National Consumer Disputes Redressal
S.V. Hegde vs A.B. Ravindra on 25 August, 2017
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO. 4288 OF 2014 (Against the Order dated 11/04/2014 in Appeal No. 164/2014 of the State Commission Karnataka) 1. S.V. HEGDE M/S REVATHI CONSTRUCTIONS, NO-11, REVATHI, 2ND CROSS, GEORGE GARDEN, R.V ENGINEERING COLLEGE, MYSORE ROAD, BANGALORE - 560 059 KARNATAKA ...........Petitioner(s) Versus 1. A.B. RAVINDRA S/O KRISHNA BHARITHAYAM R/O AT JANASEVA VIDYA KENDRA, CHANNENA HALLI, BANGALORE - 562 130 KARNATAKA ...........Respondent(s)
BEFORE: HON'BLE MRS. REKHA GUPTA,PRESIDING MEMBER
For the Petitioner : MR. BHARAT SWAROOP SHARMA For the Respondent : MR. PURVESH BUTTAN
Dated : 25 Aug 2017 ORDER
REKHA GUPTA, PRESIDING MEMBER
The present revision petition has been filed against the judgment dated 11.04.2014 of the Karnataka State Consumer Disputes Redressal Commission, Bengaluru ('the State Commission') in First Appeal no. 164 of 2014.
2. The facts of the case as per the respondent/ complainant are that the respondent was the owner of a site, intended to construct a dwelling house and therefore, entered into an agreement on 04.06.2012 with the petitioner/ opposite party for construction of the building for a sum of Rs.31,90,470/-. The petitioner was required to complete the construction within nine months from the date of the agreement. The petitioner did not complete the construction within the agreed period. Therefore, the, respondent sent an e-mail reminding the petitioner requesting to complete the construction. At the request of the respondent, the architect firm cancelled the contract with the petitioner. The respondent has overall paid Rs.2,66,583/- for the work that has been done. After several request made by the respondent and the architect, the petitioner has given no objection certificate to the respondent to appoint any other contract to carry out the remaining work. Thereafter, the respondent entrusted the further construction work to another firm namely Hemadri Constructions as per their estimation and therefore, there was an escalation in the cost of Rs.5,03,772/- compared to the estimated cost which was agreed with the petitioner. Therefore, the respondent was put to loss of Rs.5,03,772/- and he has paid the excess amount of Rs.2,66,583/-. The petitioner has not paid the amount even though he had issued NOC to entrust the construction work to any other contractor. Accordingly, the respondent got issued legal notice on 20.06.2013 calling upon the petitioner to pay Rs.10,20,854/- but it went in vain. Therefore, he filed a complaint.
3. In spite of service of notice, the petitioner remained absent and was proceeded ex parte. The District Forum after considering the averments of the complaint, affidavit evidence and the documents produced by the respondent allowed the complaint.
4. The III Additional Bangalore Urban District Consumer Disputes Redressal Forum, Bangalore ('the District Forum') vide its order dated 25.11.2013 while allowing the complaint passed the following order:
"The complaint is allowed. It is held that there is deficiency in service by the opposite party. The opposite party is directed to pay Rs.7,70,354/- to the complainant within 30 days from the date of this order. In case of default, the opposite party shall be liable to pay interest at 12% per annum on the said sum from the date of default, until actual payment. No costs."
5. Dissatisfied by the order of the District Forum, the petitioner/ opposite party filed an appeal before the State Commission. The appeal was filed within a delay of 43 days which was condoned by the State Commission. The State Commission while dismissing the appeal has observed as under:
"It is argued by the learned counsel for the appellant that, the appellant has not received any notice or summons by the DF in complaint no. 1338 of 2013. Since, the appellant has not disputed the address mentioned in the order passed by the DF and in the appeal the very same address has been mentioned. No doubt he has given NOC to the respondent that, he may entrust the work of construction of his building to some other contractor, which clearly indicates that he has not completed the construction work and left in the middle for the reasons best known to him. The complainant has produced the receipts for having paid the excess amount in a sum of Rs.2,66,000/-. There was an escalation in the price of the raw-materials due to delay in completing the construction, which put the respondent to a lot of inconvenience and mental agony. Therefore, the DF has rightly held that, there was a deficiency in service on the part of appellant. Hence, viewed from any angle, we don't see any prima-facie case to admit this appeal. Accordingly, we pass the following:
Appeal is dismissed at the stage of admission. The order dated 25.11.2013 passed by the District Forum, Bangalore Urban, in complaint no. 1338 of 2013 is confirmed. The amount in deposit made by the appellant before this Commission shall be transferred to the District Forum to do the needful".
6. Hence the present revision petition.
7. The revision petition has been filed with a delay of 137 days as per the petitioner and 140 days as per the Registry. The reasons given for the delay are as under:
6. The State Commission Bangalore vide its impugned order dated 11.04.2014 was placed to dismiss the appeal no. 164 of 2014 preferred by the petitioner/ opposite party.
