National Consumer Disputes Redressal
M/S. Vaidehi Akash Housing Pvt. Ltd. & 3 ... vs Renu Parthiban on 29 January, 2018
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI FIRST APPEAL NO. 2336 OF 2017 (Against the Order dated 15/06/2016 in Complaint No. 58/2013 of the State Commission Maharashtra) 1. M/S. VAIDEHI AKASH HOUSING PVT. LTD. & 3 ORS. 101, FIRST FLOOR, D.N. NAGAR SAPTARISHI CHS LID BEHIND MADHUBAN SOCIETY BARFIWALA COLLEGE LANE D.N. NAGAR ANDHERI WEST MUMBAI 400053 MAHARASHTRA 2. MR. G.S PHONDEKAR DIRECTOR, M/S. VAIDEHI AKASH HOUSING P LTD 101-102, PRATEEK APARTMENT OPPOSITE DHAKE COLONY J P ROAD ANDHERI WEST MUMBAI 400053 MAHARASHTRA 3. MRS. SUNITA S PHONDEKAR DIRECTOR M/S. VAIDEHI AKASH HOUSING P LTD DIRECTOR, M/S. VAIDEHI AKASH HOUSING P LTD 101-102, PRATEEK APARTMENT OPPOSITE DHAKE COLONY J P ROAD ANDHERI WEST MUMABI 400053 MAHARASHTRA 4. MRS. REKHA PRITAM MORE @REKHA GORAKH SINDE HOMES HERITAGE PHASE 2 AND 3 BUILDING NO B-1, 3 FLOOR, SHASHTRI NAGAR PUNE 411006 MAHARASHTRA ...........Appellant(s) Versus 1. RENU PARTHIBAN W/O. PARTIBHAN SCHITHANANTHAM R/O. 12934 GUADALAJARA CIRCULE CERRITOS CALIFORNIA 90703 US 2. MRS. RENU PARTHIBAN (Also at) W/O. PARTIBHAN SCHITHANANTHAM 301, ROYAL'S ACCORD 13& 14 ROAD CORNER KHAR MUMABI MAHARASHTRA ...........Respondent(s)
BEFORE: HON'BLE MR. JUSTICE D.K. JAIN,PRESIDENT HON'BLE MRS. M. SHREESHA,MEMBER For the Appellant : Mr. Mahabir Singh, Sr. Advocate Mr. Praveen Chaturvedi, Advocate Ms. Jyoti Chaturvedi, Advocate For the Respondent :
Dated : 29 Jan 2018 ORDER
1. By this First Appeal, under Section 19 of the Consumer Protection Act, 1986 (for short "the Act"), a Real Estate Developer, namely, M/s Vaidehi Akash Housing P. Ltd. and its Directors, Opposite Parties No. 1 - 4 in the Complaint under the Act, call in question the correctness and legality of the order dated 15.06.2016, passed by the Maharashtra State Consumer Disputes Redressal Commission at Mumbai (for short "the State Commission") in Consumer Complaint No. CC/13/58. By the impugned order, while accepting the Complaint, preferred by the Complainant, the Respondent herein, the State Commission has directed the Appellants and Opposite Party No.5, one of the Directors' of the Developers, to jointly and severally execute the Agreement for Sale in favour of the Complainant, upon acceptance of balance consideration of ₹5,00,000/-, payable by her at the time of delivery of possession of flat in question, within two months from the date of the order, failing which they are required to pay a sum of ₹5,000/- per day for the delay in execution of the said Agreement in favour of the Complainant. Alternatively, the State Commission had directed the Opposite Parties to pay to the Complainant compensation of ₹50,00,000/-, which was inclusive of the advance payment to be refunded to the Complainant, together with interest @ 18% p.a. from the date of payment. Additionally, the Opposite Parties have also been directed to jointly and severally pay to the Complainant compensation of ₹50,000/- towards mental agony and harassment and litigation costs, quantified at ₹25,000/-.
2. The Complainant, a Non-Resident Indian, had booked a flat, admeasuring 885 sq. ft., in the building to be constructed by the Developers at New D.N. Nagar Sahavas, Link Road, Andheri (West), Mumbai, for which allotment letter dated 19.02.2008 was issued by the Developers. Against the agreed sale consideration of ₹49,00,000/- for the flat and parking charges of ₹10,00,000/-, the Complainant had paid a sum of ₹54,00,000/- and, as noted above, the balance amount of ₹5,00,000/- was to be paid at the time of possession of the said flat. Despite several requests, including a legal notice, by the Complainant, neither the Developers executed the Agreement for Sale under the Maharashtra Ownership of Flats (Regulation of the Promotion of Construction, Sale, Management and Transfer) Act, 1963 nor handed over the possession of the flat. In the said background, alleging deficiency in service and unfair trade practice on the part of the Developers on the aforesaid counts, the Complaint came to be filed before the State Commission, wherein a number of reliefs, as mentioned in the Complaint, were prayed for.
3. Despite service of notice, neither there was any representation on behalf of the Developers nor was the Complaint contested by filing Written Version.
4. Consequently, in the absence of any rebuttal to the allegations levelled in the Complaint, the State Commission has allowed the Complaint and issued the afore-noted directions to Opposite Parties No.1 to 5, including the Appellants herein. Hence, the present Appeal.
5. It is pointed out by the office that the Appeal is barred by limitation, inasmuch as there is a delay of 488 days in filing the same. For condonation thereof, the Appellants have filed an Application along with the Appeal. For the sake of ready reference, the explanation furnished for the said delay is extracted below:
"2. That it is humbly submitted that the appellant has not served with the notice in respect of the abovementioned consumer complaint no. CC/13/58, filed by the respondent against the appellants before State Commission.
