1. This first appeal is directed against the order of the State Commission dated 19.01.2016, whereby the following directions were issued to the appellants:-
(1) Consumer complaint is partly allowed with costs quantified to Rs.10,000/- [Rs.Ten Thousand only] to be paid to the complainant by the opponents.(2) Opponents are directed to pay Rs.66,33,293/- [Rs.Sixty Six Lac Thirty Three Thousand Two Hundred Ninty Three only] to the complainant society within a period of 60 days from the date of this order along with interest @9% p.a. from the date of complaint i.e.12/12/2011 till realization of the amount, failing which rate of interest will be @12% p.a., as below :-(i) Reimbursement of water charges Rs.4,64,239/- [Rs.Four Lacs Sixty Four Thousand Two Hundred Thirty Nine only] paid to Brihnmumbai Municipal Corporation,(ii) Reimbursement of property taxes Rs.61,69,054/- [Rs.Sixty One Lacs Sixty Nine Thousand Fifty Four only](3) Opponents are directed to obtain occupation certificate from the competent authorities and to execute conveyance deed in favour of the complainant society in respect of property for transfer of rights, title and interest in the property on the Survey no.44 within a period of 4 situated at Village Oshiwara, Taluka Andheri [four] months from the date of this order.(5) Opponents are also directed to hand over duly audited accounts prior to formation of co-operative housing society to the complainant society.(6) Opponents shall also pay an amount of Rs.1 lac [Rs.One lac only] to the complainant society for sufferings "
2. The learned counsel for the appellant has submitted that though it was alleged in the title of the complaint that the appellant Ashok Babul Vardhan was a partner of M/s. Urban Developers, no pleading to this effect is contained in the body of the complaint. He has also pointed out that no evidence at all was led before the State Commission to prove that Ashok Babulal Vardhan was a partner of M/s. Urban Developers. He maintains that the appellant Ashok Babulal Vardhan was in fact not a partner of M/s. Urban Developers, at any point of time.
3. The representative of the respondent Society namely Gurmeet Singh, who happens to be a Secretary, admits that no evidence was led by them before the State Commission to prove that Ashok Babulal Vardhan was a partner of M/s. Urban Developers. He further states that he has no objection to the matter being sent to the State Commission for deciding afresh after giving opportunity to the complainant to lead evidence to prove that Ashok Babulal Vardhan was a partner of M/s. Urban Developers.
4. Another contention of the learned counsel for the appellant, Ashok Babulal Vardhan is that no notice of the complaint was served upon him. Admittedly, there is no evidence of the appellant, Ashok Babulal Vardhan having actually received the notice from the State Commission under acknowledgment. Admittedly, an order was passed by the State Commission for publication in newspapers. The contention of the learned counsel for the appellant, Ashok Babulal Vardhan is that the newspaper, in which the notice was published, was not being subscribed by the appellant and therefore, he had no opportunity to come across the said notice. Be that as it may, since admittedly, there is no acknowledgment evidence receipt of the notice by the appellant and also there is no evidence of the appellant being a partner of M/s. Urban Developer, we are inclined to set aside the impugned order and give an opportunity to the appellant to file his written version, subject ofcourse to payment of appropriate cost.
5. For the reasons stated hereinabove, the impugned order is set aside, subject to payment of Rs. 50,000/- as cost to the respondent/complainant. The parties are directed to appear before the State Commission on 20.12.2017. On that day, subject to payment of cost, the appellant shall be entitled to file his written version with copy to the complainant. The State Commission shall, therefore, proceed to hear the parties and decide the complaint on merits. The amount, which the appellant had deposited pursuant to the interim order before this Commission shall remain deposited during the pendency of the complaint and will be kept in an interest bearing FDR. The final order with respect to the disbursal of the said amount shall be passed by the State Commission, while deciding the complaint afresh as per the directions of this order. The State Commission is also directed to decide the matter afresh within six months of the parties appearing before it.
The first appeal stands disposed of.
