National Consumer Disputes Redressal
Chhabi Rani Ghosh @ Chhabi Ghosh & Anr. vs Amal Pal & Anr. on 28 July, 2017
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO. 424 OF 2017 (Against the Order dated 31/05/2016 in Appeal No. 201/2014 of the State Commission West Bengal) WITH IA/2370/2017,IA/2371/2017 1. CHHABI RANI GHOSH @ CHHABI GHOSH & ANR. W/O. LT. INDRAJIT GHOSH, PREASENT R/O. AT LIONS APARTMENT, FLAT NO. 13/4, 3RD FLOOR, 174/5, NETAJI SUBHAS CHANDRA BOSE, P.S. JADAVPUR, KOLKATA-700040 WEST BENGAL 2. INDRANIL GHOSH, S/O. LT. INDRAJIT GHOSH,PREASENT R/O. AT LIONS APARTMENT, FLAT NO. 13/4, 3RD FLOOR, 174/5, NETAJI SUBHAS CHANDRA BOSE, P.S. JADAVPUR, KOLKATA-700040 WEST BENGAL ...........Petitioner(s) Versus 1. SUBHAS CHANDRA KOLEY & ANR. S/O. BANAMALI KOLEY, 2/2, KENDERNATH MUKHERJEE LANE, P.S. BANTRA, DISTRICT-HOWRAH WEST BENGAL 2. M/S. UTTHAN A PROPRIETORSHIP CONCERN REPRESENTED BY SOLE PROPRIETROSHIP SHRI DIPANKAR MAJHI, 12, PANCHANAN CHATTERJEE LANE, P.S. BANTRA, DISTRICT-HOWRAH WEST BEGNAL ...........Respondent(s) REVISION PETITION NO. 425 OF 2017 (Against the Order dated 31/05/2016 in Appeal No. 202/2014 of the State Commission West Bengal) WITH
IA/2370/2017,IA/2371/2017 1. CHHABI RANI GHOSH @ CHHABI GHOSH & ANR. W/O. LT. INDRAJIT GHOSH, FLAT NO. 13/4, 3RD FLOOR, 174/5, NETAJI SUBHAS CHANDRA BOSE, P.S. JADAVPUR, KOLKATA-700040 WEST BENGAL 2. INDRANIL GHOSH, S/O. LT. INDRAJIT GHOSH,PREASENT R/O. AT LIONS APARTMENT, FLAT NO. 13/4, 3RD FLOOR, 174/5, NETAJI SUBHAS CHANDRA BOSE, P.S. JADAVPUR, KOLKATA-700040 WEST BENGAL ...........Petitioner(s) Versus 1. SATYA DAS & ANR. S/O. LT. SUFAL CHANDRA DAS, 133,KONA NASKAR PARA 3RD BYE LANE, DISTRICT-HOWRAH WEST BENGAL 2. M/S. UTTHAN A PROPRIETORSHIP CONCERN REPRESENTED BY SOLE PROPRIETROSHIP SHRI DIPANKAR MAJHI, 12, PANCHANAN CHATTERJEE LANE, P.S. BANTRA, DISTRICT-HOWRAH WEST BEGNAL ...........Respondent(s) REVISION PETITION NO. 426 OF 2017 (Against the Order dated 31/05/2016 in Appeal No. 203/2014 of the State Commission West Bengal) WITH IA/2370/2017,IA/2371/2017 1. CHHABI RANI GHOSH @ CHHABI GHOSH & ANR. W/O. LT. INDRAJIT GHOSH, PREASENT R/O. AT LIONS APARTMENT, FLAT NO. 13/4, 3RD FLOOR, 174/5, NETAJI SUBHAS CHANDRA BOSE, P.S. JADAVPUR, KOLKATA-700040 WEST BENGAL 2. INDRANIL GHOSH, S/O. LT. INDRAJIT GHOSH,PREASENT R/O. AT LIONS APARTMENT, FLAT NO. 13/4, 3RD FLOOR, 174/5, NETAJI SUBHAS CHANDRA BOSE, P.S. JADAVPUR, KOLKATA-700040 WEST BENGAL ...........Petitioner(s) Versus 1. JHANTU PRAMANICK ANR. S/O. LT. SANAT PRAMANICK, VILLAGE MALLICK BAGAN, P.O. SUBHARRA, P.S. PANCHLA DISTRICT-HOWRAH WEST BENGAL 2. M/S. UTTHAN A PROPRIETORSHIP CONCERN REPRESENTED BY SOLE PROPRIETROSHIP SHRI DIPANKAR MAJHI, 12, PANCHANAN CHATTERJEE LANE, P.S. BANTRA, DISTRICT-HOWRAH WEST BEGNAL ...........Respondent(s) REVISION PETITION NO. 427 OF 2017 (Against the Order dated 31/05/2016 in Appeal No. 204/2014 of the State Commission West Bengal) WITH IA/2370/2017,IA/2371/2017 1. CHHABI RANI GHOSH @ CHHABI GHOSH & ANR. W/O. LT. INDRAJIT GHOSH, PREASENT R/O. AT LIONS APARTMENT, FLAT NO. 13/4, 3RD FLOOR, 174/5, NETAJI SUBHAS CHANDRA BOSE, P.S. JADAVPUR, KOLKATA-700040 