National Consumer Disputes Redressal
M/S. Amr Housing Development ... vs Undamatha Venkantaga Srinivasa on 11 October, 2023
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO. 349 OF 2022 (Against the Order dated 03/08/2021 in Appeal No. 1496/2019 of the State Commission Karnataka) 1. M/S. AMR HOUSING DEVELOPMENT CORPORATION & 2 ORS. ...........Petitioner(s) Versus 1. SANDEEPANI 2. K MANJUNARH ACHARI .. ...........Respondent(s) REVISION PETITION NO. 350 OF 2022 (Against the Order dated 03/08/2021 in Appeal No. 1497/2019 of the State Commission Karnataka) 1. M/S. AMR HOUSING DEVELOPMENT CORPORATION & 2 ORS. ...........Petitioner(s) Versus 1. MANJUNATHA ACHARI ...........Respondent(s) REVISION PETITION NO. 351 OF 2022 (Against the Order dated 03/08/2021 in Appeal No. 1498/2019 of the State Commission Karnataka) 1. M/S. AMR HOUSING DEVELOPMENT CORPORATION & 2 ORS. ...........Petitioner(s) Versus 1. VENUGOPAL RAO ...........Respondent(s) REVISION PETITION NO. 352 OF 2022 (Against the Order dated 03/08/2021 in Appeal No. 1499/2019 of the State Commission Karnataka) 1. M/S. AMR HOUSING DEVELOPMENT CORPORATION & 2 ORS. ...........Petitioner(s) Versus 1. GANESH JAGADISH & ANR. ...........Respondent(s) REVISION PETITION NO. 353 OF 2022 (Against the Order dated 03/08/2021 in Appeal No. 1500/2019 of the State Commission Karnataka) 1. M/S. AMR HOUSING DEVELOPMENT CORPORATION & 2 ORS. ...........Petitioner(s) Versus 1. RAVINDRA KATAKAM ...........Respondent(s) REVISION PETITION NO. 354 OF 2022 (Against the Order dated 03/08/2021 in Appeal No. 1501/2019 of the State Commission Karnataka) 1. M/S. AMR HOUSING DEVELOPMENT CORPORATION & 2 ORS. ...........Petitioner(s) Versus 1. RATHAN KUMAR SINGADE ...........Respondent(s) REVISION PETITION NO. 355 OF 2022 (Against the Order dated 03/08/2021 in Appeal No. 1502/2019 of the State Commission Karnataka) 1. M/S. AMR HOUSING DEVELOPMENT CORPORATION & 2 ORS. ...........Petitioner(s) Versus 1. MANJULABASAVACHARIM ...........Respondent(s) REVISION PETITION NO. 356 OF 2022 (Against the Order dated 03/08/2021 in Appeal No. 1503/2019 of the State Commission Karnataka) 1. M/S. AMR HOUSING DEVELOPMENT CORPORATION & 2 ORS. ...........Petitioner(s) Versus 1. KIRAN G JANNU ...........Respondent(s) REVISION PETITION NO. 357 OF 2022 (Against the Order dated 03/08/2021 in Appeal No. 1504/2019 of the State Commission Karnataka) 1. M/S. AMR HOUSING DEVELOPMENT CORPORATION & 2 ORS. ...........Petitioner(s) Versus 1. A. BALAJI ...........Respondent(s) REVISION PETITION NO. 358 OF 2022 (Against the Order dated 03/08/2021 in Appeal No. 1505/2019 of the State Commission Karnataka) 1. M/S. AMR HOUSING DEVELOPMENT CORPORATION & 2 ORS. ...........Petitioner(s) Versus 1. R. VIJAYA ...........Respondent(s) REVISION PETITION NO. 359 OF 2022 (Against the Order dated 03/08/2021 in Appeal No. 1506/2019 of the State Commission Karnataka) 1. M/S. AMR HOUSING DEVELOPMENT CORPORATION & 2 ORS. ...........Petitioner(s) Versus 1. POORNESH K.A ...........Respondent(s) REVISION PETITION NO. 360 OF 2022 (Against the Order dated 03/08/2021 in Appeal No. 1507/2019 of the State Commission Karnataka) 1. M/S. AMR HOUSING DEVELOPMENT CORPORATION & 2 ORS. ...........Petitioner(s) Versus 1. SANDEEP KISHORE ABBIMANE ...........Respondent(s) REVISION PETITION NO. 361 OF 2022 (Against the Order dated 03/08/2021 in Appeal No. 1508/2019 of the State Commission Karnataka) 1. M/S. AMR HOUSING DEVELOPMENT CORPORATION & 2 ORS. ...........Petitioner(s) Versus 1. MOHAMED SAHEB VASEEM ...........Respondent(s) REVISION PETITION NO. 362 OF 2022 (Against the Order dated 08/12/2021 in Appeal No. 40/2020 of the State Commission Karnataka) 1. M/S. AMR HOUSING DEVELOPMENT CORPORATION & 2 ORS. ...........Petitioner(s) Versus 1. RAMESH V ...........Respondent(s) REVISION PETITION NO. 363 OF 2022 (Against the Order dated 08/12/2021 in Appeal No. 41/2020 of the State Commission Karnataka) 1. M/S. AMR HOUSING DEVELOPMENT CORPORATION & 2 ORS. ...........Petitioner(s) Versus 1. SRIKANTH R ...........Respondent(s) REVISION PETITION NO. 364 OF 2022 (Against the Order dated 08/12/2021 in Appeal No. 42/2020 of the State Commission Karnataka) 1. M/S. AMR HOUSING DEVELOPMENT CORPORATION & 2 