National Consumer Disputes Redressal
M/S. Ruturaj Construction vs Prakash Ramchandra Kale on 3 December, 2015
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO. 2498 OF 2015 (Against the Order dated 30/07/2015 in Appeal No. 508/2015 of the State Commission Maharastra) 1. M/S. RUTURAJ CONSTRUCTION THROUGH ITS PARTNERS 1. SMT. KUSUM P. SHIRKE, THROUGH THEIR C.A. MR. RAJESHKUMAR P. SHIRKE, RESIDING AT MATOSHREE NIWAS, KASTURI COMPLEX, NEAR JANKALYAN HIGH SCHOOL, TALUKA SHAHAPUR, DISTRICT THANE 2. 2.MRS. BHAGYASHREE B. MADKE, THROUGH THEIR C.A. MR. RAJESHKUMAR P. SHIRKE, RESIDING AT MATOSHREE NIWAS, KASTURI COMPLEX, NEAR JANKALYAN HIGH SCHOOL, TALUKA SHAHAPUR, DISTRICT THANE ...........Petitioner(s) Versus 1. PRAKASH RAMCHANDRA KALE R/O VAITARNA, TALUKA SHAHAPUR THANE ...........Respondent(s)
BEFORE: HON'BLE MR. JUSTICE V.B. GUPTA, PRESIDING MEMBER HON'BLE MR. PREM NARAIN, MEMBER For the Petitioner : Mr. Santosh Shukla, Adv. For the Respondent :
Dated : 03 Dec 2015 ORDER Petitioner/Opposite Party has filed this revision petition challenging impugned order dated 30.07.2015, passed by State Consumer Disputes Redressal Commission, Maharashtra, Mumbai (for short, 'State Commission') vide which application of delay filed by petitioner was dismissed.
2. Brief facts are, that Respondent/Complainant has paid a sum of Rs.4,63,300/-out of Rs.4,90,000/- for purchase of a flat to be constructed by the petitioner. The aforesaid amount was paid during the year 2007-08. Since, petitioner failed to give possession as agreed between the parties on or before 01.04.2008, a consumer complaint was filed by respondent seeking possession as well as for financial losses.
3. Petitioner in its written statement denied, that respondent has paid a sum of Rs.4,63,000/- but has paid Rs.4,04,000/- only. Despite demands, respondent is avoiding making payment of Rs.86,000/- besides other due of Rs.35,500/-. Therefore, possession could not be delivered. Meanwhile, there has been increase in the construction cost. Thus, price of flat has been increased to the extent of Rs.8,75,000/-.
4. District Consumer Forum, Thane(for short, 'District Forum') vide order dated 5.9.2013, allowed the complaint holding that petitioner has committed deficiency and directed it to accept a sum of Rs.36,700/- from the respondent and hand over the possession to the respondent. In addition, a sum of Rs.1,50,000/- was awarded to the respondent on account of harassment.
5. Being aggrieved, petitioner filed appeal before the State Commission along with application for condonation of delay of 43 days.
6. The State Commission, vide impugned order dismissed the application for condonation of delay as well as the appeal.
7. Hence, this revision.
8. It is contended by learned counsel for petitioner, that delay has occurred due to unavoidable circumstances. In the interest of justice, the delay may be condoned.
9. The State Commission in its impugned order observed;
"After perusing the application, we find that it is mentioned in the application that due to some unavoidable circumstances, there is delay of 43 days and it may be condoned. This is the only recital in the application for condonation of delay. Without mentioning what were those circumstances, this recital cannot be considered as sufficient reason. Applicant must mention the actual reason and that is not mentioned. Only it is stated that, due to unavoidable circumstances, which cannot be considered as sufficient reason, even though delay is of 43 days. Thus, we find that there is no reason, much less, satisfactory reason mentioned in the application to condone the delay and, hence, application deserves to be rejected. Hence, the following order:-
ORDER Misc. Application for condonation of delay is rejected. In the result, appeal does not survive for consideration."
10. The only ground on which condonation of delay has been sought states;
"The Applicant states that due to some unavoidable circumstances there is delay of 43 days from filing the above Appeal, therefore it is in the interest of justice that the delay may be condoned."
11. It is well settled that "sufficient cause" for condoning the delay in each case is a question of fact.
12. 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."
13. Similarly, in Oriental Insurance Co. Ltd. vs. Kailash Devi & 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."
14. In R.B. Ramlingam Vs. R.B. Bhavaneshwari, 2009 (2) Scale 108, Supreme Court 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."
15. Hon'ble 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."
16. Decision of Anshul Aggarwal (Supra) has been reiterated in Cicily Kallarackal Vs. Vehicle Factory, IV (2012) CPJ 1(SC) 1, wherein Hon'ble Supreme Court observed;
"4. This Court in Anshul 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."
17. We fully agree with the reasonings given by the State Commission, that in the application no cause whatsoever has been shown as to why there was delay of 43 days in filing the appeal, except that 'due to some unavoidable circumstances there is delay of 43 days'. Now what is this, 'some unavoidable circumstances' has not been explained at all. Be that as it may, the aforesaid reason by any stretch of imagination, cannot be said to be a sufficient cause. Moreover, a valuable right has accrued in favour of respondent, which cannot be brushed aside lightly.
18. It would not be out of place to mention here, that petitioner is enjoying about 90% of the total cost of the flat deposited by the respondent about 7/8 years ago. On the other hand, respondent after paying 90% of the cost of flat is still empty handed
19. Thus, looking from any angle, no illegality or infirmity can be found in the impugned order. The order passed by the State commission is well reasoned one and it rightly rejected the application for condonation of delay and dismissed the appeal.
20. Under these circumstances present petition being without any legal basis, is meritless and same stand dismissed with cost of Rs.10,000/-(Rupees Ten Thousand only).
21. Petitioner is directed to deposit the aforesaid cost by way of demand draft in the name of 'Consumer Legal Aid Account' of this Commission, within four weeks from today.
22. In case, petitioner fails to deposit the cost within the prescribed period, then it shall also be liable to pay interest @ 9% p.a. till realization.
23. List for compliance on 8th January, 2016 at 2.00 P.M. ......................J V.B. GUPTA PRESIDING MEMBER ...................... PREM NARAIN MEMBER