WEST BENGAL 2. INDRANIL GHOSH, S/O. LT. INDRAJIT GHOSH,PREASENT R/O. AT LIONS APARTMENT, FLAT NO. 13/4, 3RD FLOOR, 174/5, NETAJI SUBHAS CHANDRA BOSE, P.S. JADAVPUR, KOLKATA-700040 WEST BENGAL ...........Petitioner(s) Versus 1. MADHUMITA MONDAL & ANR. W/O. SUJIT MONDAL, 2/3, KEDARNATH MUKHERJEE LANE P.S. BANTRA DISTRICT-HOWRAH WEST BENGAL 2. M/S. UTTHAN A PROPRIETORSHIP CONCERN REPRESENTED BY SOLE PROPRIETROSHIP SHRI DIPANKAR MAJHI, 12, PANCHANAN CHATTERJEE LANE, P.S. BANTRA, DISTRICT-HOWRAH WEST BEGNAL ...........Respondent(s) REVISION PETITION NO. 428 OF 2017 (Against the Order dated 31/05/2016 in Appeal No. 205/2014 of the State Commission West Bengal) WITH IA/2370/2017,IA/2371/2017 1. CHHABI RANI GHOSH @ CHHABI GHOSH & ANR. W/O. LT. INDRAJIT GHOSH, PREASENT R/O. AT LIONS APARTMENT, FLAT NO. 13/4, 3RD FLOOR, 174/5, NETAJI SUBHAS CHANDRA BOSE, P.S. JADAVPUR, KOLKATA-700040 WEST BENGAL 2. INDRANIL GHOSH, S/O. LT. INDRAJIT GHOSH,PREASENT R/O. AT LIONS APARTMENT, FLAT NO. 13/4, 3RD FLOOR, 174/5, NETAJI SUBHAS CHANDRA BOSE, P.S. JADAVPUR, KOLKATA-700040 WEST BENGAL ...........Petitioner(s) Versus 1. AMAL PAL & ANR. S/O. LT. MIHIR PAL, VILLAGE SALAP MATHABAGAN, P.S. DOMJUR DISTRICT-HOWRAH WEST BENGAL 2. M/S. UTTHAN A PROPRIETORSHIP CONCERN REPRESENTED BY SOLE PROPRIETROSHIP SHRI DIPANKAR MAJHI, 12, PANCHANAN CHATTERJEE LANE, P.S. BANTRA, DISTRICT-HOWRAH WEST BEGNAL ...........Respondent(s) BEFORE: HON'BLE MR. JUSTICE D.K. JAIN,PRESIDENT For the Petitioner : Mr. Pawan Kumar Ray, Advocate For the Respondent :
Dated : 28 Jul 2017 ORDER
1. Since, in my view, the present Petitions must fail on the ground of limitation, the Petitioners are exempted from curing the objections, raised by the office.
2. This batch of 5 Revision Petitions, under Section 21(b) of the Consumer Protection Act, 1986 (for short "the Act"), by the Developers, Opposite Party No. 1 and 2 in the Complaints under the Act, is directed against the orders, all dated 31.05.2016, passed by the West Bengal State Consumer Disputes Redressal Commission at Kolkata (for short "the State Commission"), in First Appeals No.201, 202, 203, 204 & 205 of 2014. By the impugned orders, the State Commission has dismissed the Appeals, preferred by the Petitioners herein against the orders, again all dated 15.01.2014, passed by the District Consumer Disputes Redressal Forum, Howrah (for short the "District Forum") in Complaint Cases No. 130, 129, 179, 141 and 131 of 2013 respectively. By the said orders, while accepting the Complaints, preferred by Respondents No. 1 in these Petitions, the District Forum had directed the Opposite Parties, including the Petitioners, to execute and register proper sale deeds in favour of the Complainants with respect to the subject flats, after receiving the balance amounts as per the agreements from the Complainants, within 30 days from the date of the said orders, besides paying to each one of them compensation of ₹1,00,000/- and litigation costs, quantified at ₹5,000/-. As a default clause, in some of the cases the District Forum had also awarded interest @ 9% p.a. on the said amounts.
