National Consumer Disputes Redressal
M/S. Paras Construction vs Paras Paradise Co-Op Housing Society ... on 20 November, 2017
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI FIRST APPEAL NO. 225 OF 2017 (Against the Order dated 31/03/2016 in Complaint No. 72/2001 of the State Commission Maharashtra) 1. M/S. PARAS CONSTRUCTION THROUGH PARTNER, MR. ARUN U. SANGHAVI, 263, NAGDEVI STREET, GROUND FLOOR, NEAR CRAWFORD MARKET, MUMBAI-400003 MAHARASHTRA ...........Appellant(s) Versus 1. PARAS PARADISE CO-OP HOUSING SOCIETY LTD. THROUGH ITS SECRETARY, MR. N.P. KHANKAL, PLOT NO. 248, SECTOR-21, NERUL, NAVI MUMBAI MAHARASHTRA ...........Respondent(s)
BEFORE: HON'BLE MRS. REKHA GUPTA,PRESIDING MEMBER
For the Appellant : Ms Anju Thomas, Advocate For the Respondent : Mr Praveen Nagar, Advocate
Dated : 20 Nov 2017 ORDER
REKHA GUPTA, PRESIDING MEMBER
The present first appeal has been filed against the ex parte judgment dated 31.03.2016 passed by the Maharashtra State Consumer Disputes Redressal Commission, Mumbai ('the State Commission') in Consumer Complaint no. CC/01/72.
2. The facts of the case as per the Respondent/ Complainant are that the Appellant/ Opposite Party society made a grievance as a 'consumer' within the meaning of definition 'consumer' under the Consumer Protection Act, 1986, that the Respondent/ builder/ developer had constructed a building called "Paras Paradise' situated in plot no. 248 in Sector 21, Nerul, Navi Mumbai 400706. The building consisted of 10 flats occupied by flat owners listed in paragraph 1 of the complaint. The Respondent on or about 04.05.1999 obtained the occupation certificate and handed over the flat to the purchasers. The occupants/ flat purchasers found that the building had developed cracks due to poor work-man ship and suffered from leakages in the very first monsoon. These facts were brought to the notice of the Respondent builder/developer by communication dated 19.05.2000 but the Respondent did not bother despite communication made from the Appellant society on behalf of flat purchasers. The Appellant had engaged the services of Architect Mr P S Nadkarni who inspected that the building and suggested remedial measures for stopping of leakages at the cost of Rs.4,11,400/-. The Appellant had sought co-operation from the Respondent but the Respondent failed and neglected to carry out the repairs as suggested by the Architect and did not bother to heed the requirements stated by communications from the society.
3. It was the grievance of the Respondent/ Complainant that although the Respondent had appeared earlier in the complaint proceeding, the complaint remained pending as it was marked sine die. It was the further grievance of the Respondent that the file was not traceable earlier as it was missing and, therefore, remained pending. The Respondent while the complaint remained pending, suggested amendment in the complaint which was carried out but when the amended complaint was sought to be served upon the Appellant/ Opposite Party, they had refused to accept the notice. Affidavit in support of service of RPAD was already filed on behalf of Respondent dated 31.03.2016. Envelope, which indicates that the envelope sent by RPAD was returned as 'refused' by the Appellant - Paras Construction and others, which was duly sent on their last known address was brought to the notice of the State Commission.
4. The reply filed on behalf of the Appellant denied the averments made in the complaint by their affidavit dated 20.12.2001. According to the Appellants, the Respondents had formed a Co-operative Housing Society illegally and did not make payment to the developer for allotment of parking area. It was also denied that there was poor workmanship or negligence on the part of the Appellant. Hence, it was contended that the Appellant was not liable to compensate the Respondent. It was also alleged that the purchasers did not allow the contractor to carry out the repair work.
5. The State Commission vide order dated 31.03.2016 while partly allowing the complaint observed as under:
"We have seen the statement of deficiencies appearing in the affidavit of the opponent dated 20.12.2001. In our opinion, it was the responsibility of the builder/ developers to carry out essential repairs to the building constructed by so as to allow reasonable habitation of the flats in the building. By their conduct to avoid carrying out repairs and to attend hearing of this complaint despite notices and simple denial of the claim by affidavit, in our opinion, entitles the complainant society to reliefs which are prayed for in this consumer complaint. We, therefore, allow the complaint as prayed for opponent shall pay to the complainant society a sum of Rs.18,34,100/- so as to enable the complainant society to carry out essential repairs in the building habituated by 10 flat purchasers listed in the complaint. If repairs are already carried out, Co-operative Society is entitled to appropriate amount of compensation towards the expenses incurred by it. Opponent shall also pay a sum of Rs.3,05,859/- as expenses incurred for deemed conveyance in respect of Housing property including the plot whereupon the building is situated. Cost of litigation quantified at Rs.10,000/- shall also be paid by opponent to the complainant society. Complaint is accordingly partly allowed".
