State Consumer Disputes Redressal Commission
Chandigarh Overseas Pvt.Ltd. vs Pankaj Aggarwal on 8 May, 2015
Daily Order STATE CONSUMER DISPUTES REDRESSAL COMMISSION, U.T., CHANDIGARH First Appeal No. : 101 of 2015 Date of Institution : 06.06.2015 Date of Decision : 08.05.2015 M/s Chandigarh Overseas Private Limited, SCO No.196- 197, Sector 34-A, Top Floor, Chandigarh, 160022, through its Managing Director. M/s Greenfield Sites Management Private Limited, SCO No.196-197, 4th Floor, Sector 34-A, Chandigarh-160047, through its Managing Director. Now both at Fashion Technology Park, Next to BSF Housing Complex, Sector 90, Mohali. ......Appellants/Opposite Parties V e r s u s Pankaj Agarwal son of Sh. Anand Parkash Agarwal, resident of 4319/1, Ground Floor, Gali No.3, Ansari Road, Darya Road, New Delhi-110002. ....Respondent/Complainant Appeal under Section 15 of 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 13.11.2014, 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 complainants (now respondents), and directed the Opposite Parties (now appellants), jointly and severally, as under:-
"In view of the above discussion the present complaint is allowed and the opposite parties are, jointly and severally, directed to pay to the Complainant as under :-
i. to pay the buy-back amount of Rs.7.50 lac to the complainant along with interest @9% p.a. from the due date i.e. 18.01.2010 till realization.
ii. to pay the amount @ Rs.50/- per sq. ft. per month of the super area w.e.f. 01.04.2011 till the refund of buy back amount (excluding the amount already paid, if any), as per clause 28 of the agreement.
iii. to pay Rs.50,000/- as compensation for mental agony and harassment.
iv. to pay Rs.10,000/- as costs of litigation.
This order be complied with by the opposite parties, within 30 days from the date of receipt of its certified copy, failing which the amounts at Sr.No.(i) to (iii) above shall carry interest @12% per annum from the date of filing of this Complaint i.e. 24.03.2014, till actual payment, besides payment of litigation costs"
The facts, in brief, are that the complainant, in order to earn his livelihood, by way of self-employment, i.e. by starting a small business, agreed to purchase one unit, measuring 100 square feet, in the project launched by the Opposite Parties, under the name and style of Fashion Technology Park in Sector 90, Mohali. As such, the complainant was allotted design Studio No.6, with super built-up area measuring 100 square feet, 5th Floor, Block A-1, in the Industrial Knowledge Fashion Technology Park, Sector 90, Mohali. The total cost of the said unit, was Rs.5 lacs. The complainants deposited a total sum of Rs.4.75 lacs, in respect of part price of the said unit, and the remaining amount of Rs.25,000/-, was payable at the time of delivery of possession thereof. Thereafter, on 22.02.2007, Developer Buyer Agreement Annexure C-5 and Lease Agreement Annexure C-6, in respect of the said unit, were executed between the parties. It was stated that, vide letter dated 22.06.2009, 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. 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, vide letter dated 05.11.2009, Annexure C-8. 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, nothing was paid to them.
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 paid 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 the Opposite Parties, as per Clause No.28 of the Developer Buyer Agreement, were liable to make the payment of Rs.50/- per square feet, per month, as compensation, on account of non-construction of the unit, and delay in handing over possession to the complainant. It was further stated that the Opposite Parties, neither paid the entire amount of Rs.7.50 lacs, on account of the buy-back offer, nor paid the amount of compensation/penalty @Rs.50/- per square feet, per month of the super area, on account of delay, in delivery of possession of the said unit.
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 under Section 12 of the Consumer Protection Act, 1986 (hereinafter to be called as the Act only), was filed, directing the Opposite Parties, to pay a sum of Rs.7.50 lacs, for the said unit, on account of buy-back offer; compensation/penalty @Rs.50/- per square feet, per month of the super area of the units i.e. Rs.5000/- per month, from 01.04.2011 till payment, alongwith interest @24% P.A.; compensation, to the tune of Rs.1 lac, for deficiency in rendering service, mental agony and physical harassment; and cost of litigation, to the tune of Rs.25,000/-.
Notice sent through ordinary post for the service of Opposite Party No.1, at correct address, furnished by the complainant, was received back with the report 'refused'. Refusal was deemed to be a good service by the District Forum. Neither Opposite Party No.1, nor any authorized representative, on its behalf, put in appearance, as a result whereof, it was proceeded against exparte, vide order dated 08.05.2014.
Notice sent through ordinary post for the service of Opposite Party No.2, was received back with the report 'left'. Fresh correct address of Opposite Party No.2, was ordered to be furnished by the complainant. Thereafter, on the request of the complainant, through application having been moved by him, on 04.09.2014, Opposite Party No.2 was served through publication, in the newspaper, but despite that, none put in appearance, on its behalf, as a result whereof, it was proceeded against exparte, vide order dated 10.10.2014.
The complainant led evidence, in support of his case.
