State Consumer Disputes Redressal CommissionM/S Chandigarh Overseas Private ... vs Bodh Raj Khattar on 1 May, 2015Daily Order 	   

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

 

U.T., CHANDIGARH

 
	 
		 
			 
			 

First Appeal No.
			
			 
			 

:
			
			 
			 

98 of 2015
			
		
		 
			 
			 

Date of Institution
			
			 
			 

:
			
			 
			 

29.04.2015
			
		
		 
			 
			 

Date of Decision
			
			 
			 

:
			
			 
			 

01.05.2015
			
		
	


 

 

 
	 M/s Chandigarh Overseas Private Limited, Head    Office at SCO No.196-  917, Top Floor, Sector 34-     A,       Chandigarh, 160047, through its Chairman.
	 M/s Chandigarh Overseas Private Limited, 1005,   10th Floor, Antriksh Bhawan, Kasturba Gandhi      Marg, Connaught Palace, New Delhi 110001,      through its Authorized Signatory
	 M/s Greenfield Sites Management Private Limited,       SCO  No. 196-197,   Sector 34-A, Top Floor,    Chandigarh  -160032, through its Director.


 

......Appellants/Opposite Parties

 V e r s u s

 

Bodh Raj Khattar son of Sh. Narain Dass Khattar, resident of C-410, First Floor, Vikas Puri, New Delhi-110018.

 

              ....Respondent/Complainant

 

 

 

Appeal underSection 15of the Consumer Protection Act, 1986.

 

 

 

BEFORE: JUSTICE SHAM SUNDER (RETD.), PRESIDENT.

 

                MR. DEV RAJ, MEMBER.MRS. PADMA PANDEY, MEMBER

 

 

 

Argued by:Sh. Surjeet Bhadu, Advocate for the applicants/                   appellants.PER JUSTICE SHAM SUNDER (RETD.), PRESIDENT

 