ORS. ...........Petitioner(s) Versus 1. VAMSI KRISHNA ...........Respondent(s) REVISION PETITION NO. 365 OF 2022 (Against the Order dated 08/12/2021 in Appeal No. 842/2020 of the State Commission Karnataka) 1. M/S. AMR HOUSING DEVELOPMENT CORPORATION & 2 ORS. ...........Petitioner(s) Versus 1. B. SIVA PRAKASH ...........Respondent(s) REVISION PETITION NO. 366 OF 2022 (Against the Order dated 08/12/2021 in Appeal No. 843/2020 of the State Commission Karnataka) 1. M/S. AMR HOUSING DEVELOPMENT CORPORATION & 2 ORS. ...........Petitioner(s) Versus 1. CHANDRASEKAR RAJU ...........Respondent(s) REVISION PETITION NO. 367 OF 2022 (Against the Order dated 08/12/2021 in Appeal No. 844/2020 of the State Commission Karnataka) 1. M/S. AMR HOUSING DEVELOPMENT CORPORATION & 2 ORS. ...........Petitioner(s) Versus 1. UNDAMATHA VENKANTAGA SRINIVASA ...........Respondent(s) REVISION PETITION NO. 368 OF 2022 (Against the Order dated 08/12/2021 in Appeal No. 845/2020 of the State Commission Karnataka) 1. M/S. AMR HOUSING DEVELOPMENT CORPORATION & 2 ORS. ...........Petitioner(s) Versus 1. V.RAMANATHLAKSHMAIAH ...........Respondent(s) REVISION PETITION NO. 369 OF 2022 (Against the Order dated 08/12/2021 in Appeal No. 846/2020 of the State Commission Karnataka) 1. M/S. AMR HOUSING DEVELOPMENT CORPORATION & 2 ORS. ...........Petitioner(s) Versus 1. TARUN KUMAR PAL ...........Respondent(s) REVISION PETITION NO. 370 OF 2022 (Against the Order dated 08/12/2021 in Appeal No. 847/2020 of the State Commission Karnataka) 1. M/S. AMR HOUSING DEVELOPMENT CORPORATION & 2 ORS. ...........Petitioner(s) Versus 1. A.S. PRAKASH ...........Respondent(s) REVISION PETITION NO. 371 OF 2022 (Against the Order dated 08/12/2021 in Appeal No. 853/2020 of the State Commission Karnataka) 1. M/S. AMR HOUSING DEVELOPMENT CORPORATION & 2 ORS. ...........Petitioner(s) Versus 1. MAMTAJEENA & ANR. ...........Respondent(s) REVISION PETITION NO. 372 OF 2022 (Against the Order dated 08/12/2021 in Appeal No. 854/2020 of the State Commission Karnataka) 1. M/S. AMR HOUSING DEVELOPMENT CORPORATION & 2 ORS. ...........Petitioner(s) Versus 1. ASHWINIKARTHIGEYAN ...........Respondent(s)
BEFORE: HON'BLE DR. INDER JIT SINGH,PRESIDING MEMBER
FOR THE PETITIONER : MR. BIKRAM SINGH PATEL, ADVOCATE FOR THE RESPONDENT : FOR THE RESPONDENT (S) : MS. KAMAKSHI S MEHLWAL, ADVOCATE
( IN RP NO. 349 OF 2022 MR. RINKUMATHUR, ADVOCATE
TO 364 OF 2022, MR. ABHIK KUMAR, ADVOCATE
& RP NOS. 366 TO 368 OF
2022
FOR THE RESPONDENT IN : NONE
RP NO 370 OF 2022
Dated : 11 October 2023 ORDER
1. Heard counsels for both sides. Mr.Bikram Singh Patel, Advocate represented Petitioners in all the Revision Petitions under this order.
2. At the outset, Counsel for the Petitioners, on instructions, states that he is withdrawing the following Revision Petitions.
Sl. No. Sl. No. in the Cause List Revision Petition No. Name of the Petitioner Name of Respondent
1. 26 RP No. 365 of 2022 M/s AMR Housing Development Corporation and Ors.
B.Siva Prakash
2. 30 RP No. 369 of 2022 M/s AMR Housing Development Corporation and Ors.
Tarn Kumar Pal 3 32 RP No. 371 of 2022 M/s AMR Housing Development Corporation and Ors.
Mamatha Jena & Anr.
4. 33 RP No. 372 of 2022 M/s AMR Housing Development Corporation and Ors.
Ashwini Karthigyan Accordingly, the Revision Petitions No. 365 of 2022, 369 of 2022, 371 of 2022 and 372 of 2022 are dismissed as withdrawn.
3. The Revision Petitions (RPs) No. 349 of 2022 to 361 of 2022 have been filed by the Petitioner against Respondents as detailed above, under section 58 1 (b) of Consumer Protection Act 1989, against the order dated 03.08.2021 of the State Consumer Disputes Redressal Commission Karnataka (hereinafter referred to as the 'State Commission'), in First Appeal (FA) No.1496 of 2019 to 1508 of 2019
4. The Revision Petitions ( RPs) No. 362 to 364 of 2022, 366 to 368 of 2022 and 370 of 2022 has been filed by the Petitioner against Respondents as detailed above, under section 58 1 (b) of Consumer Protection Act, 1989 against the order dated 08.12.2021 of the State Consumer Disputes Redressal Commission Karnataka ( hereinafter referred to as the 'State Commission') in Appeal No. 40 of 2020 to 42 of 2020, 843 of 2020, 844 of 2020, 845 of 2020 and 847 of 2020.
