SUPREME COURT OF INDIA
C.T. RAVIKUMAR, SANJAY KUMAR, JJ.
Kaushik Narsinhbhai Patel & Ors. - Appellants
Versus
M/s. S.J.R. Prime Corporation Private Limited & Ors. – Respondents
Civil Appeal No. 8176 of 2022
Decided on : 22-07-2024

IMPORTANT POINT
Written statement – Even when defendant’s/opposite party’s right to file a written statement is forfeited that by itself will not make it obligatory on part of NCDRC to pass an order in favour of a complainant in case complainant concerned failed to establish its case.

Headnote:

(A) Consumer Protection Act, 2019 – Section 38(3)(a) – Written statement – First respondent, on being given opportunity to file written submission, made use of it to make good its failure to file a written statement despite the fact that its right to file the same was declared as forfeited by this Court – Even if defendant/opposite party failed to file a written statement and, in that matter, even if forfeiture of right to file written statement has occasioned it would not disentitle that party from participating in further proceedings, without filing a written statement and in such circumstances, said party would also be having right to cross-examine witness(es) of plaintiff/complainant – In absence of any specific provisions dealing with non-filing of written statements/forfeiture of right to file a written statement, it should bar opposite party in a proceeding before Consumer Redressal Forum to bring in pleadings, indirectly to introduce its/his case and evidence to support such case. (Paras 12, 15 and 18)

(B) Consumer Protection Act, 2019 – Section 38(3)(a) – Written statement – Even when defendant’s/opposite party’s right to file a written statement is forfeited that by itself will not make it obligatory on part of NCDRC to pass an order in favour of a complainant in case complainant concerned failed to establish its case – This power is to be read into jurisdiction of a body with adjudicating power – There is distinct difference between a situation of non-filing of a written statement pursuant to a declaration that opposite party had forfeited right to file a written statement and absence of denial of specific pleadings of complainant in written statement filed by an opposite party – In latter case, absence of denial of specific pleadings on facts they can be taken as admitted. (Para 19)

(C) Consumer Protection Act, 2019 – Section 67 – Real estate – Flat Buyers Agreement – Delay and deficiency in construction – Complaint partially allowed by NCDRC – Going by terms of Construction Agreement, due date for handing over possession of flats could have been, rather should have been fixed only in terms of Construction Agreement – Effect of ‘Construction Linked Payment Plan’ is that it obligates builder to complete construction up to a particular required level at the given point of time and upon such accomplishment, obligates buyer to effect due instalment – Complainants have effected payment of sale consideration and were handed over possession of flats – Compensation is claimed by complainants for considerable concutation in construction and in handing over possession of flats – Delay in effecting construction cannot be a reason for denying compensation which was also contemplated under Construction Agreement – Liability of developer to pay interest at the rate of 6% per annum shall be from due date for possession fixed till the date on which respective complainant-buyers are offered possession. (Paras 22 and 25)

(D) Civil Procedure Code, 1908 – Order VI Rule 7 – Pleadings – No amount of evidence can prove a case of a party who had not set up the same in his/her pleadings. (Para 18)

Facts of the case:

Despite the nature of impugned order and creation of liability on the first respondent, complainants alone have chosen to prefer appeal and the first respondent No.1 has not chosen to challenge the same. In said circumstances, findings of NCDRC on delayed handing over of flats to the complainants and on non-construction of Green Jogging Track and Convenience Store can only be taken as having become final. Ergo, scope of this appeal is limited to a few questions.

Findings of Court:

NCDRC in execution of impugned order as modified by this judgment, shall verify with reference to each flat purchaser the date on which offer of possession has been made to him/her and fix liability on builder.

Result : Appeal allowed in part.