            This appeal is directed against the order dated 28.10.2013, rendered by the District Consumer Disputes Redressal Forum-I, U.T., Chandigarh (hereinafter to be called as the District Forum only), vide which, it accepted the complaint, filed by the complainant (now respondent), and directed Opposite Parties No.1 and 2 (now appellants No. 1 and 2), as under:-"In view of the foregoings, we are of the opinion that the complaint must succeed.  The same is accordingly allowed against OPs No.1 & 2.  The OPs No.1 & 2 are jointly & severally directed as under:-i)      To refund the amount Rs.9.50 lacs to the complainant along with interest @9% p.a. from the date of respective deposits till realization.ii)     To make payment of an amount of Rs.6250/- per month w.e.f. 19th January, 2010 (less the amount, if any, already received for the delay in starting the construction) till the actual date of payment as compensation along with interest @9% p.a. till payment.iii)    To make payment of an amount of Rs.50,000/- to the complainants towards compensation for mental agony and harassment.iv)     To make payment of an amount of Rs.5,000/- to the complainants towards costs of litigation.This order shall be complied with by OPs No.1 and 2 within one month from the date of receipt of its certified copy, failing which, they shall be liable to pay interest @12% p.a. instead of 9% p.a. on the amounts mentioned at S.No.(i) & (ii) of the para aforesaid till its realization, besides paying compensation amount as well as costs of litigation, as mentioned above.However, the complaint qua OP NO.3 stands dismissed".The facts, in brief, are that the complainant, purchased one design Studio No.16, with super built-up area 125 square feet, 5th  Floor, Block A-2, in the project of the Opposite Parties, under the name and style of  Industrial Knowledge Fashion Technology Park, Sector 90, Mohali. The total cost of the said unit was Rs.10 lacs. The complainant deposited a total sum of Rs.9,50,000/-, vide receipts Annexure C-4 to C-7, in respect of part price of the said unit. Thereafter, on 15.01.2007, Developer Buyer Agreement Annexure C-2 and Lease Agreement Annexure C-3, in respect of the said unit, were executed between the parties. It was stated that vide letter dated 22.06.2009 Annexure C-8, the Opposite Parties had offered buyback offer @Rs.7.50 lacs, per unit, to the complainant, intimation whereof was required to be sent to them (Opposite Parties), within 30 months, from the date of start of construction of the project i.e. latest by 18.01.2010. It was further stated that, as such, the complainant availed of the said buy-back offer of the said design studio @Rs.7.50 lacs. It was further stated that despite the assurance having been given by the Opposite Parties, that the amount of buy-back option would be paid to the complainant, by 30.06.2010, nothing was paid to him.It was further stated that even the construction of project which was to be completed by 18.01.2010, as was intimated, by the Opposite Parties, vide letter dated 22.06.2009 Annexure C-8, was nowhere near completion, by the said date. It was further stated that the complainant was falsely assured by the Opposite Parties, that in view of the buy-back option given by them, he would be given an amount of Rs.7.50 lacs, for the unit, referred to above, but nothing was paid to him (complainant). It was further stated that even the cheque, in the sum of Rs.24,194/- towards compensation, for the period from 19.01.2010 to 31.03.2010, handed over by Opposite Party No.3, to the complainant, when deposited in the Bank concerned for encashment thereof, had been dishonoured, which fact was intimated to the Opposite Parties, vide letter dated 22.06.2010, Annexure C-13. It was further stated that the complainant approached the Opposite Parties, a number of times, and made requests for redressal of his grievance, but to no avail.It was further stated that the aforesaid acts of the Opposite Parties, amounted to deficiency, in rendering service, as also indulgence into unfair trade practice. When the grievance of the complainant, was not redressed, left with no alternative, a complaint underSection 12of the Consumer Protection Act, 1986 (hereinafter to be called as the Act only), was filed, directing the Opposite Parties, to refund Rs.15 lacs; pay amount of compensation for delay in construction, @24% P.A.; amount of Rs.15,000/-, on account of cheque which  bounced; compensation, to the tune of Rs.3 lacs, towards damages, mental agony and physical harassment; and cost of litigation, to the tune of Rs.1,30,000/-.Opposite Parties No.1 and 2, in their joint written version, pleaded that the complainant did not fall within the definition of a consumer, as he had booked the unit, in question, in their (Opposite Parties No.1 and 2) project, for the purpose of investment, with a view to sell the same, to gain huge profits, as and when there was escalation in the prices of real estate.  It was admitted that the complainant paid an amount of Rs.9.50 lacs, towards part price of the unit, in question. Execution of Developer Buyer Agreement Annexure C-2 and Lease Agreement Annexure C-3, between the parties, in respect of the said unit, was also admitted. It was stated that possession of the unit, in question, had been delayed due to certain reasons, beyond the control of Opposite Parties No.1 and 2. It was further stated that Opposite Parties No.1 and 2 had every intention of delivering the unit to the complainant, as well as to comply with the buyback offer, as agreed to between the parties. It was further stated that Opposite Parties No.1 and 2, were focusing on completing the construction of project, at the earliest. It was further stated that neither there was any deficiency, in rendering service, on the part of Opposite Parties No.1 and 2, nor they indulged into unfair trade practice. The remaining averments, were denied, being wrong.Opposite Party No.3, in its written version pleaded that the complainant did not fall within the definition of a consumer, as he had booked the unit, in question, in the said project, for