5. Ms.Kamakshi S Mehlwal, Advocate appears for Respondent in RP No. 349 to 364 of 2022 and 366 to 368 of 2022. None appears for respondent in RP No. 370 of 2022. Counsel for the respondent states that they have filed their response to the RPs and brief of written arguments filed in RP No. 349 of 2022 and the same may be treated for all the cases represented by her with only factual details being different and rest of the contentions / legal points remaining same.
6. It is seen that following Revision Petitions have been filed with delay stated against each case:
Sl.No Sl.No in the Cause List RP No. Name of the Petitioner Name of Respondent No. of days in delay in filing the RP as ( as calculated by the Registry)
1. 10 RP No. 349 of 2022
M/s AMR Housing Development Corporation and Ors.
Sandeepani 149
2. 11 RP No. 350 of 2022 M/s AMR Housing Development Corporation and Ors.
ManjunathaAchari 407
3. 12 RP No. 351 of 2022 M/s AMR Housing Development Corporation and Ors.
VenugopalRao 155
4. 13 RP No.352 of 2022 M/s AMR Housing Development Corporation and Ors.
Ganesh Jagadish&Anr.
1555. 14 RP No. 353 of 2022 M/s AMR Housing Development Corporation and Ors.
RavindraKatakam 155
6. 15 RP No. 354 of 2022 M/s AMR Housing Development Corporation and Ors.
Rathan Kumar Singade 155
7. 16 RP No.355 of 2022 M/s AMR Housing Development Corporation and Ors.
Manjulabasavacharim 155
8. 17 RP No. 356 of 2022 M/s AMR Housing Development Corporation and Ors.
Kiran G Jannu 155
9. 18 RP No. 357 of 2022 M/s AMR Housing Development Corporation and Ors.
A Balaji 155
10. 19 RP No. 358 of 2022 M/s AMR Housing Development Corporation and Ors.
A.Vijaya 155
11.
20. RP No. 359 of 2022 M/s AMR Housing Development Corporation and Ors.
Poornesh K A 155
12. 21 RP No. 360 of 2022 M/s AMR Housing Development Corporation and Ors.
SandeepKishreAbbimane 155
13. 22 RP No. 361 of 2022 M/s AMR Housing Development Corporation and Ors.
Mohamed SahebVaseem 155
7. In all the above cases, no application for condonation of delay has been filed. Petitioners admit the fact of delay in filing the above said RPs and that no condonation of delay applications have been filed in these cases. Although no application for condonation of delay has been filed in any of the above stated cases / RPs, keeping in view the decision of Hon'ble Supreme Court in Sesh Nath Singh & Anr. Vs. Baidyabati Sheoraphuli Co-operative Bank Ltd. and Anr., (Civil Appeal No. 9198 of 2019 decided on 22.03.2021), relevant extract of which is reproduced below, we have considered the reasons for delay / grounds for condonation, as orally adduced by the Petitioner during the hearing.
61. The condition precedent for condonation of the delay in filing an application or appeal, is the existence of sufficient cause. Whether the explanation furnished for the delay would constitute 'sufficient cause' or not would dependent upon facts of each case. There cannot be any straight jacket formula for accepting or rejecting the explanation furnished by the applicant/appellant for the delay in taking steps. Acceptance of explanation furnished should be the rule and refusal an exception, when no negligence or inaction or want of bona fides can be imputed to the defaulting party.
62. It is true that a valuable right may accrue to the other party by the law of limitation, which should not lightly be defeated by condoning delay in a routine manner. At the same time, when stakes are high, the explanation should not be rejected by taking a pedantic and hyper technical view of the matter, causing thereby irreparable loss and injury to the party against whom the lis terminates. The courts are required to strike a balance between the legitimate rights and interests of the respective parties.
63. Section 5 of the Limitation Act, 1963 does not speak of any application. The Section enables the Court to admit an application or appeal if the applicant or the appellant, as the case may be, satisfies the Court that he had sufficient cause for not making the application and/or preferring the appeal, within the time prescribed. Although, it is the general practice to make a formal application under Section 5 of the Limitation Act, 1963, in order to enable the Court or Tribunal to weigh the sufficiency of the cause for the inability of the appellant/applicant to approach the Court/Tribunal within the time prescribed by limitation, there is no bar to exercise by the Court/Tribunal of its discretion to condone delay, in the absence of a formal application.
64. A plain reading of Section 5 of the Limitation Act makes it amply clear that, it is not mandatory to file an application in writing before relief can be granted under the said section. Had such an application been mandatory, Section 5 of the Limitation Act would have expressly provided so. Section 5 would then have read that the Court might condone delay beyond the time prescribed by limitation for filing an application or appeal, if on consideration of the application of the appellant or the applicant, as the case may be, for condonation of delay, the Court is satisfied that the appellant/applicant had sufficient cause for not preferring the appeal or making the application within such period. Alternatively, a proviso or an Explanation would have been added to Section 5, requiring the appellant or the applicant, as the case may be, to make an application for condonation of delay. However, the Court can always insist that an application or an affidavit showing cause for the delay be filed. No applicant or appellant can claim condonation of delay under Section 5 of the Limitation Act as of right, without making an application.
102. ........ At the cost of repetition it is reiterated that delay can be condoned irrespective of whether there is any formal application, if there are sufficient materials on record disclosing sufficient cause for the delay."
