National Consumer Disputes Redressal
Lord Shiva Co-Operative Group Housing ... vs Captain Vishnu Bhagwan Sharma on 28 February, 2012
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO.4306 OF 2010 (Against the order dated 17.8.2010 in Appeal No.1029/2010 of the State Commission, Haryana, Panchkula) Lord Shiva Co-operative Group Housing Society Plot No.12, Sector-10A, Gurgaon, Haryana Through its President of the Society .Petitioner Vs. Captain Vishnu Bhagwan Sharma S/o O.P. Sharma R/76, Mahipal Pur, New Delhi . .Respondent BEFORE: HONBLE MR. JUSTICE V.B. GUPTA, PRESIDING MEMBER For the Petitioner : Ms. Namitha Mathews, Advocate For the Respondent : In person Pronounced on: 28th February, 2012 ORDER
PER MR.
JUSTICE V..B. GUPTA, PRESIDING MEMBER In this revision there is challenge to order dated 17.8.2010, passed by State Consumer Disputes Redressal Commission, Panchkula, Haryana (for short as State Commission).
2. Respondent (who was complainant in District Forum) filed complaint against the petitioner (opposite party ) alleging that he was member of Petitioners Society which allotted him Flat No.36, Sector-10A, Gurgaon and he deposited the entire amount due against the allotment of the flat. It is alleged that petitioner demanded excess amount which was opposed. Petitioner at the time of delivery of the possession of the flat, demanded from respondent, Rs.24,000/- towards conveyance and maintenance charges of the flat which were deposited.
3. It is also alleged that petitioner had not provided basic amenities such as water connection, electricity and the parking facilities, which it is bound to provide. Thus, petitioner is liable to pay Rs.50,000/- as damages on account of harassment, agony and mental pain suffered by the respondent.
4. In reply it is pleaded by the petitioner that it was decided in General Body Meeting, that possession of the flat would be given to those members who would deposit Rs.1.50 lacs (as escalation cost of the building) + interest accrued due to delayed payment towards cost of the plot to HUDA over and above Rs.14.0 lacs. However, the interest amount was variable. The original members who deposited Rs.2.0 lacs up to 15.06.2001 would pay interest to the tune of Rs.28,000/- each, while members who were registered with petitioner after 15.06.2001, would deposit Rs.70,000/- each. This decision was taken on 15.08.2002 . Respondent had got registered with the society after 15.06.2001. It is denied that managing committee ever demanded Rs.24,000/- from the respondent. It is also denied that the basic amenities were not provided to the respondent even after possession was delivered to him.
5. On 06.04.2009, petitioner was proceeded ex parte by the District Forum.
6. Vide order dated 30.12.2009, District Forum held that there was deficiency in service on the part of the petitioner and respondent is entitled to refund of Rs.41,700/- which was paid by him under protest towards alleged HUDA dues and interest and also to refund Rs.47,500/- paid towards maintenance charges from August, 2007 to August, 2008. Besides that, petitioner was directed to pay the above amount alongwith interest @ 9% p.a. from date of filing of the complaint till realization and also to pay Rs.5,000/- towards harassment caused by the petitioner to the respondent and also to pay Rs.5,000/- towards litigation expenses.
7. Aggrieved by the order of District Forum, petitioner filed an appeal before the State Commission. Along with appeal, an application for condonation of delay was also filed by the petitioner.
8. Vide impugned order, application for condonation of delay was rejected and consequently, appeal of the petitioner was dismissed being time barred.
9. This is how the matter has reached before this Commission.
10. It is contended by learned counsel for the petitioner that petitioner had shown sufficient cause in not instituting the appeal within 30 days before the State Commission, since petitioner had filed an application for recall/review of the order dated 30.12.21009 of the District Forum. That application was filed under bona fide belief that such application is maintainable.
11. It is further contended that it is settled law that time spent in different proceedings by the petitioner in the same matter involving the same facts which causes delay, shall be sufficient ground to condone such delay.
12. Lastly, it is contended that since order dated 30.12.2009 is nullity, the State Commission did not consider this fact and as such impugned order is liable to be set aside.
13. In support, learned counsel has relied upon the judgement of Apex Court in the case Balbir Singh Vs. Bogh Singh (1974) 1 Supreme Court Cases 854.
14. On the other hand, it is contended by the respondent that there is nothing wrong in the impugned order and there is no merit in this revision.
15. In the application for condonation of delay filed in the State Commission, petitioner has averred;
2. That the order dated 30.12.2009 passed by learned Forum, Gurgaon is ex parte order against present appellant, the present appellant were not aware of above said order as there was account of settlement of out of the forum on receiving the genuine payment the appellant felt relax considering that the complainant will withdraw the complaint as no disputes stand in the way and unfortunately on 06.04.2009 the appellant was proceeded ex parte which resulted into passing order dated 30.12.2009 and same was received by present appellant by post.
3. That on receiving the present appellant have filed application for setting aside order on 27.01.2010 without any delay before District Forum, Gurgaon in which notice has been issued to complainant and complainant has filed reply to the application and the forum has dismissed the application of present appellant on 04.06.2010 and the order of the same was dispatched on 18.06.2010 after obtaining the order the present appellant contacted Mr. Sharad Yadav Advocate to file appeal and the appeal is filed without any delay on 20.07.2010 without any delay and delay 198 days has been occurred.
