National Consumer Disputes Redressal
Kerala State Co-Operative Housing vs 1. Ms. Mary Morris on 3 January, 2013
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO. 3882 OF 2009 WITH (I.A. NO.1 OF 2009, FOR C/DELAY) (From the order dated 04.11.2008 in Appeal No. 388/2007 of the State Commission, Kerala) Kerala State Co-operative Housing Federation Ltd. No.4330, Kaloor, Kochi, Kerala Rep. by its Managing Director . Petitioner Versus 1. Ms. Mary Morris Thottumkarezhath House, Now residing at Tomy Dale, Puthokode PO, Chavara, Kollam District, Kerala 2. J. Xavier, S/o Joseph Thottumkarezhath House, Now residing at Tomy Dale, Puthokode PO, Chavara, Kollam District, Kerala 3. Block Rural Housing Co-operative Society Ltd. 812, Chavara, Kollam District Kerala 691583 Rep. by its Secretary . Respondents BEFORE: HONBLE MR. JUSTICE V.B. GUPTA, PRESIDING MEMBER For the Petitioner(s) : Mr. George Poonthottam, Advocate & Ms. Usha Nandini, Advocate For the Respondent(s) : Mr. G.Parkash, Advocate for R- 1 & 2 R-3 already ex parte Pronounced on : 3rd January, 2013 ORDER
PER MR. JUSTICE V.B.GUPTA, PRESIDING MEMBER Petitioner/OP-3 has filed the present petition against order dated 4.11.2008, passed by Kerala State Consumer Disputes Redressal Forum, Thiruvananthapuram (short, State Commission) in (Appeal No.388 of 2007) and order dated 31.10.2006, passed by District Consumer Disputes Redressal Forum, Kollam (short, District Forum) in (OP No. 261 of 2005). Along with it, an application seeking condonation of delay of 158 days has also been filed.
2. Brief facts are that respondent nos.1 & 2/complainant nos.1 & 2, filed complaint against petitioner and respondent no.3/op no.1 and 2 for getting their title deed back and also to get release deed with respect to the mortgage deed executed by respondent no.1, in favour of respondent no.3. Admittedly, respondent no.1 has availed a loan of Rs.75,000/- on 5.1.1994 from respondent no.3 by depositing her title deed in respect of 65 cents of dry land in Chavara village and also executing mortgage deed in favour of respondent no.3 Respondent no.1 cleared the entire debt with interest and penal interest and the loan account was closed as early as on 30.10.2004.
3. No amount is due to respondent no.3 or to the petitioner from respondent no.1 with respect to the aforesaid loan transaction. Thus, respondent no.1 is legally entitled to get her title deeds back and also to get release deed executed in her favour with respect to the said mortgage. Unfortunately, respondent no.1 did not get the title deeds back.
4. Petitioners case is that a sum of Rs.1,47,292/- is due from respondent no.3, so they are not in a position to release the title deeds.
5. Case of respondent no.3 is that the title deeds of respondent no.1 were deposited with the petitioner for availing the loan amount. However, petitioner is not willing to return the title deeds in respect of the property owned by respondent no.1.
6. District Forum, vide order 31.10.2006, allowed the complaint and passed the following directions ;
In the result, the complaint is allowed directing the opposite parties to hand over the document No.3718/1976 of SRO, Edapally to the first complainant and further to execute the release deed in favour of the first complainant. The opposite parties are also directed to pay Rs.5,000/- (Rupees five thousand only) as compensation coupled with Rs.1,000/- (Rupees one thousand only) as litigation charges to the complainants.
The order is to be complied with in one month from the date of order.
7. Aggrieved by the order of District Forum, petitioner filed (Appeal No.388 of 2007) before the State Commission, which dismissed the same at the admission stage itself, vide the impugned order.
8. Hence, this revision petition.
9. Notice of present revision petition was issued to the respondents.
10. Counsel for respondent no.1 and 2 has put in its appearance. However, none appeared for respondent nos.3. Hence, it was proceeded ex parte.
