National Consumer Disputes Redressal
Manoj Kumar vs Mariamma Kurien on 6 January, 2017
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI FIRST APPEAL NO. 1694 OF 2016 (Against the Order dated 31/12/2013 in Complaint No. 04/2011 of the State Commission Kerala) 1. MANOJ KUMAR ...........Appellant(s) Versus 1. MARIAMMA KURIEN ...........Respondent(s)
BEFORE: HON'BLE MR. JUSTICE D.K. JAIN,PRESIDENT HON'BLE MRS. M. SHREESHA,MEMBER For the Appellant : Mr. Subhash Chandran K.R., Advocate For the Respondent :
Dated : 06 Jan 2017 ORDER
1. This First Appeal, under Section 19 read with Section 21 of the Consumer Protection Act, 1986 (for short "the Act"), by a Builder, engaged in the business of civil construction, particularly in the villas and residential houses, the sole Opposite Party in the Complaint under the Act, is directed against the order dated 31.12.2013, passed by the Kerala State Consumer Disputes Redressal Commission at Thiruvananthapuram (for short "the State Commission") in Complaint Case No. 04/11. By the impugned order, while partly allowing the Complaint, preferred by the Respondent/Complainant, the State Commission has directed the Appellant to pay to the Complainant a sum of ₹9,01,362/- towards the cost of work, to be executed, besides paying ₹1,00,000/- as compensation and ₹5,000/- as costs of the proceedings. The said directions were to be complied within a period of two months, failing which the entire amount was directed to carry interest @ 10% from the date of the order till realization.
2. On 02.02.2009, the Complainant had entered into an agreement with the Appellant for construction of a residential house on her property situated in Enadimangalam Village in Adoor Taluk, as per the approved plan, specifications and other details, attached with the agreement. As agreed between the parties, the construction was to be completed within nine months from the date of the agreement, against a total cost of ₹32,50,000/-, which was to be paid in accordance with the payment schedule attached with the said agreement. Despite having received a huge amount of ₹30,43,500/-, the Appellant failed to complete the construction work within the stipulated period and according to the specifications given in the approved plan. The said work was delayed by the Appellant on one pretext or the other. Due to several reasons, including low quality of material used and bad workmanship etc., certain portion of the building constructed was found to be not fit for human habitation and the Complainant was left with no option except to dismantle the same and reconstruct building. The legal notice, got issued by the Complainant, did not evoke any response from the Appellant. The teak and other wood provided by the Complainant to the Appellant for being used in the building was also damaged because the carpentry work was not done within a reasonable time with proper care. In the said background, alleging deficiency in service on the part of the Appellant in not completing the construction work within the stipulated period, despite having received a huge amount of ₹30,43,500/-, the afore-noted Complaint came to be filed before the State Commission. The Complainant had prayed for a direction to the Appellant to refund to her the said amount with interest @ 18% p.a., besides paying ₹5,00,000/- as damages for the loss of valuable wood and ₹2,00,000/- towards compensation.
3. On analysis of the evidence adduced by the parties before it, including the Written Version filed on behalf of the Appellant, the State Commission found force in the submission of the Complainant and consequently, as noted above, while partly allowing the Complaint, issued the afore-noted directions to the Appellant. Hence, the present Appeal.
4. It is pointed out by the office that the Appeal is barred by limitation, inasmuch as there is a delay of 1018 days in filing the same. An Application, praying for condonation of the said delay, has been filed along with the Appeal. In paragraph no.2 of the same, the Appellant has furnished the following short and crisp explanation:
"2. The Appellant received copy of the impugned order on 08.12.2016. The date of disposal was on 13.12.2013 and the Appellant not received copy of the final order. It has been contended that the earlier counsel never communicated to the Appellant about the decision of the State Commission (sic) and as such Appellant could not take appropriate steps to challenge the decision passed by the State Commission within the requisite time. However, after knowing about the Execution Petition filed by the Respondent in the CC No.4 of 2011 before the State Commission, the Appellant applied for the certified copy of the order and thereafter new counsel was engaged. Thus, delay in filing of the appeal before this Hon'ble Commission was not intentional. ...."
5. In our view, the explanation furnished by the Appellant is not only vague to the core but also far from satisfactory. At the outset, it may be noted that the Appellant was duly represented by his Counsel before the State Commission and had also filed his Written Version, rebutting the allegations levelled against him by the Complainant. On disposal of the case by the State Commission vide the impugned order, whereby certain monetary liability was fastened, a free copy of the final order was sent to the Appellant on 05.02.2014. As is evident from the afore-extracted explanation, it is not the case of the Appellant that the free copy was never dispatched by the State Commission at his address. Therefore, the averment that the Counsel did not inform him about the final order is of no consequence. Thus, the plea of the Appellant that he had received a copy of the impugned order only on 08.12.2016, is belied by the said endorsement on the certified copy of the order. It seems that the Appellant was not bothered by the directions issued to him by the State Commission and woke up only when he received a notice in the Execution proceedings initiated by the Complainant for execution of the order passed in her favour. In any case, the fact remains that the present Appeal has been filed with an inordinate delay of 1018 days, over and above the statutory period of 30 days as provided under the Act, for condonation of which a static explanation has been furnished by the Appellant. We are convinced that in fact the Appellant has nothing to say as regards delay and is only interested in protracting the matter on one pretext or the other. If he was really interested in challenging the impugned order, whereby certain directions were issued to him, he would have been on his toes to ensure that the Appeal was filed promptly, at least on receiving the free certified copy of the impugned order on 05.02.2014, which was not to be.
6. In view of the above, we are of the opinion that apart from the fact that the Application is not bonafide, the Appellant has failed to make out any cause, much less a "sufficient cause" for condonation of inordinate delay of 1018 days in filing of the present Appeal and in the event the said unexplained delay is condoned and the Appeal is entertained, the Complainant, who had entered into agreement with the Appellant as far back as on 02.02.2009; had parted with a huge amount of ₹30,43,500/-; and had been granted certain relief by the State Commission, would be put to further harassment.
7. In coming to the aforesaid conclusion, we have also kept in mind 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 belated petitions filed against the orders of the Consumer Foras are entertained.
8. Consequently, the Appeal is dismissed on the short ground of limitation.
......................J D.K. JAIN PRESIDENT ...................... M. SHREESHA MEMBER