16. State Commission while dismissing the appeal of the petitioner in its impugned order observed;
It has been expressly provided in Section 15 of the Consumer Protection Act, 1986 that any person aggrieved by the order of the District Forum, may prefer in appeal against such order to the State Commission within a period of 30 days from the time of the order, in such form and manner as may be prescribed. The proviso contained therein permits the State Commission to entertain an appeal after the expiry of period of the said period of thirty days if it is satisfied that there was sufficient cause for not filing it within the stipulated period. The expression sufficient cause has not been defined in the Act, rightly so, as it would vary from facts and circumstances of each case. At the same time while examining the question of condonation of delay, it has to be kept in mind that it is the duty of the competent authority to record satisfaction of the explanation submitted as to whether it is reasonable and satisfactory which is essential pre-requisite for condonation of delay. It is equally well settled that the delay cannot be condoned on the ground of equity as well as on the ground of generosity.
As regards the ground taken in the first application it would transpire that totally vague and ambiguous assertion has been made. The only ground mentioned in the application is that the applicant has filed the application for setting aside of the ex parte judgement, which was decided by the District Forum on 4.6.2010. The plea taken by the appellant on the face of it appears to be not sufficient for condonation of delay.
We have also taken notice of the case titled U.P. Avas Evam Vikas Parishad and another Vs. Smt. Satyawati reported in III (1999) CPJ 217 wherein complainant has prayed for the condonation of the period spent in processing the application for setting aside ex parte judgement. However, the application was dismissed with the observation that there is no provision in Act to claim exclusion of time spent in different proceedings.
The ratio of the Satyawati case (supra) is fully applicable to the facts of the present case. Admittedly, in the present case also, the appellant instead of filing appeal against the ex parte judgment, has preferred the application for setting aside the said order, despite of the fact that there is no provision under the Consumer Protection Act to recall or review its own order. In this view of the matter, the ground stated in the application does not constitute sufficient cause so as to condone the delay in filing the appeal as prayed for in the application from the side of the appellant. Therefore, the application for condonation of delay in filing the appeal is rejected. Consequently, this appeal is dismissed as time barred.
17. It is an admitted case of the petitioner that, initially petitioner has appeared before the District Forum and has also filed its written statement. However, on 6.4.2009, petitioner was proceeded ex parte. In the application for condonation of delay filed before the State Commission, petitioner has nowhere stated as to why it did not appear before the District Forum on that day and what prevented it to join the proceedings thereafter, in the District Forum.
18. Since, petitioner did not appear before the District Forum on 6.4.2009, the District Forum had no option but to proceed ex parte with the matter. Accordingly, it rightly allowed the complaint. This goes on to show that petitioners only intention was to delay the matter and to a certain extent, petitioner has achieved that purpose.
19. Even the appeal filed before the State Commission was barred by limitation and it was rightly dismissed by the State Commission.
20. It is well settled that sufficient cause for non appearance in each case, is a question of fact. Delhi High Court in New Bank of India Vs. M/s Marvels (India): 93 (2001) DLT 558, has held;
No doubt the words sufficient cause should receive liberal construction so as to advance substantial justice. However, when it is found that the applicants were most negligent in defending the case and their non-action and want of bonafide are clearly imputable, the Court would not help such a party. After all sufficient cause is an elastic expression for which no hard and fast guide-lines can be given and Court has to decide on the facts of each case as to whether the defendant who has suffered ex-parte decree has been able to satisfactorily show sufficient cause for non appearance and in examining this aspect cumulative effect of all the relevant factors is to be seen.
21. 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.
22. Similarly, in Oriental Insurance Co. Ltd. vs. Kailash Devi & Ors. AIR 1994 Punjab and Haryana 45, it has been laid down that;
There is no denying the fact that the expression sufficient cause should normally be construed liberally so as to advance substantial justice but that would be in a case where no negligence or inaction or want of bona fide is imputable to the applicant. The discretion to condone the delay is to be exercised judicially i.e. one of is not to be swayed by sympathy or benevolence.
23. In R.B. Ramlingam Vs. R.B. Bhavaneshwari, 2009 (2) Scale 108 , it has been 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.
24. Further, 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.
25. Since, petitioner instead of filing appeal against the ex parte judgement has chosen to file an application for setting aside the ex parte order, despite the fact that there is no provision under the Act for recall or review of any order passed by District Forum, the petitioner in these circumstances shall suffer the natural consequences. In this context, it is pertinent to refer to a judgement of the Supreme Court in M/s. Advance Scientific Equipment Ltd. & Anr. Vs. West Bengal Pharma & Photochemical Development Corporation Ltd. (Appeal (Civil) Nos.17068 - 17069/2010, decided on 9 July 2010) wherein it observed inter alia, as under:-
"..We are further of the view that the petitioners' venture of filing petition under Article 227 of the Constitution was clearly an abuse of the process of the Court and the High Court ought not to have entertained the petition even for a single day because an effective alternative remedy was available to the petitioner under Section 23 of the Act and the orders passed by the State Commission did not suffer from lack of jurisdiction".
26. In our view, the case ratio of Balbir Singh Vs. Bhog Singh (Supra), is not applicable to the present case.
27. As no reasonable explanation for delay in filing the appeal having been given, it is held that no sufficient cause nor any cogent reason has been shown which entitles the petitioner to have the delay condoned, before the State Commission.
28. Even on merits, petitioner has no case since the evidence led by the respondent has gone unrubutted and no fault can be found with the decision of the District Forum. Moreover, a valuable right has accrued in the favour of respondent of which he cannot be deprived of.
29. Looking from any angle, I do not find any infirmity or illegality in the impugned order.
30. The present revision petition, having no merits, is dismissed with costs of Rs.10,000/- (Rupees ten thousand only). Costs imposed upon the petitioner be deposited by way of demand draft in the name of respondent, within one month from today.
31. In case, petitioner fails to deposit the said costs within the prescribed period, then it shall also be liable to pay interest @ 9% p.a., till realization.
32 Costs awarded to the respondent shall be paid, only after expiry of the period of appeal or revision.
33. List on 20th April, 2012 for compliance.
...J (V.B. GUPTA) (PRESIDING MEMBER) Sg.