State Consumer Disputes Redressal Commission
Guru Creative Construction vs Ramesh Deau Ade on 3 August, 2021
1 FA No.50 to 55/2021
Date of filing :26.02.2021
Date of order :03.08.2021
MAHARASHTRA STATE CONSUMER DISPUTE
REDRESSAL COMMISSION,MUMBAI, BENCH AT
AURANGABAD.
MISC.APPLICATION NO. : 41 to 46 OF 2021
IN FIRST APPEAL NO. : 50 to 55 OF 2021
IN COMPLAINT CASE NO.: 396, 392, 394, 397, 393, 398 OF 2015
DISTRICT CONSUMER FORUM : AURANGABAD
Guru Creative Construction
Through its
Shri. Manjit Suresh Pande,
R/o Nandanvan Colony,
Aurangabad. ....APPELLANT
VERSUS
1. Misc. No.41/2021 in Appeal No.50/2021 in CC.No.396/15
Ramesh Deau Ade,
R/o Sakshinagari, Flat No.A-3/C-4,
CIDCO Mahanagari-1,
Aurangabad.
2. Misc. No.42/2021 in Appeal No.51/2021 in CC.No.392/15
Ranjit Tulshiram Mule,
R/o Sakshinagari, Flat No.A-2/B-1,
CIDCO Mahanagari-1, Gut No.140,
Aurangabad.
3. Misc. No.43/2021 in Appeal No.52/2021 in CC.No.394/15
Rajendra Baburao Salunke,
R/o Sakshinagari, H.No.RH.3/8,
CIDCO Mahanagari-1,
Aurangabad.
2 FA No.50 to 55/2021
4. Misc. No.44/2021 in Appeal No.53/2021 in CC.No.397/15
Mahendra Vikram Prasad,
R/o Sakshinagari, Flat No.A-3/C-1,
CIDCO Mahanagari-1,
Aurangabad.
5. Misc. No.45/2021 in Appeal No.54/2021 in CC.No.393/15
Bhimrao Laxman Kirdat,
R/o Sakshinagari, H.No.RH.2/1 ,
CIDCO Mahanagari-1,
Aurangabad.
6. Misc. No.46/2021 in Appeal No.55/2021 in CC.No.398/15
Ganesh Ramdas Raut,
R/o Sakshinagari, Flat No.A-2/C-1,
CIDCO Mahanagari-1,
Aurangabad. ....RESPONDENTS
CORAM : Smt.S.T.Barne, Hon'ble Presiding Judicial
Member.
Mr.K.M.Lawande, Hon'ble Member.
Present : Adv.P.B.Gamot for appellant,
Adv. S.T.Agrawal for respondent.
JUDGMENT
(Delivered on 03/08/2021) Per Mr.K.M.Lawande, Hon'ble Member.
(1) All the six appeals, FA 50/2021 to FA 55/2021, are field by the appellant against the orders of district forum Aurangabad in consumer complaints Nos. 396/15, 392/15, 394/15, 397/15, 393/15 decided on 27/12/2018. The appeals are filed along with the miscellaneous applications Nos.41/2021 to 46/2021 respectively. All applications and appeals being identical one decided by common order.
3 FA No.50 to 55/2021(2) Delay being huge, notices were issued to respondents to hear on the miscellaneous applications for condonation of delay.
(3) It is pleaded by the appellant Guru creative construction in all the miscellaneous applications that the consumer complaints were decided on 27 /12/2018. The appellant decided to file appeals after getting the knowledge of impugned orders. The appellant also deposited the statuary amount of Rs. 25,000/- each in all the cases on 14/03/ 2019. However, when he visited another advocate /Adv.Gamot (advocate of appellant in present appeals) for consultation of other matters on 11/03/2020 and checked the online status of the matters he got the knowledge that the appeals are not filed by his advocate. The appellant applied for certified copies of the documents related to complaints and execution petitions. He requested for original documents and NOC from the earlier advocate. The appellant received the NOC of the advocate on 20/03/2020 without documents from him. The appellant could not receive other documents due to pandemic situation out of covid-19 from District Forum. He received the copies of deposit of statutory amount on 17/02/2021. The appellant filed these appeals on 26/02/2021.
(4)(i) The ld. advocate Shri.Gamot argued for the appellant on the line of miscellaneous applications that the appellant intended to file appeals against the impugned order of District Forum dated 27/12/2018 and therefore deposited the statutory amounts for filing in appeals on 14/03/2019. However the appeals were not filed by his advocate. He visited the present advocate for consultation of some other matters on 11 /03/2020 and at that time the status of the appeals were checked and he came to know that appeals are not filed. The appellant had to approach the advocate for getting NOC and documents on 20/03/2020. Appellant received the copies of deposits of statutory amounts on 17/02/2021. The appellant was not knowing the fact that appeals are not filed. The appellant filed these appeals through present advocate on 26.02.2021. The Advocate for appellant also submitted the project is big and in 4 FA No.50 to 55/2021 progress for completion of some works. The complainant is striving hard to complete the anomalies.
(ii)The Advocate of the appellant relied upon following citations:
(1) Mrs Sunita Vasantrao Mohite vs Mahmad Abbas Pakhali and another, National Commission, reported in (2003 )2 CPC 584:( 2003) 3 cpj 102.
