BALAJI CONSTRUCTION & ANR vs SOU SUHASINI KAMALKANT LOKHANDE

These three Revision Petitions, by a Real Estate Developer and its Proprietor, are directed against a common order, dated 15.07.2014, passed by the Maharashtra State Consumer Disputes Redressal Commission at Mumbai (for short "the State Commission") in First Appeals No. 12/294-296. By the impugned order, the State Commission has allowed all the three First Appeals, preferred by the Respondents/Complainants against the order, dated 27.06.2011 in Complaint Cases No.50/2010, 58/2010 and 1545/2009, whereby the Complaints were dismissed by the District Consumer Disputes Redressal Forum at Sangli (for short "the District Forum") on the ground that the flats in question were not available for being handed over to the Complainants and the claim for return of money had become time barred.

The main grievance of the Petitioners is that neither in the proceedings before the District Forum nor in the State Commission the notices issued by the said Forums had been properly served, with the result that at both the Forums the Petitioners were deprived of their valuable right of having their say.

Upon notice, appearance has been entered on behalf of the Complainants.

Accordingly, we have heard learned Counsel for the parties. Supporting the order passed by the State Commission, learned Counsel appearing for the Complainants has submitted that in view of a categorical finding by the District Forum that since the notices sent to the Petitioners had been returned with postal remarks "unclaimed", they had not bothered to enter appearance before the District Forum and, therefore, the District Forum was fully justified in taking ex-parte proceedings against them.

Countering the said argument, learned Counsel appearing for the Petitioners has relied upon a decision dated 04.12.2009 rendered by the Hon''ble Supreme Court in Civil Appeal No. 8158 of 2009 (Haresh Rajaldas Makhija Vs. Ravi Vaswani) , wherein in almost identical circumstances the Court has been pleased to hold that the postal remarks "not claimed" could not be treated as the addressee''s refusal to accept the notice and had set aside the order passed by the District Forum, proceeding ex-parte against the said party. The Hon''ble Supreme Court has held that the Consumer Fora, established under the Consumer Protection Act, 1986, are also required to bear in mind that the rule of a udi alteram partem is applicable in proceeding under the said Act.

Having regard to the observations by the Hon''ble Supreme Court regarding the applicability of rule of a udi alteram partem , we are inclined to give an opportunity to the Petitioners to have their say on the merits of the Complaints. We may, however, note that since it is the stand of the Petitioners that in view of the consent letters given by the Complainants, authorizing the Petitioners to dispose of the flats, to which they were entitled to under the Development Agreement, the Petitioners cannot be permitted to retain the sale consideration, realized by them on sale of five flats. Though the factum of execution of any kind of consent letters by the Complainants in favour of the Petitioners is contested by learned Counsel for the Complainants but, in our view, expression of even prima facie view on this aspect of the matter would cause prejudice to either of the parties. Therefore, we decline to comment on the submission. Having regard to the facts and circumstances of the case, particularly in light of the aforesaid observations of the Supreme Court, we allow the Revision Petitions; set aside the impugned order; and restore the afore-noted three Complaints to the board of the District Forum for fresh adjudication in accordance with law, subject to the Petitioners satisfying the District Forum that the entire sale consideration realized by the Petitioners on sale of the flats, to which the Complainants were entitled, has been or is paid to them. The Petitioners shall also pay to the Complainants costs for causing harassment to them and the delay in adjudication of their Complaints, which is quantified at 25,000/- in each of the three Complaints. The said costs shall be paid before the District Forum.

The Petitioners undertake to file their written version before the District Forum within four weeks from the date of receipt of a copy of this order. If considered necessary, it will be open to the District Forum to grant an opportunity to the Complainants to file rejoinder to the written version, if such a prayer is made.

The parties/their Counsel are directed to appear before the District Forum on 12.01.2016 for further proceedings.

The Revision Petitions stand disposed of in the above terms.