National Consumer Disputes Redressal
Maa Jhande Wali Constructions Pvt. Ltd. ... vs Dr.Parth Prathim Saha & Anr. on 2 July, 2013
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO. 2371 OF 2013 (From order dated 08.05.2013 in First Appeal No.131/2013 of the State Consumer Disputes Redressal Commission, UTTARAKHAND, Dehradun ) WITH IA/3934/2013 (FOR STAY) 1. Maa Jhande Wali Constructions Pvt. Ltd. S.F. 26/93, Sector-2 Rajender Nagar, Sahibabad, Ghaziabad Through its Managing Director, Sh.Anil Gupta R/o 5/34, Rajender Nagar, Sahibabad Presently at 21/1, Hiralal Marg, Rishikesh, District Dehradun 2. Shri Anil Gupta R/o 5/34, Rajender Nagar, Sahibabad Presently at 21/1, Hiralal Marg, Rishikesh, District Dehradun Managing Director Ganga Residency Apartment Tapovan District Tehri Garwal Petitioners Versus 1. Dr. Parth Prathim Saha S/o Late Viresh Chand Saha R/o 10, Dima Nagar, P.O. Agartala P.S. East Agartala Sub Division Sadar District West Tripura 799 001 2. Shri Pankaj Roy S/o Pramod Rajan Roy R/o Gangali Road Sub Division Sadar P.O. Agartala P.S. East Agartala Sub Division Sadar District West Tripura 799 001 Through Attorney Sh.Manohar Bharti (Moni Baba) S/o Sh. Itawar Bharti R/o House No. 13, Street/MOhalla Bageshwar Village/Town Bageshwar Patwari/Lekh-Bharpur P.S.Devprayag P.O. Khasari, Tehsil Devprayag District Tehri Garwal 249 192 Respondents BEFORE: HONBLE MR. JUSTICE J. M. MALIK, PRESIDING MEMBER For the Petitioners : Mr. Anurag Sharma, Advocate Along with Ms.Manisha Bhandari, Advocate PRONOUNCED ON 2nd JULY, 2013 O R D E R
JUSTICE J.M. MALIK
1. The State Commission dismissed the First Appeal filed by the petitioners herein, on the ground that it was barred by delay of 250 days. We have heard the counsel for the petitioners. The petitioners have not cared to file the application for condonation of delay filed before the State Commission. However, the order passed by the State Commission gives all the necessary details of the application moved for condonation of delay.
2. The admitted facts of this case are these. The respondents/ complainants Dr.Parth Prathim Saha and Shri Panjak Roy filed a complaint against Maa Jhande Wali Construction Pvt. Ltd., and Shri Anil Gupta, the petitioners/builders, in the year 2011. Earlier, the District Forum had passed an ex-parte order on 28.07.2012. Aggrieved by that order, an application for setting aside the ex-parte order was filed before the District Forum on 05.11.2012. The said application was dismissed on 05.04.2013. Aggrieved by that order the petitioners preferred First Appeal before the State Commission which was dismissed on 08.05.2013.
3. This is an admitted fact that the petitioners initially contested this case before the District Forum. They had also filed written statement, copy of which has been placed on record and the same is dated 24.12.2011. The case of the petitioners is that in the month of February, 2012, Anil Gupta, the deponent suddenly fell ill and, therefore, could not appear before the District Forum. He also could not inform his counsel and consequently, the District Forum vide its order dated 07.05.2012 proceeded ex-parte against the petitioners and decided the complaint against the petitioners/opposite parties, on 28.07.2012. The dismissal of the same came to light of the petitioners on 08.10.2012 and then they chose to move an application for setting aside the ex-parte order on 05.11.2012, which was dismissed on 05.04.2013.
4. The counsel for the petitioners reiterated all these pleas and prayed that under these circumstances, an opportunity of being heard should be granted to the petitioners.
5. I am not impressed by the explanation advanced on behalf of the petitioners. There is no medical certificate which may go to depict that the petitioner, Anil Gupta fell ill in February, 2012 and remained sick till 07.05.2012, 28.07.2012, 08.10.2012 and 05.04.2013. According to him, he remained sick for 14 months. There is not even an iota of evidence which may go to bolster his case. The petitioners have failed to prove day-to-day delay. Their pleas are vague, evasive and lead the Commission nowhere. This case is neatly dovetailed by the following authorities.
6. In Anshul Aggarwal v. New Okhla Industrial Development Authority, IV (2011) CPJ 63 (SC), it has been held 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.
7. In State of West Bengal Vs. Brojesh Chandra Singha Barman, 2005 (3) CHN 19, at p.24, it was held that a bare look at Section 5 of the Limitation Act makes it plain that the material part of the language of proviso appended to Section 15 of the Consumer Protection Act, is in pari materia therewith. Therefore, it would seem settled beyond caisil, that it is incumbent on the appellant to explain each day of default beyond the terminus line of the prescribed period of limitation.
8. This view is also fortified by the following authorities (1) Bikram Dass Vs. Financial Commissioner and others, AIR, 1977 SC 1221; (2) R.B. Ramlingam v. R.B. Bhavaneshwari, I (2009) CLT 188 (SC)= I (2009) SLT 701=2009 (2) Scale 108; (3) Ram Lal and Others Vs. Rewa Coalfields Ltd., AIR 1962 Supreme Court 361, (4) Sow. Kamalabai, W/o Narasaiyya Shrimal and Narsaiyya, S/o Sayanna Shrimal Vs. Ganpat Vithalroa Gavare, 2007 (1) Mh. LJ 807 (5) Balwant Singh Vs. Jagdish Singh & Ors. (Civil Appeal No. 1166 of 2006), decided on 08.10.2010.
9. On merits, the counsel for the petitioners admitted that they are ready to rectify the deficiencies in the Apartment which was sold to the purchasers/complainants. The District Forum has already ordered that petitioners/opp.parties were to rectify the defects as mentioned in Para 5 of the complaint or pay Rs.15,00,000/- to the complainant as cost of repairs and also pay Rs.1,29,000/- towards the 7% discount as mentioned in brochure and Rs.2,000/- towards litigation expenses. The petitioners have to atone for their deficiencies.
10. For all these reasons, the case of the petitioners is found to be at Sixes and Sevens and, therefore, the same is hereby dismissed. No order as to costs.
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(J. M. MALIK, J) PRESIDING MEMBER dd/1