11. I have heard the learned counsel for the parties and have gone through the record.
12. It is contended by learned counsel for the petitioner that since there was a correction made by the State Commission in the impugned order dated 4.11.2008, hence, corrected copy of the order was received by petitioner only on 25.6.2009.
Therefore, revision ought to have been filed on or before 24.9.2009. As, revision has been filed on 4.8.2009, under these circumstances, there is no delay in filing of the petition.
13. On the other hand, it has been contended by learned counsel for respondent nos.1 and 2 that as per photocopy of the so-called corrected copy filed by petitioner, it pertains to (Appeal no.18 of 2008) between the parties. This appeal was preferred against order dated 6.11.2007, passed by the District Forum, Kollam. The so-called corrected copy of the judgment dated 4.11.2008, pertains to the execution proceeding. It does not relates to the present impugned order, which has been passed in (Appeal no.388 of 2007).
14. In application for condonation of delay, no ground whatsoever has been pleaded nor the period of delay has been mentioned.
However, petitioner has placed on record affidavit of Shri P.C.Babu, its Managing Director , stating interalia as under ;
2. The impugned order was passed by State Commission by the order dated 4.11.2008. but there was a correction in the date of the order. The corrected copy of the order was received by the revision petitioner only 25.6.2009. The revision therefore ought to have been filed on or before 24.9.2009.
3. It is respectfully submitted the revision petition was preferred by the petitioner accompanied with the original order and all other relevant documents along with duly executed Vakalatnama and send to the office of the National Commission on 1.8.2009 by speed post. It is further submitted that the said article was delivered to the office of National Commission on 4.8.2009.
In such circumstances calculated from the date of receipt of the copy of the order there is no delay in filing the revision petition. It is submitted that the delay that has occurred, calculating from the date of the judgement has arose only due to the delay in receiving the corrected copy of the order by the petitioner.
6. In such circumstances, it is humbly submitted that there is no negligence or laches on the part of the petitioner in preferring the present revision. Under the above circumstances, it is humbly prayed that the delay in filing the revision if any may kindly be condoned. The accompanying petition may kindly be allowed.
15. It is well settled that sufficient cause for condonation of delay in each case, is a question of fact.
16. In Ram Lal and Ors. Vs. Rewa Coalfields Ltd., AIR 1962 Supreme Court 361, it has been observed;
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.
17. In R.B. Ramlingam Vs. R.B. Bhavaneshwari, 2009 (2) Scale 108, Apex Court has observed ;
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.
18. Honble, Supreme Court in Anshul Aggarwal vs. New Okhla Industrial Development Authority, IV (2011) CPJ 63 (SC) laid down that;
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 Foras.
19. Recently, Apex Court in Post Master General and others vs. Living Media India Ltd. and another (2012) 3 Supreme Court Cases 563 has held;
24. After referring various earlier decisions, taking very lenient view in condoning the delay, particularly, on the part of the Government and Government Undertaking, this Court observed as under;
29. It needs no restatement at our hands that the object for fixing time-limit for litigation is based on public policy fixing a lifespan for legal remedy for the purpose of general welfare. They are meant to see that the parties do not resort to dilatory tactics but avail their legal remedies promptly. Salmond in his Jurisprudence states that the laws come to the assistance of the vigilant and not of the sleepy.
30. Public interest undoubtedly is a paramount consideration in exercising the courts' discretion wherever conferred upon it by the relevant statutes. Pursuing stale claims and multiplicity of proceedings in no manner subserves public interest. Prompt and timely payment of compensation to the landlosers facilitating their rehabilitation /resettlement is equally an integral part of public policy. Public interest demands that the State or the beneficiary of acquisition, as the case may be, should not be allowed to indulge in any act to unsettle the settled legal rights accrued in law by resorting to avoidable litigation unless the claimants are guilty of deriving benefit to which they are otherwise not entitled, in any fraudulent manner. One should not forget the basic fact that what is acquired is not the land but the livelihood of the landlosers. These public interest parameters ought to be kept in mind by the courts while exercising the discretion dealing with the application filed under Section 5 of the Limitation Act. Dragging the landlosers to courts of law years after the termination of legal proceedings would not serve any public interest. Settled rights cannot be lightly interfered with by condoning inordinate delay without there being any proper explanation of such delay on the ground of involvement of public revenue. It serves no public interest.
