National Consumer Disputes Redressal
M/S. Rupji Consteuctions & Anr. vs Santosh S. Mayekar on 5 April, 2018
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI APPEAL EXECUTION NO. 5-23 OF 2018 (Against the Order dated 07/07/2017 in Complaint No. 333/2013 of the State Commission Maharashtra) 1. M/S. RUPJI CONSTEUCTIONS & ANR. THROUGH ITS PARTNER, MR. MADHUKAR RUPJI GULMOHAR HOUSING SOCIETY C' WING 2 FLOOR P.L. KALE GURUJI MARG ABOVE BHANDARI BANK DADAR WEST MUMBAI 400028 MAHARASHTRA 2. MR. TEJAL MADHUKAR PUPJI THROUGH ITS PARTNER, MR. MADHUKAR RUPJI GULMOHAR HOUSING SOCIETY C' WING 2 FLOOR P.L. KALE GURUJI MARG ABOVE BHANDARI BANK DADAR WEST MUMBAI 400 028 MAHARASHTRA ...........Appellant(s) Versus 1. SANTOSH S. MAYEKAR R/O. 2/17 JAM BUILDING DR. BA. ROAD LALBAUG MUMABI 400012 MAHARASHTRA ...........Respondent(s)
BEFORE: HON'BLE MR. JUSTICE D.K. JAIN,PRESIDENT HON'BLE MRS. M. SHREESHA,MEMBER For the Appellant : Mr. Vinay Navare, Advocate Ms. Gwen Karthika, Advocate For the Respondent :
Dated : 05 Apr 2018 ORDER
1. This set of 19 Execution Appeals, under Section 27A of the Consumer Protection Act, 1986 (for short "the Act"), by a Real Estate Developer, namely, M/s Rupji Constructions, and its Partner, the Opposite Parties in the Complaints, is directed against the order dated 07.07.2017 passed by the Maharashtra State Consumer Disputes Redressal Commission at Mumbai (for short "the State Commission") in Execution Applications No. EA/16/36 to EA/16/54. By the impugned order, the State Commission has convicted and sentenced Appellant No.1, namely, Madhukar Meghashyam Rupji, one of the Partners of the afore-named Firm, to suffer imprisonment till final order dated 10.03.2016, passed by it in the Complaints, filed by the Respondents/Complainants, alleging deficiency in service on the part of the Appellants in not delivering the possession of the flats, booked by them, by the stipulated time, is complied with by the Appellants, with a cap of maximum imprisonment of three years, as there was deliberate disobedience on the part of the Appellants in complying with the said order. However, instead of passing order on similar lines in respect of Appellant No.2, namely, Tejal Madhukar Rupji, another Partner of the said Firm, in order to facilitate compliance with the said final order passed in the Complaint, the State Commission has granted him 7 days' time to do the needful, failing which further orders as regards award of sentence to him was to be passed on the next date. Accordingly, on executing bail bond of ₹5,000/-, the said Appellant has been directed to be released, with a direction to remain present on each and every date of hearing in the said cases.
2. It may be noted at this juncture itself, that against the substantive final order dated 10.03.2016, passed by the State Commission in the Complaints, preferred by the Complainants, on an earlier occasion, the Appellants had filed First Appeals before this Commission. Vide our order dated 18.10.2016, the said Appeals were dismissed and the said order has, thus, attained finality insofar as this Commission is concerned. In view of the said order, we refrain from burdening this order by narrating the case of the Complainants, leading to the filing of the Complaints. It would suffice to note that despite having paid almost the entire sale consideration, vacant and peaceful possession of the flats in question was not delivered to the Complainants by the stipulated time, i.e. May, 2010. Rather, extra amounts were being demanded by the Appellants from them over and above the agreed sale consideration towards escalation in cost of construction.
3. Upon contest, the State Commission, vide its order dated 10.03.2016, partly allowed the Complaints, inter alia, directed the Appellants to jointly and severally hand over vacant and peaceful possession of the flats to the Complainants, upon accepting balance consideration amount from them as per the Schedule, indicated in the said order, by obtaining the Occupancy Certificate, within a period of 90 days from the date of the said order. Further, the Appellants were also directed to pay a compensation of ₹1,00,000/- to each of the Complainants, together with litigation costs, quantified at ₹15,000/- each.
4. Be that as it may, now, on passing of the order in Execution proceedings, which had been initiated by the Complainants/Decree Holders, for non-compliance with the final order dated 10.03.2016, the Appellants/Judgment Debtors are before us.
5. It is pointed out by the Office that the Appeals are barred by limitation, in as much as there is a delay of 62 days in filing the same. An Application, praying for condonation of the said delay, has been filed along with the Appeals. In paragraphs 2 - 3 of the said Application, following explanation for the delay has been furnished:
"2. The Appellants state that from the date of institution of Execution proceedings the Appellants had been trying with their best efforts to comply with the Final Order by obtaining Occupation Certificate and having over possession. Pursuant to the impugned order dated 07.07.2007 the Appellant No.1 was under imprisonment. Appellant No.2, i.e. son of the 1st Appellant, was making frantic efforts to arrange finances and to comply with the orders of the Forum. Documents and Court Orders pursuant to impugned order dated 07.07.2017 annexed to this Petition show the steps taken by the Appellant No.2 to comply with final order. The Appellants state that the financial crisis faced by them further caused delay in compliance with the order and as a result even the Appeal was not moved by the Appellants, as their first priority was to close the issue by obtaining permissions and handing over possession.
