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TMI Blog2024 (7) TMI 1167X X X X Extracts X X X X X X X X Extracts X X X X ..... ion Act. Be that as it may, in the absence of specific provisions dealing with the consequence of forfeiture of the right to file a written statement, it is only appropriate to refer to the provisions and positions dealing with such situations in the CPC to know the general law on this question - The rigour of the rule of pleadings is evident from Rule 7 of Order VI, CPC, which mandates that no pleading shall, except by way of amendment, raise any new ground of claim or contain any allegation of fact inconsistent with the previous pleadings of the party pleading the same . There is no case for the first respondent that it sought permission to cross - examine Kaushik Narsinhbhai Patel who filed affidavit of evidence and produced documentary evidence. At any rate, no such case was put forth by the first respondent and no grievance of denial of such opportunity was also raised - the first respondent could be permitted only to argue the legal questions arising based on authorities and provisions of law as also regarding lapses or laches and the consequential non-admissibility or otherwise of evidence, let in by the appellants. Whether NCDRC had given weight to any such pleadings and co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ared project namely, Fiesta Homes by SJR Prime . A Construction Agreement dated 31.03.2012 was entered into between the complainant and Respondent No.1 (Annexure P-2). Going by Clause 6.1 of the Construction Agreement, possession of flats was liable to be handed over, after completion of the construction, on or before March, 2014, with a grace period of six months. However, considerable delay had occurred in completing and handing over possession of flats and as per the complainants, it was after about four years down the timeline that possession was handed over to them. Deficiency in construction aggravated the situation and made the appellants and the proforma respondents (hereinafter referred for brevity, the complainants unless otherwise specifically mentioned) to approach the NCDRC by filing the aforesaid complaint seeking the following reliefs : - i. Pay to each of the complainants to each buyer having same interest, compensatory interest @ 18% p.a. for abnormal inordinate delay in handing over possession of flats to complainants, computing the total period of delay as indicated in Para 11.11 of the Consumer Complaint; ii. Refund the illegally charged car parking fee to compl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Written Statement within thirty days of the receipt of notice in the complaint, failing which its right to file Written Statement may be closed. 4. The aforesaid order was challenged by the appellants before this Court in Civil Appeal No.715 of 2021 which was allowed as per (Annexure P-18, referred as such in the SLP) order dated 11.08.2021. Taking note of certain indisputable and undisputed factual position, this Court arrived at the conclusion that the first respondent-builder was well aware of the pendency of the C.C. No.945 of 2019 before the NCDRC and went on to hold thus: - The conduct on the part of respondent-builder in not filing written statement does not entitle him to any further benefit. It must, therefore, be declared that the respondent has forfeited his right to have filed written statement and it is hereby declared so. The appeal, therefore, stands allowed. The C.C.No.945 of 2019 shall now be proceeded further without the written statement of the respondent-builder. It shall however, be open to the respondent-builder to participate in the proceedings. 5. We will refer to the contentions raised based on Annexure P-18 order and its tenability or otherwise, a little ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the home buyer. The developer would be entitled for further six months as grace period. The developer shall pay delayed compensation in the shape of interest @ 6% per annum on the deposit of the complainants from the due date of possession as determined in accordance of above formula till the date of actual possession. 10. One of the main contentions of the appellants is that ignoring Annexure P-18 order of this Court, the NCDRC virtually permitted the first respondent to introduce facts to dispute their claims and complaints inasmuch as the opportunity offered to the first respondent by NCDRC to file written submissions was utilised by the first respondent to introduce new facts to resist their claims and contentions. Such newly introduced facts and factors by the first respondent through written submissions, obviously, weighed with NCDRC in adopting the formula followed in paragraph 8 of the impugned order, for the purpose of computation of compensation payable to the complainants, it is contended. 11. We will straight away verify the verity of the aforesaid contentions with reference to Annexure P-18 order dated 11.08.2021, firstly, to see whether the same was overreached and t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... also the consequence of the act of defiance of Annexure P-18 order depending on its degree of defiance and its impact. In doing so, we will have to keep reminded of the principle of law that what cannot be done directly, cannot be done indirectly. 14. The discussion as above, would take us to the next question as to what is the impact of forfeiture of opportunity to file written statement? We are fully aware of the fact that all the provisions in the Code of Civil Procedure, 1908, (for short the CPC ) are not proprio vigore applicable to proceedings before Consumer Forums created under the Consumer Protection Act, 2019, except to the extent it is provided under Section 38 (9) of the Consumer Protection Act. Be that as it may, in the absence of specific provisions dealing with the consequence of forfeiture of the right to file a written statement, it is only appropriate to refer to the provisions and positions dealing with such situations in the CPC to know the general law on this question. In this context, it is worthy to refer to a decision of this Court in Nanda Dulal Pradhan Anr. v. Dibakar Pradhan Anr 2022 SCC OnLine SC 822 . It was held therein thus: - as observed and held