National Consumer Disputes Redressal
Sharma Realty Pvt. Ltd. vs Ram Niwas Rai on 30 November, 2018
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO. 3079 OF 2018 (Against the Order dated 30/08/2016 in Appeal No. 165/2015 of the State Commission Maharashtra) 1. SHARMA REALTY PVT. LTD. 109, BHARAT INDUSTRIAL ESTATE L.B.S. MARG, BHANDUP WEST MUMBAI-400078 MAHARASTRA ...........Petitioner(s) Versus 1. JAYVANT VASANT THORVE & ANR. R/O. 5/4, SAISADAN, CHENDANI KOLIWALA MITHABANDAR ROAD, THANE EAST-400603 MAHARASHTRA 2. VEENA JAYVANT THORVE R/O. 5/4, SAISADAN, CHENDANI KOLIWALA MITHABANDAR ROAD, THANE EAST-400603 MAHARASHTRA ...........Respondent(s) REVISION PETITION NO. 3080 OF 2018 (Against the Order dated 30/08/2016 in Appeal No. 166/2015 of the State Commission Maharashtra) WITH
IA/20564/2018(Stay),IA/20565/2018(Exemption for Filing Official Translation),IA/20566/2018(Condonation of delay),IA/20567/2018(Exemption from filing the Certified Copy) 1. SHARMA REALTY PVT. LTD. 109, BHARAT INDUSTRIAL ESTATE L.B.S. MARG, BHANDUP WEST MUMBAI-400078 MAHARASTRA ...........Petitioner(s) Versus 1. RAM NIWAS RAI R/O. B-215, DEEP JYOTI APPARTMENT, NEAR SHAHAD RAILWAY STATION SHAHAD WEST KALYAN-421103 ...........Respondent(s) BEFORE: HON'BLE MRS. M. SHREESHA,PRESIDING MEMBER For the Petitioner : Mr. Mohd. Wasay Khan and Ms. Zeba Tarannum, Advocates. For the Respondent :
Dated : 30 Nov 2018 ORDER By this Revision Petition under Section 21(b) of the Consumer Protection Act, 1986 (for short the "Act") M/s Sharma Realty Pvt. Ltd. challenges the order dated 30.08.2016 passed by the Maharashtra State Consumer Disputes Redressal Commission at Mumbai (for short "the State Commission.") in Appeal Nos. A/15/165 and A/15/166. By the impugned order, the State Commission has partly allowed the Appeals, preferred by the Petitioner and directed them to refund the deposited amount along with interest @ 21% p.a., compensation of ₹5,00,000/- and costs of ₹30,000/-. However, the State Commission set aside the order of Additional Consumer Complaint Redressel Forum, Mumbai Suburban District (for short "the District Forum") whereby the Complainant was directed to pay the balance cost of the booked flat to the tune of ₹13,01,000/- to the Petitioner which in turn was directed to hand over the possession of the flat to the Complainant.
2. Aggrieved by the said directions of the State Commission in the impugned order, the Petitioner has preferred the present Revision Petitions with a delay of 609 days and filed Interim Application No. 20563 of 2018 in RP No. 3079 of 2018 and Interim Application No. 20566 of 2018 in RP No. 3080 of 2018 under Section 5 of the Limitation Act seeking condonation of the said delay.
3. As no specific dates were mentioned in the initial Application seeking condonation of delay, Counsel for the Petitioner filed an additional Affidavit explaining the delay with the relevant dates.
