Arihant Shivank Infra Projects Limited vs Neetu Singh

These first appeals no. 594 of 2021, 595 of 2021, 596 of 2021 and 597 of 2021 are decided by this order since in all these four appeals the issue involved is the same, only the flat number and the names of the complainants are different.

Background of the case is that the complainants i.e. respondents in these appeals had booked the flats with the appellant which the appellant had failed to deliver in time. The complainants thereafter filed their separate complaints. During the pendency of the complaint, after the notice was issued to the appellant, the appellant filed its written version and the matter thereafter was listed for recording the evidences of the parties. While the complainants filed their evidence, the appellant failed to file its evidence despite number of opportunities being given to it, and finally on 02.05.2018 subject to payment of cost of Rs.2,000/- one more opportunity was given to the appellant for filing its affidavit in evidence. On 08.05.2018, although the appellant filed its affidavit in evidence of Mr. Rakesh Goel one of the directors' of the appellant, it did not pay the cost. The State Commission adjourned the matter on several occasions for the payment of cost of Rs.2,000/- but appellant failed to comply with the directions of the State Commission and then finally State Commission rejected the evidence of the appellant and proceeded to decide the matter without taking into consideration the evidence of Mr. Rakesh Goel, filed on behalf of the appellant.

This started first round of litigation in the appeals filed by the appellant. In the First Appeals No. 1886/2018, 1887/2018, 1888/2018 and 1889/2018 this Commission vide its order dated 10.02.2021, issued following directions:

It is evident that the State Commission has passed the Impugned Orders without taking on record the Evidence filed by the Opposite Party Builder as the Builder has failed to deposit the Costs. After taking into consideration the various pleas raised by the learned Counsel for the Parties, we are of the considered opinion that the State Commission was not justified in law refusing to take the evidence filed by the Opposite Party Builder merely on the ground of not depositing the Costs. It ought to have granted some more opportunity for depositing / payment of the Costs. Thus, there has been failure of justice. We are, therefore, not going into the various pleas on merits of the Appeals raised by the learned Counsels for the Parties, leaving it open for them to raise it before the State Commission. Therefore, without going into the merits of the Appeals, in the interest of justice, the impugned Orders passed by the State Commission are set aside and the matters are remanded back to the State Commission for proper adjudication of the cases after taking into account the Evidence filed by the Opposite Party Builder. All the Complaint Case Nos. 03/2017, 20/2017, 21/207, 22/2017 and 23/2017 are restored to the files of the State Commission. The Evidence filed by the Opposite Party Builder shall be taken on record by the State Commission subject to payment of Costs of 5,000/- by the Opposite Party Builder to the Complainant, in each case, within 10 days from today. The State Commission is requested to expeditiously decide the matters afresh after taking into account the Evidence filed by both the Parties, preferably if possible within six months from the date of first appearance before the State Commission. The Parties and/or their Counsels shall appear before the State Commission on 25.02.2021 and shall file a copy of this Order. The Registry is directed to refund the statutory amount alongwith accrued interest, if any, to the Appellant within 10 days from today. The First Appeals stand disposed of in above terms. However, in the peculiar facts and circumstances of the case, there shall be no Order as to Costs. Order Dasti.

Thereafter pursuant to these directions, the State Commission proceeded to hear the matter finally after taking into consideration the affidavit of evidence which was already filed by the appellant. The appellant, however, wanted to file another affidavit in evidence of other Director and accordingly moved an application. During the hearing on this application the appellant sought clarification from this Commission of its Order dated 10.02.2021 and vide order dated 02.08.2021, this Commission confirmed its earlier Order dated 10.02.2021 stating as under:-

We have perused the averments made in the Applications as also the Order dated 10.02.2021, passed by this Commission and have heard Mr. Devesh Tripathi, learned Counsel for the Appellants and Ms. Anikta Chaudhary, learned Counsel for the Respondent.

From a perusal of the Order dated 10.02.2021, passed by this Commission, reproduced above, it is seen that we have only directed the State Commission to take the Evidence on record filed by the Opposite Party- Builder/ Appellants herein, which was refused by it on the ground that the cost has not been deposited.

We have not mentioned anything about the filing of additional Evidence etc. It is within the jurisdiction of the State Commission, whether to accept the additional Evidence filed by the Appellants herein or not. If the State Commission declines to accept the additional Evidence, then Appellants have the remedy under the provisions of the Consumer Protection Act, 2019 and no clarification is required as sought for.

Applications stand rejected.

This Commission clearly confirmed that it had only permitted the State Commission vide order dated 10.02.2021 to take into consideration the affidavit in evidence already filed by the appellant.

The State Commission heard arguments of learned counsel for the appellant on its application seeking permission to produce on record the additional affidavit of another Director Mrs. Reena Goyal on the ground stated in the application. Vide impugned order, the State Commission dismissed the said application stating clearly that the appellant was not permitted by this Commission vide its order dated 10.02.2021 and 02.08.2021 to file any other affidavit in evidence and the State Commission was directed only to take into consideration the affidavit in evidence already filed by the appellant and refused to take on record the affidavit of Mrs. Reena Goyal, another Director of the appellant. Vide impugned order, the State Commission fixed the matter for final hearing. It is also to be pointed out here that vide its Order dated 10.02.2021 this Commission had directed the State Commission to decide the matter within six months. This order of the State Commission has been impugned before us.

From the above noted facts it is apparent that the appellant was very well aware of the various directions issued by this Commission and it seems that with the sole intention to delay the disposal of the complaint by the State Commission, the application for filing affidavit in evidence of Mrs. Reena Goyal was moved. The appellant could have made a request in its earlier appeal before this Commission seeking permission to file any other evidence, but it had not so done.

It is clear that in earlier appeals of the appellant, the State Commission was directed to consider affidavit of Mr. Rakesh Goel, director of the appellant. Appellant had not asked this Commission to permit them to file additional affidavit in evidence of Mrs. Reena Goyal. If the appellant wanted to place on record any other evidence on behalf of the appellant, it could have made the said request in the appeals itself and sought appropriate directions. It is also apparent that Mrs. Reena Goyal is another director and it is not the case that her affidavit is required to be filed in order to bring on record certain additional evidences that had come into existence after the order dated 02.08.2021 of this Commission. This act of the appellant seems to have been done with the sole intention to delay the disposal of the complaint. Such an attitude is intolerable and cannot be allowed and is deprecated. No party can be allowed to delay the disposal of the matter on false pretext. The record shows that since 23.01.2018 appellant had the opportunity to file the affidavit of Mrs. Reena Goyal but it did not file it. The very fact that it chose to file it after this Commission directed the State Commission to decide the matter within six months, taking into consideration the evidences already on record, clearly shows that the sole intention of the appellant was to delay the disposal of the matter.

Learned counsel for the appellant submits that in 10 similar cases this Commission had allowed the appeals. Those matters are not placed before us so we are not aware as to under what circumstances this Commission had allowed those appeals.

The present appeals have no merit and while dismissing the appeals a cost of Rs.25,000/- in each of the appeal is imposed on the appellant to be paid in the Consumer Legal Aid Account of this Commission.