the purpose of investment, with a view to sell the same, to gain huge profits, as and when there was escalation in the prices of real estate. It was stated that the complainant booked the unit and made payment to Opposite Party No.1 and 2 only. Execution of Lease Agreement, between the parties, in respect of the said unit, was admitted. It was further stated that the said Lease Agreement, was to come into operation only after the delivery of possession of the industrial unit, in favour of the complainant by Opposite Parties No.1 and 2. It was further stated that Opposite Party No.3 neither had any role in the allotment of industrial unit, to the complainant, nor had received any payment, from him (complainant). It was further stated that the buy-back option was to be honoured, when the complainant was to get possession of the said unit. It was further stated that neither there was any deficiency, in rendering service, on the part of Opposite Party No.3, nor it indulged into unfair trade practice. The remaining averments, were denied, being wrong.The parties led evidence, in support of their case.After hearing the Counsel for the parties, and, on going through the evidence, and record of the case, the District Forum, accepted the complaint, in the manner, referred to, in the opening para of the instant order.Feeling aggrieved, the instant appeal, has been filed by the appellants/Opposite Parties.Alongwith the appeal, an application underSection 5of the Limitation Act, for condonation of delay of  518  days, as per the applicants/appellants (as per the office report  515 days), was filed by them (applicants/appellants). It was stated, in the application,  for condonation of delay that, no doubt, the Opposite Parties/applicants/appellants, put in appearance in the consumer complaint, through their Counsel, till the final arguments were heard in the same and it (consumer complaint) was reserved for orders. It was further stated that the Counsel concerned, presumed that the Opposite Parties/ applicants/appellants, would receive certified copy of the order impugned directly, and, as such, did not follow the matter. It was further stated that, however, passing of the order impugned, came to the notice of the applicants/appellants, from their Counsel, when Execution Application/Criminal Petition, was filed by the Decree Holder/complainant. It was further stated that, as such, thereafter, certified copy of the order impugned was obtained from the District Forum.  It was further stated that not only this, wrong address, had been furnished by the complainant, in the consumer complaint. It was further stated that the Opposite Parties had ceased operating their business, at the address given by the complainant, in the consumer complaint, as they had vacated the premises, in pursuance of the ejectment order dated 21.10.2013 Annexure A-3, passed by the Hon'ble Court of Ms.Dazy Bangarh PCS, Rent Controller,  Chandigarh, in Rent Petition No.84 of 2012. It was further stated that on account of the aforesaid reason, the applicants/ appellants, were not aware of passing of the order impugned by the District Forum, as they did not receive  certified copy of the same. It was further stated that, thereafter, certified copy of the order impugned was obtained on 13.04.2015, from the District Forum, and the instant appeal was filed, by the applicants/ appellants. It was further stated that, on account of the reasons, referred to above, there was delay, in filing the appeal. It was further stated that delay, in filing the appeal, was neither intentional, nor deliberate. Accordingly, the prayer, referred to above, was made.We have heard the Counsel for the applicants/appellants, on the application, for condonation of delay, as also, in the main appeal, at the preliminary stage, and have gone through the record of the case, carefully.The first question, that falls for consideration, is, as to whether, there is sufficient cause for condonation of delay of  518  days, as per the applicants/appellants (as per the office report  515 days), in filing the appeal, underSection 15of the Act or not. It was held inSmt.Tara Wanti Vs State of Haryanathrough the Collector, Kurukshetra AIR 1995 Punjab & Haryana 32, a case decided by a Full Bench of the  Punjab and  Haryana High Court,  that sufficient cause, within the meaning ofSection 5of the Limitation Act, must be a cause, which is beyond the control of the party, invoking the aid of the Section, and the test to be applied, would be to see, as to whether, it was a bonafide cause, in as much as, nothing could be considered to be bonafide, which is not done, with due care and attention. In   New Bank of India Vs. M/s Marvels (India): 93 (2001) DLT 558, Delhi High Court,  it was held as under:-"No doubt the words "sufficient cause" should receive liberal construction so as to advance substantial justice. However, when it is found that the applicants were most negligent in defending the case and their non-action and want of bonafides are clearly imputable, the Court would not help such a party. After all "sufficient cause" is an elastic expression for which no hard and fast guide-lines can be given and Court has to decide on the facts of each case as to whether, the defendant who has suffered ex-parte decree has been able to satisfactorily show sufficient cause for non- appearance and in examining this aspect, cumulative effect of all the relevant factors is to be seen."InOriental Insurance Co. Ltd. vs. Kailash Devi & Ors.AIR 19107 Punjab and Haryana 45, it was held as under:-"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 bonafides is imputable to the applicant. The discretion to condone the delay is to be exercised judicially i.e. one is not to be swayed by sympathy or benevolence.InR.B. Ramalingam Vs. R.B. Bhuvaneswari, 2009 (2) Scale 108, the Supreme Court observed as under:-"We hold that in each and every case the Court has to examine whether delay in filing the Special 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".InBalwant Singh Vs. Jagdish Singh and Ors, V (2010) SLT 790=III (2010) CLT 201 (SC), it