Sumit Singh Sabarwal vs M/S. Adel Landmarks Limited

R.K. Agrawal, J

This First Appeal, under Section 19 of the Consumer Protection Act, 1986 (for short "the Act"), is directed against the order dated 20.07.2017 passed by the Delhi State Consumer Disputes Redressal Commission at New Delhi (for short "the State Commission") in Complaint No. C-478/15. By the impugned order, the State Commission has dismissed the Complaint in default on the ground that the Complainant had failed to file rejoinder and affidavit by way of evidence and had also not appeared on the last date of hearing when the order, impugned in this Appeal, was made.

In brief, the facts of the case are that the Complainant had booked a residential flat with the Respondent in their project, namely, "Cosmo City" located at Sector 103, Gurgaon, Haryana by paying the booking amount of ₹7,50,000/-. Thereafter, he further paid sums of ₹12,30,000/- and ₹1,46,23/- on 24.04.2012 and 29.10.2012 respectively. However, neither any allotment was made to him nor any construction was started at the site. In the year 2014, when he visited the office of the Respondent to know the exact status of the project, he was shocked on being informed that the allotment could not be made in his favour due to certain unavoidable reasons. Complainant was also compelled to sign a full and final settlement by the Respondent and the post-dated were issued to him. However, on presentation for encashment, the said post-dated cheques were dishonourerd on the ground of "insufficient fund". Thus, alleging deficiency in service on the part of the Respondent, the Complainant filed a complaint before the State Commission, Delhi praying a direction to them to (i) refund the sum of ₹24,07,216/- paid by him along with interest & 18% p.a.; and (ii) award a sum of ₹10,00,000/- towards the expenses, litigation costs and compensation for mental harassment.

The Complaint was listed for hearing before the State Commission on 20.07.2017 and since none was present on behalf of the Complainant on the said date, the following order was passed:-

" Complainant failed to appear on the last date also. He failed to file rejoinder and evidence by affidavit on that day as well as today. It appears that Complainant is not interest in pursuing the case. The complaint is dismissed in default."

Hence, the present appeal.

Upon notice, the Respondent/Opposite Party is represented through counsel.

I have heard the Learned Counsel for the parties at some length and also perused the documents on record.

Mr. Gautam Dhamija, Learned Counsel appearing for the Appellant submitted that the non-appearance before the State Commission on the part of the counsel for the Appellant, was neither intentional nor deliberate; the counsel was having a hearing before the Learned Additional District Judge at Tis Hazari on the date of passing of the impugned order and since the said matter continued till 1.00 P.M., he reached the State Commission at 2.00 P.M only but by that time the complaint was dismissed for default in appearance by the State Commission.

As against this, Ms. Meghna Sankhla, Learned Counsel appearing for the Respondent, while supporting the order passed by the State Commission, pleaded that in case the learned counsel for the Appellant was busy with some other matter, he could have made arrangements to give proper information to the State Commission or should have asked the client to put appearance before the State Commission.

Regard being had to the circumstances under which the Complainant remained unrepresented before the State Commission and more particularly, bearing in mind the nature of controversy involved in the matter, I am of the considered view that ends of justice would be subserved if both the parties are afforded an opportunity to have their say before the State Commission. Further, it is a settled law that the Complainant should not be made to suffer on account of the default on the part of his counsel.

Resultantly, the Appeal is allowed, the impugned order is set aside and the Complaint is restored to the Board of the State Commission for disposal on merits.

Since the Complaint was filed as far back as in the year 2015, the State Commission is requested to take a final decision in the case, as expeditiously as possible preferably within 6 months from the date of receipt of a copy of this order.

The parties/their counsel are directed to appear before the State Commission on 25.01.2019 for further proceedings.

The Appeal stands disposed of in the above terms with no order as to costs.