This first appeal has been filed by the appellant Delhi Development Authority (DDA) against the order dated 29.05.2017 passed by the State Consumer Disputes Redressal Commission, Delhi, (in short ‘the State Commission’) in Complaint No.66 of 2016.
2. Brief facts of the case are that the respondent purchased a flat from DDA and after getting possession of the flat the respondent filed a consumer complaint bearing No.66 of 2016 before the State Commission alleging deficiency in service on the part of the DDA on account of late allotment of the flat as well as for not giving the complete furnished house as per the agreement. The complaint was resisted by the DDA by filing written statement. However, the State Commission allowed the complaint and directed the DDA to pay Rs.3.5 lacs as compensation to the respondent complainant.
3. Hence the present appeal.
4. Heard the leaned counsel for the parties and perused the record. The learned counsel for the appellant stated that there is a delay of 77 days in filing the present appeal and the delay is neither intentional nor due to any negligence on behalf of the appellant. Being a Government organisation, the permission is to be obtained from the highest authority and this has taken time. It was requested to condone the delay on the ground mentioned in the application for condonation of delay.
5. On merits, the counsel stated that the delay in possession was caused due to the respondent himself as many letters were sent to him to take possession, however, he did not turn up on the dates given to him. The letters sent to the site office came back twice after the expiry of the period as the complainant did not turn up to take possession. DDA had already waived off the watch and ward charges which were levied on the complainant for not taking the possession in time.
6. All the sanitary fittings are generally fitted when the party takes the possession. The complainant has claimed that sanitary fittings were not fitted properly and therefore, he had to spend a huge sum for completing these leftover works. The State Commission has not considered the issues and has granted a lump sum compensation of Rs.3.5 lacs to the complainant without any basis.
7. Replying to the objection raised by the learned counsel for the respondent that this appeal was not maintainable as the appeal filed by the respondent against the same impugned order being FA No.1529 of 2017 was dismissed vide order dated 13.09.2017 of this Commission and the SLP filed against this order was also dismissed by the Hon’ble Supreme Court and consequently the order of the State Commission has become final qua the parties. The learned counsel argued that any party aggrieved by the order of the State Commission can prefer an appeal before this Commission. The appellant was not a party in the proceedings of appeal filed by the complainant before this Commission and the appellant did not have any knowledge of the appeal filed by the complainant. In this situation, the independent right of the appellant to file the appeal cannot be taken away by the decision of this Commission in the appeal filed by the complainant. As no notice was issued to the appellant in the appeal filed by the complainant, therefore, the decision of this Commission in appeal filed by the complainant is not binding on the appellant herein.
8. On the other hand the learned counsel for the respondent complainant stated that the respondent filed appeal No.1529 of 2017 against the order dated 29.05.2017 of the State Commission and this appeal was dismissed at the admission stage by this Commission. SLP was filed against this order of this Commission, but the same was dismissed vide order dated 05.02.2018 of the Hon’ble Supreme Court. Thus, the order of the State Commission has become final and res judicata will operate against the opposite party to file the present appeal.
9. The learned counsel further mentioned that appeal has been filed with a delay of 77 days and no proper explanation has been given in the application for condonation of delay. The appeal deserves dismissal only on the ground of delay.
10. Coming to the merits, the learned counsel stated that the flat was delivered in dilapidated condition and no sanitary fittings were fixed in the bathrooms. The complainant had to spend his own money to complete unfinished works. The State Commission has considered all these points and has awarded compensation of Rs.3.5 lacs.
11. I have given a thoughtful consideration to the arguments advanced by the learned counsel for both the parties and have examined the material on record. I agree with the contention of the learned counsel for the appellant that any party aggrieved by the order of the State Commission can prefer an appeal before this Commission. Particularly in the present case, the appellant herein was not given any notice nor was he represented in the appeal filed by the respondent and in these circumstances the order passed by this Commission in appeal No. 1529 of 2017 filed by the respondent complainant is not binding on the opposite party/appellant herein. Therefore, the appeal filed by the DDA is maintainable. However, the appeal has been filed with delay of 77 days and therefore, the question of delay is to be examined. Following is mentioned in the application for condonation of delay:-
“It is submitted that the impugned order was passed on 29-05-2017. It was prepared on 20.6.2017and was made available to the petitioner only on 7-7-2017. It is submitted that the file was moved in the hierarchy till the highest level which decided to challenge the said order of the State Commission. It is submitted that the applicant after having decided to approach this Hon’ble commission by challenging the order passed by the State Commission contacted the present counsel on 16.08.2017 and sent the material papers for filing the present petition. Thereafter the Appeal was prepared with utmost alacrity. It is submitted that the delay that has occurred in filing the present appeal is neither deliberate nor intentional and is caused only because of the aforementioned reasons and the same may be condoned in the interests of justice.”
12. From the above, it is brought out that the main reason for the delay has been the time taken in obtaining the orders of the highest authority of the DDA and also the time taken by the counsel for preparation of appeal. The application for condonation of delay does not give any date as to when the file was submitted for order and when did it come back with the orders to file appeal in the matter. This is purely an administrative delay and the same cannot be considered as sufficient cause for justifying the delay. Hon’ble Supreme Court in Postmaster General &Ors. Vs. Living Media India Ltd. &Anr. (2012) 3 SCC 563 has observed as under:-
“29. In our view, it is the right time to inform all the government bodies, their agencies and instrumentalities that unless they have reasonable and acceptable explanation for the delay and there was bonafide effort, there is no need to accept the usual explanation that the file was kept pending for several months/years due to considerable degree of procedural red-tape in the process. The government departments are under a special obligation to ensure that they perform their duties with diligence and commitment. Condonation of delay is an exception and should not be used as an anticipated benefit for the government departments. The law shelters everyone under the same light and should not be swirled for the benefit of a few.