was held as under:-"The party should show that besides acting bona fide, it had taken all possible steps within its  power and control and had approached the Court without any unnecessary delay. The test is whether or not a cause is sufficient to see whether it could have been avoided by the party by the exercise of due care and attention. [Advanced Law Lexicon, P. Ramanatha Aiyar, 3rd Edition, 2005]"InMahant Bikram Dass Chela Vs. Financial Commissioner and others, AIR 1977, S.C. 2221, it was held as under:-"Section 5of the Limitation Act is a hard task-master and judicial interpretation has encased it within a narrow compass. A large measure of case-law has grown aroundSection 5, its highlights being that one ought not easily to take away a right which has accrued to a party by lapse of time and that therefore a litigation who is not vigilant about his rights must explain every days delay"In  Ansul Aggarwal Vs. New Okhla Industrial Development Authority, 2012 (2)CPC3 (SC) it was held 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 theConsumer 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"A bare reading of the first proviso, engrafted toSection 15of the Act, makes it clear, that the material part of the language thereof, is pari-materia toSection 5of the Limitation Act, 1963. The first plea taken by the applicants/appellants, in the application was to the effect that the Counsel concerned who appeared before the District Forum, till final arguments, in the consumer complaint, presumed that they (Opposite Parties/applicants/appellants), would receive certified copy of the order impugned directly, and, as such, did not follow the matter, but, later on, he (Counsel) apprised them (applicants/appellants), that the order impugned had already been passed by it (District Forum) on 28.10.2013 and Execution Application/Criminal Petition, had also been filed by the Decree Holder/complainant, on account of non-compliance thereof (order impugned). The second plea which was taken by the applicants/appellants is that certified copy of the order impugned was not received by them, on account of the reason that wrong address had been furnished by the complainant, in the District Forum.Coming to the first plea of the applicants/appellants, it may be stated here, that it is evident from the District Forum record that Mr.Ashish Naik, Advocate, who was appearing in the consumer complaint throughout, on behalf of Opposite Parties No.1 and 2, received certified copy of the order impugned, on 30.10.2013, by hand. Under these circumstances, the averment, contained in the application, to the effect that certified copy of the order impugned was not received by the applicants/ appellants, being devoid of merit, is rejected. Now coming to the second plea of the applicants/appellants, to the effect that on account of wrong address having been mentioned by the complainant, in the complaint, certified copy of the order was not received by them, it may be stated here, that once the Counsel for the Opposite Parties had appeared in the consumer complaint and defended the same till the stage of final arguments, and also certified copy of the order impugned had been received by Mr.Ashish Naik, Advocate, who was appearing in the same (consumer complaint) throughout,  on behalf of Opposite Parties No.1 and 2, on 30.10.2013, by hand, their (applicants/appellants) plea in this regard, has no legs to stand. Otherwise also, the applicants/ appellants/ Opposite Parties, failed to produce, on record, any document, in order to establish that the address furnished by the complainant, in the consumer complaint, was incorrect or incomplete. There is nothing, on record, that if the address of Opposite Parties No.1 and 2 was wrong, the Counsel appearing on their behalf moved any application, furnishing the correct address. The applicants/ appellants, failed to produce, on record, even a single reliable document to convince this Commission, as to why they took 518  days, in filing the appeal. Thus, it appears that the applicants/appellants, acted only after filing of Execution Application/Criminal Petition, underSection 27of the Act, by the Decree Holder/complainant.It may be stated here, that it was the bounden duty of the concerned Official(s) of the applicants/ appellants, to take decision, within maximum two to three days, on receipt of certified copy of the order impugned, from the Counsel concerned, for filing the appeal. Why it took  518  days, as per the applicants/appellants (as per the office report  515 days), in filing the appeal, is not known. Thus, in our considered opinion, no sufficient cause is made out, from the averments, contained in the application, for condoning the delay. It appears that after coming to know of the impugned order, the concerned Officials of the applicants/appellants,  slept over the matter, and, ultimately, they woke up from their deep slumber, after 518 days, as per the applicants/ appellants (as per the office report  515 days), when the instant appeal was filed.It could be said that the Officials of the applicants/appellants, were not diligent, in pursuing the matter. The prescribed period of limitation, as envisaged bySection 15of the Act, for filing an appeal is 30 days, from the date of receipt of a certified copy of the order.  The applicants/appellants did not act, with due diligence, resulting into delay of  518  days, as per the applicants/appellants (as per the office report  515 days), in filing the appeal, which is more than seventeen months, beyond the prescribed period of limitation. The cause set up by the applicants/ appellants, in the application, for condonation of delay, could not be said to be plausible. On the other hand, it could be said to be a concocted one. The mere fact that the Officials of the applicants/appellants, acted in a leisure mood, without envisaging the consequences, which could ensue, on account of non-filing of an appeal, within the period prescribed, underSection 15of the Act, does not mean that the applicants/  appellants could be shown undue indulgence. The delay, in filing the appeal was, thus, intentional, wilful and deliberate. Since, no sufficient cause is constituted, from the averments, contained in the application, the delay of  518  days, as per the applicants/appellants (as per the office report  515 days), cannot be condoned. The principle of law, laid down, in the aforesaid cases, is fully applicable to the facts of the instant case. The application is, thus, liable to be dismissed.The next question, that arises, for consideration, is, as to whether, even if, sufficient cause is shown, it is obligatory, on the Commission, to condone the delay. The answer to this question, is in the negative. In   Ram Lal and Ors. Vs. Rewa Coalfields Ltd., AIR 1962 Supreme Court 361, it was  held as under:-"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 byS.