M/S. Emerging India Housing Corporation Limited vs Anil Surial

This Revision Petition No. 2139 of 2018 by the petitioner/Opposite Party (OP hereafter) filed on 15.7.2016 seeks setting aside of the impugned order of the State Consumer Disputes Redressal Commission, Chandigarh ('State Commission', for short) dated 11.04.2016. Vide this order, the State Commission had dismissed Appeal No. 102 of 2016 against the District Consumer Disputes Redressal Commission's( District Forum hereafter) order dated 9.2.2016. The District Forum, in turn, upon a finding of deficiency in service and unfair trade practice by the OP, had allowed the consumer complaint, CC 56/2015, directing OP to refund Rs. 16,09,600/- to the complainant, with 9% interest per annum, from the respective dates of deosit till actual payment, and in addition, also pay Rs. 50,000/- for mental tension etc., and Rs. 10,000/- as costs.

The brief facts of this case are that the Complainant, attracted by the rosy picture portrayed by the OP, of the project "Emerging Heights-III", Sector-115, Greater Mohali, Kharar, Landran Road, Punjab, applied on 29.8.2011 and was allotted Flat No. B-103 having super area 1605 sq.ft.. Opting for 'construction linked plan', complainant paid Rs.. 16,09,600/- towards the total consideration, stated as Rs. 42,29,100/-, from the time of booking till 31.5.2013. Per the plaint, allotment letter was received only on 20.06.2012. Possession of the flat, indeed the completion of the project, had been promised within 28 months, with a grace period of 90 days from the date of booking i.e. within 31.03.2014. OP had assured the complainant that they had all the necessary approvals and permissions. However, when the complainant visited the site, he was shocked at not seeing any development activity. He visited the OP's office but got no answers, only assurances. Opposite Party raised demands for further payments on 24.10.2013 and 11.09.2014. The complainant again visited the site in 08.01.2015 and found that construction was only up to the foundation level. Complainant sought refund of his deposited money from the OP but to no avail and thereafter, filed a consumer complaint, CC 56/2015, before the District Forum.

This was contested by the OP through a written reply. It was contended that the complainant was not a consumer, as he had booked the flat for the purpose of investment to earn profits. It was further contended that the complainant was himself guilty of not having paid instalments on schedule as required by clause 5.4 of the terms & conditions (T & C) of the allotment. It was submitted that the complainant, per clause 6.2 of the T & C, had visited the site, made himself aware of the right, title and capacity of the OP, and so could not raise issues of non-construction now. It was argued that whatever actions the OP had taken was within the T & C of the allotment letter. It was also submitted that the complainant had not apprised the District Forum of the true state of affairs qua construction status.

The District Forum, after considering the pleadings and evidence, allowed the complaint and observed as under :-

"In view of the above discussion, the deficiency in service and indulgence into unfair practice on the part of the Opposite Party is proved. Therefore, the present complaint deserves to be allowed against Opposite Party. The same is accordingly allowed against the Opposite Party. The Opposite Party is directed as under:

a. To refund the amount of Rs.16,09,600/- to the complainant along with interest @9% p.a. from the respective date(s) of its deposit till actual payment.

b. To pay a sum of Rs.50,000/- as compensation on account of mental tension, agony, harassment.

c. To pay Rs.10,000/- as litigation expenses.

This order shall be complied with by Opposite Party within One Month from the date of receipt of its certified copy, failing which, it shall be liable to refund the amount as mentioned in sub-para (ii) above, along with interest @18% p.a. from the date of filing of the present complaint, still its realization, besides costs of litigation."

Aggrieved, the OP appealed before the State commission which dismissed the same for want of appearance of the OP, vide order dated 11.04.2016, which reads as under:

"On 06.4.2016, on the request of Sh. Ish Mahajan, Advocate, Counsel for the appellant, the appeal was adjourned to 8.4.2016. When none appeared on the said date i.e. 08.04.2016, to represent the appellant, the following order was passed:-

"Case called 2nd tiome at the end of the list at 12 O'clock. None came present to represent the appellant. Though there is no justification, however, in the interest of justice, adjourned to 11.04.2015 for preliminary hearing."

