National Consumer Disputes Redressal
M/S. Supreme Construction & Developers ... vs Anil Sudhakar Unhawane on 30 May, 2018
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO. 3384 OF 2016 (Against the Order dated 30/09/2016 in Appeal No. 633/2016 of the State Commission Maharashtra) 1. M/S. SUPREME CONSTRUCTION & DEVELOPERS PVT. LTD. & ANR. HAVING THEIR REGISTERED OFFICE AT CLAN HOUSE, 12TH FLOOR, PLOT NO. 161A, CTS NO. 410, CHEMBUR, HEMU KALANI MARG, SINDHI SOCIETY CHEMBUR MUMBAI-400071 MAHARASHTRA 2. MR. RAJU KACHWALA, DIRECTOR, M/S. SUPREME CONSTRUCTION & DEVELOPERS PVT. LTD., OFFICE AT HAVING THEIR REGISTERED OFFICE AT CLAN HOUSE, 12TH FLOOR, PLOT NO. 161A, CTS NO. 410, CHEMBUR, HEMU KALANI MARG, SINDHI SOCIETY CH MUMBAI-400071 MAHARASHTRA ...........Petitioner(s) Versus 1. ANIL SUDHAKAR UNHAWANE R/O. MATUNGA LABOUR CAMP, A WARD CHAWL NO. 37/483, MATUNGA MUMBAI-400019 MAHARAHSTRA ...........Respondent(s)
BEFORE: HON'BLE MR. DR. B.C. GUPTA,PRESIDING MEMBER HON'BLE MR. DR. S.M. KANTIKAR,MEMBER
For the Petitioner : For the Respondent :
Dated : 30 May 2018 ORDER
APPEARED AT THE TIME OF ARGUMENTS
For the Petitioners
:
Mr. Sandeep Narain, Advocate
For the Respondent
:
Mr. Varun Goswami, Amicus Curiae
Mr. Shourya Mehra, Advocate
PRONOUNCED ON : 30th MAY 2018
O R D E R
PER DR. B.C. GUPTA, PRESIDING MEMBER This revision petition has been filed under section 21(b) of the Consumer Protection Act, 1986 against the impugned order dated 30.09.2016, passed by the Maharashtra State Consumer Disputes Redressal Commission (hereinafter referred to as 'the State Commission') in M.A. No. MA/16/289, filed in Appeal No. A/16/633, "M/s. Supreme Construction and Developers Private Limited vs. Anil S. Unhawane", vide which, the said miscellaneous application, filed for condonation of delay of 302 days in filing appeal before the State Commission, was dismissed and consequently, the appeal in question was also dismissed.
Briefly stated, the facts of the case are that the respondent/complainant Anil Sudhakar Unhawane, approached the petitioner/opposite party (OP) Builder for purchasing a flat in their project and he was allotted apartment No. 2901, 29th Floor, Emirald Hexa City Panvel, District Raigarh, Navi Mumbai, admeasuring 427 sq. ft.The total consideration for the said flat was stated to be ₹16 lakh.The complainant is stated to have deposited a sum of ₹3,13,587/- with the OP Builder for the said purpose.It is the case of the complainant that the OPs failed to give him the possession of the flat by the year 2013, as promised by them, which caused lot of mental harassment/agony to him.The complainant filed the consumer complaint in question, seeking directions to the OP Builder to handover the possession of the said flat and also to get the sale-deed executed and registered, in addition to payment of compensation on various counts.However, the stand of the OP Builder is that the allotment of the said flat in favour of the complainant had been cancelled after giving due notice to him for his failure to pay the balance amount and hence, the complainant, no longer was their consumer.
The District Forum decided the consumer complaint filed on 21.02.2015 vide their order dated 06.08.2015, vide which, they held the OP Builder guilty of deficiency in service and unfair trade practice.They directed the OP Builder to handover the possession of the property to the complainant and also to execute and register the sale-deed in his favour, in addition to providing certain compensation as well.The said order of the State Commission was made exparte against the OP Builder, saying that the OP Builder failed to appear before them, despite service of notice.Being aggrieved against the order of the District Forum, the OP Builder challenged the same before the State Commission by way of appeal, taking the plea that they had since changed their address and hence, notice of the complaint which was sent at their old address, was never received by them.The OP Builder acquired knowledge about the said order when warrants under section 27 of the Act were received by them in the execution proceedings against them.The State Commission, however, observed that the appeal had been filed before them with a delay of 302 days and there was no proper justification for the condonation of such delay.The State Commission vide impugned order dismissed the application for condonation of delay and consequently, dismissed the appeal.Being aggrieved against the impugned order of the State Commission, the OP Builder is before this Commission by way of the present revision petition.
