PURI CONSTRUCTION PVT. LTD. vs RAJENDRA GANG & ORS.

This appeal has been filed by the appellant against the order dated 29.07.2015 passed by the State Consumer Disputes Redressal Commission, Delhi (in short, ''the State Commission'') in Complt. No. 169/2011 - Shri Rajendra Gang & Anr. Vs. M/s. Puri Construction Pvt. Ltd. by which, complaint was allowed.

Brief facts of the case are that complainants/respondents entered into flat buyer''s agreement with OP/appellant on 11.6.2009 and total sale consideration of flat was Rs.61,12,253/-. The complainant paid in all an amount of Rs. 42,12,023.50 by 15 th June 2010 as per schedule of payment. He received a letter dated 20 th June 2010 from the OP raising a demand of Rs. 4,67,140/- for the increased super area and car parking charges. Complainant replied to the letter vide reply dated 2 nd August 2010 raising a protest against the aforesaid demand. OP vide its letter dated 5 th August 2010 reiterated its stand. Complainant is receiving threatening e-mails from the OP thereafter. Upon this, the complainant sent a legal notice dated 27/1/2011 to the OP calling upon the OP to withdraw its demand of Rs. 4,67,140/-. The complainant also asked the OP to refund Rs. 42,12,023.50 along with interest @ 18% p.a. The OP replied to the legal notice vide reply dated 27/2/2011. Vide said reply, OP informed the complainants that they were not entitled to refund of the whole of the amount of Rs. 61,21,253/-. On the contrary, they were simply entitled to Rs. 25,45,917/- and that too, after the sale of the flat in question. Alleging deficiency on the part of OP, complainant filed complaint before State Commission.

OP resisted complaint, admitted flats buyers'' agreement, but submitted that complainant failed to abide directions of contract by not making payments of demand. It was further submitted that as per agreement, the measurement of flat could increase / decrease to the extent of 10% on account of which, demand was raised. Denying any deficiency on their part, prayed for dismissal of complaint.

Parties filed evidence by way of affidavit. After that, learned State Commission proceeded ex-parte against OP and allowed complaint by impugned order and directed OP to refund Rs.42,12,023.50 with 18% p.a. interest along with compensation of Rs. 1 lakh and litigation charges to Rs. 25,000/- against which, this appeal has been filed.

Heard learned Counsel for the parties finally at admission stage and perused record.

Learned Counsel for appellant submitted that learned State Commission has not discussed written statement and affidavit filed by OP and has allowed complaint by non-speaking order; hence, appeal be allowed and impugned order be set aside and matter may be remanded back to learned State Commission for deciding complaint afresh by speaking order. On the other hand, learned Counsel for respondent submitted that as OP was not present before State Commission, learned State Commission rightly allowed complaint, but admitted that impugned order is not speaking order and agreed that matter may be remanded back to learned State Commission.

Perusal of impugned order reveals that after taking evidence of parties on record, OP absented himself from proceedings; so, State Commission proceeded ex-parte and allowed complaint by non-speaking order. After recording evidence, learned State Commission should not have proceeded ex-parte, but should have decided complaint by speaking order after considering evidence filed by OP. Learned State Commission has neither referred, nor considered evidence filed by OP and conditions of flat buyers'' agreement. Order of learned State Commission runs as under:

"We have heard the ld. counsel for the complainant Sh. Amit Sanduja advocate at length.

As per ''flat buyer''s agreement'' dt. 11 th June 2009, OP was required to hand over the physical possession of the flat to the complainant within a period of 36 months from the date of execution of the agreement. Said period expired on 10 th June 2012. Perusal of the affidavit filed by the OP towards evidence (para 9) shows that the flat in question was not ready for possession till 12 th December 2012 i.e. the date of filing of affidavit. Clearly, the OP has committed breach of contract. It is a case of ''unfair trade practice.''

As impugned order does not contain discussion on objections taken by OP in written statement and has not considered evidence filed by OP, impugned order is not speaking order and impugned order is liable to set aside and matter has to be remanded back to learned State Commission to which, learned Counsel for the respondent also agreed.

Consequently, appeal filed by appellant is allowed and impugned order dated 29.7.2015 passed by learned State Commission in Complt. No. 169/2011 - Shri Rajendra Gang & Anr. Vs. M/s. Puri Construction Pvt. Ltd. is set aside and matter is remanded back to learned State Commission to decide complaint afresh by speaking order after giving an opportunity of being heard to the parties.

Parties are directed to appear before State Commission on 16.01.2017.