7. By the said order dated 11.04.2014 passed by the State Commission, Bangalore in Appeal no. 164 of 2014, the petitioner/ opposite party preferred writ petition before the High Court of Karnataka at Bangalore in Writ Petition no. 21392/2014 (GM-CON).
8. The Hon'ble High Court in its order dated 16.07.2014 was pleased to dismiss the writ petition no. 21392 of 2014 (GM-CON) giving liberty to the petitioner/ opposite party to avail of the statutory remedy in accordance with law.
9. After passing of the order dated 16.07.2014 in writ petition no. 21392/ 2014 (GM-CON), the petitioner/ opposite party has suddenly come across serious ill health of urinary problems and was required to have continuous best rest. It is most humbly and respectfully submitted that due to continuous bed rest, the petitioner/ opposite party has come across some unforeseen stringent financial hardships and problems in his business life. It is most humbly and respectfully submitted that immediately after passing of the order dated 16.07.2014 in writ petition no. 21392 of 2014 (GM-CON), as already stated above, due to serious ill-health of urinary problems and unforeseen stringent financial hardships and problems in his business life, the petitioner/ opposite party found very difficult to file this revision petition before the Commission in time.
8. I have heard the learned counsel for the parties. Mr B S Sharma, learned counsel for the petitioner has contended that the District Forum had erroneously passed the ex parte order against the petitioner, though the petitioner was never served. He further contended that the District Forum ignored the fact that the notice sent to the petitioner was returned as 'unclaimed' and there was no evidence that the post man had gone to the address and tried to deliver the notice. The State Commission also in their order had wrongly held that the petitioner had been served and upheld the order of the District Forum. He drew my attention to the order of the Hon'ble Mr D H Waghela, Chief Justice and Hon'ble Mr Justice H G Ramesh in the High Court of Karnataka at Bangalore in writ petition no. 21392/ 2014 (GM-CON) on 16.07.2014 in which the following order was passed:
"It is not disputed by the learned counsel appearing for the petitioner that the petitioner has a stator remedy under the Consumer Protection Act, 1986 as against the order impugned herein. Hence, we decline to entrain this writ petition with liberty to the petitioner to avail of the statutory remedy in accordance with law".
8. Learned counsel for the petitioner has contended that since the High Court had given the petitioner a liberty to avail the statutory remedy, the revision petition should be allowed.
10. To support his case he also took the support of the following two citations:
In Revision Petition no. 3242 of 2013 - Dr R K Pandey, Surgeon vs Shri Chandra Shekhar Pandey and Ors and RP no. 3364 of 2013 - Saraf Hospital vs Chandra Shekhar Pandey and Ors; and in RP no. 728 of 2013 - Koganti Atchuta Rao and Anr vs Putcha Purnachandra Rao - III (2013) CPJ 230 (NC)
11. The learned counsel for the respondent/ complainant on the other hand argued in favour of the order of the State Commission. He drew my attention to the order sheet of the District Forum dated 25.09.2013 which reads as under:
Called out.
Complainant is present. The notice sent to OP is returned with the postal remarks not claimed. Hence, since of notice to OP is held sufficient OP is placed ex parte. Call for affidavit of complainant."
12. He has also drawn my attention to the envelope containing the notice which was returned unclaimed by the Department of Post. From the noting on the envelope it is seen that the notice was correctly addressed to the address of the petitioner as given in the present revision petition in the memo of parties which reads as under:
"S V Hegde, Proprietor M/s Revathi Constructions No. 11, Revathi, 2nd Cross George Garden R V Engineering College Mysore Road Bangalore 560 059 Karnataka State"
13. From the notings on the back of the envelope it is clear that the post man attempted delivery of the notice twice on 06.09.2013 and 07.09.2013.
14. Learned counsel for the respondent has also brought to my attention the OM no. 57-01/2010-BD&MD issued by the Ministry of Communications and IT, Department of Posts, Business Development and Marketing Directorate dated 01.06.2010 on the subject of Procedure of delivery of Speed Post Articles. Under paragraph 4 - Undeliverable articles (a) enumerating the reasons due to which a Speed Post Article could not be delivered:
Reasons Explanation Action Unclaimed Intimation was served but the article was not taken delivery of by the addressee or his/ her representative till the date of retention of the article in the office Return to the send or to the return address as mentioned on the speed post article after the completion of period of retention (i.e., 7 days following the day of receipt) at the post office
15. From the order of the District Forum, it is clear that the opposite party was issued notice which was returned back as 'unclaimed' and they were not wrong in holding that the service of notice was sufficient and proceeding ex parte. The State Commission in their order has correctly noted that "the appellant had not disputed the address mentioned in the order passed by the District Forum and the appeal was having the very same address mentioned", It was difficult to believe that the notice issued was returned as unclaimed due to no fault of the petitioner.
