State Consumer Disputes Redressal Commission
M/S Silver City Housing ... vs Sh. Ajay Jagga And Another on 15 January, 2015
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, U.T., CHANDIGARH First Appeal No. : 09 of 2015 Date of Institution : 12.01.2015 Date of Decision : 15.01.2015 M/s Silver City Housing &Infrastructure Limited, through its Director, Regd. Office House No.89, Sector 8-A, Chandigarh. Appellant/Opposite Party. Versus 1] Sh. Ajay Jagga son of Sh. R. P. Jagga resident of House No.736, Sector 22-A, Chandigarh. 2] Sh. Kamaljit Singh Rana son of Sh. Gurdas Rana resident of House No.3130, Sector 38-D, Chandigarh, presently residing at No.2, Civil Dispensary, Sector 35, Chandigarh. ....Respondents/Complainants. Appeal under Section 15 of the Consumer Protection Act, 1986. BEFORE: JUSTICE SHAM SUNDER (RETD.), PRESIDENT. SH. DEV RAJ, MEMBER.
SMT. PADMA PANDEY, MEMBER.
Argued by:Sh. Sandeep Bhardwaj, Advocate for the applicant/ appellant.
PER DEV RAJ, MEMBER.
This appeal is directed against the order dated 11.02.2013, rendered by the District Consumer Disputes Redressal Forum-II, U.T., Chandigarh (hereinafter to be called as the District Forum only), vide which it allowed the complaint of the complainants (now respondents) and directed the Opposite Party (now appellant) as under:-
9. In view of the above discussion, the present complaint is allowed and the opposite party is directed as under:-
i) to refund the total deposited amount of Rs.7,47,500/- to the complainants with interest @9% per annum from the respective dates of deposit.
ii) to pay Rs.10,000/-
as litigation costs.
10. This order be complied with by the opposite party, within 45 days from the date of receipt of its certified copy, failing which the amount at Sr. No.(i) shall carry interest @18% per annum from the respective dates of deposit till payment, besides payment of litigation costs.
2. The facts, in brief, are that the Opposite Party, widely advertised its project in the name of Silver City Themes at Derabassi. It was stated that, in pursuance of such advertisement, the complainants booked Apartment No.145-E, V Floor, Block B-IV, Cat.B-2, in Silver City Themes, Bhankarpur, Derrabassi with the Opposite Party, by paying initial sum of Rs.1,49,500/- vide cheque No.134462 dated 16.01.2006 of Karnataka Bank Limited, Chandigarh. It was further stated that the Opposite Party issued receipt No.1051, for the same (Annexure C-1). It was further stated that Agreement of sale was executed on 16.01.2006, according to Annexure C-2 whereof, the total cost of the flat was Rs.13,85,000/- plus Rs.50,000/- as cost of parking; Rs.10,000/- as club membership fee and Rs.50,000/- as charges for power backup, thus, totalling Rs.14,95,000/-. It was further stated that at the time of booking, 10% of the total cost of the flat, was to be paid; the first installment was to be paid within 30 days of booking i.e. on or before 16.2.2006 to the extent of 15%; the second installment was to be paid within 3 months i.e. on or before 16.4.2006 to the extent of 25%; the third installment was to be paid within 7 months i.e. on or before 16.08.2006 to the extent of 25%; the fourth installment was to be paid within 13 months i.e. on or before 16.2.2007 to the extent of 20% and the fifth and last installment was to be paid to the extent of 5% on 31.7.2007. It was further stated that since the last installment was to be paid in full and final settlement of the price on 31.7.2007, it was agreed to that construction of the flat, was to be completed, on that date, or soon thereafter.
3. It was further stated that, in pursuance of the aforesaid Agreement, the complainants paid a sum of Rs.7,47,500/- out of the total sale price of Rs.14,95,000/-. It was further stated that after paying the two instalments and initial amount totalling Rs.7,47,500/- by 18.4.2006, the complainants visited the site at Derabassi and found that the project had not commenced, barring some material lying over there. It was further stated that the project was still at the initial stage and there was no sign of completion of the same. It was further stated that on enquiry, it was told by representative of the Opposite Party that the construction was stopped due to some legal hassles and the same would commence shortly. The representative of the complainants would be informed about it, in writing, and the balance installments would be rescheduled. It was further stated that, thus, the complainants stopped making the payment of any further installment. It was further stated that vide letter dated 22.10.2008 (Annexure C-5), the Opposite Party informed the complainants that their NOC was earlier suspended and now the construction had restarted. It was further stated that on receiving the intimation, the complainants again visited the site, and found that no construction was going on.
4. It was further stated that the complainants brought to the notice of the Opposite Party the aforesaid factum of non-start of construction by way of written communication in the month of November 2008 and requested for refund of the amount with interest. It was further stated that the Opposite Party vide letter dated 22.01.2009 (Annexure C-6) clearly admitted that the project came to stand-still due to some legal issues. It was further stated that the Opposite Party remained silent about the refund of amount. It was further stated that, thereafter, the Opposite Party sent a vague letter dated 25.5.2009 (Annexure C-7) informing therein that the construction of flats was being undertaken in full swing and it would shortly be sharing the rescheduled payment plans also. It was also informed that it would endeavor to handover the possession of flats in a span of 12 to 15 months. It was further stated that the complainants sent a letter dated 21.9.2009 through registered/speed post on 22.9.2009 and requested for the refund of amount alongwith interest (Annexures C-8 and C-9). It was further stated that the Opposite Party vide letter dated 8.1.2012 (Annexure C-10) informed the complainants that they were to make payment of Rs.3,73,750.00 plus service tax of Rs.9,624/- by 15.01.2012, which was due. It was further stated that the complainants on 18.02.2012 again sent a communication to the Opposite Party seeking the refund of Rs.7,47,500/- alongwith interest (Annexure C-11) but to no avail.