3. The Appellant No.1 by order dated 09.2017 sic (it should be 31.08.2017) was granted Bail by the Hon'ble High Court of Bombay and the same is being continued and extended from time to time. In the meanwhile the Appellant No.2, the active partner, was arrested and imprisoned in another matter, having no connection with the present issue. The 1st Appellant being a senior citizen, aged 79 years was solely responsible to handle the affairs as well as make arrangements for challenge by Appeal. In this unfortunate series of events and circumstances there is some delay in challenging the impugned Order."
6. We have heard learned counsel for the Appellants on the question of condonation of delay in filing the Appeals, and perused the documents on record, including the order dated 31.08.2017, passed by the High Court of Bombay, suspending the sentence awarded to Madhukar Rupji, stated to be the main working Partner of the Appellant Firm, for four weeks. Since the said order has some bearing on this order, for the sake of ready reference, the relevant portion of the said order is extracted below:
"4. Learned advocate for the applicant submitted that the applicant is 79 years old person. Since last two months he is in custody. It is also submitted that the applicant is ailing from various ailments. Reliance is also placed on medical documents. It is submitted that the applicant in order to comply with the order of the State Commission obtained various necessary permission from the concerned authorities and had made 75-80% payment of the interest amount to MCGM with an intention to obtain occupancy certificate for the place where the said flats are situated. It is further submitted that the applicant was trying to settle the issues and therefore till now has not approached the Appellate Authority. It is submitted that taking into consideration the age and the circumstances in which the applicant is in custody, the sentence imposed by the State Commission may be suspended for the period of six weeks. It is submitted that the applicant would prefer an appeal before the National Consumer Redressal Commission, Delhi which would take some time. Learned Counsel has relied upon the order passed by this Court in Criminal Application No. 359 of 29016 wherein the applicant in the said order was released on bail for a temporary period."
7. It is manifest that though the High Court had passed the order on 31.08.2017, granting protection to the said Appellant from arrest under the order impugned in these Appeals only for a period of four weeks, yet the present Appeals were filed only on 20.12.2017. Therefore, even though a delay of 62 days may apparently appear to be small but has to be considered in the backdrop of the factual scenario, more particularly when before the High Court, the Appellants had prayed for suspension of sentence only for a period of six weeks, in order to comply with the substantive order of the State Commission dated 10.03.2016. Appeals against the said order were also dismissed as far back as on 18.10.2016.
8. Now adverting to the explanation for the said delay, the impugned order, under Section 27 of the Act, was made by the State Commission as far back as on 07.07.2017, in the presence of both the Appellants/Accused and their Counsel. They were required to challenge the same before this Commission under Section 27A of the Act within a period of 30 days from the said date, more so when they were aware of the provisions under the Act and had earlier unsuccessfully approached this Commission by filing First Appeals under Section 19 of the Act against the final order passed in the Complaints. The said delay is sought to be explained, inter alia, on the grounds that frantic efforts were being made to comply with the final order in the Complaints; financial crisis faced by the Appellants caused delay in compliance thereof; and Appellant No.2, who was active partner of the Appellant Company, was arrested/imprisoned in another matter and, in his absence, Appellant No.1, who was a senior citizen aged 79 years, was solely responsible to handle the affairs of the Firm. Though the Application is conspicuously silent as to the date-wise developments in the matter, yet, even if it is assumed for the sake of argument that the state of affairs was so, Appellant No.1 was granted bail by the High Court on 31.08.2017. Regard being had to the fact that the limitation period, prescribed for challenging the impugned order, was coming to an end within a week; the active partner of the Appellant Company, i.e. Appellant No.2, was in jail; and they needed some more time to comply with final order in the Complaints, the said Appellant, who was responsible for managing the affairs of the Firm in the absence of Appellant No.2, was required to take all possible steps to comply with the substantive order, particularly when the State Commission had itself suspended the sentence awarded to one of the Partners, to enable him to comply with the directions issued. Nothing has been brought on record to show as to what steps were taken by the said Partner in this behalf. Furthermore, the sentence awarded to the second Partner had been suspended by the High Court on the assurance that he was willing to comply with the substantive order but needed a breathing time of six weeks. Evidently, the Appellants are trying to buy time to comply with the order passed by the State Commission as far back as on 10.03.2016, which came to be permitted to the detriment of the Complainants, who are waiting for justice since the year 2010.
9. In view of the afore-stated factual matrix, we are of the opinion that the Appellants have failed to make out a sufficient cause for condonation of the afore-stated delay in filing the present Appeals. As noted above, though, at the first blush, the said delay appears to be small but, in view of overall conduct of the Appellants, highlighted above, certainly an inordinate delay, which we are not inclined to condone.
9. Consequently, the Appeals are dismissed in limine on the short ground of limitation.
......................J D.K. JAIN PRESIDENT ...................... M. SHREESHA MEMBER