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

M/s. Sri Sai Constructions, Rep. By Its Managing Director M. Yadagiri Reddy & Another v/s Thambala Upender

Company & Directors' Information:- SAI INDIA LIMITED [Active] CIN = U29120KA1989FLC010358

Company & Directors' Information:- SAI INDIA CONSTRUCTIONS PRIVATE LIMITED [Active] CIN = U45203MP2002PTC015264

Company & Directors' Information:- K J REDDY CONSTRUCTIONS PRIVATE LIMITED [Strike Off] CIN = U45300AP2010PTC068541

Company & Directors' Information:- B V REDDY CONSTRUCTIONS PRIVATE LIMITED [Active] CIN = U45200PN2013PTC146188

Company & Directors' Information:- SAI CONSTRUCTIONS PRIVATE LIMITED [Strike Off] CIN = U45204DL2009PTC191555

Company & Directors' Information:- SRI CONSTRUCTIONS COMPANY PRIVATE LIMITED [Strike Off] CIN = U45200TG1995PTC022231

    Revision Petition No. 1162 of 2017

    Decided On, 11 October 2019

    At, National Consumer Disputes Redressal Commission NCDRC


    For the Petitioners: Manish Kumar Gupta, Proxy Counsel, Sumanth Nookala, Advocate. For the Respondent: Y Narsimha Reddy, Advocate.

Judgment Text

This revision petition has been filed by the petitioners M/s. Sri Sai Constructions and anr. against the order dated 23.02.2017 of the State Consumer Disputes Redressal Commission, Telangana, (In short ‘the State Commission’) passed in FAIA No.92 of 2016.

2. Brief facts of the case are that the respondent/complainant had purchased a ground floor flat from the petitioners. The building was approved for ground + two floors whereas the petitioners have made the building of five floors. The municipal authorities gave notice about the illegal construction and asked them to deposit Rs.19,37,909/- for regularisation of the illegal construction as per the policy of the State Government. The complainant filed a consumer complaint alleging deficiency in service on the part of the builder that the petitioner builder has constructed two extra floors against the approved plan and therefore, he is responsible for paying the regularization charges to the municipal authorities. The complaint was decided by the District Forum, wherein the District Forum allowed the complaint and directed the opposite parties to pay the balance penalization amount of Rs.19,37,909/- with other penalty if any to Hyderabad Metropolitan Development Authority for regularization of the Apartment “Koppula Towers”. The opposite parties were further directed to allot car parking area to the complainant by giving marking to it. The opposite parties were further directed to pay Rs.5,000/- towards legal expenses to the complainant.

3. Aggrieved by the order of the District Forum, the petitioners preferred appeal before the State Commission being FA No.92 of 2016. The State Commission has however, dismissed the appeal vide its order dated 23.02.2017 on the ground of limitation.

4. Hence the present revision petition.

5. Heard the learned counsel for both the parties and perused the record. Learned counsel for the petitioners stated that the State Commission has not considered the appeal on merits and has dismissed the appeal only on the ground of limitation. The delay in filing the appeal has been caused due to the fact that the opposite party No.1/petitioner was suffering from high blood pressure and diabetes and due to some other domestic problem, he could not contact his counsel. The learned counsel stated that the petitioners have a very strong case, therefore, their appeal deserves hearing on merits. If even on technical ground, the justice is denied then it will be against the spirit of natural justice. Learned counsel requested that the delay in filing the appeal before the State Commission be condoned and the matter be remanded to the State Commission for deciding on merits.

6. On the other hand, learned counsel for the respondent/complainant stated that the building was approved only for ground + two floors, however, the petitioners constructed it for total five floors. If a building has been illegally constructed, the builder is responsible for that illegality as he was only mandated by the land owner to construct the building as per the approved plan. The District Forum has passed a reasonable order after hearing both the parties. Delay in filing the appeal is of 160 days and no convincing reason has been given by the petitioners for this delay and therefore, the State Commission has rightly rejected the application for condonation of delay and consequently the appeal.

7. I have carefully considered the arguments advanced by the learned counsel for the parties and have examined the record. It is seen in the condonation of delay application that the following reason has been given for delay in filing the appeal:-

“8. I submit that further said order was passed on dated 22.06.2015, and copy application for certified copy was made on dated:16-7-2015 and copy was ready on dt:16-7-2015 and delivered on dt:16-7-2015. I submit that after pronouncement of the order, I could not contact counsel and there is communication gap with my counsel and I am not aware of legal aspects of the limitation. I submit that I have suffered ill-health during last few months and I am having high Blood pressure and diabetic patient and with severe problems, I submit further I was burdened with unexplained domestic problems as such I could not contract our counsel and file appeal immediately within the time. I submit that I am unnecessarily fastened with liability of such huge amount and in fact after satisfying all the features and respondent had purchased the flat and now raising objection is not sustainable and in fact we have sold flat at lesser price and for regularization scheme all the flat owners either individually or collectively can apply and share the burden but not by us. I submit unless the interim stay of all further proceedings is not being granted, I will be put to great loss and hardship and agony. I am having strong grounds in the appeal. I submit further delay in filing the appeal is also neither willful nor wanton and it is due to peculiar circumstances.”

