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Neptune Venture & Developers (P) Ltd. v/s Shailesh Tripathi

Company & Directors' Information:- NEPTUNE DEVELOPERS LIMITED [Active] CIN = U70102MH2004PLC147510

Company & Directors' Information:- NEPTUNE (INDIA) LIMITED [Active] CIN = U51909DL1990PLC042022

Company & Directors' Information:- B B VENTURE PRIVATE LIMITED [Active] CIN = U52209CT2008PTC020645

Company & Directors' Information:- N M TRIPATHI PVT LTD [Active] CIN = U22120MH1943PTC003900

Company & Directors' Information:- S A R VENTURE PRIVATE LIMITED [Active] CIN = U70102DL2015PTC275704

Company & Directors' Information:- SHAILESH DEVELOPERS PRIVATE LIMITED [Active] CIN = U70100UP2013PTC061521

Company & Directors' Information:- N J VENTURE PRIVATE LIMITED [Strike Off] CIN = U70101MH2008PTC186387

    First Appeal No. 782 of 2015

    Decided On, 09 May 2017

    At, National Consumer Disputes Redressal Commission NCDRC

    By, MEMBER

    For the Appellant: Anand Patwardhan, B.S. Sharma, Advocates. For the Respondents: Ashwin R. Singh, Shashank A. Singh, Advocates.

Judgment Text

Dr. B.C. Gupta, Member

This first appeal has been filed under section 19 read with section 21(a)(ii) of the Consumer Protection Act, 1986 against the impugned orders dated 30.06.2015 and 02.07.2015, passed by the Maharashtra State Consumer Disputes Redressal Commission (hereinafter referred to as ‘the State Commission’) in Consumer Complaint No. 15/273, filed by the present respondent, vide which, the right to file written version of the appellant/Opposite Party (OP) to the consumer complaint was closed. The present respondent/complainant Shailesh Tripathi filed a consumer complaint against the appellants/OPs alleging that the OPs, were deficient in service towards him, as they failed to provide residential premises to the complainant in accordance with the terms and conditions agreed between the parties. The State Commission passed the following order on 30.06.2015 as follows:-

'Advocate Shashank Singh is present for the complainant with authority letter. Advocate Avinash Bamane is present for the opponent. He files vakalatnama. Taken on record. The opponent has not filed written version although last chance was granted. Matter is now adjourned to 02/07/2015 for passing suitable order'

Further, the State Commission passed another order on 02.07.2015 as below:-

'None present for the complainant. None present for the opponent. Opponent failed to file written version in spite of several opportunities. Today, case is fixed for passing suitable orders. Complaint to proceed without written version of the opponent. Matter stands adjourned to 19/10/2015 for filing affidavit of evidence by the complainant as per provisions of Section 13(2)(b)(ii) read with Section 13(4) of Consumer Protection Act, 1986.'

2. During arguments before us, it was contended by the learned counsel for appellant that notice of the consumer complaint had been issued by the State Commission on 12.05.2015 under section 13(1)(a) of the Consumer Protection Act, 1986 which was received by the appellant on 18.05.2015. As per the notice, the written version was to be filed by 12.06.2015. However, the appellant appeared before the State Commission on 12.06.2015 and sought some further time to file the written version. The State Commission granted them time to file the written version by 30.06.2015, the date by which a period of 45 days was to expire. On the said date, i.e., 30.06.2015, an Advocate for the appellant / OP was present before the State Commission and he also filed his vakalatnama before the Commission which was taken on record. According to the learned counsel, the written version of the appellant was ready on that date, but the same was to be affirmed before the Registrar of the State Commission and then filed before the said Commission. However, the Registrar was not present on his seat on that date and hence, the appellant rushed to a notary public to get the same notarised. When the above facts were brought to the notice of the State Commission, they were asked to file the written version without the same being notarised. However, when the representative of the appellant Sachin Deshmukh reached the State Commission, the matter had already been adjourned for 02.07.2015. On that day as well, the State Commission passed their order without taking the written version on record. None of the parties was present before the State Commission when the said order was made. Learned counsel requested that the State Commission should be directed to take the written version on record for proper adjudication of the case, because there was no intentional delay on their part.

3. Learned counsel for the respondent, however, stated that the present appeal was barred by limitation as there was a delay of about 40 days in filing the same. Even an application for condonation of delay in filing the appeal had been filed after a period of almost one year of the appeal having been filed. The appeal should, therefore, be ordered to be dismissed and the order passed by the State Commission upheld.

4. We have examined the entire material on record and given a thoughtful consideration to the arguments advanced before us.

5. In so far as the delay in filing the appeal is concerned, the appellant has explained that they received copies of the impugned orders on 20.07.2015. However, their Advocate suggested to them that the said order could be challenged before this Commission by way of revision petition only. Since the time permitted for filing the revision petition is 90 days, they became late in filing the appeal in question due to that erroneous impression. Since there was no intentional delay in filing the present appeal, the delay should be condoned. Considering the averments made by the learned counsel for the appellant, there does not seem to be any intentional delay in filing the appeal, as according to the appellant, they were under the wrong impression that a revision petition was to be filed against the impugned order for which the period of limitation is 90 days and not 30 days. The delay in filing the present appeal is ordered to be condoned, therefore.

6. Now, coming to the merits, it is admitted case of the parties that extension in time for filing the written version was granted to the appellant till 30.06.2015. It is clear from record that the written version could not be filed by that date on some pretext or the other. It is to be seen, therefore, whether a further time can be granted to the appellant to file the written version at this stage. The issue has been examined by the Hon’ble Supreme Court in various cases decided from time to time. In their order passed on 04.12.2015 in 'New India Assurance Co. Ltd. Vs. Hilli Multi Purpose Cold Storage Pvt. Ltd.' [Civil Appeal No.10941-10942 decided on 4.12.15], the Hon’ble Supreme Court directed that extension of time beyond 45 days could not be granted. However, vide order dated 11.02.2016 in the case of 'M/s. Bhasin Infotech and Infrastructure Pvt. Ltd. vs M/s. Venezia Buyers Association (Regd.) [Civil Appeal No. 1083-84 of 2016]' the matter has been referred to a larger Bench of the Hon’ble Supreme Court. In the meantime, the Hon’ble Supreme Court has passed another order dated 10.02.2017 in 'Reliance General Insurance Co. Ltd. & Anr. vs. M/s Mampee Timbers & Hardwares Pvt. ltd. & Anr. [Civil Appeal D. No. 2365 of 2017 decided 10.02.2017]', in which, it has been stated as follows:-

'We consider it appropriate to direct that pending decision of the larger bench, it will be open to the concerned Fora to accept the written statement filed beyond the stipulated time of 45 days in an appropriate case, on suitable terms, including the payment of costs, and to proceed with the matter.'

7. Considering the overall facts and

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circumstances of the case and the version given by the appellant that they were ready with the written version by 30.06.2015, we consider it appropriate that the appellant should be allowed to file their written version before the State Commission within a further period of two weeks from today. This shall, however, be subject to payment of cost of Rs.25,000/- payable to the complainant before filing the written version. The State Commission shall take the written statement on record and direct the complainant to file rejoinder, if any and then proceed further in accordance with law. The present appeal is, therefore, allowed and the orders dated 30.06.2015 and 02.07.2015 passed by the State Commission are set aside. There shall be no order as to costs.