3. That since the appellant were not aware about the proceeding filed against them hence they never participated in the proceeding before the State Commission and so could not bring the actual facts to the notice of the State Consumer Commission, in view of that, the State Commission was pleased to decide the consumer complaint in favour of the respondent and passed the impugned order on 15.06.2016.
4. That it is further humbly submitted that the appellants have not received the certified copy of the impugned order from State Commission.
5. That as per Article 123 of the Limitation Act, the 30 days of limitation period of filing appeal begins to run from the time when the appellant came to know about the impugned order 15.06.2016.
6. That it is pertinent to mention here that on 02.08.2017, when the counsel of the appellants namely K.R. Tiwari (Advocate) had appeared in the matter of Execution Application No. EA/12/14, titled as Haresh Kuvadia vs. Vaidehi Akash CHS Ltd., then only, Hon'ble State Commission had asked the counsel to appear and file his vakalatnama in Execution Application No. EA/17/47, filed by the respondent against the appellants, then only first time the appellants have come to know about the impugned order passed against them in CC/13/58 and execution application is also filed against them.
7. That thereafter on 02.08.2017 itself, the appellant have applied for certified copy of the impugned order and the same was delivered on 08/09/2017 and the same fact can verified from the last page of the certified copy of the impugned order annexed with the appeal.
8. That it settled position of law that the time consumed in process of obtaining the certified copy is excluded from the limitation period, here in the instant case, the appellants have applied for the certified copy on 02.08.2017 and the same was delivered on 08/09/2017. Therefore the time period from 02.08.2017 to 08/09/2017 would be excluded from the limitation period of 30 days.
9. ... in view of the facts and circumstances, the appellant have to file the appeal against the impugned order within 30 days from 09/09/2017. So the appellants have to file the appeal till 08/10/2017.
10. That it is further pertinent to mention here that on 11/10/2017, the State Commission was pleased to issue production warrant against the appellant no.2 as he was detained in Arthur Road Jail at Mumbai and Non-Bailable Warrant against the appellant nos. 3 - 4 and, in Execution Application No. EA/17/49 case titled as Renu Partibhan vs. Vaidehi Akash CHS Ltd. ...
11. That in view of that, the appellants have been apprehending from the abovementioned coercive order of NBW passed by the State Commission. Therefore, the appellants are in position to come to Delhi and engage a counsel to file appeal before this Hon'ble Commission at Delhi within the stipulated Limitation period."
6. It is trite law that the expression 'sufficient cause' cannot be construed liberally if negligence, inaction or lack of bonafides are attributable to the party, praying for exercise of such discretion in its favour. It is equally well settled that when a Statute provides for a particular period of limitation, it has to be scrupulously applied, as an unlimited limitation leads to a sense of uncertainty. Bearing in mind these broad principles, we are of the opinion that the explanation furnished by the Appellants is absolutely unsatisfactory and deserves to be out-rightly rejected.
7. We find that the plea of the Appellants to the effect that they had not been served with any notice in the Complaint and, hence, they could not participate in the proceedings before the State Commission, is factually incorrect, to their knowledge. A perusal of the impugned order dated 15.06.2016 makes it abundantly clear that the Appellants were duly served with a notice in the Complaint and it was only on account of their non-appearance and non-filing of Written Version in the Complaint that the State Commission had no option but to pass the impugned order, on the basis of the material available before it. Since the stated plea was not supported with any documentary evidence, as prayed, vide order dated 28.11.2017, the Appellants were permitted to file the proceedings of the State Commission regarding issuance of notice, satisfaction recorded and when they were proceeded against ex-parte, within two weeks. Even now, the Appellants have failed to comply with the said direction within the stipulated period and have filed the copies of the said proceedings only on 24.01.2018, with an application, seeking condonation of delay in filing the same. A perusal of the said proceedings clearly shows that on 18.03.2013 the Appellants were served with the notice in the Complainant and, in the absence of any representation on their behalf and non-filing of Written Version, the State Commission had ordered ex-parte against them. In such a situation, the said plea merits outright rejection. Further, the stand taken by the Appellants that it was only on 02.08.2017 that their Counsel (K.R. Tiwari), who was appearing before the State Commission at that point of time in some other matter concerning them, came to know about the substantive order passed by the State Commission on 15.06.2016 and the Execution proceedings, initiated by the Complainant for enforcement of the said order. In this regard, we find from the proceedings placed on record that on 07.02.2014 one Mr. Ajay Pawar had appeared before the State Commission on their behalf and had also filed his vakalatnama. Thus, the said plea also does not hold much water. It is evident that the Appellants were least concerned with the directions issued in the Complaint and it is only when some coercive measures were initiated against them in Execution proceedings, that the Appellants had to come out of their deep slumber and file the present Appeal, with an application for condonation of inordinate delay of 488 days, for which no convincing explanation is forthcoming from their side.
8. In view of the above, we have no hesitation in holding that not only the Appellants have failed to make out any cause, much less a "sufficient cause" for condonation of inordinate delay of 488 days in filing the present Appeal, the explanation furnished lacks bonafides as well. If the said unexplained delay is condoned and the Appeal is entertained, the Complainant, who, despite having parted with a huge sum of money a decade ago, with the fond hope of getting a flat and a roof over her head, and further having favourable order from the Fora below, is unable to either get the possession of the flat or the decretal amount, would suffer further harassment and financial loss.
9. Consequently, the Appeal is dismissed on the short ground of limitation.
......................J D.K. JAIN PRESIDENT ...................... M. SHREESHA MEMBER