount from the complainant. Similarly, the layout plan of their project was also approved after the launch of the project, which amounts to violation of the provisions of PAPRA. They kept on utilizing the hard earned
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money of the complainant, without bothering to complete the development in the project and to issue allotment letter as well as to deliver possession of the plot to the complainant. The complainant several times requested them to deliver possession of the plot, but to no effect. Finding no positive response from the side of the opposite parties, he requested them to refund the entire amount deposited by him, along with interest, but that was also not refunded. The opposite parties failed to honour their commitments towards the complainant and, as such, there is grave deficiency in service and unfair trade practice on their part. Averring on similar lines as stated in the complaint, learned counsel for the complainant prayed that the complaint is liable to be allowed as prayed for.
8. The learned counsel for OPs No.1 to 3 argued on the similar lines as stated in the reply, which are not required to be reproduced here for the sake of brevity. The learned counsel further argued verbally that as the complainant has failed to pay the remaining amount of sale consideration, despite issuing various notices from time to time, therefore the plot stands cancelled by the OPs. Alleging no deficiency in service on the part of OPs No.1 to 3, the learned counsel prayed for dismissal of the present complaint.
9. We have given our thoughtful consideration to the respective contentions raised by the learned counsel for the complainant and OPs No. 1 to 3.
10. First of all, we would like to deal with the objection of
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opposite parties No. 1 to 3 that the complainant purchased the plot, in question, just for speculative purposes thus, he does not fall under the definition of 'consumer'. It is relevant to mention that there is no evidence from the side of the opposite parties on record to prove that the complainant is indulging in sale/purchase of property for speculative purpose and simple assertion in this regard in the reply of the opposite parties is not sufficient to prove this fact. Hon'ble National Commission in Ireo Fiveriver Pvt. Ltd. v. Surinder Kumar Singla No.1358 of 2016, decided on 29.11.2016, while relying upon its earlier decision in KAVITA AHUJA & OTHERS v. SHIPRA ESTATE LTD. & JAI KRISHNA ESTATE DEVELOPERS PVT. LTD. & OTHERS Consumer Case No.137 of 2010, decided on 12.02.2015, held the complainant as consumer, observing that the appellant failed to show any cogent evidence, which may indicate that the respondents/complainants or any of them has been indulging in sale/purchase of the properties or that the complainant or any one of them had booked the subject plots in the development project undertaken by the appellant with the intention to sell the plot on subsequent date for earning profit. In the instant case also, as already said above, there is no evidence led by opposite parties No. 1 to 3 to prove that the complainant indulged in sale/purchase of properties and that he booked the plot, in question, for further sale or for earning profits. Accordingly, the above said objection of opposite parties No. 1 to 3 is rejected and the complainant is held to be 'consumer', under the C.P. Act.
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11. The opposite parties took another objection that the complaint is time barred. Admittedly, the complainant made the payment of Rs.13,500,00/- towards booking of the plot in question to the opposite parties and the possession of the same has not been delivered to him nor the amount so deposited by him has been refunded despite requests. It is now well settled that in such cases there is a continuous cause of action till the possession is delivered or the amount is refunded along with interest, compensation and costs etc. Hon'ble National Commission in
"Navin Sharma (Dr. ) & others v. Unitech Reliable Projects Pvt. Ltd. & Anr." 2016(2) CLT 457 has held that unless or until the complainant get possession of the flats, they have got continuous cause of action. In para 8 of the said judgment it has been observed by the Hon'ble National Commission as under:-
"8. The first submission made by the counsel for the opposite party was that the case is barred by time. This argument was raised merely for the sake of cavil. It is now well settled that unless or until the complainants get the possession of the flats, they have got continuous cause of action. This view finds support from this authority reported in
"Raghava Estates Ltd. v. Vishnupuram Colony Welfare Association" Special Leave to Appeal (Civil) No.35805 of 2012, decided on 07.12.2012."