6. Hence, the present appeal.
7. The present first appeal has been filed with a delay of 230 days as per the appellant. The reasons given for the delay are as under:
< > Thereafter the appellant collected all the relevant case papers and sent the same to the office of the Advocates in Mumbai, who sent them further to the Advocates in New Delhi for preparing and filing the appeal before this Commission. Since the order was passed by the State Commission, Maharashtra, considerable time was consumed in arranging all the documents from Maharashtra and sending the same to New Delhi;
After receiving all the documents in the office of the Advocates in New Delhi, same were perused and the Advocates sought for some more documents to substantiate the contentions raised in the present appeal;
In order to substantiate the contentions of the present appeal, the Advocate of the present appeal sought some more documents. Pursuant to that, the drafting work was undertaken by the Advocates. Simultaneously, certain documents were given to the typist to produce them as Annexures in the present appeal. Therefore, a delay was caused in filing this appeal which is neither deliberate nor international on the part of the appellants.
8. I have heard the learned counsel for the parties. Learned counsel for the Appellant has stated that the delay was not intentional or deliberate, as the Appellant has a good case on merit and is likely to succeed if the delay is condoned. On the other hand, the learned counsel for the Respondent has opposed the application for condonation of delay. He contended that though there was a delay of 301 days from the day the State Commission passed the order on 31.03.2016, whereas it has been mentioned in the application for condonation of delay as 230 days. He further contended that no time line had been given in the application. Even before the State Commission there was no appearance on behalf of the Appellant. This has led to the passing of an ex parte order against them. This speaks about the casual attitude of the Appellant. Hence, he strongly oppose the application for condonation of delay.
9. I have gone through the application. It is seen that it has been drafted in a very casual and in a vague manner. The Appellant has not mentioned any dates, even the names of the advocate in Mumbai and Delhi have not been mentioned. Though, it is stated that a considerable time was consumed in arranging documents from Mumbai, no dates have been mentioned. It is also seen that the documents were being sent to the Advocate at Delhi in a piece meal manner. There appears to be no urgency on the part of the Appellant as also on their counsel to stick to a time line. The Appellant has also failed to give detailed day to day reasons for the inordinate delay of 230 days.
10. Learned counsel for the respondent has cited three citations namely; (i) Anshul Aggarwal vs New Okhla Industrial Development Authority - (2011) 14 Supreme Court Cases 579; decided on 09.08.2011 (ii) in Koganti Atchuta Rao and Smt Koganti Lakshmi Sridevi vs Koganti Vineeth decided on 09.04.2013 (RP no. 727 of 2013); (iii) in FA no. 1158 of 2014 - Amit Chawla vs M/s Parsvnath Developers Ltd., FA no. 1156 of 2014 - Aman Grover vs M/s Parsvnath Developers Ltd., and in FA no. 1157 of 2014 - Sanjay Kumar Sharma vs M/s Parsvnath Developers Ltd decided on 20.11.2014 of this Commission.
11. The above quoted citations are squarely applicable to the case on hand.
12. At the same time, it is also well settled that "sufficient cause" with regard to condonation of delay in each case, is a question of fact.
13. In the matter of Anshul Aggarwal vs. New Okhla Industrial Development Authority, IV (2011) CPJ 63 (SC), the Apex Court has highlighted the object of Consumer Protection Act particularly expeditious and in expensive remedy to the consumers.
"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".
14. In Balwant Singh Vs. Jagdish Singh & Ors., (Civil Appeal no. 1166 of 2006), decided by the Apex Court on 08.07.2010 it was held:
"The party should show that besides acting bonafide, it had taken all possible steps within its power and control and had approached the Court without any unnecessary delay. The test is whether or not a cause is sufficient to see whether it could have been avoided by the party by the exercise of due care and attention. [Advanced Law Lexicon, P. Ramanatha Aiyar, 3rd Edition, 2005]".
15. 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."
16. Similarly in Oriental Insurance Co. Ltd., vs Kailash Devi and 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."
. 17. 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."
18. Accordingly, I find that there is no 'sufficient cause' to condone the inordinate delay of 230 days in filing the present appeal. The application for condonation of delay is without any merit as well as having no legal basis and is not maintainable. Consequently, the present appeal being time barred by limitation and the same is dismissed with no order as to costs.
...................... REKHA GUPTA PRESIDING MEMBER