4. Heard the Ld. Counsel for the Petitioner and perused the record.
5. It is contended by the Ld. Counsel for the Petitioner that the Petitioner Company had three directors namely (1) Late Mr. M.D. Sharma (2) Mr. Dinesh Muktinath Sharma and (3) Vinod Mukti Nath Sharma; Mr. M.D. Sharma was the father of the other two Directors and was acting as the Managing Director of the Petitioner Company till his death on 21.01.2017; all court matters and all other legal issues pertaining to the Petitioner Company were looked after and taken care of by Late Mr. M.D. Sharma as he was the main head and father of the other officer bearers of the Petitioner Company; apart from the Petitioner Company there were other firms also under the partnership arrangements and all the legal matters pertaining to all the firms were also being looked after and taken care by Mr. M.D. Sharma exclusively as he was duly authorized to do solely on behalf of the Petitioner Company without any issue from any one else and thus he was also looking after the present matter and in the same he was being assisted by an employee of the Petitioner Company but due to some misunderstanding and reasons well known to him the said employee stopped coming to the office; that the present Applicants (other Directors of the Company/sons of Mr. M.D. Sharma) were under the impression that late Mr. M.D. Sharma was pursuing the present matter like other Court cases; however during the cross check and verification of all the matters after the death of their father it came to their knowledge that no Petition pertaining to the present matter was filed; they contacted their employee and got the record from him which in turn was sent to the Counsel who after receiving the papers in the last week of July, 2018 informed the Applicants that some papers were missing in the record and translation of certain Marathi documents were also required; the Applicants located the documents and sent the same to the Counsel in the third week of August, 2018; however still there were some papers/documents missing; when the Counsel asked the Applicants to provide him the same, with the help of their old employee they contacted their local Counsel in the second week of September, 2018 who sought some time to trace the record as it was an old matter; they again contacted the local Counsel in the first week of October, 2018 who provided them with a bunch of papers and the same were sent to the Counsel which were received by him in the second week of October, 2018; translation of order of the District Forum was provided in the third week of October, 2018; Counsel then sought copies of earlier Order of District forum which were forwarded to him with English translation of the same in the last week of October, 2018 who on receipt of them, without any further loss of time prepared the Petition and preferred the same before this Commission. It is contended that thus the delay occurred was beyond the control of the applicants and therefore the same may be condoned.
6. In "Ram Lal and Ors. vs. Rewa Coalfields Limited, AIR 1962 Supreme Court 361" the Hon'ble Supreme Court while dealing with the matter of condonation of delay has observed 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."
The tests which need to be applied in the matters relating to condontion of delay are whether the appellant has acted with reasonable diligence or not.
7. The Court in another case of "R. B. Ramlingam vs. R. B. Bhavaneshwari, I (2009) CLT 188 (SC), has stated that:
"We hold that in each and every case the Court has to examine whether delay in filing the special appeal 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."
8. The Hon'ble Supreme Court in the case of Anshul Aggarwal vs New Okhla Industrial Development Authority (2011) 14 SCC 578, while dealing with the matters under the Act has clearly stated that special nature of the Act has to be kept in mind while dealing with the special period of limitation prescribed therein. It has 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 Fora."
9. Keeping in view the submissions of the Ld. Counsel for the Revision Petitioner that the Managing Director of the Company has died it is observed that there could be some delay on account of the death of the Managing Director on 21.01.2017, but at the same time it is pertinent to note that the Impugned Order is dated 30.08.2016 and the free certified copy was given on 12.09.2016 at least four months prior to the death of the Managing Director. It is relevant to mention that the Petitioner herein is a Company and the other Directors are the sons of the Managing Director and therefore, the reason that some misunderstanding has developed and the concerned officer stopped coming cannot be construed to be a substantial reason. Additionally, the Affidavit is silent with respect to the date on which the concerned officer stopped coming and also the date as to when the matter was brought to the knowledge of the other Directors and as to when they had taken action pertaining to the case.
10. There is no doubt that the matter relating to the delay in filing these Revision Petitions has to be construed in a liberal manner but where the delay is unexplained and is not convincing and no sufficient cause is shown the courts are justified in rejecting the Revision Petitions on the grounds of delay in filing the same.
11. In view of the afore-noted judgements and the reasons cited, the Applications seeking condonation of delay are dismissed. Consequently, the Revision Petitions are also dismissed as barred by limitation.
...................... M. SHREESHA PRESIDING MEMBER