by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xt of the aforesaid provisions under the CPC, it is apt to refer to a decision of a Division Bench of the Karnataka High Court in Nalini Sunder v. GV Sunder AIR 2003 Kar 86 . It was held therein that a party could not make out a case on the basis of evidence for which he/she has laid no foundation in the pleadings. It is fairly settled that no amount of evidence can prove a case of a party who had not set up the same in his/her pleadings, it was further held therein. According to us, it is the correct proposition of law. In the absence of any specific provisions dealing with non-filing of written statements/forfeiture of the right to file a written statement, taking note of the general position as above, it can only be held that it should bar the opposite party in a proceeding before the Consumer Redressal Forums to bring in pleadings, indirectly to introduce its/his case and evidence to support such case. In the situations mentioned above, the right of the opposite party is confined to participate in the proceedings without filing a written statement and to cross-examine witness(es), if any, examined by the complainant(s). It be the position of law, the first respondent who is bou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er dated 27.01.2021, NCDRC had granted time to the first respondent to file a written statement with a caution that in case of failure to file the same within the stipulated time, the right to file a written statement would be closed. It is this order dated 27.01.2021 that was challenged by the complainants that ultimately culminated in Annexure P-18 order of declaration of forfeiture. 20. A close scrutiny of the impugned order in juxtaposition with the written submissions filed by the first respondent would go to show that NCDRC had not actually accepted the case of the first respondent raised in defence in its written submissions or in that matter, no reason or objection raised in the written statement was also adverted to, for rendering its decision on the complaint. In such circumstances, though the action on the part of the first respondent who suffered Annexure P- 18 order, in bringing on record its case and contentions to resist the case and contentions of the complainants, cannot be appreciated, the contention of the appellants based on the same became inconsequential. As stated earlier, in view of Annexure P-18 order, we are also not going to advert to any case, claims or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction Agreement, the due date for handing over possession of flats could have been, rather should have been fixed only in terms of Clause 6.1 of the said Agreement. However, the impugned order would reveal that without considering Clause 6, the due date for handing over of possession of flats was fixed by the NCDRC by reckoning six months grace period from the date of payment of instalment No.11 (eleven), by the home buyer. Therefore, the question is which among the two methods is legally permissible. While the appellants contend that the former is bound to be followed in the matter of fixing the due date for handing over possession of flats, the first respondent would contend that the method adopted by the NCDRC is just and reasonable and there is no warrant or justifiable reason for any kind of interference. The decision in R.V. Prasannakumaar others. V. Mantri Castles Private Limited Another. (2020) 14 SCC 769 , referred to by the NCDRC, itself would answer this issue. In R.V. Prasannakumaar s case (supra), going by the terms of the flat purchase agreement, possession of flats was liable to be handed over to the buyers on 31.01.2014. In that case about two years delay had occurr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s also contemplated under Clause 6 of the Construction Agreement. The effect of Construction Linked Payment Plan is that it obligates the builder to complete construction up to a particular required level at the given point of time and upon such accomplishment, obligates the buyer to effect the due instalment. According to us, the non-furnishing of a datewise payment schedule could not have been a reason for deviating from the formula followed in the matter of fixation of due date of possession in R.V. Prasannakumaar s case (supra). That apart, in the case on hand, the fact is that the complainants have effected the payment of sale consideration and were handed over possession of flats. The compensation is claimed by the complainants for the considerable concutation in construction and in handing over possession of flats. At any rate, in the circumstances obtained in this case and especially taking note of the fact that owing to the forfeiture of the right to file a written statement, the first respondent-builder did not make out any exceptional circumstance, the NCDRC was not justified in not following the formula followed in R.V. Prasannakumaar s case (supra) in the matter of fix ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er for refund of legal fee realised by the developer for execution of conveyance deed was declined by NCDRC on the ground that the complainants had not adduced any evidence based on which legal fee could be determined by it. We are not inclined to interfere with the said finding of NCDRC, as well. The same is the position with respect to the claim for refund of legal fee charge for conveyance on the ground that it was charged excessively. As relates the prayer to provide Green Jogging Track and Convenience Store as promised in the brochure, NCDRC has already issued directions for constructing them within the time stipulated thereunder. 25. In the circumstances, this appeal is allowed in part by modifying the formula formulated under paragraph 8 of the impugned judgment by NCDRC in the matter of payment of compensation for delay in handing over possession of flats and it is ordered that the liability of the developer to pay interest at the rate of 6% per annum shall be from the due date for possession fixed as above viz., from September, 2014 till the date on which the respective complainant-buyers are offered possession. 26. Needless to say, that NCDRC in execution of impugned orde ..... X X X X Extracts X X X X X X X X Extracts X X X X
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