3. Since the afore-noted Complaints involve more or less similar cause of action; all the Appeals have been disposed of by the State Commission on verbatim lines, though by separate orders; the Opposite Parties, including the Petitioners, being common in all the Revision Petitions; and the issue involved in these cases is identical, these are being disposed of by this common order. For the sake of convenience, Revision Petition No.424 of 2017 is treated as the lead case and the facts referred to hereinafter are taken from the said Revision Petition, which would govern all the cases.
4. Pursuant to a Power of Attorney and a Development Agreement, executed by the Petitioners/Opposite Parties No. 2 and 3, the owners of property situated at 2/3, Kedarnath Mukherjee Lane, P.S. Bantra, District Howrah, in favour of Opposite Party No.3, on 24.11.2009, a building had been constructed on the said land. The Complainant, Subhas Chandra Koley, had booked a unit/flat at the ground floor, admeasuring 311 sq. ft. against a total consideration of ₹4,66,500/-. Out of the said amount, the Complainant had paid a total amount of ₹2,05,000/- to the Opposite Parties. The possession of the flat was required to be handed over to the Complainant within six months from the execution of the aforesaid Attorney/Agreement. In case of default on the part of the Complainant in paying the entire consideration, there was a provision for refund of the amount paid by him after deducting 5% of the said amount. Similarly, if the Developers were unable to deliver the flat to the Purchaser within the stipulated time without any reasonable cause, they were required to refund the amount with 5% interest. Though the Complainant was ready and willing to pay the balance amount to facilitate execution of the Conveyance Deed, but the Opposite Parties avoided the transaction as well as the execution of the said Deed on account of an inter-se conflict between Opposite Parties No. 1-2 and 3. Legal notice, dated 21.03.2013 also did not yield the desired results. In the said background, alleging deficiency in service and unfair trade practice on the part of the Opposite Parties, the afore-noted Complaint came to be filed before the District Forum, wherein the Complainant had prayed for a direction to the Opposite Parties to execute and register the Conveyance Deed, besides paying compensation of ₹1,00,000/-.
5. Upon notice, while the Petitioners filed their Written Version, in opposition to the allegations levelled in the Complaint, Opposite Party No.3 (the Developer) chose not to appear before the District Forum. Accordingly, on the basis of material available before it, the District Forum, while proceeding ex-parte against Opposite Party No.3, allowed the Complaint and issued the afore-stated directions to the Opposite Parties.
6. Unsuccessfully challenging the order passed by the District Forum before the State Commission, the Petitioners are before me in the present Revision Petitions.
7. It is pointed out by the Office that these Revision Petitions are barred by limitation, inasmuch as there is a delay of 162 days in filing the same. An Application, praying for condonation of the said delay, has been filed in Revision Petition No. 424 of 2017. In paragraphs 2 - 7 of the said Application, the Petitioners have furnished the following explanation, in a narrative form:
"2. That the Petitioner No. - 1 Smt. Chhabi Rani Ghosh aged about 79 years who is senior citizen and ailing person and bed ridden and the Petitioner Nos. - 2 Sri Indranil Ghosh who is the son of the Petitioner No. - 1 for his service purporse have to stay often outside the State and for this reason they have appointed their true and lawful constitute attorney Sri Saroj Maity, residing at Pallav Pukur, P.S. - Jagcha, District Howrah who was contested cases on behalf of the Petitioners/Opp. Party Nos. 1 & 2 in the District Forum and State Commission.
3. That Petitioners have no information about the Judgment and Order passed by the Hon'ble State Commission on 31.05.2016 in First Appeal No. - FA/205/2014 and said Judgment and Order was collected by their lawful attorney from the good office of the Hon'ble State Commission on 09.06.2016 but he didn't informed to the Petitioners about the said Judgment and Order.
4. That Petitioner Nos. -2 when he returned from the outside states after finished his official duties to his residence in the month of December 2016's middle week he contact with his constitute attorney regarding pending case before the Hon'ble State Commission then his constitute attorney informed and handover the Judgment and Order of the Hon'ble State Commission which was passed on 31.05.2016.