Since neither possession has been delivered nor the amount deposited by the complainant has been refunded till date and, as such, in view of the ratio of the law laid down in the above noted authority, it is a continuous cause of action and the complaint filed by the complainant is within limitation.
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12 Now, coming to merits of the case, booking of the plot measuring 250 sq.yds. by the complainant has been admitted. It is also admitted case of the parties that Rs.13,50,000/- has been deposited towards the booking of the plot, as is evident from Application Acknowledgment dated 24.02.2011 (Ex.C-1). There is no agreement, like Buyer's Agreement, executed between the parties, nor there is specific allotment letter issued in favour of the complainant regarding allotment of the plot, in question. The grievance of the complainant is that OPs No.2 & 3 had given the assurance that the project would be completed and the possession would be delivered within a span of one year. The complainant had applied for the said plot on 24.02.2011 and had deposited Rs.13.5 lakh for which due acknowledgment was given on the application by the OPs (Ex.C-1). The said amount was duly transferred from the account of the complainant and is reflecting in statement of account (Ex.C-2). On the other hand, the opposite parties have alleged that the complainant did not make payment of the remaining sale consideration of the plot, despite repeated requests and reminders and referred to the notices issued by the OP-Company i.e. on dated 11.02.2017 as Ex. O-1, 02.07.2015 as Ex.O-2 and on 25.07.2015 as Ex. O-3. The plea of the complainant is that he received the reminders issued by the OPs vide Ex. O-2 and O-3 but did not receive the letter dated 11.02.2014, issued vide Ex. O-1. A perusal of Ex. O-1 shows that vide this, the OPs informed the complainant to deposit a sum of Rs.9,00,000/- by 28.02.2014. The said letter was sent through
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registered post on 11.02.2014 and the copy of postal receipt is pasted on the said Ex.O-1. The complainant failed to prove on record that he has not received the said letter, which was duly sent by the OPs on given address of the complainant through registered post, which is a valid process of service. Further the complainant has alleged that after booking of plot by making payment of Rs.13,50,000/- to the OPs he was assured that possession of plot will be delivered within one year. However from the perusal of letter dated 24.02.2011(Ex.C-1) i.e. Expression of Interest it is clearly mentioned that issuance of said letter does not constitute definitive allotment or any agreement to sell by the OPs with the complainant and he has not entitled to provisional or final allotment of the unit. It is also further mentioned in the said letter that the willingness of the complainant to purchase plot from the OPs shall only be confirmed when the OPs accepted the request of the complainant i.e. expression of interest in writing. It is also mentioned in the said letter that the complainant agreed to pay all further installments of the sale price and all other monies/dues as stipulated in the payment plan. But the complainant has not made any further payment to the OPs despite letters and reminders issued from time to time to him. The contention raised by the complainant regarding non-depositing of the further amount is that there is no development work at the site. But no cogent evidence in the form of writing letters/emails has been placed on record by the complainant in support of his allegation. On the other hand, learned counsel for the OPs vehemently contended that the
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project is complete with all the basic amenities and possession has been successfully handed over to all the allotees, who have made timely payment as per schedule plan. This fact is duly established by evidence brought on record by the OPs i.e. Photographs of the project (Ex.O-9) and also annexed Ex. O-13, which is the details of the persons, who have signed agreement with the OPs. A perusal of the said Ex.O-9 shows that all the basic amenities are available at the project i.e. landscaping, electricity lines, internal roads, street lighting, open green spaces, sewerage etc. Further Ex. OP-13 shows the details of persons, who have signed agreement with the OPs and thereafter constructed their houses after getting their plans approved from the competent authority and residing there. Hence, we do not find force in the contention raised by learned counsel for complainant that there is no development work at the site. During the Course of arguments, the learned counsel for the complainant has pleaded that the complainant is willing to accept the delivery of possession at this stage also. Per contra, learned counsel for the OPs No.1 to 3 categorically submitted that due to non-deposit of further payment by the complainant, the said plot has already been cancelled, therefore it is not possible to offer the possession of the plot to the complainant at this stage. Accordingly, we are of the opinion that first prayer of the complainant with regard to delivery of physical possession of the plot is not maintainable as the said plot was already cancelled by the OPs due to failure of the complainant to make timely payments despite raising demand for the same
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through letters and reminders by the OPs.
