M/S. CLOUD 9 PROJECTS PRIVATE LTD. vs GAURAV KHANNA

This first appeal has been filed under section 19 read with Section 21(a)(ii) of the Consumer Protection Act, 1986, against the interim impugned order dated 08.02.2016, passed by the Delhi State Consumer Disputes Redressal Commission, (hereinafter referred to as "the State Commission") in Consumer Complaint No. C-116/15, vide which, the appellant was ordered to be proceeded against ex-parte in proceedings before the State Commission, filed by the complainant/respondent Gaurav Khanna.

The complainant Gaurav Khanna filed the consumer complaint no. 116/2015 before the State Commission, saying that the OPs had failed to deliver the possession of the property booked by him, within the time laid down in the apartment buyer agreement with them. The appellant builder was the opposite party no. 1 in the said complaint while, the OP-2 was the marketing company for the OP-1. The State Commission issued notice of the complaint to both the OPs. It has been recorded by the State Commission in the interim impugned order dated 08.02.2016 as follows:-

"Present: Sh. Yashpal Khanna, Father of the Complainant.

Notice issued to OP-1 received back served.

Despite service no one has appeared on behalf of OP-1.

OP-1 is proceeded ex-parte.

Notice issued to OP-2 is not received back.

Issue fresh notice to OP-2 through registered AD cover as well as by speed post for filing written version within 30 days from the date of receipt of notice.

Copy of the complaint be also sent to OP-2 along with notice.

Renotify on 06.04.2016."

On the next date of hearing i.e. 06.04.2016, the learned counsel, who entered appearance, filed vakalatnama on behalf of both the opposite parties (OPs). The State Commission observed, however, that the appellant/OP-1 had already been proceeded against ex-parte. They decided to take the written statement of OP-2 on record and asked the complainant to file rejoinder to the same, as well as his evidence affidavit within eight weeks with an advance copy to the OP-2. Being aggrieved against the order dated 08.02.2016, passed by the State Commission, the appellant/OP-1 is before this Commission by way of the present appeal.

It has been contended by the appellant/OP-1 that the complainant had wrongly mentioned the address of OP-1 as "C-23, Greater Kailash Enclave, Part-I, New Delhi. In fact, their correct address was "225, Okhla Industrial Estate, Phase-III, New Delhi. Since the notice was sent by the State Commission at the address mentioned in the complaint, which is wrong, the appellant/OP-1 did not have any knowledge about the proceedings on 08.02.2016 and hence, they did not appear before the said Commission. However, when they came to know about the proceedings after the service of OP-2, they tried to file vakalatnama on behalf of both the OPs, but the State commission refused to entertain them, saying that they had already been proceeded against ex-parte.

The learned counsel for the respondent/complainant, however, stated that a resolution had been passed at the meeting of the Board of Directors of the appellant/OP-1 Company on 06.02.2016 by which, it was resolved that Navin Mann s/o N. S. Mann was authorised to appear before the State Commission on behalf of the Company in the case in hand. It is clear from these facts that the appellant was very much within the knowledge of the proceedings before the State Commission fixed for 08.02.2016 and hence, he should have put in appearance before the State Commission on that date. The learned counsel further stated that he had intimated the State Commission about the change of address of appellant/OP-1 within five days of filing the complaint in question. The learned counsel also stated that it was clear from a copy of the acknowledgement from the Department of Posts that the notice was indeed delivered to the appellant/OP-1 at the Greater Kailash Enclave address.

We have examined the entire material on record and given a thoughtful consideration to the arguments advanced before us.

There is a delay of 25 days in filing the present appeal. In the application for condonation of delay, the appellant/OP-1 stated that they had put in appearance before the State Commission on the next date of hearing i.e. 06.04.2016 and requested them to take their reply on record. As per the settled law, when a party has been proceeded against ex-parte, they have a right to participate in the proceedings after putting an appearance before the Court.

In view of the position explained by the appellant/OP-1 in the application for condonation of delay, the said delay is ordered to be condoned.

From the facts brought on record, it is clear that the complainant had mentioned the address of appellant/OP-1 in his consumer complaint as C-23, Greater Kailash Enclave, Part-I, New Delhi and the State Commission sent notice to them at that very address. It is also made out from a copy of the resolution passed by the Company, giving authority to Navin Mann to contest the case that the address of OP-1 is 225, Okhla Industrial Estate, Phase-III, New Delhi. The version given by the appellant/OP-1, therefore, that they did not receive the notice for appearance on 08.02.2016, cannot be stated to be incorrect. This is more so in the light of the assertion of the learned counsel for the respondent/complainant himself that they had intimated the correct address of the appellant/OP-1 to the State Commission, just a few days after filing the complaint.

Based on the foregoing discussion, it is held that it shall be in the interest of justice that the appellant/OP-1 is given an opportunity to present itself before the State Commission and defend its case. The present appeal is, therefore, allowed and the appellant/OP-1 is permitted to join the proceedings before the State Commission. It is also made clear that since the appellant/OP-1 was proceeded against ex-parte on 08.02.2016 and were not allowed to file their written version on the next date of hearing, they shall be entitled to get a chance for filing the written statement before the State Commission within the time prescribed under the Consumer Protection Act, 1986, after ensuring that a copy of the paperbook is duly supplied to them by the State Commission on the date, they put in appearance before that Commission. The appellant has been directed to appear before the State Commission for further proceedings on 13.02.2017.