State Consumer Disputes Redressal Commission
Chandigarh Overseas Pvt.Ltd. vs Vishal Garg on 8 May, 2015
Daily Order STATE CONSUMER DISPUTES REDRESSAL COMMISSION, U.T., CHANDIGARH First Appeal No. : 102 of 2015 Date of Institution : 06.05.2015 Date of Decision : 08.05.2015 M/s Chandigarh Overseas Private Limited, SCO No.196-197, Sector 34-A, Top Floor, Chandigarh, 160047, through its Vice President. M/s Chandigarh Overseas Private Limited, through its Chairman, SCO 196-197, Sector 34-A, Chandigarh. M/s Greenfield Sites Management Private Limited, SCO No. 196-197, (Top Floor), Sector 34-A, Chandigarh. ......Appellants/Opposite Parties V e r s u s Vishal Garg son of Sh. Ashok Kumar Garg, resident of House No.1, Shakti Nagar, Paata Road, Jodhpur (Rajasthan) ....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 05.06.2013, 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 the Opposite Parties (now the appellants), as under:-
" For the reasons recorded above, we find merit in the complaint and the same is hereby allowed. The OPs are jointly and severally directed to pay Rs.7,50,000/- to the complainant on account of buy back option and Rs.6250/- per month w.e.f. March, 2009 (less the amount already received from OPs No.1 and 2 for the delay in starting the construction) till the actual date of payment as compensation along with interest @9% p.a. from the date of filing of the complaint, till payment. The OPs shall also pay an amount of Rs.50,000/- to the complainant towards compensation for mental agony and harassment and Rs.5,000/- towards costs of litigation.
This order shall be complied with by OPs within one month from the date of receipt of its certified copy, failing which, OPs shall be liable to refund the above said awarded amount to the complainant along with penal interest @ 12% p.a. from the date of filing of the present complaint, till its realization, besides costs of litigation".
The facts, in brief, are that the complainant purchased one design Studio No.4, with super built-up area measuring 125 square feet, 6th 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.5 lacs. The complainant deposited a total sum of Rs.4.75 lacs, in respect of part price of the said unit. Thereafter, on 24.01.2007, Developer Buyer Agreement Annexure C-1, in respect of the said unit, was executed between the parties. It was stated that vide letter dated 24.01.2007, Annexure C-6, the Opposite Parties had offered buyback offer @Rs.7.50 lacs, 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. It was further stated that, thereafter, Opposite Parties No.1 and 2, sent cheque No.177111 dated 31.03.2010, in the sum of Rs.15,121/-, alongwith letter dated 20.02.2010 Annexure C-10. It was further stated that, thereafter, despite the assurance having been given by the Opposite Parties, regarding payment of the remaining amount, nothing was paid to the complainant.
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 left with no other alternative, the complainant served legal notice dated 02.06.2012 Annexure C-11, upon the Opposite Parties, 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 under Section 12 of the Consumer Protection Act, 1986 (hereinafter to be called as the Act only), was filed, directing the Opposite Parties, to refund the amount of Rs.7.5 lacs, alongwith interest, from the date, the buyback option was exercised; pay amount of compensation for delay in construction @6,250/- per month, from March 2009, till realization; compensation, to the tune of Rs.2 lacs, towards mental agony and physical harassment; and cost of litigation, to the tune of Rs.50,000/-.
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 commercial unit, 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. Execution of Developer Buyer Agreement Annexure C-1, between the parties, in respect of the said unit, was admitted. It was further pleaded that the consumer complaint was not maintainable before this Commission, as arbitration Clause, existed, in the Developer Buyer Agreement Annexure C-1, and, in case of any dispute, the matter was to be referred to the Arbitration. It was not disputed that the complainant paid an amount of Rs.4.75 lacs, towards part price of the unit, in question. It was stated that since the buyback offer was to be given by Opposite Party No.3, as such, Opposite Parties No.1 and 2 could not be held responsible for the same. 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 stated that neither it had any role in the construction work of industrial unit at FTP, Sector 90, Mohali, nor it was responsible for delivering possession of the unit to the complainant. It was further stated that Opposite Party No.3, being a separate legal entity had no concern with the acts of omission and commission, on the part of Opposite Parties No.1 and 2. It was further stated that the buy-back option was to be honoured, when the complainant was to get possession of the said unit, which event did not happen. It was denied that any amount, by way of cheque, was ever released to the complainant, in respect of compensation, by Opposite Party No.3. 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 filing written version, none put in appearance, on behalf of Opposite Parties No.1 and 2, as a result whereof, they were proceeded against exparte, by the District Forum, vide order dated 01.04.2013.
