K.C. Associate vs PRADEEP

PETITIONER /O.P. aggrieved by order dated passed by State Consumer Disputes Redressal Commission, Maharashtra, Circuit Bench at Nagpur(for short, ''State Commission '') has filed the present revision petition.

BRIEF facts are that Respondent/Complainant wanted to have his own house, entered into an agreement with the petitioner for purchase of Duplex Bungalow with construction for a consideration of Rs.6,43,000/ - for 725 Sq. Fts. Out of total plot admeasuring 1765 sq. Fts. Situated at Khasra No. 16(New), 245 and 246 (old), Mouza Lawa Teh. Nagpur. It is alleged that in the agreement plot number was not decided. The petitioner promised to mention the plot number at the time of sale deed of the said plot and plot NO.75 was informed to the respondent at the time of agreement. Respondent paid Rs.1,43,000/ - and Rs.10,500/ - through cheques to the petitioner. It is further alleged that petitioner had promised to execute the sale deed within two months from the date of agreement. However, it neither gave the possession nor executed the sale deed of plot. It is further alleged that respondent had invested total sum Rs.2,53,000/ -and as such he prayed for execution of the sale deed in respect of above Duplex Bungalow and in alternate, in case of non -execution of sale deed, petitioner be directed to refund the amount of Rs. 2,53,000/ - with interest and compensation to the respondent.

NOTICE of complaint was issued to the petitioner by Consumer Disputes Redressal Forum, Nagpur (for short, ''District Forum '').It appears from the acknowledgement that notice was received by the petitioner on 28.7.2007 but even after receipt of the notice, petitioner failed to appear before the District Forum. Accordingly, petitioner was proceeded exparte, vide order dated 04.09.2007.

DISTRICT Forum, vide order dated 21.09.2007, partly allowed the complaint and passed the following directions; " 1. The complainant ''s complaint is partly allowed. 2. The Opposite Party is directed to execute the sale deed to the complainant in respect of 725 sq. fts. constructed Duplex Bungalow on plot admeasuring 1765 sq. fts. situated at Mouza Lawa, Tah. and Distt. Nagpur, Khasra No.16 (New) 245 and 246 (old) in P.H. No.4 layout after receiving the balance amount as per agreement. The complainant has to bear the expenses of sale deed. OR If the Opposite Party is unable to execute the sale deed then he refund Rs. 2,53,000/ - with interest @ 18% per annum from 14.12.2006 till its realization to the complainant and to pay compensation of Rs.1,00,000/ - to the complainant. 3. Opposite Party is directed to pay Rs. 3,000/ -towards cost of instant proceedings to the complainant ".

Petitioner filed an appeal before the State Commission, which dismissed the same, vide its impugned order.

WE have heard learned counsel for the petitioner and gone through the record.

IT has been contended by learned counsel for the petitioner that petitioner did not receive any notice from the District Forum and as such petitioner was wrongly proceeded exparte. It is further contended that mother of counsel of the petitioner had undergone bye -pass surgery at Nagpur and as such counsel for the petitioner was busy in her treatment. Moreover, petitioner had also undergone couple of operations of his eyes and breathlessness and due to this, petitioner could not attend the matter on 01.08.2011 before the State Commission and as such there are sufficient grounds for setting aside the impugned order.

WE had summoned the original record of the State Commission. As per record of the State Commission, it is manifestly clear that petitioner had received the notice from the District Forum on July 28,2007.(Photo copy of acknowledgement is at page 48 of the State Commission ''s record). The District Forum, vide its order dated 31.08.2007 has held "OP absent when called. The notice to the OP is served and acknowledgement is on record. The matter to proceed exparte against the OP ".

THUS , petitioner after receiving the notice from the District Forum had chosen not to appear before that Forum and there is no explanation of the petitioner for its non -appearance. Therefore, the order passed by the District Forum is perfectly legal. The State Commission while rejecting the appeal of the petitioner held; "This appeal takes exception to the ex parte judgement and order dated 21.09.2007 passed by District Consumer Disputes Forum, Nagpur in C. C.No. 314/07. This appeal is pending before admission since the month of July, 2008. Ad interim stay was granted and notice before admission was issued to the Respondent Shri Pradip Boriwar, who, in response to the notice appeared through Adv. More and Adv. Borkar on 11.09.2008 and then the matter was adjourned for hearing on condonation of delay as well as stay application. The record reveals that on 9th April, 09, Mr. Shukla, Adv. for the appellant sought adjournment by making application in writing. The same application was resisted by the learned advocate appearing for the Respondent, but no order appears to have been passed by the commission. However, since after 9.4.2009, appellant as well as his advocate Shri Shukla remained absent though the matter was adjourned from time to time since 9.4.2009. Today also the appellant as well as his advocate Shri Shukla are absent. Respondent Shri Pradip Boriwar as well as his advocate Mr. Borkar are present. Adv. Borkar submitted that there is no merit in the appeal. The impugned order is ex -parte and there is already a delay of more than 10 months in preferring this appeal. On perusal of the record, we find much force in the submission of Mr. Borkar, learned advocate for the Respondent. Hence we pass the following order. ORDER Appeal is rejected "

ADMITTEDLY , appeal before the State Commission was filed on 25.07.2008. Thus, on the face of it, appeal filed before the State Commission was hopelessly barred by limitation. Be that as it may, State Commission has rightly dismissed the appeal of the petitioner, as neither petitioner nor his counsel were present before it on the date of hearing. Further, it is apparent from the impugned order that, after 9.4.2009, petitioner as well his advocate remained absent though the matter was adjourned from time to time since 9.4.2009.

MOREOVER , petitioner had not placed any document on record to show that petitioner counsel ''s mother was suffering from ailment during that period nor petitioner had filed any medical record to this effect that during that period he was confined to bed and was unable to attend the proceedings before the State Commission. Under section 21(b) of the Consumer Protection Act,1986, this Commission can interfere with the order of the State Commission where such State Commission has exercised jurisdiction not vested in it by law, or has failed to exercise jurisdiction so vested, or has acted in the exercise of its jurisdiction illegally or with material irregularity.

ABOVE record speaks volume about the conduct of the petitioner. Petitioner has chosen not to appear before the District Forum and as such was rightly proceeded exparte. Thereafter, there was delay in filing of the appeal before the State Commission and even then before the State Commission, petitioner as well as its counsel did not appear before it without any justifiable as well as sufficient cause. The intention of petitioner is just not to comply with the award passed by the District Forum and to deprive the respondent the fruits of the decree.

THE present revision petition having no legal merit has been filed just to waste the time of this Commission and to abuse the process of law, is hereby dismissed with punitive cost of Rs.20,000/ -(Rupees Twenty Thousand only). Petitioner is directed to deposit the aforesaid cost by way of demand draft, in the name of respondent with this Commission, within four weeks from today. In case, petitioner fails to deposit the cost within the prescribed period, then he shall also be liable to pay interest @ 9% p.a., till realization. However, the cost be paid to respondent only after expiry of period of appeal/revision preferred, if any.

PENDING applications also stand disposed of.

LIST on 29th November, 2013 for compliance.