8. The above stated RPs have been filed with a delay ranging from 149 to 407 days, as given in the Table in para 6 above. In order to condone the delay, the Petitioner has to satisfy this Commission that there was sufficient cause for preferring the Revision Petitions after the stipulated limitation period. The term 'sufficient cause' has been explained by the Hon'ble Supreme Court in Basawaraj and Another. Vs. Special Land Acquisition Officer(2013) 14 SCC 81. Hon'ble Supreme Court in this case observed as follows :
9. Sufficient cause is the cause for which the defendant could not be blamed for his absence. The meaning of the word "sufficient" is "adequate" or "enough", inasmuch as may be necessary to answer the purpose intended. Therefore, the word "sufficient" embraces no more than that which provides a platitude, which when the act done suffices to accomplish the purpose intended in the facts and circumstances existing in a case, duly examined from the viewpoint of a reasonable standard of a cautious man. In this context, "sufficient cause" means that the party should not have acted in a negligent manner or there was a want of bona fide on its part in view of the facts and circumstances of a case or it cannot be alleged that the party has "not acted diligently" or "remained inactive". However, the facts and circumstances of each case must afford sufficient ground to enable the court concerned to exercise discretion for the reason that whenever the court exercises discretion, it has to be exercised judiciously. The applicant must satisfy the court that he was prevented by any "sufficient cause" from prosecuting his case, and unless a satisfactory explanation is furnished, the court should not allow the application for condonation of delay. The court has to examine whether the mistake is bona fide or was merely a device to cover an ulterior purpose.
10. In Arjun Singh v. Mohindra Kumar [AIR 1964 SC 993] this Court explained the difference between a "good cause" and a "sufficient cause" and observed that every "sufficient cause" is a good cause and vice versa. However, if any difference exists it can only be that the requirement of good cause is complied with on a lesser degree of proof than that of "sufficient cause".
11. The expression "sufficient cause" should be given a liberal interpretation to ensure that substantial justice is done, but only so long as negligence, inaction or lack of bona fides cannot be imputed to the party concerned, whether or not sufficient cause has been furnished, can be decided on the facts of a particular case and no straitjacket formula is possible.
12. It is a settled legal proposition that law of limitation may harshly affect a particular party but it has to be applied with all its rigour when the statute so prescribes. The court has no power to extend the period of limitation on equitable grounds. "A result flowing from a statutory provision is never an evil. A court has no power to ignore that provision to relieve what it considers a distress resulting from its operation." The statutory provision may cause hardship or inconvenience to a particular party but the court has no choice but to enforce it giving full effect to the same. The legal maxim duralexsedlex which means "the law is hard but it is the law", stands attracted in such a situation. It has consistently been held that, "inconvenience is not" a decisive factor to be considered while interpreting a statute.
13. The statute of limitation is founded on public policy, its aim being to secure peace in the community, to suppress fraud and perjury, to quicken diligence and to prevent oppression. It seeks to bury all acts of the past which have not been agitated unexplainably and have from lapse of time become stale........
An unlimited limitation would lead to a sense of insecurity and uncertainty, and therefore, limitation prevents disturbance or deprivation of what may have been acquired in equity and justice by long enjoyment or what may have been lost by a party's own inaction, negligence or laches.
15. The law on the issue can be summarised to the effect that where a case has been presented in the court beyond limitation, the applicant has to explain the court as to what was the "sufficient cause" which means an adequate and enough reason which prevented him to approach the court within limitation. In case a party is found to be negligent, or for want of bona fide on his part in the facts and circumstances of the case, or found to have not acted diligently or remained inactive, there cannot be a justified ground to condone the delay. No court could be justified in condoning such an inordinate delay by imposing any condition whatsoever. The application is to be decided only within the parameters laid down by this Court in regard to the condonation of delay. In case there was no sufficient cause to prevent a litigant to approach the court on time condoning the delay without any justification, putting any condition whatsoever, amounts to passing an order in violation of the statutory provisions and it tantamounts to showing utter disregard to the legislature."
9. Hon'ble Supreme Court in EshaBhattcharjee v. Raghunathpur Nafar Academy [(2013) 12 SCC 649], while dealing with the issue of condonation of delay, after taking note of various authorities/earlier judgments of the Hon'ble Supreme Court, culled out broad principles for considering the condonation of delay applications and also added few more guidelines taking note of the present day scenario. Relevant paras of these are reproduced below:-
"15. From the aforesaid authorities the principles that can broadly be culled out are:
x xxx
ii) The terms "sufficient cause" should be understood in their proper spirit, philosophy and purpose regard being had to the fact that these terms are basically elastic and are to be applied in proper perspective to the obtaining fact- situation.
x xxx
iv) No presumption can be attached to deliberate causation of delay but, gross negligence on the part of the counsel or litigant is to be taken note of.
v) Lack of bona fides imputable to a party seeking condonation of delay is a significant and relevant fact.
x xxx
vii) The concept of liberal approach has to encapsule the conception of reasonableness and it cannot be allowed a totally unfettered free play.
viii) There is a distinction between inordinate delay and a delay of short duration or few days, for to the former doctrine of prejudice is attracted whereas to the latter it may not be attracted. That apart, the first one warrants strict approach whereas the second calls for a liberal delineation.
ix) The conduct, behaviour and attitude of a party relating to its inaction or negligence are relevant factors to be taken into consideration. It is so as the fundamental principle is that the courts are required to weigh the scale of balance of justice in respect of both parties and the said principle cannot be given a total go by in the name of liberal approach.
x) If the explanation offered is concocted or the grounds urged in the application are fanciful, the courts should be vigilant not to expose the other side unnecessarily to face such a litigation.
xi) It is to be borne in mind that no one gets away with fraud, misrepresentation or interpolation by taking recourse to the technicalities of law of limitation.
xii) The entire gamut of facts are to be carefully scrutinized and the approach should be based on the paradigm of judicial discretion which is founded on objective reasoning and not on individual
xiii) The State or a public body or an entity representing a collective cause should be given some acceptable latitude.
