Judgment:
Dr. B.C. Gupta, Member
This revision petition has been filed under section 21(b) of the Consumer Protection Act, 1986 against the impugned order dated 22.03.2013 passed by the Delhi State Consumer Disputes Redressal Commission (for short the State Commission) in FA No. 800/2009, œM/s. Ansal Housing and Construction Ltd. versus M/s. Indian Machinery Co.? vide which while, dismissing the appeal filed by the petitioner, the order dated 1.10.2009 passed by the District Forum in consumer complaint no. 967/2007 was upheld.
2. Brief facts of the case are that the complainant/respondent purchased a plot measuring 359 sq. yard bearing no. C/C-287 in the housing scheme of Uttar Pradesh State Industrial Development Corporation (UPSIDC) at Tronica City, Ghaziabad from M/s. Jyoti Estates @Rs.2300/- per sq. yard which was transferred in the name of the complainant on 10.2.2001. The complainant made a total payment of Rs.4,78,778/- in six instalments to the petitioner/Opposite Party upto 22.04.2002. The case of the complainant is that they paid security, maintenance charges of the said plot regularly, but the said area was not developed and the market value of the land in question went down to less than Rs.1,000/- per sq. yard. The complainant had been visiting the office of the OP to enquire about the status of the plot, but they were told in May 2006 that the said plot had been cancelled. The complainant maintains that they were not given any notice regarding the cancellation, although they had made the payment of about 58% of the basic cost of the plot. The cancellation amount of Rs.3,96,683/- alleged to have been sent by the OP was never received by them. The complainant/respondent, therefore, filed consumer complaint before the District Forum and vide order dated 06.08.2009, the District Forum ordered the restoration of plot no. C/C-287 to the complainant and directed the OP to deliver the possession to the complainant on depositing the balance amount and without forfeiture of any amount. A sum of Rs.50,000/- as compensation for mental agony and harassment and Rs.10,000/- as costs was also allowed to the complainant. An appeal was filed by the petitioner/OP against the order of the District Forum before the State Commission, but the same was ordered to be dismissed. It is against this order that the present revision petition has been filed. The complainant/respondent has also filed caveat petition along with an affidavit and the counsel for caveator was also heard at the time of admission hearing.
3. It has been stated in the complaint filed by the respondent dated 3.10.2007 that they had earlier filed a complaint before the District Forum which was ordered to be dismissed on 29.08.2007 because of non-appearance of the complainant. The complainant had noted the date of hearing as 29.09.2007 in place of 29.08.2007. The complainant then decided to file a new complaint with similar facts and circumstances and claims requesting that earlier complaint no. 307/2007 should be considered a part and parcel of the new complaint.
4. At the time of hearing before us, learned counsel for the petitioner has drawn our attention to the list of dates and events filed along with the revision petition saying that the plot was first allotted to œM/s. Jyoti Estates? on 05.02.2001 and it was transferred in favour of respondent on 10.02.2001. The possession of the plot was offered on 1.3.2003 and demand raised for payment of outstanding amount by the respondent to the petitioner. Reminders were sent on 15.06.2004 and 19.07.2004 by the petitioner to the respondent for payment of the outstanding amount. On their failure to make the payment, the allotment was cancelled on 06.04.2005 and a refund cheque was issued on 26.11.2005 after forfeiting 20% of the deposited amount. The legal notice sent by the respondent was duly replied on 26.08.2006. The learned counsel invited our attention to statement of account attached with the petition which indicates that a total amount of Rs.4,74,778/- had been received from the respondent and the balance amount on account of the cost of the plot, lease rent, stamp duty, etc. had been listed in this document. All these amounts were to be paid by 31.03.2003. A reminder was sent for making the said payment vide letter dated 15.06.2004 and again vide letter dated 19.07.2004 and copies of these letters have been placed on record. Vide letter dated 06.04.2005, the allotment of the said property was cancelled and a copy of the said letter is on record. The learned counsel stated that the second complaint filed by the respondent was not maintainable and after the cancellation of the said plot, he has no locus standi to file the complaint. Moreover, the complaint is barred by limitation as well.