The Court further observed ;
27. It is not in dispute that the person(s) concerned were well aware or conversant with the issues involved including the prescribed period of limitation for taking up the matter by way of filing a special leave petition in this Court. They cannot claim that they have a separate period of limitation when the Department was possessed with competent persons familiar with court proceedings. In the absence of plausible and acceptable explanation, we are posing a question why the delay is to be condoned mechanically merely because the Government or a wing of the Government is a party before us.
28. Though we are conscious of the fact that in a matter of condonation of delay when there was no gross negligence or deliberate inaction or lack of bonafide, a liberal concession has to be adopted to advance substantial justice, we are of the view that in the facts and circumstances, the Department cannot take advantage of various earlier decisions. The claim on account of impersonal machinery and inherited bureaucratic methodology of making several notes cannot be accepted in view of the modern technologies being used and available. The law of limitation undoubtedly binds everybody including the Government.
29. In our view, it is the right time to inform all the government bodies, their agencies and instrumentalities that unless they have reasonable and acceptable explanation for the delay and there was bonafide effort, there is no need to accept the usual explanation that the file was kept pending for several months/years due to considerable degree of procedural red-tape in the process. The government departments are under a special obligation to ensure that they perform their duties with diligence and commitment. Condonation of delay is an exception and should not be used as an anticipated benefit for government departments. The law shelters everyone under the same light and should not be swirled for the benefit of a few.
30. Considering the fact that there was no proper explanation offered by the Department for the delay except mentioning of various dates, according to us, the Department has miserably failed to give any acceptable and cogent reasons sufficient to condone such a huge delay.
31. In view of our conclusion on Issue (a), there is no need to go into the merits of Issues (b) and (c). The question of law raised is left open to be decided in an appropriate case.
32. In the light of the above discussion, the appeals fail and are dismissed on the ground of delay. No order as to costs.
20. As apparent from the record, petitioner and its counsel have tried to mislead this Commission by placing on record the so called corrected copy of judgment dated 4.11.2008, which pertains to (Appeal No.18 of 2008) filed against order dated 6.11.2007, passed by the District Forum, Kollam. The so called corrected copy does not pertain to the impugned order passed by the State Commission in the present case. On the other hand, it relates to the execution proceedings which have no bearing on the present revision. Thus, it is manifestly clear that there is delay of 158 days in filing of the revision petition.
21. The reasons for delay mentioned in the application does not come within the purview of sufficient cause.
Observations made by Apex Court in the authoritative pronouncements discussed above are fully attracted to the facts and circumstances of the present case.
22. Thus, gross negligence, deliberate inaction and lack of bonafides are imputable to the petitioner. Hence, no sufficient grounds are made out for condoning the delay in filing the present revision petition.
Application for condonation of delay under these circumstances, is not maintainable at all. Present application is most bogus, frivolous one and is meritless. Same has been filed just to waste the precious time of this Commission and to cause undue harassment to respondent no.1, so as to deprive her of the fruits of the order passed by the District Forum, as far as back in the year 2006.
23. Accordingly, present revision petition being hopelessly barred by limitation is hereby dismissed with punitive cost of Rs.20,000/-.
24. Petitioner is directed to deposit the cost by way of a demand draft in the name of respondent no.1, within four weeks from today. Cost shall be paid to respondent no.1 only, after expiry of period of appeal/revision, if any.
25. In case, petitioner fails to deposit the cost, within the prescribed period, then it shall also be liable to pay interest @ 9% p.a., till realization.
26. List for compliance on 15.2.2013.
J (V.B. GUPTA) PRESIDING MEMBER Sonia/