16. To the aforesaid principles we may add some more guidelines taking note of the present day scenario. They are:
x xxx
c) Though no precise formula can be laid down regard being had to the concept of judicial discretion, yet a conscious effort for achieving consistency and collegiality of the adjudicatory system should be made as that is the ultimate institutional motto.
d) The increasing tendency to perceive delay as a non- serious matter and, hence, lackadaisical propensity can be exhibited in a non-challant manner requires to be curbed, of course, within legal parameters."
10. In SrideviDatla vs. Union of India &Ors. [(2021) 5 SCC 321], Hon'ble Supreme Court observed :
25. Much later, in Esha Bhattacharjee v. RaghunathpurNafar Academy this court referred to a large number of previous judgments, and observed that adoption of a strict standard of proof sometimes fails to protect public justice and it may result in public mischief. Other decisions have highlighted that there cannot be a universal formula to judge whether sufficient cause has, or has not been shown and the exercise is necessarily fact specific; in Improvement Trust v. Ujagar Singh, the court held:
"16. While considering [an] application for condonation of delay no straitjacket formula is prescribed to come to the conclusion if sufficient and good grounds have been made out or not."
26. The court also emphasized that each case has to be balanced on the basis of its facts and the surrounding circumstances in which the parties act and behave."
11. In the absence of any formal application for Condonation of Delay, we have duly considered the reasons for delay / grounds for condonation adduced orally during the hearing. However, we do not find the reasons convincing. Under relevant provisions of Consumer Protection Act / Rules / Regulations, Revision Petition has to be filed within 90 days from the date of receipt of certified copy of the order. We find that sufficient and good grounds have not been made out by the Petitioners in the 13 cases listed in Table in Para 6 above for condonation of delay. Consequently, these 13 Revision Petitions are dismissed, being barred by limitation.
12. Following seven Revision Petitions have been filed in which there is no delay and are taken up on merits after hearing both sides:
Sl. No. Sl. No. in the Cause list RP No. Name of the Petitioner Name of the Respondent
1. 23 RP No. 362 of 2022
M/s AMR Housing Development Corporation and Ors.
Ramesh V
2. 24 RP No. 363 of 2022 M/s AMR Housing Development Corporation and Ors.
Shrikant R
3. 25 RP No. 364 of 2022 M/s AMR Housing Development Corporation and Ors.
Vamsi Krishna
4. 27 RP No. 366 of 2022 M/s AMR Housing Development Corporation and Ors.
Chandra Sekahar Raju
5. 28 RP No. 367 of 2022 M/s AMR Housing Development Corporation and Ors.
A.Undamatha Venkatanaga Srinivasa
6. 29 RP No. 368 of 2022 M/s AMR Housing Development Corporation and Ors.
M.V.Ramanatha Lakshamaiah
7.
31. RP No. 370 of 2022 M/s AMR Housing Development Corporation and Ors.
A.S.Prakash
13. All the above cases in which there is no delay, involve common question of law, hence taken up together. However, RP No. 362 of 2022 is taken up as a lead case and facts stated in subsequent paras have been taken from RP No. 362 of 2022. Brief facts of the case are that Petitioner No.1 (hereinafter referred to as OP No.1) is a partnership firm and Petitioner No.2 and Petitioner No.3 are partners of this firm ( hereinafter also referred to as OP No.2 and OP No.3). On 07.05.2007, Petitioner No.2 (OP No.2) Manjunath Reddy entered into a joint development agreement with Mr. Nanjappa, Mr. D.Venkatesh and Mr.Manjunatha and as per the agreement, Petitioner No.2 agreed to develop the land. On 24.07.2014, Mr. Nanjappa, Mr. D.Venkatesh and Mr.Manjunatha entered into an agreement of sale with Complainant through Petitioner No.2, being their General Power of Attorney to sell 322 sq.ft.undivided right in the land. As per sale agreement, complainant agreed to purchase 322 sq.ft for total consideration of Rs.1,93,200/-. The Complainant paid Rs.1,00,000/- to the OPs as advance sale consideration and it was agreed to pay the balance sale consideration at the time of registration of sale deed.
14. Complainant also entered into construction agreement dated 24.07.2014 with OPs and as per construction agreement, opposite parties agreed to complete the construction of flat and hand over the said flat within 18 months with grace period of 2 months from commencement certificate dated 16.03.2012 and opposite parties are liable to complete the construction by end of March 2016. It is alleged by Respondent that as per the said construction agreement, opposite parties agreed to construct a flat by name 'AMR Oaks' and as per the construction agreement, opposite parties agreed to construct the flat no. 007 of the complainant by receiving total consideration cost of Rs.19,61,900/-. At the time of construction agreement, complainant paid Rs.3,31,020/- towards cost of construction of flat and it was agreed that balance cost of construction is to be paid to opposite parties in installment. The Opposite parties did not complete the construction by the end of March 2016 and assured the complainant that keys of the flat will be handed over by September 2016. Even till end of December 2016, opposite parties did not complete the construction and violated the terms of construction agreement. Being aggrieved of the said act of the Opposite Parties, the Complainant filed a Consumer Complaint before the District Forum on 14.02.2018 and the District Forum passed an order dated 24.09.2018. Being aggrieved of the said order, the OPs filed an Appeal before the State Commission on 13.01.2020, which vide order dated 08.12.2021 granted two months time to comply the order passed by the District Forum. Hence the Petitioners are before this Commission now in the present RPs.
