State Consumer Disputes Redressal Commission
M/S Shalom Builders & Developers vs Shri Sandesh Tukaram Malusare on 2 July, 2021
MA/21/102-IN-A/21/156 1/6
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
MAHARASHTRA, MUMBAI
MISC.APPLICATION NO.MA/21/102 IN APPEAL NO.A/21/156
(Arisen out of order dated 19/07/2018 passed in Complaint No.10 of 2017 by
District Commission at Ratnagiri)
M/s.SHALOM BUILDERS AND DEVELOPERS
Through its partners:
1. Smt. Sujata Kishore Kadam,
Residing at - 12/473, Ansheri Sahakar Nagar
Co-operative Housing Society,
D.N. Nagar, Andheri, Mumbai 400 058.
2. Mr.Williams Stephen Pinto,
Residing at - 101, Sonal Link Resi,
297-C Linkin, Mithi Chowky, .......Applicant(s)/
Malad (W), Mumbai 400 064. Appellant(s)
Versus
MR.SANDESH TUKARAM MALUSARE,
Residing at - Road Oali, Ughada Maruti
Mandira Jawal, Paag, Chiplun,
Ratnagiri. .........Respondent(s)
BEFORE:
D.R. Shirasao - Presiding Judicial Member
For the Applicant(s)/ : Advocate Ms.Swati Khot
Appellant(s)
For the Respondent/s : Advocate Mr.Ajay Pawar.
ORDER
(1) This is Virtual/Video Conferencing hearing.
MA/21/102-IN-A/21/156 2/6(2) Applicants/appellants have filed this application for condonation of delay in filing appeal.
(3) Ld.Advocate appearing for appellants submitted that the impugned order was passed ex-parte against the appellants/opponents on 19/07/2018. Applicants learnt about the order passed ex-parte by the Ld.District Commission in the month of June, 2019. However, appeal is filed against the same on 25/02/2021. As such there is delay of 974 days in filing appeal. It is her contention that during the relevant time appellant no.1 was seriously ill and she was further diagnosed with liver cirrhosis. She was under continuous medical treatment and she was also admitted for considerable period in the hospital. Appellant no.2 is a sleeping partner of the firm and he was not having knowledge of the impugned order passed by the Ld.District Commission. Moreover, he was also out of country. It is her contention that due to lockdown condition also appellants could not file appeal within limitation. It is her contention that delay caused in filing appeal is not intentional and deliberate. Moreover, the original impugned order passed against the appellants is ex-parte order and appellants should get an opportunity to contest the complaint on merit. They have very good case against the respondent/complainant. For that purpose she submitted that delay caused in filing appeal be condoned.
(4) Advocate Mr.Ajay Pawar for non-applicant/complainant submitted that delay caused in filing appeal is not properly explained by the applicants/appellants. He has filed reply to the application for MA/21/102-IN-A/21/156 3/6 condonation of delay. It is his submission that the impugned order was passed on 19/07/2018 and in the same month the copy of order was dispatched to the applicant/appellant. They must have received the same in the month of August, 2018. It is his submission that appellant has admitted in appeal memo that they learnt about the order in the month of October, 2018. He submitted that the documents of illness of appellant no.1 filed on record are from the year 2019. Appellant has not given any explanation why appeal was not filed from October, 2018 till June, 2019 when appellant no.1 had become ill. He submits that the concession of lockdown period is available to appellants only from March, 2020 and not prior to that. The previous delay is to be explained by the appellants categorically. However, appellants have failed to explain the same. He further submitted that although appellant no.1 was ill, appellant no.2 could have filed the appeal. He specifically denied that appellant no.2 is sleeping partner. On the contrary he submitted that he is getting 50% of share in the profits of the firm. He also admitted that there is no documentary evidence on record to show that appellant no.2 was abroad and hence, he was not able to file appeal. Hence, he submitted that the appellants failed to explain the delay caused in filing appeal satisfactorily. The delay is of huge period and hence, he submitted that the application filed by appellant for condonation of delay in filing appeal be dismissed.
(5) He further submitted that only after filing of execution application by respondent/complainant and warrants are issued by the Ld.District Commission against the appellants, appellants have come forward to file appeal along with application for condonation MA/21/102-IN-A/21/156 4/6 of delay. Hence, he submitted that the contention of appellant cannot be accepted that the delay caused in filing appeal is not intentional and deliberate. Hence, he submitted that the application be rejected.
(6) In this case it is admitted fact that the impugned order is passed by the Ld.District Commission on 19/07/2018. It was passed ex-parte against the appellants. Appellants have filed appeal on 25/02/2021. As such delay caused in filing appeal is of 974 days. Under such circumstances, it is relevant to see when appellants had learnt about the order passed against them, particularly when the order was passed ex-parte against them. In this case it is particular to note that the notice of original complaint was received by the appellants/opponents on 03/03/2017. Irrespective of that they remained absent before the Ld.District Commission. Hence, Ld.District Commission proceeded the complaint ex-parte against the appellants/opponents and decided consumer complaint ex-parte against them by passing an order dated on 19/07/2018. It is the contention of appellants that they learnt about the ex-parte order passed by the Ld.District Commission against them in the month of October, 2018. This fact is mentioned by the appellant in appeal memo. It is admitted fact that as per the order passed by the Hon'ble Supreme Court the extension for filing appeal has been granted to the concerned parties from March, 2020 and that extension is still available to the concerned parties. However, appellants have to explain the delay which is caused prior to March, 2020 in filing appeal. In this case the appellants have to explain the delay from October, 2018 to March, 2020.
MA/21/102-IN-A/21/156 5/6(7) It is the contention of Ld.Advocate appearing for appellant that during the relevant period opponent no.1 was ill. She was diagnosed with liver cirrhosis and she was bed-ridden and unable to move. In that respect medical documents are filed on record by appellants. The medical documents are going to show that appellant no.1 was suffering from liver cirrhosis and she was taking medical treatment for the same. However, there is no document on record to show that during this entire period she was not in a position to move or bed- ridden. Appellants have filed one medical certificate of Dr.Sadawarte on record dated 15/07/2019. However, it discloses that Dr.Sadawarte had examined appellant no.1 on 15/07/2019 and opined that she is unable to travel for at least 8 days more. From this certificate it is not appearing that for entire period from October, 2018 to March, 2020 appellant no.1 was bed-ridden or unable to move. In this case it is admitted fact that appellant nos.1 and 2 are the partners of M/s.Shalom Builders and Developers. Document of partnership Deed is filed on record. As per the partnership deed it appears that both the partners are taking benefits of the firm to the extent of 50%. Under such circumstances, the contention of Ld.Advocate appearing for appellant cannot be accepted that appellant no.2 is sleeping partner and he has no concern with the day-to-day affairs of the firm. It is her submission that during relevant period he was abroad and was not in a position to file appeal. However, in that respect no documents are filed on record. Looking to these facts of the case I am of the opinion that the delay caused in filing appeal has not been satisfactorily explained by the appellants. The delay is of huge period. Consumer complaint is MA/21/102-IN-A/21/156 6/6 already decided by the Ld.District Commission by passing order on 19/07/2018 and complainant has not received the fruits of the order till this date. In view of the same I proceed to pass the following order:
ORDER
(i) Misc.Application filed by applicants/appellants for condonation of delay is hereby dismissed. In view of the same Appeal No.A/21/156 cannot be entertained.
(ii) Parties to bear their own costs.
Pronounced on 2nd July, 2021.
[D.R. Shirasao] Presiding Judicial Member emp