National Consumer Disputes Redressal
C.P. John vs Hans P. Thomas & Ors. on 25 August, 2023
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI FIRST APPEAL NO. 826 OF 2023 (Against the Order dated 22/05/2014 in Complaint No. 59/2013 of the State Commission Kerala) 1. C.P. JOHN S/O PHILIPOSE, CHANDRAVIRUTHIL HOUSE, KULAKKADU, THIRUVALLA, PATHANAMTHITTA, KERALA-689101 ...........Appellant(s) Versus 1. HANS P. THOMAS & ORS. ITTIMAPADATHU, KARROOR, KARACKAL, P.O., THIRUVALLA, PATHANAMTHITTA-689105 2. ANNAMMA THOMAS W/O K.P. THOMAS, ITTIMAPADATHU, KARROOR, KARACKAL, P.O., THIRUVALLA, PATHANAMTHITTA-689105 3. SIMI THOMAS S/O K.P. THOMAS, ITTIMAPADATHU, KARROOR, KARACKAL, P.O., THIRUVALLA, PATHANAMTHITTA-689105 4. JANS P. THOMAS S/O K.P. THOMAS, ITTIMAPADATHU, KARROOR, KARACKAL, P.O., THIRUVALLA, PATHANAMTHITTA-689105 ...........Respondent(s)
BEFORE: HON'BLE AVM J. RAJENDRA, AVSM VSM (Retd.),PRESIDING MEMBER
FOR THE APPELLANT : MR TOMY CHACKO, ADVOCATE WITH
MR JOSEPH GEORGE, ADVOCATE
Dated : 25 August 2023 ORDER
1. The present first appeal has been filed under section 19 r/w 21 (a) (ii) of the Consumer Protection Act, 1986 against the judgment dated 22.05.2014 of the Kerala State Consumer Disputes Redressal Commission, Thiruvananthapuram, (in short, "the State Commission") in CC no. 59 of 2013.
2. The brief facts of the case are that on 07.11.2005 the respondents entered into an agreement with the petitioner for constructing a residential space with super built up area of 1474 sq ft on the 5th Floor numbered as V/A in the multistoried building complex named CVP Parliament Square Annex B for a total consideration of Rs.14,74,000/- for which the respondent allege that the petitioner did not complete the construction. The respondent alleges that the petitioner be directed to hand over the fully built up flat or to pay Rs.14,74,000/- and Rs.12,38,160 being interest upto 07.11.2012 and further interest of 12% till the realization and also to direct the petitioner to pay Rs.10,00,000/- as compensation.
3. Learned counsel for the appellant submitted that the appellant came to know about the ex parte orders in the matter only 12.06.2023 while he was under judicial custody of the Hon'ble Judicial First Class Magistrate Court, Thiruvalla in LP No. 17 of 2015. He was arrested on 17.05.2023 and was released on bail on 1st July 2023. Learned counsel for the appellant states that the review application no. 17 of 2023 to 27 of 2023 were filed within 30 days from the knowledge of the appellant regarding ex parte order passed against him in CC no. 59 of 2013. He further submits that the appellant was residing out of India since 2008 onwards.
4. Learned counsel for the appellant states that he has not received the notices from the State Commission in any of the complaint cases and the notices issued were returned as un-served with postal endorsement that "addressee has left India". It is further stated that the appellant substituted the service through publication in the Kerala Kaumudi Daily, which has got a limited circulation at Thiruvalla. Further, the respondent failed to effect a proper substituted service of a person residing outside India and having no agent. He further submits that the appellant came to know about the order dated 22.05.2014 in CC no. 59 of 2013. Hence, he prays that:
Allow the first appeal petition and set aside the ex parte order dated 22.05.2014 passed by the State Commission in CC no. 59 of 2013 being impugned herein;
Set aside the order dated 31.07.2013 passed by the State Commission in RA no. 17 to 27 of 2023;
Call for the records of the lower forum/ Commission for proper adjudication of the instant first appeal petition;
Cost of the petition throughout be also allowed in favour of the appellant and against the respondents;
Such other order or further orders be passed as this Hon'ble Commission may deem fit and proper in the facts and circumstances of the case.
5. The respondent herein filed a Consumer Complaint no. 59 of 2013 before the State Commission, Kerala. The State Commission vide its order dated 22.05.2014 has held as under:
4. The complainant is alleging unfair trade practice and seeking refund of the amount paid for purchase of a flat as per agreement Ext A1. It appears that the complainant has paid the entire amount at the time of execution of the agreement itself. The flat is not seen handed over at the time fixed as per the agreement or therefore till now. The complainant has filed proof affidavit. The complaint is proved. The complainant is entitled to get back the amount paid towards cost of apartment amounting to Rs.14,74,000/-. Clause 35 of the agreement entitled the complainant to claim 12% interest in case of default on the side of opposite party. Hence, complainant is entitled to get interest @ 12% from the date of payment till realization. He is also entitled to cost of Rs.2500/-.
In the result, the complaint is allowed, directing the opposite party to pay Rs.14,74,000/- being the amount paid by the complainant together with interest @ 12% from the date of payment till realization. In additional to this complainant is entitled to cost of Rs.2500/-. Time of compliance is two months from the date of receipt of the order.
6. Aggrieved by this order, the appellant has preferred an appeal before this Commission.
7. I have heard the learned counsel for the appellant. Learned counsel for the appellant has not been able to explain the inordinate delay of about 9 years and three months in this case.
8. It is a settled position of law that condonation of delay under the Limitation Act, 1963 needs to be satisfactorily explained for every day of delay and cannot be claimed as a matter of right. The Hon'ble Supreme Court has held in the case of Ram Lal and Ors. vs. Rewa Coalfields Limited, AIR 1962 Supreme Court 361 that condonation of delay is not a matter of right and courts can exercise their discretion to condone the delay only where sufficient reasons are shown. The Apex Court has held as under:
"12. 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."
9. It is also a settled preposition of law that delay of each and every day has to be explained. The basic test to determine whether the delay is reasonable or whether the party has been acting with due diligence, has been laid down by the Hon'ble Supreme Court in the case of R. B. Ramlingam vs. R. B. Bhavaneshwari, I (2009) (2) CLJ (SC) 24 wherein the Hon'ble Court laid down that:
"5. 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."
10. Subsequently, in Anshul Aggarwal vs. New Okhla Industrial Development Authority, (2011) 14 SCC 578, the Hon'ble Supreme Court has also directed to keep in mind the special nature of the Consumer Protection Act, 1986 while dealing with the applications for condonation of delay as below:
"5. 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 Fora."
11. In the instant case, the delay in filing of the appeal before this Commission has not been explained by way of reasonable and sufficient facts and supporting material to justify the gross delay of about 9 years and three months. Mere assertions were made, without any substantiation and facts by material evidence whatsoever.
12. In view of the foregoing, I find no merit in the ground advanced for condonation of delay. The appeal fails and is accordingly dismissed.
................................................................................... AVM J. RAJENDRA, AVSM VSM (Retd.) PRESIDING MEMBER