It was argued by the learned counsel for the petitioner/OP Builder that the order of the District Forum had been passed on 06.08.2015, but they acquired knowledge about the same for the first time on 09.05.2016, when they received the warrants in execution proceedings.They obtained a certified copy of the order in question on 14.05.2016 and filed the appeal on 03.06.2016, which was within the period of limitation of 30 days.The learned counsel explained that their administrative office which was earlier at Plot No. 269, Sector 10, Khargar, Navi Mumbai-410210, had been shifted to Hexcorp Plot No. 161/A at Chemboor, Mumbai with effect from 01.02.2015, whereas their registered office had always been at Chemboor.The present consumer complaint had been filed on 21.02.2015, showing their old address of plot No. 269, Sector 10, Khargar, Navi Mumbai and hence, the District Forum must have sent notice at their previous address.The learned counsel stated that they had sent an e-mail dated 28.01.2015, a copy of which had been placed on record, to all their allottees, stating that their new address was being operated from 02.02.2015, and they shall not be operating from the old office with effect from 31.01.2015.The learned counsel stated that this e-mail was not sent to the complainant, as they had already cancelled allotment of plot in his favour for non-payment of the balance amount.
The learned counsel stated that the State Commission should have, therefore, condoned the delay in filing the appeal before them and heard the case on merits.The learned counsel further stated that there was material defect in the order passed by the District Forum, because no direction had been given to the complainant for the deposit of the balance amount for the flat.The total value of the flat as indicated above was ₹16 lakh, whereas the complainant had deposited a sum of ₹3.13 lakh only.The learned counsel argued that the District Forum had also ordered payment of a compensation of ₹2.5 lakh to the complainant with the implication that the direction to deliver the flat had been given for a consideration of ₹3,13,000/- - ₹2,50,000/- = ₹63,000/- only.In the interest of justice, therefore, the order passed by the State Commission should be set aside and the matter should be ordered to be heard on merits.
The learned Amicus Curiae on the other hand stated that as per section 15 of the Consumer Protection Act, 1986, the time permissible for filing appeals before the State Commission, was only 30 days from the date of the order.The State Commission had, therefore, rightly dismissed the appeal on grounds of limitation, as there was an inordinate delay of 302 days in filing the same.The learned counsel has drawn attention to a number of documents/letter-headsof the OP Builder, explaining that the address of their administrative office had been printed as 269, Sector 10, Khargar, Navi Mumbai only.The learned counsel further stated that a legal notice had also been sent to the Builders on 14.11.2014 at the same address, which was duly replied by them vide letter from their counsel dated 16.01.2015, meaning thereby that the OP Builder was operating at their old address only.The learned counsel further stated that the OP Builder was taking the stand that they never received the notice sent by the District Forum.It was not clear, therefore, how they acquired knowledge about the warrants in execution proceedings, because such warrants had also been issued at the old address.The learned counsel argued that there was a deliberate delay in filing the appeal and hence, the delay should not be condoned.
In reply, the learned counsel for the petitioner/OP Builder argued that the warrants had been sent at their old address, but the police constable who was carrying the warrants was redirected to their new address by someone and hence, the warrants reached their new address.The learned counsel further argued that as per Article 123 of the Schedule of the Limitation Act, 1963, application for setting aside a decree passed exparte, could be made within a period of 30 days of the date of acquiring knowledge for the same.The learned counsel has drawn attention to an order passed by the Hon'ble Supreme Court in the case, "Housing Board Haryana vs Housing Board Colony Welfare Association and Ors. (1995) 5 SCC 672,", in which, it was held that the date of communication of the order to a party was the relevant date for counting the period of limitation.In the said order of the Hon'ble Apex court, mention has been made of Rule 4(10) of the Haryana Consumer Protection Rules, 1988, according to which, it was the duty of the consumer fora to communicate the order to the parties free of charge.The learned counsel argued that since the order had never been communicated to them by the District Forum, they were well within their rights to file appeal before the State Commission, after considering the period of limitation from the date of knowledge of the order of the District Forum.The learned counsel further argued that even if there had been delay in filing the appeal before the State Commission, they should have taken a liberal view and condoned the period of delay.In support of his arguments, the learned counsel has drawn attention to the orders passed by the Hon'ble Supreme Court in "Collector Land Acquisition, Anantnag & Anr. vs. Mst. Katiji & Ors." [1987 (2) SCC 107] and another order of the Hon'ble Supreme Court in "Esha Bhattacharjee vs. Managing Committee of Raghunathpur Nafar Academy and Ors." [(2013) 12 SCC 649], in which, the order made in "Collector Land Acquisition, Anantnag & Anr. vs. Mst. Katiji & Ors." (supra) had been followed. The learned counsel stated that in the interest of providing substantive justice, the delay, if any, should have been condoned. The learned counsel has also drawn attention to the copy of the envelope carrying notices sent by the District Forum placed on record, from where it was clear that the notice sent for their service had been returned "unclaimed".
