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Tirupati Construction Through its Attorney: Chetan Kehsavlal v/s S.G. Kumar

    First Appeal No. 129 of 2014 Along with (I.A.No. 1200 of 2014 (for Stay) (I.A.No. 1201 of 2014 for Condonation of Delay)

    Decided On, 01 July 2014

    At, National Consumer Disputes Redressal Commission NCDRC

    By, MEMBER

    For the Appellant: Prasouk Jain, Udit Gupta, Advocates. For the Respondent: -----

Judgment Text

V.B. Gupta, Presiding Member

Being aggrieved by the impugned order dated 16.08.2013, passed by State Consumer Disputes Redressal Commission, Maharashtra, Mumbai (for short, ‘State Commission’), appellant has filed the present appeal.

2. Brief facts are that Respondent/Complainantapproached the Appellant/Opposite Party for booking a flat. After going through the brochure, respondent booked a flat bearing No.602 on 6th floor, block no.13, D/wing, admeasuring 990 sq.ft. @ Rs.2,080/- per sq. ft. Thereafter, respondent made payment of part consideration of Rs.2 lacs by cheque for which appellant issued receipt dated 15/03/2008, confirming and acknowledging the payment. It is stated that even after accepting the amount of Rs.2 lacs, the appellant has not executed the agreement to sale in the name of the respondent under the provisions of The Maharashtra Ownership Flats (Regulation of the Promotion, Construction, Sale, Management and Transfer) Act, 1963 ('The MOFA' for short). Even after a period of 18 months, appellant has neither constructed the building nor taken any steps.

3. It is further stated by the respondent that appellant has never demanded further payments while he is ready and willing to pay the balance amount of consideration towards the said flat as agreed between the parties. As per the MOFA, executing the written agreement is the responsibility of the appellant. Thus, appellant has contravened the provisions of the MOFA. The cause of action has arisen in the year 2008. Since, appellant has not handed over the possession, it is a continuous cause of action. Alleging not handing over the possession and not executing the agreement to sale, amount to deficiency in service on the part of the appellant, the complainant filed a consumer complaint before the State Commission with following prayers;

a) To hold and declare the opposite party to be guilty of deficiency of service as per the provisions of the Consumer Protection Act, 1986.

b) To direct the opposite party to execute an agreement for sale in respect of the flat being no.602 on 6th floor, block no.13, d-wing admeasuring 990 sq. ft. in the proposed scheme namely ‘Balaji Complex’ at near Sigrun Kingdom, purapada, Polinji Naka, Aghashi Road, Virar (W),Thane within the stipulated time period framed by this Hon’ble Commission and further to hand over the peaceful and vacant possession of the same after receiving the balance consideration towards the said flat at the agreed rate of `2,080/- per sq.ft.

Or in the alternative

To direct the opposite party to re-compensate the complainant the Market value of the said flat at the current market value prevailing in the same area from the date of the order passed in the above numbered complaint.

Or in the alternative

To direct the opponent party to provide the complainant a flat admeasuring 990 sq.ft. in the same vicinity.

c) Pending the hearing and final disposal of this complaint this Hon’ble Commission be pleased to restrain the Opposite party by an order and decree directing the opposite party for not to create any third right, title and interest in flats being flat no.602 on 6th floor, block no.13, d-wing admeasuring 990 sq.ft. in the proposed scheme namely ‘Balaji Complex’ at near Sigrun Kingdom, purapad, Polinji Naka, Aghashi Road, Virar (W), Thane in terms of the interim application.

d) For interim reliefs in terms of prayer clause (c) above.

e) To direct the opposite party to complete the incomplete work and obtain the occupation certificate from the competent authority and to form and register Co-operative Housing Society, Limited Company or Condominium of Apartments, as the case may be, and execute the Deed of Conveyance in favour of the said organization.

f) To direct the opposite party to pay to the complainant the sum of 5,00,000/-(Rupess Five Lakhs only) towards the compensation for the inconvenience, mental agony and harassment caused to the complainant.

g) To direct the opposite party to pay to the complainant the sum of `50,000/- (Rupees Fifty Thousand only) being the legal and other incidental expenses incurred by the complainant.

h) Any further order as this Hon’ble Commission deed fit and proper.

4. State Commission admitted the complaint after hearing the respondent on 14.1.2013 and notice after admission was sent to the appellant. As per the impugned order, the notice was duly served upon the appellant. However, the appellant remained absent and under these circumstances, complaint of the respondent was proceeded in the absence of the written versions of the appellant.

5. Thereafter, State Commission, vide impugned order partly allowed the complaint and passed the following directions;

'The opponent is directed to hand over possession of the flat no.602 on 6th floor, block no.13,D/wing, admeasuring 990 sq.ft. in the proposed scheme namely ‘Balaji Complex’ at near Sigrun Kingdom, purapada, Polinji Naka, Aghashi Road, Virar (W), Thane to the complainant after payment of balance amount of consideration by the complainant within a period of 2 months from the date of this order'.