5. That Petitioner Nos.-2 went to the Hon'ble State Commission office and applying for certified copy of the Appeal alongwith a copy of the Ld. District Forum's Judgment and Order dated 15.01.2014 on 22.12.2016 and he received the said documents on 26.12.2016. Thereafter Petitioner Nos.-2 went to the Ld. District Forum office at Howrah and he applying for certified copies of the Complaint Petition alongwith Annexure, Written Statement, Amendment of Written Version, Brief Notes of Argument filed by the Complainant and brief Notes of Argument filed by the Petitioner Nos.-1 & 2/Opp. Party Nos.-1 & 2 on 30.12.2016 and he received all the documents on 30.12.2016.
6. That Petitioners after going through all the documents they are decided to challenge the Judgment and Order passed by the Hon'ble State Commission before the Hon'ble National Commission otherwise they will suffer irreparable loss and injuries and the Petitioner Nos.-2 he could not contact with his Ld. Advocates due to winter vacation. After that on 5th January, 2017 the Petitioner Nos.-2 met a conference with his Ld. Advocates regarding his case and Ld. Advocates take 2 days time for scrutinize all the documents and decided to prefer the Revisional Application before the Hon'ble National Commission.
7. That the Ld. Advocates of the Petitioners taking some time for prepared the Revisional Application has to be filed before the Hon'ble National Commission and the Petitioners herein humbly seek the indulgence of this Hon'ble Commission to condone the delays occurred after deducting stipulated 90 days time i.e. 157 days ..."
8. Having heard learned counsel for the Petitioners on the question of delay, I am of the opinion that the explanation furnished is wholly unsatisfactory.
9. Admittedly, the Petitioners had authorized one Saroj Maity as their Attorney to pursue the proceedings under the Act on their behalf; against the orders passed by the District Forum, whereby the Complaints had been allowed, the said Attorney had filed the aforesaid Appeals before the State Commission; and on dismissal of the said Appeals by the State Commission on 31.05.2016, certified copy of the said orders was issued to the Attorney on 09.06.2016. In such a situation, even if the Petitioners were not able to defend their cases personally and they had duly appointed their Attorney for the said purpose, they were required to keep a watch on the said proceedings, for which their personal presence in the State was not necessary. I fail to fathom any reason as to why, having suffered two adverse orders from the Fora below, including the dismissal of the Appeals, filed by the Attorney on their behalf, the Attorney would not disclose to the Petitioners the fate of the said proceedings. Though it is averred in the Application that in the last week of December, 2016, Petitioner No.2 returned to his residence and came to know about the impugned orders, but factually it is not correct. Evidently, on 22.12.2016 the Petitioners had applied for issue of certified copies of certain documents to the State Commission, which had been received by them on 26.12.2016. Thereafter, on 30.12.2016, the Petitioners had received the documents sought for from the District Forum. At that stage, though the Revision Petitions, to be filed by the Petitioners, were already barred by limitation, yet the Petitioners took 46 days in the preparation and filing of the Revision Petitions only on 16.02.2017, with an inordinate delay of 162 days, over and above the stipulated period of 90 days, as provided under Regulation-14 of the Consumer Protection Regulations, 2005.
10. For the foregoing reasons, I am of the view that apart from the fact that the Application lacks bonafides, the Petitioners have failed to make out any cause, much less a "sufficient cause" for condonation of inordinate delay of 162 days in filing of the present Revision Petitions.
11. Bearing in mind the afore-stated facts and the observations of the Hon'ble Supreme Court in Anshul Aggarwal vs. New Okhla Industrial Development Authority [(2011) 14 SCC 578] to the effect that while deciding an application for condonation of delay, the Court has to keep in mind that the special period of limitation has been prescribed under the Act for filing appeals and revisions in consumer matters and the object of expeditious adjudication of the consumer disputes will get defeated if highly belated petitions filed against the orders of the Consumer Foras are entertained, I am not inclined to condone the afore-stated inordinate delay in filing of the present Revision Petitions. Moreover, condonation of such unexplained delay would cause further harassment to the hapless Complainants, who, despite having parted with considerable sums as far back as in the year 2009, in the fond hope of getting a roof over their heads and despite having favourable orders from the Fora below, are still waiting for the justice being rendered to them.
12. Consequently, all the Revision Petitions are dismissed in limine on the short ground of limitation.
......................J D.K. JAIN PRESIDENT