The matter was adjourned for today. At the first instance, when none appeared to represent the appellant, case was called second time at the end of the list. None has put in appearance to represent the appellant. It appears that the appellant is not interested in pursuing this appeal. As such, this appeal is dismissed for non-appearance."

Now, the present revision petition is filed before this Commission, seeking the following relief:-

a) To set aside the order dated 11.04.2016 passed by the Hon'ble State Consumer Dispute Redressal Commission, Chandigarh.

b) The said appeal bearing No. 102 of 2016, titled as "M/s Emerging India Housing Corporation Limited V/s Anil Surial" be restored back before the Hon'ble State Consumer Dispute Redressal Commission, Chandigarh in the interest of justice, and

c) Any other order and direction in the interest of justice and in favour of the appellant as forum may deem fit proper and necessary."

Learned counsels for the parties were heard on 30.10.2019.

Main counsel for the OP was not present. Proxy counsel sought permission to present the case. He was allowed to do so in view of the fact that the main counsel had not appeared on the last three occasions. He made the submission that the reason for non-appearance before the State Commission was that there was a rift between the OP's counsels. When asked about why written arguments directed vide the Commission's orders dated 27.11.2018 had not been submitted, he had no explanation. He finally ended his submissions by making the plea that one more opportunity may be given and a short date fixed in the interest of natural justice since the matter had been decided ex-parte by the State Commission.

Counsel for the respondent/complainant submitted that the only ground in the revision petition was in para (h) which stated that the appeal was listed for 6.4.2016 for admission, that Mr. Ish Mahajan, colleague of Mr Vinod Kumar, the appointed counsel, took an adjournment for 8.4.2016. It was then the case that the appellant did not have a copy of the appeal or the stay application. Counsel submitted that this was the only submission. Remaining submissions in the RP to the effect that there was a rift between the appellant and the counsel; that, in this confusion, nobody i.e. neither the counsel nor any other representative of the appellant, appeared on 8.4.2016, each thinking that the other would have appeared; that when the appellant approached the main counsel on 9.4.2016, the main counsel requested his withdrawal from the case; and that by the time the appellant found a new counsel on 15.04.2016, and began preparing for the case, certified copy of the impugned order was received. Counsel argued that this was really strange because before the District Forum, the same counsels had appeared. He argued that such an explanation cannot be accepted as justification for not appearing before the State Commission and that the impugned order was therefore justified.

After giving careful consideration to the arguments and the record, I am persuaded that the facts of the case and the manner in which it has been pursued leaves no scope to allow this Revision Petition.

It is clear from a plain reading of the impugned order that the State Commission cannot be faulted for surmising that the OP was not interested in pursuing it's appeal. In keeping with the summary proceedings mandate, in fact, the State Commission was very proper and correct in granting two short adjournments, first from 6.4.2016 to 8.4.2016, then from 8.4.2016 to 11.4.2016. Whoever the counsel and whatever the matter between the appellant and the counsels, the fact that short adjournments were given should have brought forth an appropriate response from the appellant. As correctly argued by the counsel for the complainant during hearing, no real ground has been argued in the RP. Grounds offered, mainly the main counsel seeking withdrawal and time taken to appoint a new counsel, is no justification at all. In such a situation, the appellant ought to have appeared himself or authorized someone to appear. Appellant rather seems to have left all the adjustment to the State Commission and now seeks relief through this RP. I can only see this as a dilatory tactic. The conduct of the proceedings in the RP also is rather lackadaisical as can be readily seen in the fact that argument was allowed to be made by the proxy counsel today since the main counsel had failed to appear on the last three dates viz. 27.11.2018, 28.5.2018, 12.3.2018. What this shows above all is the extremely casual attitude of the appellants: they have singularly failed to monitor these proceedings and do not deserve any further accommodation. This RP therefore fails.

In view of the discussion above, Revision Petition 2139/2015 is dismissed, after consideration. The impugned order is upheld; consequently, the District Forum's order is also upheld.