15. Petitioners have challenged the order of the Fora Below interalia on the following grounds :
1. Order dated 08.12.2021 of the State Commission is one sided, arbitrary.
2. Appellant is always ready and willing to perform his part of contract but respondents have not come forward for registration.
3. There is no understanding agreement for contract for payment of any amount.
4. There is no cause of action and complaint is hopelessly barred by limitation and the complaint does not come under the purview of Consumer Protection Act.
5. Both the fora below passed the order based on the affidavit filed by the complainant without looking into the contract/agreement/deeds/undertakings entered into between the parties.
6. The complaint filed by the respondent before the District Forum is of civil in nature and District Forum has no jurisdiction to pass the order.
7. The Petitioner has completed the construction work but respondents have not come forward for registration and there is balance payment from the respondent side and as per the sale and construction agreement, respondent has to pay balance amount to Petitioner.
16. Despite the order of this Commission dated 22.08.2023, the Petitioners have not filed the written submissions / brief of written arguments. Counsel for the Respondents ( Complainants) argued that Complainants have taken loan from the banks and financial institutions and they have to pay heavy EMIs and rent for their flats. The Flats were booked over a decade ago and project was to be completed in year 2014 and the Petitioner is not interested in completing the project. Counsel further argued that on 27.09.2015, Petitioners gave an undertaking that it will complete the project and make all amenities available on or before 31.01.2016. Even the complainants were threatened to withdraw the cases.
17. Counsel for the Respondents further argued that 1stAddl.Consumer Disputes Redressal Forum at Bangalore tried to settle the dispute through mediation and mediation agreement was signed between the parties but Petitioner failed to perform its obligation and the amount it had undertaken to deposit in Escrow account was not deposited and Partner of Petitioner Smt. Anusya S.V. was convicted by the Court of Metropolitan Magistrate for the offences under sectoin138 of the NI Act. Petitioners are deceiving new home buyers and advertising the project as 'Ready to move in' and new applicants are being deceived and told that 'completion certificate' and 'occupation certificate' are not required as per Bangalore City and Municipal Regulations and norms. It is further contended by the counsel that 11 ½ years from the launch of project, when commencement certificate was received from the Anekal Town Planning Authority, Bangalore, the respondents are still battling before different Commission to get justice and respondents have already paid 90% of the total cost of their flats and the project is still in shambles.
18. The committed date of possession was 18 months, with grace period of 2 months from Commencement Certificate dated 16.03.2012. Despite the delay of more than 7-8 years, the Petitioners herein have failed to deliver the possession of the unit to the complainants. Both District Forum and State Commission have given enough opportunities to the OPs and time to fulfill their obligation and deliver the possession of the unit but despite their undertaking / assurance at various points of time as well as orders of the District Forum / State Commission, they have failed to comply with the orders and fulfill their obligations.
19. It is contended by the counsel for the respondents ( complainants before the District Forum ) that units in question are still not ready in all respects and are not in a position where possession can be taken over. Counsel for the Petitioner is also still not in a position to give any firm commitment about the time frame within which they can hand over the possession of the units to the complainants, complete in all respects, as per scope and specifications of the construction agreement and complete the requisite registration formalities and sign the conveyance deed etc.
20. During the hearing, counsel for the Petitioners has basically argued on the quantum of compensation, stating that it is exorbitant ( Rs.10,000 per month granted by District Forum from the date of complaint till the date of possession). However, it is to be noted that District Forum has passed such orders of compensation of Rs.10,000/- per month in some of the RPs ( e.g. RP No.349,, 350, 351 of 2022 etc.) which are included in the table at para 6 i.e., where there is delay in filing the RPs and all such cases have been dismissed on account of limitation vide para 11 of this order.
21. In the seven cases, which are under consideration on merits i.e. those listed in table in para 12 above, operative / relevant orders of the State Commission and District Forum are reproduced below:
a. Operative / relevant order of the State Commission in RP Nos. 362 to 364 of 2022, 366 to 368 of 2022 and 370 of 2022 "We have heard the arguments on both sides. Advocate for appellant submits that they require only four months time to comply the order. We observe that the appeal was filed in the year 2020, already one year was over and so far they have not complied with the order as compromised dt.24.09.2018. Hence, in the interest of justice and equity, we grant two months time to comply with the order passed by the District Commission.
In view of the above observations, the appeal is closed. Respondent is directed to proceed against the order before the District Commission as per Consumer Protection Act after lapse of two months."
b. Operative / relevant order of the District Forum RP Nos. 362 to 364 of 2022, 366 to 368 of 2022 "Dated : 22.09.2018 Complainant / s and O.P.No.1,2 and 3 are present. This complaint was referred to mediation. Both the parties have filed the mediation report and agreed as per the terms and conditions mentioned therein The same is read over in the open court to which parties have admitted having entered into such an agreement. For considering the agreement call on 24.09.2018."
Dated: 24.09.2018 "Perused the agreement entered into between the parties. It is not opposed to public policy. We have accepted the same. In view of it, the complaint is allowed as per the terms and conditions of the agreement entered into between the parties before the mediation. OP No.1,2 and 3 are directed to file the action taken report / progress report every month in respect of the Civil Construction Work on 30.11.2018, 30.12.2018, 31.01.2019, 28.02.2019 and 31.03.2019 and final report on 30.04.2019. The parties are also directed to file the report regarding the registration of the sale deed as and when the same has been carried out. The agreement shall be the part and parcel of the order."
c. Operative / relevant order of the District Forum RP Nos. 370 of 2022 is reproduced below:
"OP is directed to complete the construction and execute a sale deed and hand over the possession of flat by issuing the occupancy certificate in favour of complainant within 6 months from the date of this order, failing which OP shall have to be directed to refund the consideration amount paid by the complainant together with interest @ 10% p.a. from the date of payment till the date of realization. Further OP is directed to pay compensation of Rs.50,000/- and litigation cost of Rs.5000/- to the complainant."