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."It is evident, from the principle of law, laid down in  Ram Lal & Ors.'s case (supra), that even 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, requires the Commission, to take into  consideration, all the  relevant  factors, and it is, at this stage, that diligence of the party(s) or its/their bonafides, may fall for consideration. In the instant case, as stated above, it was obligatory, on the part of the applicants/ appellants, to take immediate steps to ensure that the appeal was filed within the prescribed period, as envisaged bySection 15of the Act. However, the Officials of the applicants/appellants, just slept over the matter, and did not take the requisite steps to file the appeal, in time.  It was, thus, a case of complete lack of bonafides and inaction, on the part of the applicants/appellants.  The principle of law, laid down in  Ram Lal & Others' case  (supra) is fully applicable to the instant case. This is, therefore, not a fit case, in which this Commission, should exercise its discretion, in favour of the applicants/appellants, in condoning the delay.The next question, that arises for consideration, is, as to whether, this Commission can decide the appeal, on merits, especially, when it has come to the conclusion, that there is no sufficient cause, for condonation of delay of  518  days, as per the applicants/appellants (as per the office report  515 days), in filing the same (appeal).  The answer to this question, is in the negative, as provided by the Apex Court inState Bank of India Vs B.S. Agricultural Industries (I) II(2009) CPJ 29 (SC). The question before the Apex Court, was with regard to the condonation of delay, in filing the complaint, in the first instance, beyond the period of two years, as envisaged bySection 24Aof the Act. The Apex Court was pleased to observe as under ;"Section 24Aof the Act, 1986 prescribes limitation period for admission of a complaint by the Consumer Fora thus:"24A. Limitation period--(1) The District Forum, the State Commission or the National Commission shall not admit a complaint unless it is filed within two years from the date on which the cause of action has arisen.(2) Notwithstanding anything contained in Sub-section (1), a complaint may be entertained after the period specified in Sub-section (1), if the complainant satisfies the District Forum, the State Commission or the National Commission, as the case may be, that he had sufficient cause for not filing the complaint within such period:Provided that no such complaint shall be entertained unless the National Commission, the State Commission or the District Forum, as the case may be, records its reasons for condoning such delay."It would be seen from the aforesaid provision that it is peremptory in nature and requires Consumer Forum to see before it admits the complaint that it has been filed within two years from the date of accrual of cause of action. The Consumer Forum, however, for the reasons to be recorded in writing may condone the delay in filing the complaint if sufficient cause is shown. The expression, 'shall not admit a complaint' occurring in Section 24A is sort of a legislative command to the Consumer Forum to examine on its own whether the complaint has been filed within limitation period prescribed thereunder. As a matter of law, the Consumer Forum must deal with the complaint on merits only if the complaint has been filed within two years from the date of accrual of cause of action and if beyond the said period, the sufficient cause has been shown and delay condoned for the reasons recorded in writing. In other words, it is the duty of the Consumer Forum to take notice of Section 24A and give effect to it. If the complaint is barred by time and yet, the Consumer Forum decides the complaint on merits, the Forum would be committing an illegality and, therefore, the aggrieved party would be entitled to have such order set aside."The principle of law,laid down, bythe Apex Court inState Bank of India's case (supra), is equally applicable to the filing of an appeal, underSection 15of the Act.In case, this Commission, decides the appeal, on merits, after coming to the conclusion, that it is barred by time, it would amount to committing an illegality, in view of the principle of law,laid down inState Bank of India's case (supra).For the reasons, recorded above, the application for condonation of delay of  518  days, as per applicants/appellants No.1 and 2 (as per the office report  515 days), being devoid of merit, must fail, and the same is dismissed. Consequently, the appeal underSection 15of the Act, filed by the applicants/ appellants No.1 and 2 is also dismissed, being barred by time, at the preliminary stage, with no order as to costs.Since the complaint against Opposite Party No.3/applicant No.3/ (now) appellant No.3 was dismissed, it could not be said to be a party aggrieved. The appeal of appellant No.3/applicant No.3, is dismissed, being not maintainable, with no order as to costs.Certified copies of this order, be sent to the parties, free of charge.The file be consigned to Record Room, after completion.Pronounced.May 1, 2015

 

Sd/-[JUSTICE SHAM SUNDER (RETD.)]

 

PRESIDENT

 

 

 

Sd/-(DEV RAJ)

 

MEMBER

 

 

 

 

 

Sd/-(PADMA PANDEY)

 

      MEMBER

 

Rg