This appeal has been filed by the appellant Dwarkadhish Projects Private Limited challenging the order dated 16th November 2018 passed by the Delhi State Consumer Disputes Redressal Commission (in short ‘the State Commission’) in consumer complaint No. 588 of 2014.
2. The brief facts of the case are that on the application of the respondent the appellant allotted apartment No.111 on 11th floor in Tower D-6 with area of 1200 sq.ft. to the respondent complainant on 25th October 2007. On 26th June 2012, the opposite party sent letter to the complainant along with the builder buyer agreement to return duly signed within 15 days from the date of the letter, however, the complainant failed to execute the builder buyer agreement. It is the case of the appellant that the appellant sent various reminders for making the payment of due installments and on 30.08.2013, third and final reminder was sent calling upon the respondent to make the payment of pending installments within a period of 15 days from the date of receipt of the letter otherwise the appellant will be constrained to cancel the allotment and forfeit 10% of the total consideration as earnest money. The respondent neither replied to this letter nor paid any amount. The appellant then cancelled the allotment vide letter dated 24.12.2013. Aggrieved, the respondent complainant filed consumer complaint No. 588 of 2014 before the State Commission on 22nd November 2014. The complaint was resisted by the appellant/opposite party by filing the written statement to the complaint. The State Commission vide it's order dated 16.11.2018 allowed the complaint and directed the appellant/opposite party to refund the amount of Rs.9,66,000 with simple interest @9% per annum.
3. Hence, the present appeal.
4. Heard the learned counsel for the appellant at the admission stage. The learned counsel for the appellant stated that the main reason for filing the present appeal is that the State Commission has not allowed deduction of earnest money. It was argued that first of all, the complainant did not execute the builder-buyer agreement which was sent to the complainant on 26th June 2012. The complainant did not pay any installment from 20.11.2008 till April 2012 when the complainant paid Rs.2,00,000 only. Thus, the complainant defaulted at every stage in making the payment of installments and therefore ultimately, the appellant having no choice cancelled theagreement. A common corollary of cancellation of the agreement for non-payment of installments is that the amount paid or 10% of the consideration whichever is smaller will be forfeited as arrest money. There is a clear cut provision in the builder buyer agreement for forfeiture of the earnest money though it is a different matter that the complainant has not executed the builder buyer agreement due to reasons best known to him. The complainant cannot get any advantage for not executing the builder buyer agreement and in fact, all the provisions of the builder buyer agreement should be enforced on the complainant including the forfeiture of the earnest money.
5. I have carefully considered the arguments advanced by the learned counsel for the appellant and examined the record. The admitted facts by the appellant are that the appellant cancelled the allotment on 24th December 2013 allegedly for default of the complainant in paying the installments in spite of the reminders sent by the appellant. it is also admitted that the builder buyer agreement has not been signed between the parties though it has been alleged that the builder buyer agreement was sent by the opposite party on 26 June 2012 to the complainant but the complainant failed to execute the same. The possession was due in the year 2010, however, the same could not be delivered in time and even the builder buyer agreement was sent to the complainant in the year 2012. Thus, clearly the project was inordinately delayed and therefore the complainant may have been justified in stopping the further payments. If there is no agreement between the parties for forfeiture of the earnest money, then the opposite party cannot enforce this through the consumer forum. There is no such general rule in this regard and the parties are supposed to be governed by the agreement.
6. The learned counsel for the appellant has further pointed out that there has been a delay in filing the present appeal. The learned counsel has stated that the file relating to the pleadings and other documents used in the State Commission was misplaced and lot of time was taken in searching for the same. It was found that the same was mixed in some other bunch of files. Thus, the delay was not intentional and has been caused by the circumstances.
7. First of all, it is seen that there is a delay of 103 days as reported by the Registry in filing the present appeal. In the application for condonation of delay, the applicant has mentioned delay of only 44 days from the date of receiving of the certified copy of the order from the respondent. The application for condonation of delay mentions as follows:-
“3. That the appellant received the copy of order dated 16.11.2018 passed by the Hon’ble State Commission, Delhi through a speed post sent by Mr. Manoj Panwar in first week of January and the officials of appellant forwarded the copy of impugned order to the counsel for taking further steps on 09.01.2019.
