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M/s. R.S. Construction & Others v/s Pulak Kumar Ghosh

    Revision Petition No. 2607 of 2016 in Appeal No. 487 of 2015

    Decided On, 14 September 2016

    At, National Consumer Disputes Redressal Commission NCDRC

    By, THE HONOURABLE MR. JUSTICE D.K. JAIN
    By, PRESIDENT & THE HONOURABLE MRS. M. SHREESHA
    By, MEMBER

    For the Petitioner: Pijush Kanti Roy, Advocate. For the Respondent: ------------



Judgment Text

1. This Revision Petition, under Section 21(b) of the Consumer Protection Act, 1986 (for short 'the Act'), has been filed by a real estate developer, the Opposite Parties in the Complaint, against the order dated 12.02.2016, passed by the West Bengal State Consumer Disputes Redressal Commission at Kolkata (for short 'the State Commission') in First Appeal No. A/897/2015. By the impugned order, the State Commission has dismissed the Application, filed by the Petitioners seeking condonation of delay of 307 days in filing the Appeal, and consequently the Appeal as barred by limitation.

2. The Appeal had been preferred by the Petitioners, questioning the correctness and legality of the order dated 09.09.2014, passed by the District Consumer Disputes Redressal Forum at Hooghly (for short 'the District Forum') in Complaint Case No. 98 of 2012, preferred by the Respondents/Complainants. By the said order, the District Forum, while holding that the Complainants were the 'consumers' within the meaning under Section 2(1)(d) of the Act and there was deficiency in service on the part of the Petitioners in not delivering the possession of the flat purchased by them, has allowed the Complaint, with the directions that the Petitioners shall jointly and severally handover the flat at 3rd floor Front side of the suit premises, measuring 715 sq. ft. after completion of the same to the complainants; execute and register the Deed of Conveyance of the suit flat in the name of the complainants; pay a sum of Rs.10,000/- as compensation for tremendous mental agony, harassment and financial loss of the complainants and Rs.3,000/- as litigation cost. The District Forum had also directed the Complainants to jointly and/or severally pay Rs.9,50,000/- to the Petitioners on or before the date of execution and registration of the Deed of Conveyance. The said directions were to be complied by the Petitioners jointly and/or severally within two months from the date of the order, failing which they were made liable, jointly and/or severally to pay @ Rs.100/- per day to the complainants after completion of the stipulated period till full and final compliance of above all orders in its entirety, including registration of the Deed of Conveyance.

3. The occasion to file the Complaint arose under the following circumstances:

The Complainants purchased from the Petitioners a flat for a total sale consideration of Rs.11,00,000. A sum of Rs.1,50,000/- (i.e. Rs.50,000/- on 28.10.2011 and Rs.1,00,000/- on 01.11.2011) was paid by them to the Petitioners as part payment. The Complainants were informed that the flat would be given to them on the third floor on the front side, admeasuring 715 sq. ft. (super built up area) at Mouza Monohorpur, Hooghly. Subsequently, when the Complainants came to know that the Petitioners were undertaking the construction in deviation of the plans submitted with the municipality, they requested the Petitioners to rectify the defects. Even after three months, nothing was done by the Petitioners, who then informed the Complainants that they may take their advance payment back after 20% deduction. Since the Complainants were still interested in purchasing the flat in question, they requested the Petitioners to rectify the defects and complete the construction within a specified time. Still, the possession of the flat was not delivered to the Complainants. Hence, the Complaint, inter alia, praying for a direction to the Petitioners to complete the construction of the flat and deliver the possession thereof to the Complainants after executing a proper Sale Deed in their favour on receipt of balance consideration, besides payment of compensation towards mental agony and harassment suffered.

4. Since, the State Commission has not touched upon the merits of the Appeal, preferred by the Petitioners, the short question for consideration is whether or not it was justified in declining to exercise the discretion vested in it under First Proviso to Section 15 of the Act.

5. As is apparent from the impugned order that the Appeal had been filed by the Petitioners with a delay of 307 days. Having carefully perused the explanation furnished by them for the delay, which, for the sake of brevity, we do not propose to narrate in extenso, we are of the opinion that the State Commission was legally correct in coming to the conclusion that no sufficient cause had been made out for condonation of the delay. It is manifest from the material on record that the Petitioners were duly represented by their Counsel before the District Forum and had also filed their Written Version. The District Forum, vide order dated 09.09.2014, had allowed the Complaint, issuing certain directions to the Petitioners. Since the said directions were to be complied with by the Petitioners within two months from the date of the order, their Counsel must have communicated the same to them. Yet, they took over eight months in filing application and obtaining certified copy of the order passed by the District Forum. Besides, the plea of illness of one of the partners is concerned apart from the fact that no medical certificate was placed on record, it belies conviction that the other working partners were not competent to take decision regarding filing of Appeal or even consult the Partner, who was stated to be indisposed. It is evident that the intention of the Petitioners was to somehow protract the matter on one pretext or the other, depriving the Complainants, who, despite having orders in their favour by the lower Fora, to enjoy the fruits of their success for the last five years. The Petitioners only when they received notice in Execution proceedings initiated by the Complainants, had filed the Appeal, which was barred by limitation. In that view of the matter, we are equally not convinced with the explanation furnished by the Petitioners for the delay in filing the Appeal and consequently no fault can be found with the impugned decision by the State Commission.

6. It is pertinent to note that even the present Revision Petition has been preferred by the Petitioners with a delay of 49 days, for which too no satisfactory explanation is forthcoming.

7. Bearing in mind the observations of the Hon’ble Supreme Court in Anshul Aggarwal vs. New Okhla Industrial Development Authority [(2011) 14 SCC 578] to the effect that while deciding an application for condonation of delay, the Court has to keep in mind that the special period of limitation has bee

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n prescribed under the Act for filing appeals and revisions in consumer matters and the object of expeditious adjudication of the consumer disputes will get defeated if highly belated petitions filed against the orders of the consumer foras are entertained, we are of the view that the State Commission, for the reasons mentioned in the impugned order, was fully justified in declining to condone inordinate delay of 307 days in filing the Appeal and in dismissing the same on the ground of limitation. We do not read any material irregularity or illegality in the impugned order, requiring interference in our revisional jurisdiction. 8. Consequently, the Revision Petition is dismissed, with no order as to costs.
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