6. Being aggrieved by the order of the state Commission, appellant has filed the present appeal.

7. Along with it, an application seeking condonation of delay of 148 days has been filed.

8. We have heard learned counsel for the appellant on the application for condonation of delay.

9. The main plea of the appellant’s counsel is that since the appellant was already contesting a connected matter filed by the same complainant with respect to the Flat No.601 before the State Commission in (Complaint Case No.CC/12/273), hence, there was no reason for the appellant not to contest the present case pertaining to Flat No.602 when the identical facts are involved. Learned counsel for appellant on the ground of condonation of delay, has placed reliance upon the following judgments;

(i). B. Madhuri Goud Vs. B. Damodar Reddy (2012)12 SC 693;

(ii) B.T.Purshothama Rai Vs. K.G. Utyaya and Ors. (2011) 14 SCC 86;

(iii) Indian Oil Corporation Ltd. & Ors. Vs. Subrata Borah Chowlek (2010) 14, SCC 419;

(iv) State of Nagaland Vs. Lipok AO & Ors. (2005) 3 SCC 752;

(v) N. BalakrishnanVs. M. Krishnamurthy (1998) 7 SCC 123;

(vi) Collector Land Acquisition, Anantnag & Anr. Vs. Mst. Ktiji & Ors. 1987(2) SCC 107;

(vii) Rafiq & Anr. Vs Munshilal & Anr. (1981) 2 SCC 788 and

(viii) Chilukuri Adarsh Vs. M/s Ess Ess Vee Constructions 2012(3) CPR 104(NC) III(2012)CPJ 315 (NC)

10. The grounds on which condonation of delay have been sought read as under;

'4. That the Respondent filed the complaint no. CC/12/273 and CC/12/272 for Flat No. 601 and 602 respectively in the Hon’ble State Commission on 25.10.2012. That the Appellant received notice with respect Flat No.601 in CC/12/273 and has been diligently representing the said case before the State Commission.

5. That sometime in the month of September-October the Appellant received a notice dated 05.09.2013 from the Counsel of the Respondent informing the Appellant about the impugned judgment dated 16.08.2013 in CC/12/272 w.r.t.Flat No.602. The appellant was shocked with the said news as it was not even aware of any proceedings pertaining to the said case. That it is pertinent to mention that even though the said notice claimed to have come with a copy of the judgment the same was not attached with the notice. Therefore the Complainant contacted its counsel who immediately applied for a certified copy of the judgment. The Registry of the State Commission on 31.10.2013 prepared the certified copy of the said judgment.

6. That on a perusal of the judgment the Appellant was shocked that the State Commission had recorded that the Appellant was duly served in the matter and therefore it was expedient to apply for a complete set of the paper-book. The counsel for the appellant was instructed to apply for the paper-book in CC/12/272 accordingly.

7. That the complete set of the paper book was prepared by the Registry on 07.12.2013 and was collected by the Appellant shortly thereafter. The photo copy of the same was sent to the present counsel of the Appellant. However since the counsel of the Appellant was not available for any comments since he had gotten married in December and was not in the country and resumed office from the first week of January.

8. The counsel of the Appellant informed the Appellant that the copies sent were dull/cut and incomplete and therefore sought the entire certified copy of the proceedings before the State Commission be sent to him as legible copies of the same are required to be filed along with the appeal.

9. The appellant sent the same and accordingly the counsel for the Appellant prepared the draft appeal and sent the same along with the draft applications and affidavits to be vetted, signed and Notarized by the Appellants.

10. The said process took some because the attorney of the Appellant was not keeping well. However the same was sent by the Appellants to the counsels in Delhi as soon as possible.

11. That the appellant has a good defence on the merits of the case and procedural law should not be permitted to take away the substantive right of the appellant to defend the case on merits, especially when the Respondent has approached the State Commission with unclean hands'.

11. It is appellant’s own case, that it had received notice dated 05.09.2013 from the counsel for the respondent intimating the appellant about the order passed in the present case(CC/12/272).Admittedly, knowledge had come to the appellant about passing of the exparte order in this case, as earlier as on 05.09.2013. However, there is no explanation as to why the present appeal was filed only on 21.2.2014, that is, after a period of more than 4 months.

12. Interestingly, appellant in the present appeal has nowhere pleaded that it did not receive any notice from the State Commission. Thus, silence on the part of the appellant amounts to admission with regard to the service of the notice from the State Commission.

13. It is well settled that ‘sufficient cause’ with regard to condonation of delay in each case, is a question of fact.

14. InRam Lal and Ors. Vs. Rewa Coalfields Ltd., AIR 1962 Supreme Court 361, the Court observed;

'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 whether 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'.

15. In 'R.B. Ramlingam Vs. R.B. Bhavaneshwari, 2009 (2) Scale 108', Apex 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'.

16. Similarly,in Oriental Insurance Co. Ltd. vs. Kailash Devi & Ors. AIR 1994 Punjab and Haryana 45, it has been laid down that;

'There is no denying the fact that the expression sufficient cause should normally be construed liberally so as to advance substantial justice but that would be in a case where no negligence or inaction or want of bona fide is imputable to the applicant. The discretion to condone the delay is to be exercised judicially i.e. one of is not to be swayed by sympathy or benevolence'.

17. Apex Courtin 'Anshul Aggarwal vs. New Okhla Industrial Development Authority, IV (2011) CPJ 63 (SC)' laid down that;

'It is also apposite to observe that while deciding an

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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'. 18. Thus, ex-facie gross negligence, deliberate inaction and lack of bonafides are imputable to the appellant. Under the circumstances, no grounds whatsoever are made out for condoning the long delay of 148 days. 19. Moreover, observations made by the Hon’ble Apex Court in the authoritative pronouncements discussed above, are fully attracted to the facts and circumstances of the case. 20. However, none of the judgments cited by learned counsel for the appellant are applicable to the facts of the present case. 21. It appears that the only intention of the appellant is just to deprive the respondent/ complainant the fruits of the award passed by the State Commission. 22. Accordingly, we do not find any sufficient ground to condone the long delay of 148 days and dismiss the application for condonation of delay. Consequently,the present appeal stand dismissed being barred by limitation. 23. No order as to cost.