AKSHAR ASSOCIATES vs CONSUMER PROTECTION COUNCIL & 4 ORS.

Delay in filing of First Appeals No. 755 to 760 of 2013 is condoned subject to the Appellants in these Appeals, paying directly to one of the allottees of the subject flat in each Complaint 25,000/- as costs.

This batch of 18 First Appeals, by a Real Estate Developer, viz. Akshar Associates, a Proprietorship concern; the structural Engineer namely Jagdish Associates and the Supervisor namely, Pankaj G. Modi, Respectively, Opposite Parties No. 1, 3 and 4 in the Complaint, is directed against the common order dated 11.05.2012, passed by the Gujarat State Consumer Disputes Redressal Commission at Ahmedabad, (for short "the State Commission") in Complaints No. 164 to 167 of 2001 and 197-198 of 2001. By the impugned order, while accepting the Complaints filed by the six Complainants, (more than one in some Complaints) alleging deficiency in service on the part of the Appellants, in delivering possession of the structurally weak flats, booked by them in the building complex known as Akshardeep Apartments, Block-B, Ahmedabad, which unfortunately collapsed in the earthquake on 26.01.2001, resulting in loss of 11 precious human lives, the State Commission has directed the Appellants to pay to each of the Complainants'' different amounts as mentioned in the order impugned in these Appeals, together with interest @ 9% p.a. from the date of filing of the Complaint i.e. 26.06.2001 till realization of the said amount; 50,000/- as compensation for the mental harassment and 10,000/- towards the costs of the litigation. Hence the present Appeals.

We may note at this juncture itself that the Architect, namely Shekhar Associates, Opposite Party No. 2 in all the Complaints was directed to be deleted from the array of parties'' name as the Complainants had failed to take appropriate steps to have him served with the notice in the Complaint.

The main ground on which the validity and correctness of the common order is questioned in Appeals (FA No. 755 to 760 of 2013), by the Structural Engineer (Opposite Party No. 3) is that the said Appellant had never been served with the notice in the Complaints and therefore, the order impugned in these Appeals stands vitiated as being violative of the principles of natural justice. Since, on appraisal of the original record, maintained by the State Commission, containing the acknowledgement cards received for the notices sent in the Complaints to the said Appellant, as also the endorsement on the envelopes containing the notice of two Complaints, we are persuaded to agree with the said stand, we deem it unnecessary to state the facts leading to the filing of these Appeals.

When the Appeals came up for hearing on 04.09.2017, in order to be doubly sure about the afore-noted, primarily a factual averment, we had asked the Learned Counsel appearing for all the contesting parties to inspect the original record, including the receipt and despatch Register maintained by the State Commission and apprised us of the factual position.

Mr. Sen, learned Counsel appearing for the Complainants, who are also present in person, very fairly states that on inspection of the said records, he has discovered that in respect of the notices issued in two Complaints acknowledgment cards have been received but without any endorsement; two envelopes containing the notice and paper book have been received back with the postal remarks "left" and in respect of the remaining two Complaints there are neither the acknowledgement cards nor any other kind of report.

Having heard Learned Counsel for the parties in the light of the afore-stated factual scenario, as also the fact that the State Commission has not recorded its satisfaction to the effect that the said Opposite Party had been served, either by actual service or by drawing presumption that the notices having been issued by Registered AD post at Appellant''s last known address, we are of the opinion that the said Opposite Party had not been properly served with the notice in the Complaints. In that view of the matter the common order impugned in these Appeals deserves to be set aside in totality on the said short ground alone and as a necessary consequence the Appeals by the other two Opposite Parties shall have to be allowed because all the Complaints shall have to be re-adjudicated by the State Commission on merits. Resultantly, all the Appeals are allowed; the impugned order is set aside and the Complaints are restored to the Board of the State Commission for afresh adjudication on merits. Needless to add that we have not expressed any opinion on the merits of the grounds urged by all the Appellants in their respective Appeals.