8. From the above, it is clear that the main reason for not filing the appeal in time before the State Commission is that the petitioner/appellant could not contact his counsel for long due to his illness. The illnesses of high blood pressure and diabetes have been stated in the application, however no supporting material was filed along with the application as mentioned by the State Commission in the following order:-

“14. We may also state that the petitioners should not be denied the right accrued to him on expiry of limitation provided for to prefer an appeal. What is required is that the explanation has to be reasonable, plausible and believable. Mere explanation without supporting material is not sufficient for condoning the delay in favour of applicant. If he does not satisfy the ingredients of Section 15 of the Consumer Protection Act, 1986, and that it does not reflect ‘sufficient cause’, then the application deserves no consideration. When consistently rigmarole facts are pleaded without any justification or proof, the delay of 160 days cannot be condoned.”

9. Apart from the above observations of the State Commission, it is seen that the certified copy was received on 16.07.2015, whereas the judgment was passed on 22.06.2015. Thus, the certified copy was received within one month, however, appeal was filed on 05.01.2016. No explanation has been given for this delay except for the diseases of high blood pressure and diabetes which are only life style diseases and they can be effectively managed with proper medication and precaution and these diseases do not generally incapacitate a person from doing his normal activities and that too for a long time. The main reason given by the petitioner is that he could not contact his counsel due to these diseases. First of all, these diseases cannot be a reason for him not being able to contact the counsel and secondly nothing is mentioned in the application as to what efforts were made by him to contact the counsel; whether the Advocate was being contacted on telephone or by personal visit or by any other method of communication. No details about day to day delay is given in the application. Moreover, blaming the counsel for the delay is not justified and it is the responsibility of the client to monitor the case and to take action accordingly. In taking this view I am supported by the following judgments:-

1. Salil Dutta Vs. T.M. and M.C. Private Ltd. 1993 SCR (1) 794 (SC). It has been held that:-

“The advocate is the agent of the party. His acts and statements, made within the limits of authority given to him, are the acts and statements of the principal i.e. the party who engaged him. It is true that in certain situations, the Court may, in the interest of justice, set a side a dismissal order or an ex-parte decree notwithstanding the negligence and/or misdemeanour of the advocate where it finds that the client was an innocent litigant but there is not such abso lute rule that a party can disown its advocate at any time and seek relief. No such absolute immunity can be recognised. Such an absolute rule would make the working of the system extremely difficult. The observations made in Rafiq must be understood in the facts and circumstances of that case and cannot be understood as an absolute proposition. As we have mentioned hereinabove, this was an on-going suit posted for final hearing after a lapse of seven years of its institution. It was not a second appeal filed by a villager residing away from the city, where the Court is located. The defendant is also not a rustic ignorant villager but a private limited company with its head-office at Calcutta itself and managed by educated businessmen who know where their interest lies. It is evident that when their applications were not disposed of before taking up the suit for final hewing they felt piqued and refused to appear before the court. May be, it was part of their delaying tactics as alleged by the plaintiff. May be not. But one thing is clear they 'chose to non-cooperate with the court. Having adopted such a stand towards the Court, the defendant has no right to ask its indulgence. Putting the entire blame upon the advocate and trying to make it out as if they were totally unaware of the nature or significance of the proceedings is a theory which cannot be accepted and ought not to have been accepted.”

2. Similarly, Hon’ble High Court of Delhi at New Delhi, in Moddus Media Pvt. Ltd. Vs. M/s. Scone Exhibition Pvt. Ltd. RFA No.497 of 2017, decided on 18.5.2017, has held that:-

“11. The litigant owes a duty to be vigilant of his rights and is also expected to be equally vigilant about the judicial proceedings pending in the court of law against him or initiated at his instance. The litigant cannot be permitted to cast the entire blame on the Advocate. It appears that the blame is being attributed on the Advocate with a view to get the delay condoned and avoid the decree. After filing the civil suit or written statement, the litigant cannot go off to sleep and wake up from a deep slumber after passing a long time as if the court is storage of the suits filed by such negligent litigants. Putting the entire blame upon the advocate and trying to make it out as if they were totally unaware of the nature or significance of the proceedings is a theory put forth by the appellant/applicant/defendant company, which cannot be accepted and ought not to have been accepted. The appellant is not a simple or rustic illiterate person but a Private Limited Company managed by educated businessmen, who know very well where their interest lies. The litigant is to be vigilant and pursue his case diligently on all the hearings. If the litigant does not appear in the court and leaves the case at the mercy of his counsel without caring as to what different frivolous pleas/defences being taken by his counsel for adjournments is bound to suffer. If the litigant does not turn up to obtain the copies of judgment and orders of the court so as to find out what orders are passed by the court is liable to bear the consequences.”

10. Though the petitioner has claimed that he was not aware of the limitation aspect, but ignorance of law cannot be considered a valid reason for condonation of delay. In fact special limitation period for appeal is prescribed in the Consumer Protection Act, 1986 for speedy disposal of consumer disputes as observed 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.”

11. 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 cas

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e as explained hereinabove, we are not inclined to entertain these petitions. The same are dismissed on the ground of delay.” 12. In R.B. Ramlingam Vs. R.B. Bhavaneshwari, 2009 (2) Scale 108, Hon’ble Supreme Court has 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”. 13. The above judgments are fully applicable in the present case and negligence, deliberate inaction and lack of bonafides are imputable to the appellants in filing the appeal before the State Commission. Clearly, the petitioners have not shown reasonable diligence in prosecution of their appeal before the State Commission. As examined, the reason given in the application for condonation of delay is not convincing and sufficient cause has not been shown by the petitioners for delay in filing the appeal before the State Commission. Accordingly, the State Commission has rightly dismissed application for condonation of delay and consequently the appeal. 14. Based on the above discussion, I do not find merit in the revision petition filed by the petitioners and no interference is called for from this Commission. Consequently, the revision petition No.1162 of 2017 is dismissed.