KANPUR DEVELOPMENT AUTHORITY THR. VICE CHAIRMANversusSHEO PRAKASH GUPTA & ANR.

                  [2012] 8 S.C.R. 163


   KANPUR DEVELOPMENT AUTHORITY THR. VICE                    A
                 CHAIRMAN
                           v.
           SHEO PRAKASH GUPTA & ANR.
            (Civil Appeal No. 6017 of 2012)
                                                             B
                   AUGUST 24, 2012

        [G.S. SINGHVI AND SUDHANSU JYOTI
                MUKHOPADHAYA, JJ.]

    Notice - Service of - Whether effected on the opposite C
party - Complaint against appellant-Authority before State
Consumer Disputes Redressal Commission - State
Commission by ex-parte order allowing the complaint -
Appellant-Authority filing appeal before National Consumer
Disputes redressal Commission, taking plea that State D
Commission passed ex-parte order without affording it
opportunity to be heard - National Commission rejected the
plea of non-service of notice - On appeal, held: There is
nothing on record to suggest that notice was issued by State
Commission on appellant-Authority - Appeal allowed - Matter E
remitted to National Commission for deciding whether notice
issued by State Commission was properly served on
appellant-Authority and then to decide the appeal on merits.

    CIVIL APPELLATE JURISDICTION : Civil Appeal No.
6017 of 2012.
                                                             F

    From the Judgment & Order dated 29.5.2012 of the
National Consumer Disputes Redressal Commission, New
Delhi in First Appeal No. 42 of 2012.
                                                             G
    Abhishek Chaudhary for the Appellant.

     K.P. Sunder Rao, Wajeeh Shafiq, Chandan Kumar Rai for
the Respondents.
                           163                               H
    164       SUPREME COURT REPORTS               [2012] 8 S.C.R.


A         The following Order of the Court was delivered

                              ORDER

          1. Leave granted.

B       2. Learned counsel for both the sides agree that the
    appeal may be disposed of at this stage.

       3. This appeal is directed against the impugned order
  dated 29th May, 2012 passed by the National Consumers
c Disputes Redressal Commission, New Delhi (for short 'the
  National Commission')in First Appeal No.42 of 2012, whereby
  the appeal filed by the appellant-Kanpur Development Authority
  (hereinafter referred to as 'Authority') against the order of the
  State Consumer Disputes Redressal Commission, Uttar
D Pradesh, Lucknow (hereinafter referred to as the 'State
  Commission')dated 14th October, 2011 was dismissed.

       4. According to the appellant-Authority vide its office order
  dated 31st October, 1992 it was determined that in the matter
  of allotment of any home or plot, if any dispute arises and it
E does not remain possible to complete the registration
  proceedings or to handover the possession in lieu thereof, an
  alternate house or plot shall not be offered and the amount
  deposited by the allottee shall be returned back to him alongwith
  the interest as per the rate of post office saving account.
F
       5. In response to an advertisement issued by the appellant-
  Authority in the year 2005 for sale of various plots by auction
  pursuant to the Kakadeo Scheme, the respondents being
  interested to purchase one of the plots bearing Plot No.6 in
  Block M admeasuring 1364.15 sq.mtr., participated in the
G auction. The price of the said plot was fixed by the appellant-
  Authority at Rs.8,000/- per sq.mtr. with a condition precedent
  to deposit Rs.11,00,000/- as registration fee.

       6. Pursuant to the guidelines dated 31st October, 1992,
H the respondents filed an affidavit on 18th August, 2005 before
  KANPUR DEVELOPMENT AUTHORITY THR. VICE                      165
      CHAIRMAN v. SHEO PRAKASH GUPTA

the appellant-Authority, that if in giving the possession of the      A
allotted plot, any delay is caused in land acquisition or judicial
processes or due to the non-completion of the contract within
the prescribed time or due to any other unavoidable reason,
then they shall not be having any right to claim damages.
                                                                      B
     7.As the respondents were successful as the highest
bidders, they were allotted the aforesaid plot vide a Jetter No.DI
605/JointSecretary/ZoneNo.2 /2005-06 dated 20th August,
2005 whereunder the premium of the said plot was fixed at
Rs.11, 700/- per sq .mtr. They were informed that the remaining       C
3/4th of the premium was to be paid in four quarterly installments
alongwith 15% of the interest while the amount of the first
installment was Rs.32,76,623/-, payable on 1st October, 2005.

