w w w . L a w y e r S e r v i c e s . i n



M/s. Diamond Estates & Others v/s M/s. Hemnand Co-operative Housing Society Ltd.

    First Appeal No. FA/17/1445

    Decided On, 04 May 2018

    At, Maharashtra State Consumer Disputes Redressal Commission Mumbai

    By, THE HONOURABLE MR. D.R. SHIRASAO
    By, PRESIDING JUDICIAL MEMBER

    For the Applicant: Pawaskar, Advocate. For the Respondent: Geeta Handa Khanuja, Advocate.



Judgment Text

1. Advocate Shri. Pawaskar present for the applicant/appellant. He submitted that the impugned order was passed by the learned District Forum, Bandra in consumer complaint no. CC/08/39 on 25/09/2009. He submitted that, however, order passed by the learned District Forum is null and void, as the complaint filed by the complainant was beyond the period of limitation. The complainant had already filed application for condonation of delay along with the complaint. However, the same was not decided by the learned District Forum and finally decided the complaint. He also submitted that the complainant had made a pecuniary claim in the complaint along with interest on that amount from the date of filing of the complaint. He submitted that, however, complainant had not added amount of interest in the monetary claim. After addition of the amount of interest, the claim of the complainant goes beyond pecuniary jurisdiction of the learned District Forum. Hence, he submitted that the learned District Forum had decided the complaint although it was filed after period of limitation and although it was beyond pecuniary jurisdiction of the learned District Forum. He submitted that the order was passed ex-parte against the applicant. He submitted that applicant had not received copy of the order from the learned District Forum. However, applicant had received notice of execution proceeding bearing no. 10/10 filed by the non-applicant. He submitted that the applicant had appeared before the learned District Forum and brought it to the notice of the court that the order passed by the learned District Forum is null and void. He submitted that irrespective of that Recovery Certificate under section 25 of the Consumer Protection Act, 1986 was issued in that proceeding on 02/11/2011. He submitted that thereafter non-applicant had filed execution application under section 27 of the Consumer Protection Act, 1986 bearing no. 53/2017. Applicant had received notice of that execution proceeding and he had appeared in that proceeding through Advocate. He submitted that, at that time the learned Advocate of applicant told applicant that by filing appeal he will have to obtain declaration from the appellate court that the order passed by the learned District Forum is null and void. He submitted that hence after collecting all the documents, applicant has filed this appeal against the impugned order passed in consumer complaint no.CC/08/39 on 25/09/2009. He submitted that as applicant has filed this appeal on 19/12/2017, delay of 2968 days has taken place in filing the same. He submitted that, hence applicant had filed applicant for condonation of delay. He submitted that the order, which is illegally passed by the learned District Forum should not sustain. Hence, he submitted that application filed by the applicant for condonation of delay be allowed and appeal filed by them be heard on merit.

2. The Learned Advocate appearing for the applicant has relied upon the following rulings;

(i) AIR 2004 SC 4377 in the matter of 'Balvant N. Viswamitra and others V/S Yadav Sadashiv Mule'

(ii) AIR 2013 SC 3060 in the matter of 'Dr. Jagmittar Sain Bhagat V/S Dir. of Health Services, Haryana and others'

(iii) Order passed by Hon’ble Supreme Court in Civil Appeal No.2841-2843 of 2017 in the matter of 'Roger Shashoua& Others V/S Mukesh Sharma &Ors.'

(iv) AIR 1954 SC 340 in the matter of 'Kiran Singh and others V/S Chiman Paswan'

(v) AIR 1962 SC 199 in the matter of 'Seth Hiralal Patni V/S Sri. Kali Nath'

(vi) AIR 1977 SC 1201 in the matter of 'Sunder Dass V/S Ram Prakash'

(vii) Order passed by Hon’ble Supreme Court in Civil Appeal No.022967 of 2017 in the matter of 'Harpal Singh V/S Ashok Kumar & Ors.'