After hearing the Counsel for the complainant, 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 under Section 5 of the Limitation Act, for condonation of delay of 144 days, as per the applicants/appellants (as per the office report 137 days), was filed by them (applicants/appellants). It was stated, in the application, for condonation of delay that the applicants/appellants/Opposite Parties were never duly served, on account of the wrong address, having 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 complainants, 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 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, in the consumer complaint, were never served, and, as such, they were not aware of the proceedings, initiated against them, in the District Forum. It was further stated that, however, passing of the order impugned, came to the notice of the applicants/appellants, when they received notice, in the Execution Application/ Criminal Petition, by the Decree Holder/complainant, on 04.04.2015. 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 144 days, as per the applicants/appellants (as per the office report 137 days), in filing the appeal, under Section 15 of the Act or not. It was held in Smt.Tara Wanti Vs State of Haryana through 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 of Section 5 of 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."
In Oriental 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.
In R.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".
In Balwant 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]"
In Mahant Bikram Dass Chela Vs. Financial Commissioner and others, AIR 1977, S.C. 2221, it was held as under:-
"Section 5 of 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 around Section 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) CPC 3 (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 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"
A bare reading of the first proviso, engrafted to Section 15 of the Act, makes it clear, that the material part of the language thereof, is pari-materia to Section 5 of the Limitation Act, 1963. The only plea taken by the applicants/appellants was that they could not appear in the District Forum, in the consumer complaint, on account of the reason, that summons for their service, were not received by them, on account of the wrong address, having been furnished by the complainant, in the District Forum, and, as such, they were not aware that the same (consumer complaint) had been filed against them, by him (complainant). First of all, it may be stated here, that 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, as a result whereof, summons could not be served upon them, and, as such, they could not put in appearance, before the District Forum, for want of service, and, on the other hand, they came to know about passing of the order impugned, only on 04.04.2015, when the Execution Application was filed by him (Decree Holder/ Complainant). The bald plea taken by the applicants/ appellants, in this regard, being devoid of merit, is rejected.
It is pertinent to mention here that, on the other hand, perusal of the record reveals that Opposite Party No.1 was served but it refused to accept the summons, as a result whereof, it was proceeded against exparte, vide order dated 08.05.2014, by the District Forum. Thus, now, at this stage, it does not lie in the mouth of applicant No.1/appellant No.1/Opposite Party No.1, that it was not aware of the consumer complaint filed against it, by the complainant.
It is evident from the District Forum record that as far back as on 20.11.2014, Mr. Ashish Naik Advocate moved an application alongwith vakalatnama, on behalf of the Opposite Parties, to obtain a certified copy of the order dated 13.11.2014, passed in the consumer complaint. Nothing was mentioned, in this application, that wrong address of the Opposite Parties was given by the complainant, in the consumer complaint. Mr. Ashish Naik, Advocate, obtained certified copy of the order dated 13.11.2014, on 20.11.2014. He acknowledged the receipt of the order, on the application itself, by appending an endorsement, under his signatures. Thus, on 20.11.2014, the Opposite Parties came to know of passing the order dated 13.11.2014. Their plea to the effect that they only came to know of the passing of order dated 13.11.2014, on 04.04.2015 and obtained certified copy thereof on 13.04.2015, is nothing but a concoction of lies. Such a false plea was taken by them, just with a view to wriggle out of the delay of 144 days, in filing the appeal. Such a false plea, is, thus, rejected.
It may be stated here that it was the bounden duty of the concerned Official(s), to take decision, within maximum two to three days, after receiving the certified copy of the order impugned on 20.11.2014 and forward the relevant file/documents, to the Counsel concerned, for filing the appeal. Why the applicants took 144 days, (as per the office report 137 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, as stated above, the concerned Officials of the applicants/appellants/Opposite Parties, slept over the matter, and, ultimately, they woke up from their deep slumber, after 144 days, as per the applicants/appellants (as per the office report 137 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 by Section 15 of 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 144 days, as per the applicants/appellants (as per the office report 137 days), in filing the appeal, which is more than four times, beyond the prescribed period of limitation. The cause set up by the applicants/appellants, in the application, for condonation of delay, has already been held to be false. 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, under Section 15 of 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 144 days, as per the applicants/appellants (as per the office report 137 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 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."
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 by Section 15 of 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 144 days, as per the applicants/appellants (as per the office report 137 days), in filing the same (appeal). The answer to this question, is in the negative, as provided by the Apex Court in State 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 by Section 24A of the Act. The Apex Court was pleased to observe as under ;
"Section 24A of 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, by the Apex Court in State Bank of India's case (supra), is equally applicable to the filing of an appeal, under Section 15 of 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 in State Bank of India's case (supra).
For the reasons, recorded above, the application for condonation of delay of 144 days, as per the applicants/appellants (as per the office report 137 days), being devoid of merit, must fail, and the same is dismissed. Consequently, the appeal under Section 15 of the Act, is also dismissed, being barred by time, at the preliminary stage, 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.
08.05.2015 Sd/-
[JUSTICE SHAM SUNDER (RETD.)] PRESIDENT Sd/-
(DEV RAJ) MEMBER Sd/-
(PADMA PANDEY) MEMBER Rg