State Consumer Disputes Redressal Commission
Smt Kamal Janardhan Bhoir & Anr vs Mulund Kamlesh Co-Operative Housing ... on 17 January, 2013
BEFORE THE HON'BLE STATE CONSUMER DISPUTES REDRESSAL
BEFORE THE
HON'BLE STATE CONSUMER DISPUTES REDRESSAL
COMMISSION, MAHARASHTRA, MUMBAI
Misc.
application No.MA/12/320(DELAY) IN First Appeal No. FA/12/912
(Arisen out
of Order Dated 06/01/2012 in Case No. 344/2010 of District DCF, South Mumbai)
1. SMT KAMAL JANARDHAN BHOIR
MANIK SMURTI NEAR TARUN UTKARSH MANDAL GAWANPADA
MULUND EAST MUMBAI 400081
2. SMT.VANDANA SUBHASH KOLI
VITHAVA KOLIWADA, KALWA
DIST.THANE
...........Appellant(s)
Versus
1. MULUND KAMLESH CO-OPERATIVE HOUSING SOCIETY LTD
VASUDEV BALWANT MARG GAWAN PADA MULUND EAST MUMBAI - 400081
2. VIJAY & CO.
236,KALBADEVI MARG,3RD FLOOR,
12-101 GOMATI BHAVAN, KALBADEVI,MUMBAI-400 002
3. SHRI RAMBHAI KANILAL MAKHECHA ALIAS SHRI BABABHAI
RAVJIBHAI KAPADIA
M/S.VIJAY & COMPANY,
KARIM MANZIL,J.S.MARG, PRINCESS STREET, MUMBAI-400 002
4. SHRI SACHIN TRIMBAK VAITY
PLOT NO.104,TRISHUL APARTMENTS,
SECTOR 20,AIROLI,NAVI MUMBAI
5. SMT.LATIKA TRIMBAK VAITY
PLOT NO.104,TRISHUL APARTMENTS,
SECTOR 20, AIROLI,NAVI MUMBAI
6. SMT.SARIKA BHUPENDRA BHOI
ROOM NO.72,BHOIWADA,BHIWANDI
DIST.THANE
7. SMT. MEGHA PRAMOD BHOI
ROOM NO.72,BHOIWADA,BHIWANDI,
DIST-THANE
8. SMT.DEEPA AJIT SHIRODKAR
A/501,KRUPABHILBH,TILAK NAGAR MARG, CHEMBUR,MUMBAI-400
089
9. SHRI VIKAS SHIVRAM VAITY
B/303, SHRIKRISHNA DARSHAN
NEAR NEELAM NAGAR, PHASE II, GAWANPADA,MULUND
(E),MUMBAI-400 081
10. SHRI MILAN SHIVRAM VAITY
D/603,SAI ASHA,NEAR NEELAM NAGAR,
PHASE II, GAWANPADA, MULUND (E),
MUMBAI-400 081
11. SHRI UDAY SHIVRAM VAITY
D/706,SAI ASHA,NEAR NEELAM NAGAR,PHASE
II,GAWANPADA,MULUND(E),MUMBAI-400 081
12. SMT.CHANDRABHAGA SHIVRAM VAITY
D/706,SAI ASHA,NEAR NEELAM NAGAR,PHASE
II,GAWANPADA,MULUND (E),MUMBAI-400 081
...........Respondent(s)
BEFORE:
HON'BLE Mr. S.R. Khanzode PRESIDING MEMBER
HON'BLE MR. Narendra Kawde MEMBER PRESENT:
Ms.Snehal Shimpi-advocate for the applicant/appellant.
Mr.U.B.Wavikar-Advocate for respondent no.1 Mr.S.G.Lakhani- Advocate for respondent nos.2&3.
Mr.A.A.Barve-Advocate for respondent nos.4 to 12 ORDER Per Honble Mr.S.R.Khanzode, Presiding Judicial Member Mr.U.B.Wavikar-Advocate for respondent no.1 files vakalatnama as well as reply to the delay condonation application. Taken on record. Mr.S.G.Lakhani- Advocate for respondent nos.2&3. He undertakes to file vakalatnama.