The learned Amicus Curiae replied on behalf of the complainant/respondent that the factum of sending any e-mail etc. had not been mentioned by the petitioner in proceedings before the consumer fora below.The learned counsel further stated that Article 123 of the Schedule to the Limitation Act, 1963 did not find any application in the appeal cases.The said article was meant to be used, while filing applications before the same court/tribunal only. The learned counsel further stated that it was implied in the order of the District Forum that the balance amount payable by the complainant was to be realised before the delivery of possession/execution of sale-deed etc.The learned counsel argued that there were no sufficient reasons to condone the delay in the present case.In support of his arguments, the learned Amicus Curiae has drawn attention to the order passed by the Hon'ble Supreme Court in "Anshul Aggarwal Vs. New Okhla Industrial Development Authority [(2011) 14 SCC 579]" and the order passed by the Madhya Pradesh High Court in, "Hiralal Sarman Prasad & Ors. vs. Amarnath Batra & Ors." [1986 M.P.L.J.] We have examined the entire material on record and given a thoughtful consideration to the arguments advanced before us.
The main issue that merits consideration in the matter is whether the service of the notice sent by the District Forum was duly made upon the petitioners/OPs andwhether the appeal filed by them before the State Commission was within limitation, counted from the date of knowledge of the order.It is the case of the petitioners that they shifted their administrative office from the previous address, i.e., 269, Sector 10, Khargar, Navi Mumbai to their new address at Chemboor and that the previous office had ceased functioning on 31.01.2015.The instant consumer complaint was filed on 21.02.2015.A perusal of the copy of the envelope containing the notice sent by the District Forum addressed to the petitioners/OPs reveals that the said envelope was returned "unclaimed" to the District Forum, leading to the presumption that valid service of the notice had not been done upon the appellants/OPs.The documents, as pointed out by the Learned Amicus Curiae for the complainant, were issued on the letter-head of the petitioners/OPs and do carry their address as 269, Sector 10, Khargar, Navi Mumbai.The learned Amicus Curiae also stated that the legal notice was sent by them at the old address only, which was responded to by the petitioners/OPs.However, a perusal of the documents on record reveals that the said legal notice was sent on 14.11.2014 and reply to the same was sent by the Advocate for the petitioner on 16.01.2015, meaning thereby that this correspondence took place between the parties, before the shifting of their office with effect from 01.02.2015.The non-bailable warrants in execution proceedings were also sent at the old address, but according to the petitioners/OPs, the said warrants were re-directed to their new address and hence, they acquired knowledge about the impugned order on 09.05.2016.In so far as the sending of e-mail to the complainant is concerned, the petitioners/OPs have themselves stated that the said e-mail was not sent to the complainant, as the allotment in his favour already stood cancelled.
Looking at the overall facts and circumstances of the case, it becomes abundantly clear that there is no tangible proof to show that the petitioners/OPs were served in proceedings in the consumer complaint before the District Forum.In the interest of justice, therefore, the version given by the petitioners/OPs that they acquired knowledge about the order of the District Forum on 09.05.2016, has to be accepted.Moreover, as required under the relevant Consumer Protection Rules, it is the duty of the consumer fora to provide a free copy of the order passed by them to the parties.However, there is nothing on record to prove as to whether the free copy was supplied by the District Forum to the petitioners/OPs.
It has been stated in the order passed by the Hon'ble Supreme Court in "Collector Land Acquisition, Anantnag & Anr. vs. Mst. Katiji & Ors." (supra) as follows:-
"The legislature has conferred the power to condone delay by enacting Section 5 of the Indian Limitation Act of 1963 in order to enable the courts to do substantial justice to parties by disposing of matters on merits. The expression 'sufficient cause' employed by the legislature is adequately elastic to enable the courts to apply the law in a meaningful manner which subserves the ends of justice - that being the life-purpose for the existence of the institution of courts."
The said order has been followed in the order made by the Hon'ble Supreme Court in "Esha Bhattacharjee vs. Managing Committee of Raghunathpur Nafar Academy and Ors." (supra) as well.
From the foregoing discussion, it is concluded that the State Commission should have condoned the delay in filing the appeal before them and decided the case on merits. However, since it has been brought out that there is no tangible proof that the notice sent by the District Forum was ever served on the petitioners, it would be in the interest of justice, if the matter is heard again by the District Forum after providing an opportunity to both the parties to present their case before them afresh. The orders passed by the State Commission as well as the District Forum are set aside in the exercise of the revisional jurisdiction of this Commission and the matter is remitted back to the District Forum with the directions that the said Forum should call the parties, allow them to lead evidence in their favour and then take a decision in the matter again. There shall be no order as to costs.
...................... DR. B.C. GUPTA PRESIDING MEMBER ...................... DR. S.M. KANTIKAR MEMBER