16. Further, the writ petition was dismissed on 16.07.2014 and the revision petition was filed on 27.11.2014 after four months and eleven days. In his application for condonation of delay there is no explanation for this long delay after the writ petition was dismissed except for a bald statement that the OP had suddenly became serious with urinary problems and required continuous bed rest and thereafter faced stringent financial hardships and problems in his business life. There is no medical certificate to support his claim of having been ill and for being on continued best rest for such a long period.
17. In Koganti Atchuta Rao and Anr. Vs Putcha Purnachandra Rao in RP no. 728 of 2013 decided on 09.04.2013 this Commission has observed as under:
12. On perusal of the aforesaid judgments as also Section 14 of the Limitation Act which is reproduced in the above observations it is evident that benefit of Section 14 of the Limitation Act would be available to the petitioners only if they had pursued the remedy in the wrong forum with due diligence and in good faith. Thus the bona-fides of the petitioners seeking advantage of Section 14 of the Limitation Act is the key factor for deciding whether or not the benefit is to be extended.
13. In this context, it would be pertinent to refer to a decision of Hon'ble Supreme Court in M/s Advance Scientific Equipment Ltd. & Anr. (supra) in which Court observed 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."
14. While dealing with the issue pertaining to condonation of delay the Supreme Court in the matter of Anshul Aggarwal vs. New Okhla Industrial Development Authority IV (2011) CPJ 65 (SC) has observed thus: -
"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."
15. Decision of Anshul Aggarwal (supra) has been reiterated in Cicily Kallarackal Vs. Vehicle Factory, IV (2012) CPJ 1(SC) = VIII (2012) SLT 585 wherein Hon'ble Supreme Court observed:-
"4 This Court in Anshulal Aggarwal v. NOIDA, (2011) CPJ 63 (SC) has explained the scope of condonation of delay in a matter where the special Courts/Tribunals have been constituted in order to provide expeditious remedies to the person aggrieved and Consumer Protection Act, 1986 is one of them. Therefore, this Court held that while dealing with the application for condonation of delay in such cases the Court must keep in mind the special period of limitation prescribed under the statute (s).
5. In the instant case, condoning such an inordinate delay without any sufficient cause would amount to substituting the period of limitation by this Court in place of the period prescribed by the Legislature for filing the special leave petition. Therefore, we do not see any cogent reason to condone the delay.
6. Hence, in the facts and circumstance of the case as explained hereinabove, we are not inclined to entertain these petitions. The same are dismissed on the ground of delay".
16. In the aforesaid judgment Hon'ble Supreme Court has highlighted that while dealing with an application for condonation of delay the Court must bear in mind the object of expeditious disposal of consumer dispute which would get defeated if the Court was to entertain highly belated petitions.
17. If we go through the factual matrix of this case the petitioners admittedly failed to put in appearance before the District Forum and allowed the complaint to be proceeded ex-parte. Thereafter the petitioners instead of filing an appeal against the order of the District Forum filed a writ petition challenging the order of the District Forum. Not only this when the writ petition was dismissed by the High Court then also the petitioners instead of filing appeal filed a revision petition in the State Commission which was later on withdrawn and the appeal was filed. Thus conduct of the petitioners reflects on their mala-fide intention to delay the proceedings. Thus under the circumstances by no stretch of imagination the petitioners are entitled to benefit of Section 14 of Limitation Act.
18. Even if for the sake of argument benefit of Section 14 of Limitation Act is given to the petitioners and the period during which the petitioners were pursuing writ petition before the High Court is excluded, then also the appeal filed was highly belated. Admittedly writ petition was dismissed by the High Court on 12.8.2011 and the appeal was filed before the State Commission on 21.8.2012 i.e. after the expiry of one year from the dismissal of the writ petition by the High Court. Only explanation for this delay is that during the intervening period petitioners were negotiating amicable settlement with the father of the complainant which in our view is not acceptable. Thus even if the benefit of Section 14 of Limitation Act is given to the petitioners the appeal filed before the State Commission was hopelessly time barred and there was no justification for condonation of delay in filing of appeal.
The facts of the case squarely applicable to the case on hand.
18. As per the order of the writ petition, the petitioner and his counsel were well aware that the petitioner had the statutory remedy under the Consumer Protection Act, 1986 against the impugned order. As the learned counsel for the petitioner did not dispute the same, hence, it cannot be said that he pursued the remedy in the High Court in good faith. In fact the conduct of the petitioner reflects the malafide intention to delay the proceedings. Thus, under the circumstances, by no stretch imagination are the petitioners entitled to the benefit of Section 14 of the Limitation Act. This would also borne out by the fact that the appeal in the State Commission was also filed with a delay of 43 days which condoned by the State Commission and even thereafter when the writ petition was dismissed on 16.07.2014, the petitioner felt no sense of urgency to file the revision petition and the revision petition was filed after an inordinate delay of 140 days on 27.11.2014.
19. In view of the discussion above, I A no. 8445 of 2014 is rejected and consequently, the present revision petition being barred by limitation is also dismissed.
...................... REKHA GUPTA PRESIDING MEMBER