In all these rulings Hon’ble Supreme Court considered that, if Court that lack inherent jurisdiction passed a decree, defect of jurisdiction being fundamental, such decree becomes non-est and void-ab- initio and can be objected in execution proceedings or collateral proceedings.

The Learned Advocate appearing for the applicant has also relied upon the following rulings;

(viii) Order passed by Hon’ble National Commission in Revision Petition No. 3294 of 2011 in the matter of 'New India Assurance Co. Ltd. V/S Vinita Bai & Ors.'

(ix) Order passed by Hon’ble National Commission in First Appeal No. 887 of 2013 in the matter of 'M/S Omex Ltd. V/S Iqbal Begum'

(x) Order passed by Hon’ble National Commission in Revision Petition No. 885 of 2012 in the matter of 'Country Colonisers Pvt. Ltd. V/S Priti Kapoor & Ors.'

(xi) Order passed by Hon’ble National Commission in Consumer ComplaintNo. 97 of 2016 in the matter of 'Ambrish Kumar Shukla & 21 Ors. V/S Ferrous Infrastructure Pvt. Ltd.'

(xii) Order passed by Hon’ble National Commission in Consumer ComplaintNo. 816-819 of 2016 in the matter of 'Amrapali Sapphire Flat Buyers Welfare Association V/S Amrapali Sapphire Developers Pvt. Ltd. & Ors.'

In all these cases Hon’ble National Commission considered that complaints were beyond jurisdiction of the learned District Forum and hence order passed by the said Forum is without jurisdiction.

The Learned Advocate appearing for the applicant has also relied upon the following rulings;

(xiii) Order passed by this Commission in consumer complaint No. CC/05/99in the matter of 'M/S S. D. Enterprises V/S National Insurance Co. &Ors.'

(xiv) Order passed by this Commission in consumer complaint No. CC/06/32 in the matter of 'Veena Nagar Co-op. Hsg. Society V/S National Insurance Co. & Ors.'

(xv) Order passed by this Commission in Appeal Nos. FA/10/1100 to FA/10/1103 in the matters of 'Sai Everest Developers V/S Harban Singh Kohli'

(xvi) Order passed by this Commission in Appeal Nos. FA/12/829, FA/12/831 to FA/12/846 in the matters of 'Sharad kumar Manekchand Lunawat V/S Elpro International'

(xvii) Order passed by this Commission in Appeal Nos. FA/14/758in the matter of 'Nimesh Enterprises &Ors. V/S Mhatre Palace Co-op. Hsg. Society'

(xviii) Order passed by this Commission in Appeal Nos. FA/15/896 in the matter of 'Mr. Rajkishore Satyadev Tripathi& Ors. V/S M/S Raj Residency CHS. Ltd.'

In all these cases, this Commission also considered that order passed by the learned District Forum without having jurisdiction will be null and void.

The Learned Advocate appearing for the applicant has also relied upon the following rulings,

(i) AIR 2009 SC 2210 in the matter of 'State Bank of India V/S. B.S. Agricultural Industries (I)'

(ii) (2009)7 SCC 768 in the matter of 'Kandimalla Raghavaih and Co. V/S National Insurance Co. And Another'

In both these cases, as the complaints were beyond period of limitation, the same were dismissed.

3. Learned Advocate Smt.Geeta Handa Khanuja appearing for nonapplicant has contested the application by filing reply. She submitted that application is to be filed within 30 days from the date of receipt of the order. Copy of the order was received on 05/10/2009. However, appeal is filed on 19/12/2017. She submitted that applicant was already having knowledge of order, as they had appeared in execution proceeding filed on the basis of that order and contested the same. However, at that time they had not taken steps to file appeal and contested the execution proceeding on the ground that the order passed by the learned District Forum is null and void. She submitted that applicant has to give explanation in respect of delay of each day. Applicant has not properly explained delay caused in filing appeal. She submitted that, although applicant may have very good case in appeal, however, applicant has not explained inordinate delay in filing appeal. She submitted that on the contrary applicant was negligent to prefer appeal against the impugned order, although he was having knowledge of the order. It is submitted by the Advocate appearing for non-applicant that, as delay is not properly explained, the application for condonation of delay be rejected.