5. In reply, the learned counsel for respondent stated that they had paid 58% of the total amount in question to the petitioner and hence, there was no reason to cancel the said allotment in their favour. The order passed by the State Commission is a detailed speaking order and the said order should be upheld.
6. The learned counsel also invited our attention to the clauses of the allotment letter dated 05.02.2001 issued by the petitioner in favour of M/s. Jyoti Estates, wherein it has been made clear in clause VI that in exceptional circumstances, the developer may at its absolute discretion condone the delay in payment by charging an interest @24% p.a. on the delayed payment/outstandings.
7. We have examined the material on record and given a thoughtful consideration to the arguments advanced before us.
8. A material point involved in the present case is that second consumer complaint on the same facts has been made by the complainant after his first complaint was dismissed for his non-appearance on 29.08.2007. It is, therefore, to be examined whether the second complaint is maintainable at all. In the second complaint duly signed by counsel for the complainant, it has been stated as follows:-
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2. That the above said case is dismissed by this Ld. Forum on 29.08.2007, because of non-appearance of Complainant. It is pertinent to mention here that the Complainant by mistake was written down the date of hearing i.e. 29.09.2007 in place of 29.08.2007 in his diary. When the counsel of Complainant appeared before this Ld. Forum, on 29.09.2007 and he found that his case is not listed on the Board, then after enquiry he came to know that his case was listed on 29.08.2007 and it was dismissed by this Ld. Forum. Therefore, the Complainant has to refile the same Complaint with similar facts, circumstances and claims.
3. That the above said Complaint has already been filed with Complaint No. 307 of 2007, which has been dismissed by this Ld. Forum on 29.08.2007. Therefore, new Complaint has been filed by the same Complainant with similar facts, circumstances and claims before this Ld. Forum. It is, therefore, humbly submitted before this Ld. Forum, that kindly consider the Consumer Complaint No. 307 of 2007 as a part and parcel of this case for the sake of the documents attached and also proceed this case from the stage on which the Complaint No. 307 of 2007 has been dismissed.
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Further, in the prayer clause, the complainant has stated as follows:-
œ(i) Consider this re-filing of Consumer Complaint as Old Consumer Complaint No. 307 of 2007 in respect of all facts, circumstances, claims and documents attached herein;
(ii) Proceed this New Complaint from the same stage of hearing as Complaint No. 307 of 2007 was heard, which has been dismissed on 29.08.2007.
¦¦¦¦..?
9. It is very clear from the version of the complainant himself that the first complaint no. 307/2007 was dismissed on 29.08.2007 for his non-appearance. It is a matter of general legal procedure that the complainant could have agitated for getting the said order dated 29.08.2007 set aside from the competent authority. In case, the competent authority did not agree to his request, he could have moved the higher authority by way of appeal, revision petition, etc. The filing of second complaint on the same facts and circumstances has not been provided anywhere as per the established legal provisions. This Commission has also observed in the case of œPurusharath Builders Pvt. Ltd. versus Uppal Housing Ltd. and Anr. [III (2012) CPJ 500 (NC)]? that the second complaint was not maintainable. In the said case, the party had withdrawn the previous complaint on the ground that the previous counsel was not competent. The Commission observed that if there was defect in the first complaint, amendment application should have been moved or permission could have been sought or request could have been made to have liberty to file fresh complaint. It was not possible to give permission to fill-up lacuna at this stage.
10. It is very clear from the above facts that the orders passed by the Fora below suffer from a major irregularity as they have dealt with the second complaint which was legally not maintainable. In view of these circumstances, there is no need to go into the other aspects of the case and the present complaint deserves to be dismissed on this ground alone. The petitioners have also taken-up this issue in the grounds of revision petition and also during the course of oral arguments. The revision petition is, therefore, accepted. The orders passed by the State Commission and District Forum are set aside and the consumer complaint is ordered to be dismissed with no order as to costs.