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    Reportable

IN THE SUPREME COURT OF INDIA

       CIVIL APPELLATE JURISDICTION

  CIVIL      APPEAL      NO.       6017            OF     2012        (ARISING OUT OF SLP(C) NO.23892 OF 2012)

KANPUR DEVELOPMENT AUTHORITY        … APPELLANT THR. VICE CHAIRMAN

VERUS

SHEO PRAKASH GUPTA & ANR.       … RESPONDENTS

O     R     D     E     R      

Leave granted.

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 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  

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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  

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.

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  

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, the  

respondents filed an affidavit on 18th August, 2005 before the  

appellant-Authority, that if in giving the possession of the  

allotted plot, any delay is caused in land acquisition or judicial  

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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.

7. As the respondents were successful as the highest  

bidders, they were allotted the aforesaid plot vide a letter  

No.D/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  

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 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  

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 Court  

wherein the High Court by order dated 23rd May, 2006 directed  

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the appellant-Authority to decide the  

representation/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 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.   

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 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.

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.

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.

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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.”

12. The State Commission by an ex parte order dated 14th  

October, 2011 observed that the appellant-Authority despite  

receiving the entire amount did not give the possession of the  

disputed land to the complainants and without any reason vide  

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-

Authority that, on the amount deposited by the respondents-

complainants till the date of filing of the complaint, the total  

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 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  

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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 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  

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:

“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 respondent/KDA but no 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.”  

15. For the very same reason, the ground of delay in  

preferring the appeal was not accepted and the appeal was  

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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  

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 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.

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 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 stated to be served personally on 21st December,  

2006 and lastly on 21st January, 2007. Relevant paragraph  

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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 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 refund of Rs.1,53,62,528/- to the  petitioners and then on 20.12.06 when the  notice of demand was got issued which was  personally served 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 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 on its behalf. Therefore,  directions were given 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.

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  

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erred in holding that a notice was served on 21st December,  

2006, though the Complaint No.25 of 2007 was filed before the  

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  

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.

..........……………………………………………….J.  ( G.S. SINGHVI )

..........……………………………………………….J.         ( SUDHANSU JYOTI MUKHOPADHAYA)

NEW DELHI, AUGUST 24, 2012

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