4. The learned Advocate appearing for non-applicant also relied upon following rulings;

(i) Order passed by Hon’ble National Commission in First Appeal No. 109 of 2015 decided on 07/03/2018 in the matter of 'Treaty Constructions and Ors. V/S Ruby Tower Co-op. Hsg. Society Ltd. and Ors.'

In this ruling Hon’ble National Commission considered that objection about the territorial and pecuniary jurisdiction is to be taken at the earlier stage. Opponent cannot be allowed to take the said objections at the sub-sequent stage.

(ii) Order passed by Hon’ble National Commission in Revision Petition No. 653 of 2017 decided on 04/04/2018 in the matter of 'Abrar-Ul-Haq Qureshi V/S Hilton Construction Builders & Developers'

In this case Hon’ble National Commission has considered that, indefinite period for filing appeal cannot be given to any party. Hon’ble National Commission had rejected the application for condonation of delay of about 900 days.

(iii) Order passed by this Commission in first appeal no. FA/16/904 decided on in the matter of 'Bhimraj Banyal V/S M/s Neha Home Builders Pvt. Ltd.'

In this case, this Commission has already considered that the principle laid down in case of 'Ambrish Kumar Shukla & 21 Ors. V/S Ferrous Infrastructure Pvt. Ltd.' cannot have retrospective effect.

(iv) AIR 2004 SC 4377 in the matter of 'Balvant N. Viswamitra and others V/S Yadav Sadashiv Mule & Ors.', which was relied by the learned Advocate appearing for applicant.

In this case it has been observed that, all irregular decrees are not necessarily void. Erroneous decree cannot be objected in execution or collateral proceedings.

5. Perused record of the case. On perusal of the same, it has become clear that the impugned order was passed by learned District Forum in consumer complaint no. CC/08/39 on 25/09/2009. The applicant has filed appeal on 19/12/2017 along with application for condonation of delay. Hence, it has become clear that appeal has been preferred after 2968 days.

6. It is the contention of the learned Advocate appearing for applicant that, impugned order was passed ex-parte against them. However, contention of the applicant in this respect cannot be accepted. On perusal of the copies of roznamas, it has become clear that Advocate Shri. Shaikh represented applicant before the Forum on 13/02/2008. Advocate Shri. Mahesh Sabnis had also represented applicant on 21/05/2008. However it appears that thereafter neither applicant nor their Advocate appeared in the proceeding. Hence the learned Forum by passing order on 1/10/2008 directed to proceed the complaint ex-parte against the applicant. Looking to the facts of the case, it has become clear that although applicant had received notice of the proceeding and they appeared in the proceeding through Advocate, they on their own accord failed to contest the complaint. Hence complaint was decided ex-parte against them. Hence it has become clear that applicant had all the opportunitiesto contest the complaint on the ground of limitation, jurisdiction and other defenses before the Forum.However, they avoided to contest the complaint by remaining absent in the complaint proceeding. Hence, it has become clear that now applicant is taking all these defences at this belated stage.

7. On perusal of copy of order, it has become clear that order was passed on 25/09/2009, first copy of the order was issued to the opponent on 05/10/2009. On perusal of the copy of the order, it appears that the applicant had obtained duplicate copy of the order on 12/08/2010. Hence, it has become clear that since 12/08/2010 the opponent was having knowledge of the order passed by learned District Forum. However, applicant preferred to file appeal against that order in the year 2017.

