National Consumer Disputes Redressal
M/S. Preet Land Promoters & Developers ... vs Rekha on 22 June, 2022
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI FIRST APPEAL NO. 417 OF 2022 (Against the Order dated 15/07/2019 in Complaint No. 329/2019 of the State Commission Punjab) 1. M/S. PREET LAND PROMOTERS & DEVELOPERS PVT. LTD. THROUGH ITS MANAGING DIRECTOR GOPAL KHANNA, SITE OFFICE SECTOR-86, (NANUMAJRA), ADJACENT TO SEC-79, SAS NAGAR MOHALI,PUNJAB ...........Appellant(s) Versus 1. REKHA W/O. SH. A.K. THAPPA R/O. 300-301, DILBAGH NAGAR EXTENSION, JALANDHAR CITY ...........Respondent(s)
BEFORE: HON'BLE MRS. JUSTICE DEEPA SHARMA,PRESIDING MEMBER HON'BLE MR. SUBHASH CHANDRA,MEMBER For the Appellant : Mr. Vinod Diwakar, Advocate with Mr. B.N. Dubey, Advocate For the Respondent :
Dated : 22 Jun 2022 ORDER JUSTICE DEEPA SHARMA, PRESIDING MEMBER
The present Appeal has been filed against the order of the State Commission dated 15.07.2019 by the Appellant / Opposite Party. Since the present Appeal has been filed with substantial delay of about 881 days (as per application) and 1030 days ( as per office report), an application under section 19 read with section 5 of the Limitation Act has been moved by the Appellant seeking condonation of delay. This application has been registered as IA No. 5326 of 2022.
2. This Commission has heard the arguments in IA No. 5326 of 2022 of the learned counsel for the Appellant.
3. Learned counsel for the Appellant has argued that delay has occurred as the respondent had started negotiation with the Appellant Company and the Appellant Company started writing letters to Greater Mohali Area Development Authority (GMADA). It is further contended that Appellant works on No Profit No Loss Basis as the land belongs to all its Members. Since 12 acres of land of the Appellant Company had been acquired by GMADA and out of this 5 acres of land have been kept for EWS and 6.5 acres of extra land have been kept for green parks, so the Appellant Company is not having sufficient land and they can refund the booking amount without interest to the members to whom the plot has not been allotted or the possession has not been delivered. It is further contended that in March 2020, Covid pandemic spread nationally and there was a lock-down and because of lock-down, all efforts of the Appellant Company were put on hold. Reliance has been placed on the Apex Court order dated 10.01.2022 passed in Suo Moto Writ Petition (Civil) No.3 of 2020 in Re : Cognizance for Extension of Limitation. It is submitted as per this order, while calculating the period of limitation, the period from 15.03.2020 to 28.02.2022 has to excluded and all persons shall have limitation period of 90 days from 01.03.2022. It is further contended that Appellant Company is ready and willing to return the booking amount without interest in instalments. It is submitted that delay of 881 days is attributable to the reasons as stated above. The delay is not deliberate nor intentional. It is further contended that there shall be miscarriage of justice if the Appeal is not proceeded on merit and condoning the delay. It is submitted that delay is bonafide and unintentional and should be condoned in the interest of justice.
4. We have heard the arguments and have perused the file. The appeal has been filed against the impugned order dated 15.07.2019. Under the provisions of Section 19 of Consumer Protection Act, 1986 (now repealed by Consumer Protection Act, 2019), the period of limitation for filing the Appeal is 30 days. Therefore, 30 days expired in this case for filing the Appeal in 2019 only. The appeal has been filed after a delay of 881 days and no reasonable or substantial reasons for such delay has been made in the application.
5. It is settled proposition of law that the Commission has discretionary power to condone the delay in filing Revision Petition or First Appeal. The discretion has to be exercised only where the applicant explains that there was a sufficient cause for such delay and he was prevented from coming to the Court for the reasons beyond its control. The parties also require to show that it has been acting bonafidely and remained active and delay had occurred for the reasons beyond its control.
6. The Hon'ble Supreme Court in Ram Lal and Ors. Vs. Rewa Coalfields Limited AIR 1962 Supreme Court 361 has held that condonation of delay is not a matter of right and where sufficient reasons are not shown, the Courts have no discretion to condone the delay and have to dismiss the application. The Apex Court has held as under :
"12. 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."