    8. Earlier, the respondents in their affidavit filed before the
appellant-Authority stated that they were ready to accept all the     D
terms and conditions in the allotment of the plot.

      9. Before giving possession of the plot to the respondents,
in a civil proceeding, the Civil Court, Kanpur issued a
temporary injunction. It was immediately conveyed by the              E
appellant-Authority to the auction purchasers-respondents and
for the said reason the orders of allotments were cancelled by
the appellant-Authority. The respondents thereafter filed a Writ
Petition No.27893 of 2006 before the Allahabad High Col!rt
wherein the High Court by order dated 23rd May, 2006
directed the appellant-Authority to decide the representation/        F
application of the respondents within three months.

     10. The case of the appellant-Authority is that in
compliance of the order of the High Court dated 23rd May,2006
the appellant-Authority decided the application of the                G
respondents and refunded their entire deposited amount of
Rs.1,53,62,528/- vide Cheque dated 28th October, 2006 as per
the rules and in absence of any rule or guideline, no damage
was paid.
                                                                      H
    166         SUPREME COURT REPORTS             [2012] 8 S.C.R.


A        11. After the receipt of the amount, the respondents filed
    a Complaint No.25 of 2007 before the State Consumer
    Disputes Redressal Commission, Uttar Pradesh, Lucknow for
    the following reliefs:

          "a.    A sum of Rs.32,49, 174.67p.; on account of accrued
B
                 interest @1.5 per mensum on Rs.1,53,62,528/-
                 from the date of deposit till its refund alongwith
                 pendent lite and future interest thereon @1.5% per
                 mensum be awarded to the petitioners against the
                 opposite party.
c
          b.     A sum of Rs.10,00,000/- being damages on
                 account of breach of contract may also be awarded
                 to the petitioners against the opposite party.

D         c.     A sum of Rs.25,000/- being cost of litigation
                 incurred by the petitioners in the present case
                 before 4th A.C.M.M. Kanpur Nagar and the Hon'ble
                 High Court of Judicature at Allahabad and present
                 petition may also be awarded to the petitioners
                 against the opposite party.
E
          d.     Any other relief which this Hon'ble Court may deem
                 fit and proper under the circumstances of the case
                 may also be awarded to the petitioners against the
                 opposite party."
F
       12. The State Commission by an ex parte order dated 14th
  October, 2011 observed that the appellant-Aut)lority despite
  receiving the entire amount did not give the possession of the
  disputed land to the complainants and without any reason vide
G Cheque dated 28.10.2006 returned the said amount to the
  complainants. It was held to be a deficiency in the part of the
  appellant-Authority and, therefore, the appellant-Authority was
  held to be guilty of adopting unfair trade practices. The
  application was allowed with the direction to the appellant-
H Authority that, on the amount deposited by the respondents-
 KANPUR DEVELOPMENT AUTHORITY THR. VICE                    167
     CHAIRMAN v. SHEO PRAKASH GUPTA

complainants till the date of filing of the complaint, the total   A
interest accrued i.e. Rs.32.49.175/- be paid to the complainants
alongwith an interest @ 18% per annum for the period of the
pendency of the complaint till the actual realisation of the
amount. It was also held that the respondents-complainants are
also entitled to receive from the appellant-Authority, a sum of    B
Rs.50,000/- towards mental harassment and Rs.10,000/-
towards litigation expenses.

     13. Against the aforesaid ex parte order of the State
Commission, the appellant-Authority preferred a First Appeal       C
No.42 of 2012 before the National Commission after a delay
of 69 days. In paragraph 3 of the appeal the appellant-Authority
made the following statement:

     "That the impugned order was passed on 14.10.2011. That
     thereafter coming to know of the order, the appellant         D
     checked for the records wherein it was found that no notice
     has been received in the matter. Thereafter on 26.11.2011,
     the office was directed to trace the record of the file."