13. Now, we proceed to discuss whether the complainant is entitled for refund of the amount i.e. Rs.13,50,000/- deposited by him with the OPs at the time of expression of interest or not?
The categorical stand of the OPs is that the complainant is not entitled for refund of this amount. However, the complainant pleaded that on 29.01.2020, he requested the OPs to refund his amount and signed certain documents relating to request for withdrawal/relinquishment of Expression of Interest on the asking of the officials of the OPs but the OPs failed to refund the same. In support of this plea the complainant placed on record Ex.C-5 and C-6 i.e. signed performas for refund of the amount. To determine this controversy we have perused letter for expression of interest (Ex. C-1), which is the only document executed between the parties. A perusal of the same reveals that the OPs have nowhere mentioned that in case the complainant fails to deposit balance sale consideration, the deposited amount would be forfeited by the OPs. The OPs have also not brought forward any cogent evidence to establish the fact that OPs have a right to retain the deposited amount. Accordingly, we are of the view that the complainant is entitled for refund of the amount that was deposited with the OPs i.e. Rs.13,50,000/- along with simple interest @ 6% p.a from the respective dates of their deposits till realization. In the present case, since the complainant himself has defaulted in paying the balance sale consideration, therefore we do not feel the need to award any compensation as prayed for by the complainant.
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14. In view of our above discussion, the complaint is partly allowed and the OPs are directed to refund the amount of Rs.13,50,000/- along with interest at the rate of 6% per annum from the respective dates of their deposits till realization.
Consumer Complaint No.195 of 2020
15. Similarly, in this complaint, complainant applied for a residential plot measuring 250 square yards @ Rs.18,000/- per Sq. yard in the project; namely, 'PALM SPRINGS" of opposite party No.1 i.e. Manohar Infrastructure and Construction Pvt. Ltd. for his personal use. At the time of application the complainant deposited Rs.13.5 lakh in total, vide cheque No.099982 for Rs.6,50,000/- drawn on State Bank of India and Rs.7,00,000/- in cash. The complainant alleged that OPs Nos.2 and 3 gave assurance that the project would be completed and the possession of the plot would be delivered within a span of 1 year, but they failed to do so. The complainant approached the OPs on 05.07.2015 and subsequently on 28.07.2015 for allotment of plot but the OPs demanded Rs.10,00,000/- from her. The complainant asked the OPs to at least show the development on the site and give allotment letter of plot but the OPs did not agree and refused to issue the same. Other averments and prayer clause are similar to that of Consumer Complaint No.194 of 2020.
16. Upon notice, OPs No.1 to 3 appeared and filed the written reply on the similar lines as pleaded in reply filed in complaint No.194 of 2020. OP No.4 failed to appear, hence she was proceeded exparte, vide order dated 01.09.2020 by this
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Commission.
17. The complainant filed her affidavit alongwith copies of documents Ex.C-1 to C-5.
18. OPs No.1 to 3 filed affidavit of Dhanwant Singh Sidhu, Authorized Officer, alongwith copies of documents Ex. O-1 to 14.
19. In view of the reasons and discussion held in Consumer Complaint No.194 of 2020, this complaint is also partly allowed and the OPs are directed to refund the amount of Rs.13,50,000/- along with interest at the rate of 6% per annum from the respective dates of their deposits till realization.
20. Compliance of the order passed in these complaints shall be made by the opposite parties within 60 days of the receipt of certified copy of the order.
21. The appeal could not be decided within the stipulated period due to heavy pendency of Court cases.
(H.P.S. MAHAL)
PRESIDING JUDICIAL MEMBER
(KIRAN SIBAL)
MEMBER
March 15, 2023.
DV
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