(2) Inderapal Jaiswal and others UPPCL and others (Docid#IndiaLawLib/1462464 ) and argued that the complaints filed by the complainants against the builder violating provisions of 24A of Consumer Protection Act are dismissed by National commission in first case and also similar ratio for adhering law of limitation is upheld in second case by the Hon. National Commission.
(5)Ld.Advocate for respondents Shri S.T. Agrawal strongly objected the miscellaneous applications . He submitted that the delay occurred in filing of the appeals of 768 days. He further argued that the appellant has avoided to mention the name of advocate who has not filed his appeals also not submitted the NOC obtained from him. The advocate for opponent submitted the copy of rojnama of district forum dated 20/09/2020 and argued that the appellant/ori.opponent had knowledge of order of District Forum , when he received notice of execution petition.
He was present before District Forum when complainant asked for issuance of warrant against him. The Advocate of the appellant on 20.09.20 also informed the District Forum that appeals were not filed. The appellant has thus the knowledge of order of the District Forum and that the appeals were not filed on that day i.e. 20.09.2020. Appellant could have taken care to file the appeals at least after his appearance before the District Forum in execution petition on 20/09/2019. The appellant has filed these appeals along with delay condonation applications on 26/02/2021. Therefore, the plea of the appellant that he came to know about not filing of appeal when he approached the present 5 FA No.50 to 55/2021 advocate for consultation some other matters can not be accepted. The appellant has not given plausible reasons to condone the delay.
(6) Admittedly, the impugned orders of district forum are dated 27-12- 2018. He nowhere mentioned in the miscellaneous applications regarding knowledge of passing of orders of district forum dt. 27/12/18. Therefore it can be presumed that the appellant had knowledge of impugned order on the day of passing of the order. Admittedly, the appellant deposited the statutory amounts on 14/03/2019. Therefore the deposition of statutory amounts belated. He has not explained this delay also.
(7) It revealed that the complainants filed execution petitions wherein the appellant gave his appearance on 20/09/2019 when there was a issue of issuance of warrant against the appellant. It revealed that the Advocate of the appellant then informed to the District Forum that appeals are not filed. Thus it can be presumed/inferred that at this point of time the appellant had knowledge that the appeals are not filed. It also revealed that the appellant has not mentioned in misc.applications of his presence on 20/09/2019 before the District Forum in execution petitions and thus suppressed that he had knowledge of non filing of the appeals on 20/09/2019. In our opinion, the appellant could file the appeals immediately after his appearance before the District Forum, of course by filing of separate applications for condonation of delay. However this has not happened. He could have filed the appeals very immediately after 20/09/2019 to avoid further delay.
(8) The appellant is pleading that he got the knowledge of non filing of the appeals when he approached the present advocate in these appeals on 11/03/2020. The appellant is taking plea that his advocate failed to act upon in filing the appeals. However, when his advocate informed to district forum in execution proceedings that appeals are not filed when complainant was also appeared before the district forum .The plea that he had no knowledge of filing of appeals till 11/03/2020 is therefore not based on plausible facts. Also when there are some five complaints 6 FA No.50 to 55/2021 decided against him, it was required to be vigilant on his part in getting the appeals filed.
(9) Appellant contended that he is completing a big project. A person handling a big project needs to be vigilant in his legal matters also. Shifting of liability on the part of advocate therefore not justified on the part of appellant. Therefore, it requires no consideration when the appellant is also not mentioning the name of the Advocate who failed to act upon in filing the appeals. Thus the delay occurred during the period from 27/12/18 to 20/09/19 (from date of order to appearance in execution petition )and 20/09/2019 to 11/03/2020(from date of appearance to date of approaching present advocate) is not explained properly.
(10) It is also pleaded that the appellant required to take documents from the advocate and his NOC the copies of deposits of statutory amounts from the district forum, and in that event, further period is elapsed in getting NOC and the delay in getting the copies of deposit of statutory amounts due to pandemic situation and ultimately he has filed appeals on 26/02/2021. It appears that the appellant is attributing the further delay due to pandemic situation from March 20 onwards. Though the delay occurred in filing the appeals due to pandemic situation can be waived in view of the directions of Hon.Supreme Court in sumoto writ petition No.3/ 21.However, delay occurred during pre pandemic period is not explained by the appellant.
(11) The Advocate of appellants have relied upon the judgment (i) Mrs Sunita Vasantrao Mohite vs Mahmad Abbas Pakhali and another, National Commission, reported in (2003 )2 CPC 584:( 2003) 3 cpj 102.
(ii) Inderapal Jaiswal and others UPPCL and others (Docid#IndiaLawLib/1462464 ) cited Supra in para 5 of this judgment. However, even after plain reading of these judgments, it appears that wherein complaints were filed belatedly without application of condonation of delay against which the opponent has preferred appeal, the State Commission allowed the appeal and dismissed the complaint. In the case in hand, the appellant is not due diligent in preferring the 7 FA No.50 to 55/2021 appeal/application for condonation of delay. Even otherwise the facts and circumstances in the case in hand are distinguishing. In the complaint in question, the completion certificates are not issued, is also one of the grievance in the complaint which gives continuing cause of action to the complaints.
(12)In view of the aforesaid discussion, the miscellaneous applications filed for condonation of delay deserves to be dismissed. Hence order.
ORDER Misc.application Nos.41/21 to 46/21 are hereby dismissed. Consequently, appeal Nos.50/21 to 55/21 are also dismissed.
Mr.K.M.Lawande Smt.S.T.Barne,
Member Presiding Judicial Member