Accordingly, after hearing the Counsel for the complainant, Opposite Party No.3, 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 670 days, as per the applicants/appellants (as per the office report 661 days), was filed by them (applicants/appellants). It was stated, in the application, for condonation of delay that, 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 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 670 days, as per the applicants/appellants (as per the office report 661 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. First coming to the plea taken by 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 the same does not merit acceptance, for the reasons to be recorded hereinafter. Perusal of the District Forum record, reveals that the consumer complaint, bearing No.600 of 2012 was instituted on 20.09.2012, which was finally decided on 05.06.2013. Whereas, on the other hand, the ejectment order Annexure A-3 dated 21.10.2013 was passed by the Court of Ms. Dazy Bangarh PCS, Rent Controller, Chandigarh, in Rent Petition No.84 of 2012, after about four months of the impugned order dated 05.06.2013.
Secondly, perusal of the District Forum record, also reveals that when the notice at the address furnished in the consumer complaint was issued to Opposite Parties No.1 and 2, Sh. Shireesh Gupta, Advocate had put in appearance, on their behalf, for the first time, on 15.11.2012. Not only this, even thereafter, on a number of dates, Sh.K.S. Lang Advocate and Sh.Shireesh Gupta, Advocate, put in appearance, on behalf of Opposite Parties No.1 and 2, in the District Forum, as is evident from the zimini orders. Had the complainant furnished the alleged wrong address of Opposite Parties No.1 and 2, in the consumer complaint bearing No.600 of 2012, instituted before the District Forum, the notice would have neither been served upon them nor their Counsel would have put in appearance, in the District Forum. It is, therefore, held that correct address of Opposite Parties No.1 and 2 was furnished in the consumer complaint.
Now coming to the plea of the applicants/appellants, to the effect that passing of the order impugned, came to their notice, from their Counsel, only when the Execution Application/Criminal Petition, was filed by the Decree Holder/complainant, it may be stated here that, once it was established from the record of the District Forum, that Opposite Parties No.1 and 2, had been served, as also the Advocates aforesaid, put in appearance, on their behalf, on a number of dates, it does not lie in their (applicants/appellants Parties No.1 and 2) mouth, that they were not aware of passing of the order impugned or that wrong address was furnished by the complainant, in the consumer complaint, as a result whereof, certified copy thereof (order impugned) was not received by them. Certified copy of the order impugned was sent by the District Forum, at the correct address of the applicants/appellants, through registered A.D. on 14.06.2013, which was never received back undelivered and, as such, a legal presumption can be drawn, that the same (certified copy of the order) was received by them, within 3-4 days from 14.06.2013. i.e. much prior to the passing of the ejectment order, referred to above.
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 670 days, in filing the appeal. Thus, it appears that the applicants/appellants, acted only after filing of the Execution Application/Criminal Petition, under Section 27 of 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, sent to them, by the District Forum, through registered A.D. on 14.06.2013, for filing the appeal. Why it took 670 days, as per the applicants/appellants (as per the office report 661 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 receipt of the certified copy 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 670 days, as per the applicants/appellants (as per the office report 661 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 670 days, in filing the appeal, which is more than 22 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, 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 670 days, as per the applicants/appellants (as per the office report 661 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 670 days, as per the applicants/appellants (as per the office report 661 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 670 days, as per the applicants/appellants No.1 to 3 (as per the office report 661 days), being devoid of merit, must fail, and the same is dismissed. Consequently, the appeal under Section 15 of the Act, filed by the applicants/ appellants No.1 to 3 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.
May 8, 2015 Sd/-
[JUSTICE SHAM SUNDER (RETD.)] PRESIDENT Sd/-
(DEV RAJ) MEMBER Sd/-
(PADMA PANDEY) MEMBER Rg