22. Counsel for respondents contends that they have already paid about 90% of the total consideration payable to the petitioner and only about 10% is payable, which comes to about 2-3 lacs. This fact is not disputed by the counsel for the petitioners.
23. Other RPs listed in the Table in para 12 above involve similar facts, with change of unit no., date of sale / construction agreement, area of unit etc, which are summarized in Annexure. In view of the above, after hearing the parties in detail, going through the orders of the State Commission, District Forum and other relevant records and considering the rival contentions of the parties, following orders are passed in all the seven RPs which are taken up on merits i.e. where there is no delay in filing the RPs, which are listed in Table in Para 12 above. It is to be noted that in RP No. 370 of 2022, none appeared on behalf of respondent. However, this case was also taken up on merits based on available records.
24. Considering that all the cases involve same issue, units are located in the same project of OPs, OPs are same, notwithstanding that in RP No. 370 of 2022 District Forum has given some what different relief / order but State Commission has given same order in all the seven cases. Keeping in view the entirety of facts and circumstances, we propose to give uniform orders / reliefs to all the respondents and directions to Petitioners in all these seven cases. Hence, District Forum's orders, read with State Commission orders, would stand modified to this extent.
25. As a last opportunity, Petitioners No.1, 2 and 3 herein, who are herby held liable jointly and severally, are hereby directed to complete the units in question, in all respects, as per scope and specification of the construction agreement, including all fittings/fixtures/finishing touches/provision of lifts/provision of common facilities/ electric/water connection etc., as stated in the construction agreement, within two months from today and issue a written communication / offer of possession to each and every unit holder / complainant (respondent herein), categorically stating that his / her unit is complete in all respects, and arrange a joint inspection of each and every unit with the allottee /complainant/ his representative and the representative of the Petitioners herein, within two weeks of the issuance of such letter by the OPs. If during such joint inspection any shortcomings are noted, same shall be got rectified by the OPs / Petitioners herein at their cost, in another 2 to 4 weeks time frame depending upon the nature and quantum of shortcomings and, thereafter, final offer of possession letter shall be issued to the allottee(s) / complainant (s) in each case, within a maximum of one month time from the date of joint inspection, intimating them the exact balance amount payable by them, if any. Thereafter, allottees shall have one month to pay the balance amount. Thereafter, the Petitioners shall hand over the physical possession of the unit in question to each of the allottee/ complainant within 15 days of receipt of the balance amount and complete all formalities with respect to the registration of the units and signing of the conveyance deed etc in another 2 to 3 weeks time frame. It is clarified that Petitioners need to not only make unit ready in all respects as per the scope and specification of the construction agreement but also obtain the requisite occupation certificate (OC) / completion certificate (CC) and / or other required clearances from the competent authorities, as offer of possession without such certificates / clearances will not be a valid offer. Copy of such occupation certificate / completion certificate / clearances should be enclosed alongwith offer of possession letter referred to above, failing the allottees will be well within their rights to not deposit the amount till the date copy of such certificate / clearance is / are shared with them.
26. It was held by Hon'ble Supreme Court in Wg. Cdr. Arifur Rahman Khan and Aleya Sultana and Ors. vs DLF Southern Homes Pvt. Ltd.& Ors.(2020) 16 SCC 512, "failure of the developer to comply with the contractual obligation to provide the flat to a flat purchaser within the contractually stipulated period, amount to deficiency". It was held by Hon'ble Supreme Court in Bangalore Development authority Vs Syndicate Bank (2007) 6 SCC 442 and Fortune Infrastructure Vs Trevor D' Lima (2018) 5 SCC 422 "Home buyers cannot be made to wait for position of the flat for indefinite period". It was held by Hon'ble Supreme Court in Wg. Cdr. Arifur Rahman Khan ( supra)....jurisdiction of the consumer forums to award just and fair compensation as an incident of its power to direct the removal of deficiency in service is not constrained by terms of a rate which is prescribed in an unfair bargain. "The word "Compensation" is of a very vide connotation. It may constitute actual loss or expected loss and may extend to compensation for physical, mental or even emotional suffering, insult or injury or loss. The provisions of CPA enable a consumer to claim and empower the commission to redress any injustice done". compensation in excess of that stipulated in the agreement- grantable, where the stipulated compensation is unreasonable, one-sided and unfair". "held, the court and the consumer forums must take a robust and common sense based approach by taking judicial notice of the fact that flat purchasers obtain loans and are required to pay EMIs to financial institutions for servicing their debt- thus the award of compensation has to be based on a finding or loss of injury and must corelate to it" further, clarifying the ruling in D.S. Dhanda (2020) 16 SCC 318, held "there is no absolute embargo on the award of compensation beyond the rate stipulated in the flat buyers agreement where handing over of the possession of a flat has been delayed". In Ireo Grace Realtech Pvt Ltd Vs Abhisek Khanna and Ors (2021)3 SCC 241 Hon'ble Supreme Court held "Developer is obligated to pay delay compensation for period of delay which has occurred from due date of handing over possession till date of offer of possession was made to the allottees". In Supertech Limited Vs. Rajni Goyal (2019) 17 SCC 681, where OC was obtained after the date of offer of possession, Hon'ble Supreme Court held that liability of burden to pay delay compensation will stop on the date of obtaining OC.
