M/S. Taneja Developers Infrastructure vs B.S.Guraya

THIS revision petition has been filed under section 21(b) of the Consumer Protection Act, 1986 against the interim order dated 02.05.2013, passed by the Punjab State Consumer Disputes Redressal Commission (for short ''the State Commission '') in Consumer Complaint No. 113/2012, ''''Col. B.S. Guraya & Anr. versus TDI & Anr.''''

BRIEF facts of the case are that the complainants, Col. B.S. Guraya and other, filed a complaint against the petitioners/OPs regarding the booking of a shop-cum-office (SCO) of around 120 sq. yards in commercial complex, TDI City, Mohali, Punjab. The OPs had neither signed a complete agreement, stating details of the Unit and payment schedule, nor informed them about the total cost of the Unit. Further, despite making requests, they had not even refunded the amount deposited by the complainants. During the course of hearing before the State Commission on 2.05.2013, the State Commission ordered to proceed against the petitioners/OPs exparte, as they had not appeared despite service. However, later on, on the same date, an Advocate filed his memo of appearance before the State Commission and he was directed by the State Commission to file power of attorney on the next date and the case was adjourned for 04.07.2013. On 04.07.2013 the petitioners/OPs again did not present themselves before the State Commission and they were ordered to be proceeded against exparte. However, the petitioners have taken the stand that despite the presence of the counsel for the petitioners/OPs before the State Commission on 04.07.2013, they were proceeded against exparte. After hearing the learned counsel for the petitioners at admission stage, a notice was sent to the respondents for their appearance before this Commission. The respondents however, did not appear before this Commission, but sent their written arguments which are on the file.

AT the time of hearing, the learned counsel for the petitioner referred to the grounds of revision petition, saying that the State Commission proceeded against them exparte on 02.05.2013 on the presumption that notice had been received by them for hearing on that date, although the notice had not been received back, served or un-served. After they had passed the order for proceeding exparte against the petitioner, Shri Aman Sharma, Advocate appeared before the State Commission and his presence was recorded, and he was ordered to file power of attorney on the next date of hearing, i.e., 04.07.2013. Learned counsel stated that after proceeding against them exparte, the State Commission had no power to set aside the exparte order as per the provisions of the Consumer Protection Act, 1986 and hence the order passed by the State Commission directing the counsel to file power of attorney on the next date was perverse in the eyes of law. The learned counsel further stated that on 04.07.2013, the cases fixed for hearing on 03.07.2013 and 04.07.2013 were taken together, as holiday was declared on 03.07.2013 on account of Panchayat Elections. The counsel for the petitioners was present before the State Commission on that date but due to confusion, the State Commission did not record his presence and ordered to proceed against them exparte. Learned counsel stated that the orders dated 02.05.2013 and 04.07.2013 passed by the State Commission should be set aside.

IN their written arguments, the complainants/respondents have stated that despite having received payment of Rs.17.5 lakh in October and November 2008, the petitioners had failed to make any allotment of shop-cum-office to them. Their non-appearance before the State Commission was deliberate because their purpose was to delay and frustrate the proceedings. The present revision petition had also been filed with malafide intention with the purpose to delay the refund of the registration amount, being withheld illegally. I have examined the material on record and given a thoughtful consideration to the arguments advanced before me. The order passed by the State Commission on 02.05.2013 is reproduced as below: - ''''Present: For the Complainant: Sh. B.S. Guraya, In person ''''

As per office report, notice was sent to the respondents on 25.03.2013 for today. It has not been received back either served or un -served. Statutory period of 30 days has expired. Respondents are presumed to be served. None has appeared on behalf of the respondents. Respondents are, thus, proceeded against ex -parte.

Put up the file for evidence of the complainant on 04.07.2013.

Sd/ - Presiding Member Sd/ - Member May 2, 2013

At this stage, Sh. Aman Sharma, Advocate has filed memo of appearance on behalf of the respondents. He is directed to file power of attorney on the next date.

Put up the file on 04.07.2013, the date already fixed.

Sd/ - Presiding Member Sd/ - Member May 2, 2013

A perusal of the above order indicates that notice has been sent by the State Commission to the petitioners/respondents on 25.03.2013 for appearance on 02.05.2013. However, since none was present on behalf of them in the earlier part of the day, the learned State Commission observed that the petitioners are presumed to be served as statutory period of 30 days had already expired. This observation is in accordance with proviso to section 28(A)(3) of the Consumer Protection Act, 1986. However, later on, on that very day, Shri Aman Sharma, Advocate filed Memo of Appearance on behalf of the petitioners/respondents and he was directed by the State Commission to file power of attorney on the next date, i.e., 04.07.2013. Later on, on 04.07.2013, as per the version of the petitioners, their counsel was present before the State Commission, but his presence was not noted by the State Commission due to some confusion and they were again proceeded against exparte. It has been stated that a day earlier, a holiday was declared on account of Panchayat Elections and hence the cases fixed for 03.07.2013 were also taken up on 04.07.2013, resulting in confusion. The complainants/respondents have, however, alleged in their written arguments that the petitioners were deliberately avoiding their appearance before the State Commission, because of malafide intention of retaining the money, deposited by them illegally.

BASED on an over -all analysis of the situation, it is felt that to meet the ends of justice, the petitioners/OPs should be given a chance to appear before the State Commission and present their case in defence. However, the State Commission should take steps to finalise the proceedings between the parties as quickly as possible to redress the complaint filed by the consumers. This revision petition is, therefore, allowed and the State Commission is directed to allow the petitioners/OPs to join the proceedings. However, the State Commission should finalise the proceedings preferably within a period of 6 months, after taking into account the evidence/version of both the parties. Parties are directed to appear before the State Commission on 13.01.2014.