30. Considering the fact that there was no proper explanation offered by the Department for the delay except mentioning of various dates, according to us, the Department has miserably failed to give any acceptable and cogent reasons sufficient to condone such a huge delay. Accordingly, the appeals are liable to be dismissed on the ground of delay”.
13. Moreover, special periods of limitation have been prescribed under the Consumer Protection Act, 1986, its Rules 1987 and its Regulations 2005 for speedy disposal of consumer disputes. Hon’ble Supreme Court in Anshul Aggarwal vs. New Okhla Industrial Development Authority, IV (2011) CPJ 63 (SC) has laid down that;
“It is also apposite to observe that while deciding an application filed in such cases for condonation of delay, the Court has to keep in mind that the special period of limitation has been prescribed under the Consumer Protection Act, 1986 for filing appeals and revisions in consumer matters and the object of expeditious adjudication of the consumer disputes will get defeated if this Court was to entertain highly belated petitions filed against the orders of the consumer Foras.”
14. Decision of Anshul Aggarwal (Supra) has been reiterated in CicilyKallarackal Vs. Vehicle Factory, IV (2012) CPJ 1(SC) 1, wherein Hon’ble Supreme Court observed:-
“4. This Court in Anshul Aggarwal v. NOIDA, (2011) CPJ 63 (SC) has explained the scope of condonation of delay in a matter where the special Courts/ Tribunals have been constituted in order to provide expeditious remedies to the person aggrieved and Consumer Protection Act, 1986 is one of them. Therefore, this Court held that while dealing with the application for condonation of delay in such cases the Court must keep in mind the special period of limitation prescribed under the statute (s).
5. In the instant case, condoning such an inordinate delay without any sufficient cause would amount to substituting the period of limitation by this Court in place of the period prescribed by the Legislature for filing the special leave petition. Therefore, we do not see any cogent reason to condone the delay.
6. Hence, in the facts and circumstance of the case as explained hereinabove, we are not inclined to entertain these petitions. The same are dismissed on the ground of delay”.
15. In R.B. Ramlingam Vs. R.B. Bhavaneshwari, 2009 (2) Scale 108, Supreme Court observed:-
“We hold that in each and every case the Court has to examine whether delay in filing the special appeal leave petitions stands properly explained. This is the basic test which needs to be applied. The true guide is whether the petitioner has acted with reasonable diligence in the prosecution of his appeal/petition”.
16. Hon’ble Supreme Court in Basawaraj and Anr. Vs. Special Land Acquisition Officer, (2013) 14 SCC 81. It has been held that:-
“9. Sufficient cause is the cause for which the defendant could not be blamed for his absence. The meaning of the word “sufficient” is “adequate” or “enough”, inasmuch as may be necessary to answer the purpose intended. Therefore, the word “sufficient” embraces no more than that which provides a platitude, which when the act done suffices to accomplish the purpose intended in the facts and circumstances existing in a case, duly examined from the viewpoint of a reasonable standard of a cautious man. In this context, “sufficient cause” means that the party should not have acted in a negligent manner or there was a want of bona fide on its part in view of the facts and circumstances of a case or it cannot be alleged that the party has “not acted diligently” or “remained inactive”. However, the facts and circumstances of each case must afford sufficient ground to enable the court concerned to exercise discretion for the reason that whenever the court exercises discretion, it has to be exercised judiciously. The applicant must satisfy the court that he was prevented by any “sufficient cause” from prosecuting his case, and unless a satisfactory explanation is furnished, the court should not allow the application for condonation of delay. The court has to examine whether the mistake is bona fide or was merely a device to cover an ulterior purpose.
12. It is a settled legal proposition that law of limitation may harshly affect a particular party but it has to be applied with all its rigour when the statute so prescribes. The court has no power to extend the period of limitation on equitable grounds. “A result flowing from a statutory provision is never an evil. A court has no power to ignore that provision to relieve what it considers a distress resulting from its operation.” The statutory provision may cause hardship or inconvenience to a particular party but the court has no choice but to enforce it giving full effect to the same. The legal maxim dura lex sed lex which means “the law is hard but it is the law”, stands attracted in such a situation. It has consistently been held that, “inconvenience is not” a decisive factor to be considered while interpreting a statute.”
17. This Commission in Branch Manager, Shriram Transport Finance Company Ltd. vs. Mukeer Ahmed Shiddhiqui, 2015 SCC OnLine NCDRC 3375 has observed the following:
Please Login To View The Full Judgment!
/>“18. Recently, Full Bench of this Commission in “PNB Metlife India Insurance Company Ltd. Vs. Asha Agarwal, II(2015) CPJ 666(NC)” in case of delay, has observed; “6. It is trite that discretion to condone delay has to be exercised judiciously, based on facts and circumstances of each case. ‘Sufficient cause’ cannot be construed liberally if negligence, inaction or lack of bona fides are attributable to the party, praying for exercise of such discretion in its favour. It is equally well settled that when a statute provides for a particular period of limitation, it has to be applied with all its rigor. An unlimited limitation leads to a sense of uncertainty and, therefore, limitation prevents deprivation of what one may have acquired. xxxxxxxxxxxxxxxx.” 18. From the delay occurred in filing the present appeal and the explanation given for the same in the application for condonation of delay clearly indicate that the appellant has not shown reasonable diligence in prosecution of the present appeal. Clearly negligence, deliberate inaction and lack of bona fides are attributable to the appellant in filing the present appeal. The reasons given in the application for condonation of delay are not convincing as no details are given in the application for explaining the delay. Consequently, the application for condonation of delay is dismissed. Accordingly, the First Appeal No.1879 of 2017 is also dismissed.