8. In this case, it is pertinent to note that on the basis of order passed by the learned District Forum, initially complainant had filed execution proceeding against applicant before learned District Forum under section 25 of the Consumer Protection Act, 1986. Applicant had appeared in that proceeding in the year 2010 and contested the same. Irrespective of that Recovery Certificate was issued against the applicant in that matter on 25/11/2011. Although opponent was having full knowledge of the same at that stage also, applicant had not challenged the order passed by the learned District Forum by preferring appeal. It appears that thereafter the complainant had filed execution proceeding under section 27 of the Consumer Protection Act, 1986 against the applicant on 24/05/2017. Applicant had received notice of the same on 04/09/2017. It appears that when Bailable Warrant was issued against the applicant, he contacted Advocate and appeared in the proceeding and at that time for the first time applicant realized that for setting aside order passed by the learned District Forum, he is required to file appeal against that order. Hence, now on 19/12/2017 applicant had preferred this appeal. However, it had become late by 2968 days. Hence, he has filed this application for condonation of delay.

9. The learned Advocate appearing for the applicant vehemently submitted that, when order passed by the learned District Forum is without jurisdiction, the same cannot sustain and for setting aside that order, appeal filed by the applicant should be taken on record by setting aside delay caused in filing appeal. Hence, it is contended that for this purpose delay of 2968 days caused by applicant in filing appeal be condoned. On perusal of the record, it appears that complainant had filed application for condonation of delay along with complaint. On perusal of the order passed by the learned District Forum, it is not appearing that Forum has decided this application of condonation of delay independently. On perusal of the order, it is not appearing how learned District Forum had considered that claim of the complainant is within limitation. On perusal of the copy of the complaint, it has become clear that the complainant had made monetary claim of Rs.19,49,433/- against applicant and claimed this amount from the applicant along with interest on that amount @ 18% from 31/12/1997. However, on perusal of the statement of claim filed by the complainant along with complaint, it is not appearing that complainant has mentioned amount of interest claimed by him from the applicant. A monetary claim itself is of Rs. 19,49,433/- and after adding amount of interest, claim made by the complainant against the applicant will be beyond pecuniary jurisdiction of the learned District Forum. However, on perusal of the order passd by the learned District Forum, it is not appearing how the learned District Forum had considered that claim is within their pecuniary jurisdiction. Looking to the facts of the case, I am of the opinion that applicant may have very good case in appeal. For that purpose, applicant has also relied upon several Rulings of Hon’ble Supreme Court and Hon’ble National Commission. However, I am of the opinion that, only this aspect itself will not be sufficient for condoning inordinate delay of 2968 days caused in filing appeal. In this case, it is particular to note that since year 2010 applicant was having knowledge of the order, as he had contested the execu

Please Login To View The Full Judgment!

tion proceeding filed against them under section 25 of the Consumer Protection Act, 1986. In this case it is particular to note that in respect of nullity of the order applicant had taken objection before executing court. Irrespective of that executing court had issued Recovery Certificate against the applicant on 25/11/2011. At that time applicant must have got knowledge that objection taken by him in respect nullity of the order is not considered by the executing court and in that respect only remedy is to file appeal to set aside that order. However, at that time also applicant had not preferred any appeal against the impugned order. It appears that when complainant had filed execution proceeding under section 27 of the Consumer Protection Act, 1986 and Bailable Warrant was issued against applicant, at that time for the first time applicant realized that unless impugned order is not set aside, he may be convicted in that proceeding and hence thereafter he has filed this appeal along with application for condonation of delay. I am of the opinion that although applicant may have very good case in appeal, applicant has not taken diligent steps for filing appeal, although he was having knowledge of impugned order. Under such circumstances, I am of the opinion that inordinate delay of 2968 days caused in filing appeal without having any sufficient reason for the same, cannot be allowed. Hence, I am of the opinion that application filed by the applicant/appellant for condonation of delay deserves to be rejected. Hence, I proceed to pass the following order, ORDER Application filed by applicant/appellant for condonation of delay is hereby rejected. Consequently, appeal filed by the appellant against
O R