27. Hence, delay in delivery of possession from the committed date, on the part of the builder amounts to deficiency in service. Reasons for delay given by OPs are not found convincing and acceptable. In its written version dated 05.05.2018 filed before the District Forum in RP No. 362 of 2022, the OPs stated that they would be completing the construction within two or three months. Only a small part work is pending to complete construction. Only about 10% construction is remaining that too in respect of installation of lift and others small facilities. Apart from this, all the construction has been completed. Now the apartment is ready for occupation. Keeping in view the inordinate delay of more than 7-8 years and failure on the part of the petitioner in not honouring their commitment (s) / assurance(s) and the fact that even till today, units are not ready in all respects and they have not obtained the requisite OC/CC/requisite clearances from the competent authority, we are of the view that Petitioners are liable to pay delay compensation for the period of delay and respondents/allottees are entitled to such compensation. Keeping in view the entirety of the facts and circumstances of the case, we allow the delay compensation @ 6% Simple Interest from the committed date of possession as per the construction agreement till the date of actual physical possession with OC/CC and other required clearances. It is clarified that in case the Petitioners hand over the actual physical possession without OC/CC and required clearances, Petitioners liability to pay delay compensation will continue till the date of such OC/CC and other required clearances.
28. While issuing offer of possession letter to the allottees / complainants and demanding the balance amount, Petitioners herein shall calculate the amount of compensation payable to the allottees as per this order and duly adjust the same and demand balance amount only, if any. If no amount is payable by the allottees/ complainants after adjusting the amount of compensation payable as per this order and Petitioners are liable to pay the compensation / balance compensation, the same shall be paid to the allottees/ complainants within one month of date of taking physical possession by the allottee. It is clarified that if Petitioners makes the flat ready in all respects and hand over the possession to the allottee / complainant but without obtaining requisite OC/CC/requisite clearances, liability of the petitioner to pay delay compensation shall continue till the date of obtaining requisite OC/CC/requisite clearances as petitioners are not expected to deliver the possession without obtaining the OC /CC/required clearances.
29. The directions to the Petitioners and the reliefs granted to the Respondents in all these seven RPs, as detailed in preceding paras, are summarized as follows:
(i) Petitioners ( Petitioner No. 1 to 3 ( OP No.1 to 3 before the District Forum) are directed to complete the units in question, in all respects, as per the scope and specifications of the construction agreement, including all fittings / fixtures / electric connection / water connection / lifts etc., as envisaged in the construction agreement, obtain the requisite occupation / completion certificate (s) and other required clearances from the Competent Authorities, within two (2) months of this order and hand over the physical possession of the unit(s) in question to respective respondent(s).
(ii) Within a maximum of two months of this order, Petitioners shall issue an offer of possession / written communication to the respondents clearly stating / informing them that unit in question is complete in all respects and ready for possession as per para 29 (i) above, alongwith copy of OC/CC/required clearances, clearly indicating the balance payable by them, if any, (alongwith basis for such calculations), after duly adjusting the delay compensation / other amounts payable to respondents as per this order, giving them 30 days time to deposit such amount, if any.
(iii) Petitioners shall arrange a joint inspection of the unit (s) of respective respondents within 15 days of issue of offer of possession as per para 29 (i) and (ii) above. If any deficiencies are noticed as a result of such joint inspection, the same shall be got rectified within a maximum of one month period.
(iv) Delay compensations shall be payable by the Petitioners to the Respondents @ 6% Simple Interest p.a. from the committed date of possession as per the construction agreement till the date of actual physical possession with OC/CC and other required clearances of the Competent Authorities in accordance with para 29 (i) and (ii) above. It is clarified that in case the Petitioners hand over the actual physical possession without OC/CC and required clearances, Petitioners liability to pay delay compensation will continue till the date of such OC/CC and other required clearances.
(v) Each respondent(s) in all the seven cases will be paid a total litigation cost of Rs.15,000/- ( including litigation cost awarded by District Forum/State Commission, if any).
(vi) Liability of Petitioner Nos.1 to 3 ( OP Nos. 1 to 3 before the District Forum) shall be joint and several.
(vii) Orders of District Forum / State Commission stand modified to that extent.
(viii) With these orders, stay of order(s) of District Forum /State Commission if any, stand vacated.
30. The pending IAs in the cases, if any, also stand disposed off.
Annexure Sl. No. RP No. Date of Filing Name of Respondent FA No. before State Commission Date of State Commission's order CC No. before District Forum Date of District Forum's order Unit No. of Respondent 1 RP No. 362 of 2022 30.03.2022 Ramesh V 40 of 2020 08.12.2021 244 of 2018 24.09.18 007
2. RP No363 of 2022 30.03.2022 Shrikanth R 41 of 2020 08.12.2021 226 of 2018 24.09.18 012
3. RP No. 364 of 2022 30.03.2022 Vamsi Krishna 42 of 2020 08.12.2021 232 of 2018 24.09.18 110
4. RP No. 366 of 2022 30.03.2022 Chandrasekar Raju 843 of 2020 08.12.2021 407 of 2018 24.09.18 210
5. RP No. 367 of 222 30.03.2022 A Undamatha Venkatanaga Srinivasa 844 of 2020 08.12.2021 241 of 2018 24.09.18 109
6. RP No. 368 of 2022 30.03.2022 M V. Ramanatha Lakshamaiah 845 of 2020 08.12.2021 227 of 2018 24.09.18 209
7. RP No. 370 of 2022 30.03.2022 A.S.Prakash 847 of 2020 08.12.2021 1006 of 2018 27.11.19 008 ................................................ DR. INDER JIT SINGH PRESIDING MEMBER