Since the Written Version on behalf of Opposite Party No. 3 could not be filed for the afore-said reason, we permit the said Opposite Party to file its Written Version. A complete set of paper books along-with all the documents filed by the parties in the proceedings before the State Commission shall be supplied by the Developer i.e. Opposite Party No. 1 to Opposite Party No. 3 within two weeks. Opposite No. 3 shall file its Written Version within 45 days of the date of supply of paper books. It would be open to the Complainants to file their rejoinder affidavits to the said written version within 30 days thereafter. Other contesting Opposite Parties are also permitted to file their rejoinder, by way of rebuttal to such pleadings by the Opposite Party No. 3 which may directly or indirectly affect their defence already on record. The Complainants and other Opposite Parties are permitted to adduce additional evidence, limited to fresh pleadings after the evidence by way of affidavit has been filed by Opposite Party No. 3, within such time as may be permitted by the State Commission.

When Appeals No. 478 to 483 of 2012 had come up for motion hearing on 23.08.2012, while issuing notice to the Respondents the operation of the impugned order was stayed subject to the Appellants in these Appeals depositing 30% of the awarded amount in the State Commission, within four weeks from the date of the said order. Similarly, when another set of Appeals, being First Appeals No. 755/2013 to First Appeal No. 760/2013 came up for hearing on 31.10.2013, the operation of the impugned order was stayed subject to their depositing 25% of the principal amount, as awarded vide the impugned order, in this Commission within eight weeks from the date of the said order. However, subsequently when all the Appeals came up for hearing together on 28.07.2016, while directing listing of the Appeals for admission, it was clarified that the stay of the operation of the impugned order was confined only in Appeals preferred by the Developer as it was pointed out that the other Appellants had not made the requisite deposits, which was a condition precedent for grant of the interim stay. Since the order impugned in these Appeals is being set aside only on a technical ground for want of proper notice on one of the Opposite Parties (No. 3), for which omission the Complainants cannot be held liable and regard being had to the fact that the Complainants have been granted substantial relief by the Fora below, as also the fact that they have already spent money for restoration of the flats damaged in the year 2001, we are of the view that the interest of justice demands that for the present, at least, the amounts deposited by the Developer either in the State Commission or in this Commission should be released to them on pro rata basis, depending on the amounts awarded by the State Commission to each of the Complainants/allottees of the flat in question, along-with accrued interest, if any, subject to their filing affidavits, undertaking to the State Commission that they shall refund the amounts released to them, in terms of this order, if so directed by the State Commission at the time of final decision in the Complaints. It is ordered accordingly.

At this juncture, Learned Counsel appearing for Opposite Party No. 4, Appellants in FA No. 632 to FA No. 637 of 2012, submits that since the Complaints are being remitted back to the State Commission for fresh adjudication, the said Opposite Party may also be granted an opportunity to file its Written Version. Having regard to the facts and circumstances of the case and in order to avoid further delay in disposal of the Complaints as also bearing in mind the observations of the Hon''ble Supreme Court in Reliance General Insurance Co. Ltd. & Anr. Vs. M/s Mampee Timbers & Hardwares Pvt. Ltd. & Anr. (Civil Appeal No. Nil of 2017 - D.No. 2365 of 2017), we permit the said Opposite Party to file its Written Version and Affidavit by way of evidence within the same time as has been granted to Opposite Party No. 3. Directions with regard to filing of Rejoinder and evidence by the Complainant and other contesting parties issued in respect of the written version permitted to be filed by Opposite Party No. 3 would apply mutatis mutandis in the case of Opposite Party No. 4 as well, subject to his paying directly to the first Complainant in each of the Complaints 5,000/- towards costs within two weeks from today. In other words, the first Complainant in each of the Complaints shall receive by way of costs a total sum of 30,000/-.

Since the Complaints were filed as far back as in the year 2001, we request the State Commission to take a final decision in these Complaints as expeditiously as practicable and in any case not later than three months from the date of filing of the evidence by the parties in terms of this order.

The parties/their Counsel are directed to appear before the State Commission on 06.11.2017 for further proceedings.

All the Appeals stand disposed of in the above terms with no order as to further costs.