     14. Before the National Commission the very first ground      E
raised by the appellant-Authority was that the State
Commission did not afford them an opportunity to be heard and
decided the complaint ex-parte. But the National Commission
rejected the aforesaid plea of non-service of notice with the
following observation:
                                                                   F
     "On the other hand, documents placed on record by the
     appellant include a letter from the postal department which
     shows that the registered cover was delivered to the KDA
     on 21.12.2006. The impugned order categorically notes
     that notice had been issued to the respondenUKDA but no       G
     body had appeared on their behalf. The State Commission
     had therefore decided to proceed ex-parte against the
     respondent. We, therefore, do not find any reason to
     accept this plea of absence of opportunity before the State
     Commission."                                                  H
    168        SUPREME COURT REPORTS                [2012] 8 S.C.R:


A        15. For the very same reason, the grourid of delay in
    preferring the appeal was not accepted and the appeal was
    dismissed both on the ground of delay as well as on merits and
    the order of the State Commission was confirmed.

       16. Learned counsel for the appellant-Authority reiterated
8
  the grounds as were taken in the First Appeal and argued that
  the State Commission did not afford them an opportunity to be
  heard and decided the complaint ex parte. He has further taken
  us to the date of filing of the Complaint No.25 of 2007 which
C was verified on 3rd May, 2007 to suggest that the question of
  service of notice by registered cover on 21st December, 2006
  does not arise and that the National Commission erred in
  holding that the registered cover was delivered to the appellant-
  Authority on 21st December, 2006.

D       17. Learned counsel appearing on behalf of the
  respondents, could not lay his hand on the record to suggest
  that the notice of Complaint No.25 of 2007 was served on the
  appellant-Authority, though from the order of the State
  Commission it was brought to our notice that the notice was
E issued on the appellant-Authority.

          18. From the perusal of Complaint No.25 of 2007, we find
    that the respondents before filing the complaint, gave a notice
    of demand to the appellant-Authority on 20th December, 2006
    and it was slated to be served personally on 21st December,
F   2006 and lastly on 21st January, 2007. Relevant paragraph
    No.18 of the Complaint No.25 of 2007 filed by the respondents
    reads as follows:

          "18. That the cause of action for the petition arose to the
G         petitioner against the opposite party firstly on 20.8.05 with
          the allotment letter was issued and thereafter continued to
          accrue on each and every date when the payments of
          balance premium amount were made to the opposite party
          and then on 28.10.06 when the opposite party made the
H         refund of Rs.1,53,62,528/- to the petitioners and then on
  KANPUR DEVELOPMENT AUTHORl'TY THR. VICE                    169
      CHAIRMAN v. SHEO PRAKASH GUPTA

     20. 12. 06 when the notice of demand was got issued which      A
     was personally seNed on 21.12.06 and lastly on 21.1.07,
     when the notice period expired within the limitation and
    jurisdiction of this learned Forum."

     19. The order of the State Commission dated 14th
                                                                    B
October, 2011, suggests that a notice was issued on the
appellant-Authority but nobody appeared on its behalf. The
relevant portion of the order reads as follows:

          "The notice was issued to the respondent but nobody
    appeared oA it$ behalf. Therefore, directions were given        C
    for ex-parte proceedings."

     However, there is nothing on the record to suggest that the
notice issued by the State Commission was served on the
appellant-Authority.                                                D

     20. The appellant-Authority specifically pleaded that no
notice was served by the State Commission on it but the
National Commission failed to appreciate the submission and
erred in holding that a notice was served on 21st December,
2006, though the Complaint No.25 of 2007 was filed before the       E
State Commission much thereafter on 3rd May, 2007.

     21. In the result, the appeal is allowed, the impugned order
and judgment passed by the National Commission is set aside
and the matter is remitted to the National Commission for           F
deciding whether the notice issued by the State Commission
was properly served on the appellant-Authority and to decide
the First Appeal No.42 of 2012 on merits.

K.K.T.                      Appeal allowed & Remitted Back.