7. In the case of "R. B. Ramlingam vs. R. B. Bhavaneshwari, I (2009) CLT 188 (SC), the Hon'ble Supreme Court has held that test to determine whether the applicant is entitled for condonation of delay or not is whether he had acted diligently or remained inactive. The Hon'ble Supreme Court has held as under:
"5. 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. In the case of "Anshul Aggarwal vs. New Okhla Industrial Development Authority, (2011) 14 SCC 578," the Hon'ble Supreme Court has held that special nature of period of limitation prescribed under the Consumer Protection Act has to be kept in mind while dealing with such applications. The Hon'ble Supreme Court has held as under:
"5. 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. Learned counsel has argued that Hon'ble Supreme Court in Re : Cognizance for Extension of Limitation ( supra ) has extended the period of limitation for 90 days and therefore, this benefit should be given to the Applicant.
10. We have perused the said order of the Hon'ble Supreme Court. The relevant directions of the Hon'ble Supreme Court reads as under :
"iii. In cases where the limitation would have expired during the period between 15.03.2020 till 28.02.2022, notwithstanding the actual balance period of limitation remaining, all persons shall have a limitation period of 90 days from 01.03.2022. In the event of actual balance period of limitation remaining with effect from 01.03.2022 is greater than 90 days, that longer period shall apply."
11. From bare reading of this direction of the Hon'ble Supreme Court, it is apparent that benefit of 90 days is available to those persons whose limitation expired during the period 15.03.2020 till 28.02.2022. In the present case, the period of limitation had expired seven months before 15.03.2020. Benefit of this direction of the Hon'ble Supreme Court is, therefore, not available to the Appellant.
12. The Appellant has also relied on the findings of the Hon'ble Supreme Court in K.Subbarayadu and Others Vs. Special Deputy Collector ( Land Acquisition) (2017) 12 SCC 840 and held that Hon'ble Supreme Court had condoned the delay of 3671 days and in his case, delay is of 881 days and, therefore, delay be condoned.
13. We have perused this case law relied upon. Para 13 deals with the condonation of delay, which reads as under:
"When the court concerned has exercised its discretion either condoning or declining to condone the delay, normally the superior court will not interfere in exercise of such discretion. The true guide is whether the litigant has acted with due diligence. Since the appellants/claimants are the agriculturists whose lands were acquired and when similar situated agriculturists were given a higher rate of compensation, there is no reason to decline the same to the appellants. Merely on the ground of delay such benefit cannot be denied to the appellants. The interest of justice would be served by declining the interest on the enhanced compensation and also on the solatium and other statutory benefits for the period of delay."
14. From the bare reading of this paragraph, it is apparent that delay of 3671 days had been condoned by the Hon'ble Supreme Court in view of the specific facts and circumstances of this case (K.Subbarayadu ) in order to bring the agriculturists complainants at par with similarly placed other agriculturists complainants. The Hon'ble Supreme Court also has clearly held that it is a discretionary power of the court concerned. This case law does not support the cause of the Appellant in any manner and the findings are distinguishable.
15. Learned counsel has also relied on the findings of the Hon'ble Supreme Court in Ganpatbhai Mahijibhai Solanki Vs. State of Gujarat and Others (2008 ) 12 SCC 353. The findings in this case are given in the facts and circumstances of the case and has no relevance to this case and, therefore, findings have no application and are not relevant.
16. Learned counsel has also relied on the order dated 11.12.2020 in First Appeal No. 788 of 2020 of this Commission titled M/s Shaurya Townships Pvt. Ltd. Vs. Manjeet Singh & Ors., whereby a notice has been issued to the respondent even though there was a delay of 334 days. Notice has been issued in the facts and circumstances of that case by this Commission and also that delay was only for 334 days in that case, while delay in this case is of 881 days. Therefore , there is no parity of facts in both the matters and, therefore, has no application on the facts and circumstances of this case.
17. From the above discussion, it is apparent that Appellant has failed to give any reason what to say any sufficient reason or grounds for condoning the delay. The application does not contain any contention regarding delay. We are satisfied that Appellant has failed to explain the reasons for delay. Application has no merit and same is dismissed.
18. Since the First Appeal is barred by limitation and application seeking condonation of delay is dismissed and delay is not condoned, the present First Appeal is also dismissed.
......................J DEEPA SHARMA PRESIDING MEMBER ...................... SUBHASH CHANDRA MEMBER