4. That on receipt of order from the appellant, when the counsel for appellant discussed the same and got instructions from the appellant to file appeal then he found that the files of the pleadings/proceedings done before the Hon’ble State Commission has been misplaced and without such files drafting of appeal was not possible so counsel for appellant made several efforts to find out the files and after efforts of several days on 24.03.2019, when the counsel for appellant found the files tagged with the bunch of some other files then he immediately filed application on 25.03.2019, for issuing certified copy of impugned order dated 16.11.2018 in the Hon’ble State Commission.
5. That after visiting the Hon’ble State Commission several times for getting the certified copy of order dated 16.11.2018, finally on 22.04.2019 the certified copy of order has been received by the appellant for filing the present appeal.
6. That there is no delay from the date of receipt of certified copy of order dated 16.11.2018 but there is a delay of 44 days in filing the appeal from the date of receipt of order from the respondent.”
8. From the above, it is clear that the appellant has calculated the delay of 44 days from the receipt of the order from the respondent. In fact, the appellant has also stated that the applicant received the copy of the order by speed post in first week of January 2019. The Registry has calculated the delay considering the receipt of order on 14.12.2018 which is as per the stamp put by the State Commission on the certified copy issued on 22.4.2019. The appellant has accepted that the copy of the order was received in the first week of January 2019, therefore, even if the delay is calculated from first week of January 2019, it would still be about more than 80 days. Misplacement of files is the usual explanation given for delay, however, no specific details are given as to which files were misplaced and when and where they were misplaced as well as how and where they were exactly located and recovered. In the absence of these details, it is difficult to believe the story given by the appellant for the delay in filing the present appeal. It was always open to the appellant to have got copies of all the pleadings and other documents from the State Commission if reasonable diligence was applied with a view to file the appeal in time. Special limitation periods are provided in the Consumer Protection Act 1986 with the aim of speedy disposal of consumer disputes as held by the Hon’ble Supreme Court in Anshul Aggarwal vs. New Okhla Industrial Development Authority, IV (2011) CPJ 63 (SC) as under:-
“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.”
9. Decision of Anshul Aggarwal (Supra) has been reiterated in CicilyKallarackalVs. 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.”
10. Hon’ble Supreme Court in R.B. Ramlingam Vs. R.B. Bhavaneshwari, 2009 (2) Scale 108, has observed the following:-
“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”.
11. In Ram Lal and Ors. Vs. Rewa Coalfields Ltd., AIR 1962 Supreme Court 361 the Apex Court has observed the following:-
“It is, however, necessary to emphasize that even after sufficient cause has been shown a party is not entitled to the condonation of delay in question as a matter of right. The proof of a sufficient cause is a discretionary jurisdiction vested in the Court by S.5. If sufficient cause is not proved nothing further has to be done; the application for condonation has to be dismissed on that ground alone. If sufficient cause is shown then the Court has to enquire whe
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ther in its discretion it should condone the delay. This aspect of the matter naturally introduces the consideration of all relevant facts and it is at this stage that diligence of the party or its bona fides may fall for consideration; but the scope of the enquiry while exercising the discretionary power after sufficient cause is shown would naturally be limited only to such facts as the Court may regard as relevant.” 12. The above referred authoritative judgments of the Hon’ble Supreme Court are fully applicable in the present case and negligence and deliberate inaction is imputable to the appellant in filing the present appeal. The appellant has not shown reasonable diligence in prosecuting his appeal. Moreover, the facts of the case as well as the order passed by the State Commission and consequent grievance of the opposite party do not necessitate the condonation of delay in the light of the judgment of the Hon’ble Supreme Court in Ram Lal and Ors. Vs. Rewa Coalfields Ltd. (supra). 13. Based on the above discussion, the application for condonation of delay in filing the present appeal is dismissed and consequently the First Appeal No.770 of 2019 is also dismissed.