Mr.A.A.Barve-Advocate files vakalatnama on behalf of respondent nos.4, 5 & 6 and undertakes to file vakalatnama on behalf of respondent nos.7 to 12. He also files reply to the delay condonation application. Heard the Ld.advocates for the parties on delay condonation application.
In the instant case, there is one application dated 18/08/2012 (herein after referred as first application) to get condone a delay of 14 days. Thereafter, again there is another application of even date (herein after referred as second application) which calculates delay of 4 months and 8 days and sought to be condoned. In the first application, explaining the delay following statement is made:-
The Appellants say they came to know about the judgement when they received the copy of the order on 29th February, 2012 by post. The appellants were not aware of the order earlier. The appellants say that appellants are illiterate housewives with hardly any education. The appellants no.1 and 2 do not have any financial resource to file the appeal immediately. The appellants say that appellant no.2 has not been keeping well due to old age illness and particular temperature. The appellants were also not aware that the appeal is required to be filed within a period of one month.
The appellants say that the appellants have met their advocate on 20th March, 2012 to show the judgement and to seek his guidance in the matter. Thereafter the appellants have arranged the expenses for filing the appeal and part of the fees. In the above circumstances there is a delay in filing the appeal. There is delay of 14 days in filing the appeal.
The appellants have good case on merits. The appellants say that in the interest of justice delay in filing the appeal be condoned.
In the second application quite different statement is made and which reads as under:-
That the appellants came to know about the judgement when they have received the copy of the order on 29th February, 2012 by post. The appellants were not aware of the order earlier. The appellants say that appellants are illiterate housewives with hardly any education. The appellants no.1 and 2 do not have any financial resource to file the appeal immediately. The appellants say that appellants have not been keeping well due to old age illness.
The appellants further say that the society members and the Developer have approach the nephews for settlement. The appellants were also hopeful that the matter would be settled and the Developers/society would pay the price for transferring the share of appellants. The appellants were also not aware that the appeal is required to be filed within a period of one month. The appellants say that the appellants have met their advocate on 20th July, 2012 to show the judgement and to seek his guidance in the matter.
The appellants state that thereafter the appellants have arranged the expenses for filing the appeal and part of the fees. The appellants say that in the above circumstances there is a delay in filing the appeal. There is a delay of 4 months and 8 days in filing the appeal. The appellants have good case on merits. The appellants say that in the interest of justice delay in filing the appeal be condoned.
In the instant case, since it is alleged that the copy of the impugned order dated 06/01/2012 was received on 29/02/2012, the period of delay is to be calculated on the basis of said date and it actually comes to about 136 days i.e. more than 4 months and 8 days.
Though not every day delay needs to be explained but totality and worthiness of the explanation given is to be seen.
Still the fact remains that delay is not properly calculated vis--vis no explanation for entire period of delay is offered.
Coming to the merits of the reasons given explaining the delay, as earlier pointed out, complainant simultaneously came out with a different causes. In the first application, old age and illness of appellant no.2-Smt.Vandana Subhash Koli is pleaded and covering both the appellants, it is stated that they did not have financial resource to file appeal immediately. This conveys the fact that they were in mind to prefer the appeal but due to economic restraints could not file the same. In addition to it, in the second application it is stated society members and Developer had approached their nephew for settlement. Since they were hopeful to settle the matter amicably, they waited and, thus, delay occurred. Nephews name is not mentioned. There is no affidavit filed of the nephew. These facts are denied by the contesting non-applicants/respondents. It may be clarified at this stage that the non-applicants/respondents, who are original opponents/land owners, supported this delay condonation application to condone the delay. Considering the fact that some new story is tried to be introduced in the second application about settlement and, therefore, they waited to file the appeal cannot be accepted as sufficient reason to condone the delay, particularly, when outcome of the settlement is not stated. Considering overall circumstances, we find that there is inordinate delay which applicant/appellant failed to explain satisfactorily. We hold accordingly and pass the following order:-
ORDER Misc. Application for condonation of delay, first as well as second stands dismissed. Consequently, the appeal is not entertained.
In the given circumstances, both the parties to bear their own costs.
Pronounced on 17th January, 2013.
[HON'BLE Mr. S.R. Khanzode] PRESIDING MEMBER [HON'BLE MR.
Narendra Kawde] MEMBER Ms.