National Consumer Disputes Redressal
M/S Poonam Constructions Through Its ... vs Mrs. Manjusha Ashok Dudhane, on 3 October, 2012
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO. 2450 of OF 2012. along with (I. A. Nos. 1 & 3 of 2012) ( Condonation of delay & Exemption from fling certified copy of the impugned order) (From order dated 28.4.2009 in Appeal No. 1000 of 2008 of Maharashtra State Consumer Disputes Redressal Commission, Mumbai) 1. M/s Poonam Constructions through its Partners 2. Mrs. S. S. Girolla, age adult, occupation business. 3. Mrs. Dipali Rajendra Girolla, age Adult, Occupations Business. Address of all at 137/18 Phule Nagar, Alandi Road, Pune-411006. Petitioners Versus Mrs. Manjusha Ashok Dudhane, R/o at Plot No. 11, Survey No. 2/1A/2-11, Dhankawadi, Pune .Respondent BEFORE: HONBLE MR. JUSTICE V.B. GUPTA, PRESIDING MEMBER For the Petitioners : Mr. Satyajeet Kumar, Advocate Pronounced on: 3rd October, 2012 ORDER
PER MR. JUSTICE V.B. GUPTA, PRESIDING MEMBER Present revision petition has been filed by the petitioners challenging the order dated 28.4.2009, passed by Consumer Disputes Redressal Commission, Mumbai (for short, State Commission) vide which appeal filed by the petitioners was dismissed in default.
2. Along with present petition, application seeking exemption from filing of certified copy of the impugned order as well as application seeking condonation of delay in filing the present revision petition have also been filed. It would be pertinent to point out that petitioners in their application have not mentioned at all the period of delay for which condonation is being sought. However, as per office report, there is delay of 1072 days.
3. Respondent/Complainant filed a complaint against the Petitioners/O.Ps before the District Consumer Disputes Redressal Forum, Pune (for short, District Forum) alleging that she being the owner of a plot wanted to construct a Bungalow over it and for that, she engaged services of the petitioners. It is alleged that the petitioners left the work incomplete. As such, complaint before District Forum was filed on the ground of deficiency.
4. Petitioners in their written statement denied all the allegations of the respondent.
5. District Forum, vide its order dated 17.6.2008, allowed the complaint partly and directed the petitioners jointly and severally to pay to the respondent a sum of Rs.1,00,000/- together with interest thereon @ 9% p.a. from the date of filing of the complaint till realization.
6. Aggrieved by the order of the District Forum, petitioners filed an appeal before the State Commission. However, their appeal was dismissed in default, vide impugned order which is reproduced hereunder;
None present for appellant. Appellant is not remaining present since last date. Hence, we pass the following order:-
:- order :-
1. Appeal stands passed for default.
2. No order as to costs.
7. This is how this matter has reached before this Commission.
8. I have heard learned counsel for the petitioner and have gone through the record.
9. It has been contended by learned counsel for the petitioners that petitioners came to know about the impugned order only on 21.5.2012 when they received notice of the execution application. Then they contacted their Advocate and only thereafter filed this petition. So, sufficient grounds are there for condonation of delay. In support, learned counsel has relied upon Mahadev Govind Gharge and others Vs. Special Land Acquisition Officer, Upper Krishna Project, Jamkhandi, Karnataka, (2011) 6 Supreme Court Cases 321.
10. It is apparent from the record that alongwith present revision petition certified copy of the impugned order has not been filed till date. As per Office report, copy of the impugned order was received by the petitioners on 28.4.2009. Under these circumstances, it was essential on the part of the petitioners to have placed the certified copy of the impugned order on record to show as to when the same was received by them. Petitioners have deliberately and for reasons best known to them have chosen not to place on record the certified copy of the impugned order till date, which was passed as earlier as on 28.4.2009. Certainly, there is mala fide on the part of the petitioners in not placing the certified copy of the impugned order on record, which would have placed the true picture with regard to the receipt of the certified copy of the petitioners before this Commission.
11. Thus, short question remains to be seen as to whether there are sufficient ground for condoning the delay of 1072 days or not.
12. The grounds on which petitioners are seeking condonation of delay have been mentioned in para 4 and 5 and 8 of the application, which read as under;
4. The petitioners herein humbly state that the petitioners come to know about the dismissal of First Appeal No. 1000/2008 only on 21.5.2012, when the petitioners received notice from CDRF, Pune in Execution App. No. 40/2012. So the delay of about three years caused due to miscommunication to the petitioners. The petitioners say that the petitioners had no knowledge and information regarding the fixed dated 28.4.2009. The petitioners stays at Pune. The Advocate appearing in this matter practices in Honble High Court at Bombay and there are few matters listed before the State Commission, so the Advocate depends on the information of his clerk. The petitioners say that for time to time the junior as well as clerk of the appearing Advocate in First Appeal enquired about the matter but every time the office informed that relevant papers are not traceable and did not inform the status of the said matter.
5. The petitioners say that even after receiving the execution proceedings notice, the Advocate personally went to the office, he received the same reply from the office.
6. xxxxxxxxxxxxxxxxxxxxxxx
7. xxxxxxxxxxxxxxxxxxxxxxx
8. The delay caused herein is not deliberate or intentional, but due to miscommunication, hence it is liable to be condoned for substantial justice of the petitioners.
13. As per petitioners case, knowledge of dismissal of appeal came to them only on 21.5.2012 when they received the notice of the execution application.
14. Petitioners in their application have not mentioned the name of the Advocate or its clerk form whom petitioners have been enquiring the matter from time to time. Moreover, not a single date has been mentioned by the petitioners in their application showing as to on which date they had made enquiries with the Advocate or its clerk. Petitioners had made vague averments in the application without any reasonable or plausible explanation.
15. It is well settled that sufficient cause for seeking condonation of delay in each case is a question of fact.
16. 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.
17. In R.B. Ramlingam Vs. R.B. Bhavaneshwari, 2009 (2) Scale 108, Supreme Court 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. Recently, Supreme Court in Anshul Aggarwal vs. New Okhla Industrial Development Authority, IV (2011) CPJ 63 (SC) has 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..
19. Thus, after going through the entire record it is manifestly clear that no sufficient cause has been shown by the petitioners in their application seeking condonation of delay of 1072 days in filing of the present petition. Even otherwise, petitioners have been conducting their case before the State Commission also in a careless and negligent manner as on two consecutive dates, nobody was present on behalf of the petitioners before the State Commission. The State Commission under these circumstances, rightly dismissed their appeal in default due to non-appearance. Hence, there is no infirmity or illegality in the impugned order passed by the State Commission.
20. Decision of the Mahadev Govind Gharge (supra) as relied upon by the learned counsel for the petitioners is not applicable at all to the facts of the present case.
21. The present revision petition is hopelessly barred by limitation and as well as have no merit in it. Accordingly, the present revision petition, being most bogus and frivolous one, is hereby dismissed with punitive costs of Rs.20,000/- (Rupees twenty thousand only).
22. Costs be deposited by the petitioners by way of demand draft in the name of Consumer Legal Aid Account, within four weeks from today.
23. In case, petitioners fail to deposit the cost within the prescribed period, then it shall also be liable to pay interest @ 9% p.a., till realization.
24. Pending applications stand disposed of.
25. List on 09.11.2012 for compliance.
J. (V.B. GUPTA) PRESIDING MEMBER SSB/