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Judgment
Karuna Nand Bajpayee, Presiding Member
This first appeal has been filed, with delay of 123 days, under Section 19 of The Consumer Protection Act, 1986 in challenge to the Order dated 14.09.2022 passed in complaint no. 1691 of 2017 by the State Consumer Disputes Redressal Commission, Delhi.
Vide its Order of 14.09.2022 the State Commission has dismissed the complaint in default. The said Order is reproduced below for ready reference:
14.09.2022
Present: None for the complainant.
Mr. Daksh Pandit, proxy counsel for Mr. Sumeet Sharma, counsel for the OP (though proceeded ex-parte vide order dated 27.11.2018).
C-1691/17
Mr. Daksh Pandit, learned counsel for the OP submits that IA No. 99/2021 has been moved by them for recalling of the ex-parte order dated 27.11.2018 passed by this commission which is pending for disposal.
None had appeared on behalf of the complainant on 10.05.2022.
Neither the complainant nor his counsel have appeared today.
It appears that the complainant is not interested in pursuing the matter.
Hence, the same is dismissed for non-prosecution.
File be consigned to record room.
Heard the learned counsel. Perused the material on record, including the impugned Order dated 14.09.2022 of the State Commission and the appeal as well as the application seeking condonation of delay.
Learned counsel for the appellants has elaborated upon the reasons and circumstances for filing this appeal with delay. He has also tried to elaborate upon the merits of the case as well as upon the circumstances which prevented the complainant and his counsel from appearing in the State Commission. It was pointed out that the date 10.05.2022 referred to in the impugned Order was the first date after Covid and the complainants or their counsel were not aware of it. Later on because of indisposition of the counsel the counsel could not appear on the date fixed. It was emphasized that during the entire proceedings the complainants had been pursuing the case in right earnest while it was the opposite parties who had been the defaulter. It has been contended that if opportunity be provided to pursue the complaint on merits and of being heard there are fair prospects of this complaint being allowed by the State Commission otherwise the complainants shall be left remediless and their cause shall suffer irreparably.
In the wake of the submissions made and the explanation given for delay and also in order to facilitate arriving at a just conclusion on merits the delay in filing this appeal stands condoned.
Briefly the complainants on 29.01.2011 booked a residential apartment with the opposite party builder in the project titled as “Kassia” situtated at Japyee Greens Sports City, Noida. They were allotted apartment being unit no. KS2-19-0301, measuring about 1100 sq. ft. for a consideration of Rs.31,53,000/-. As per the allotment letter/agreement dated 19.03.2011 the possession of the said apartment was to be delivered within a period of 24 months of the signing of the said agreement. However, the construction of the subject project has been at a standstill since the year 2012. Complainants thus filed a complaint seeking refund of the deposited amount(s) amounting to Rs.16,21,313/- paid by them along with interest @ 18% p.a.
The consumer complaint contains elaborate details which do not need to be reproduced at this stage. It transpires that on the date fixed in the State Commission as well as on the previous date neither the complainants nor their counsel appeared which resulted in the dismissal of the complaint in default.
This Commission at this stage does not propose to delve into or touch upon the merits of the case but considering the nature of the dispute and the overall facts and circumstances in their totality and keeping in perspective the explanation proffered for non appearance, it is felt just and conscionable that reasonable and sufficient opportunity be further provided to the complainants for adjudication of their complaint on merit in the State Commission.
As such, in the interest of justice, without making any observations on merits of the case the Order dated 14.09.2022 of the State Commission is set aside and the complaint is restored to its original number before the State Commission. The complainants are sternly advised to conduct their case professionally before the State Commission.
The parties shall appear before the State Commission on 03.05.2023. The State Commission is requested to adjudicate the complaint on merit after providing adequate opportunity to the complainants to pursue the matter as per law.
The principal onus of informing the respondents - opposite parties of this instant Order shall be of the appellants– complainants. They shall do so within two weeks from today, without fail, and file proof thereof before the State Commission on or before the next date of hearing before it ie. 03.05.2023.
However, if for whatever reason, the respondents – opposite parties do not appear before the State Commission on 03.05.2023, the State Commission shall issue notice for requiring their presence in order to proceed in accordance with law in the matter, as directed by this Commission. The State Commission in such a situation may also require the complainants to take adequate steps in order to facilitate service on the opposite parties.
In case the respondents – opposite parties have objection to the complaint being restored, it may file appropriate application before the State Commission, submitting that it will raise its objection before this Commission (National Commission). In such contingency, the State Commission shall not proceed further with the complaint for a period of three months. In the said period of three months, the respondents – opposite parties may file appropriate application before this Commission to raise their objection.
If the opposite parties move appropriate application in this Commission within the aforesaid period of three months, or before, further proceedings of the State Commission shall be subject to the orders that may be passed by this Commission on such application. If the opposite parties do not approach this Commission in the period of aforesaid three months (or before), the State Commission shall further proceed in the matter in accordance with law.
The Registry is requested to send a copy each of this Order to all parties in this appeal and to learned counsel for appellants as well to the State Commission within three days. The stenographer is requested to upload this Order on the website of this Commission immediately.