5. It was further stated that the aforesaid acts of the Opposite Party, amounted to deficiency, in rendering service, and indulgence into unfair trade practice. When the grievance of the complainants, was not redressed, left with no alternative, a complaint under Section 12 of the Consumer Protection Act, 1986 (hereinafter to be called as the Act only), directing the Opposite Party, to refund a sum of Rs.7,47,500/- alongwith interest @24% per annum from the respective dates of deposits; pay Rs.2,00,000/- as compensation for physical harassment & mental agony and Rs.22,000/-
as cost of litigation, was filed.
6. The Opposite Party did not appear before the District Forum, despite service, and it was proceeded against exparte vide order dated 31.01.2013.
7. The complainants led evidence, in support of their case.
8. After hearing the Counsel for the complainants, and, on going through the evidence, and record of the case, the District Forum, allowed the complaint, in the manner, referred to, in the opening para of the instant order.
9. Feeling aggrieved, the instant appeal, has been filed by the appellant/Opposite Party.
10. Alongwith the appeal, an application under Section 5 of the Limitation Act, for condonation of delay of 670 days, as per the applicant/appellant (as per the office report 660 days), was filed by the applicant/appellant, stating therein, that the complaint was decided in favour of the respondents/complainants and the exparte order was passed against it (applicant/appellant). It was further stated that the applicant/appellant never got any summons, from the District Forum, and also did not receive the certified copy of the impugned order dated 11.02.2013. It was further stated that the applicant/appellant received the summons in the Execution Application, filed by the respondents/complainants, and came to know about passing of the impugned order. It was further stated that the applicant/appellant immediately applied for the certified copy of the order alongwith the documents and filed the appeal without any delay after receiving the same. It was further stated that since the summons and exparte order were not received by the applicant/appellant, as such, the delay, in filing the appeal, was unintentional and beyond the control of the applicant/appellant. The Counsel placed reliance on Tukaram Kana Joshi & Ors.
through Power of Attorney Holder Vs. M.I.D.C. & Ors., 2012 (11) CPSC 5, Civil Appeal No.7780 of 2012 decided on 02.11.2012 and The State of Karnataka & Ors. Vs. Vivekananda M. Hallur & Ors., 2012 (12) CPSC 13, Civil Appeal Nos.8803-8805 of 2012 decided on 07.12.2012.
11. We have heard the Counsel for the applicant/appellant, on the application, for condonation of delay, as also, in the main appeal, at the preliminary stage, and have gone through the record of the case, carefully.
12. The first question, that falls for consideration, is, as to whether, there is sufficient cause for condonation of delay of 670 days, as per the applicant/appellant (as per the office report 660 days), in filing the appeal, under Section 15 of the Act or not. It was held in Smt. Tara Wanti Vs State of Haryana through the Collector, Kurukshetra AIR 1995 Punjab & Haryana 32, a case decided by a Full Bench of the Punjab and Haryana High Court, that sufficient cause, within the meaning of Section 5 of the Limitation Act, must be a cause, which is beyond the control of the party, invoking the aid of the Section, and the test to be applied, would be to see, as to whether, it was a bona-fide cause, in as much as, nothing could be considered to be bonafide, which is not done, with due care and attention. In New Bank of India Vs. M/s Marvels (India): 93 (2001) DLT 558, Delhi High Court, it was held as under:-
No doubt the words sufficient cause should receive liberal construction so as to advance substantial justice. However, when it is found that the applicants were most negligent in defending the case and their non-action and want of bonafides are clearly imputable, the Court would not help such a party. After all sufficient cause is an elastic expression for which no hard and fast guide-lines can be given and Court has to decide on the facts of each case as to whether, the defendant who has suffered ex-parte decree has been able to satisfactorily show sufficient cause for non- appearance and in examining this aspect, cumulative effect of all the relevant factors is to be seen.
13. In Oriental Insurance Co. Ltd. vs. Kailash Devi & Ors. AIR 19 94 Punjab and Haryana 45, it was held as under:-
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 bonafides is imputable to the applicant. The discretion to condone the delay is to be exercised judicially i.e. one is not to be swayed by sympathy or benevolence.
14. In R.B. Ramalingam Vs. R.B. Bhuvaneswari, 2009 (2) Scale 566, the Supreme Court observed as under:-
We hold that in each and every case the Court has to examine whether delay in filing the Special 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. In Balwant Singh Vs. Jagdish Singh and Ors, V (2010) SLT 790=III (2010) CLT 201 (SC), it was held as under:-
The party should show that besides acting bona fide, it had taken all possible steps within its power and control and had approached the Court without any unnecessary delay. The test is whether or not a cause is sufficient to see whether it could have been avoided by the party by the exercise of due care and attention. [Advanced Law Lexicon, P. Ramanatha Aiyar, 3rd Edition, 2005]
16. In Mahant Bikram Dass Chela Vs. Financial Commissioner and others, AIR 1977, S.C. 2221, it was held as under:-
Section 5 of the Limitation Act is a hard task-master and judicial interpretation has encased it within a narrow compass. A large measure of case-law has grown around Section 5, its highlights being that one ought not easily to take away a right which has accrued to a party by lapse of time and that therefore a litigation who is not vigilant about his rights must explain every days delay
17. In Ansul Aggarwal Vs. New Okhla Industrial Development Authority, 2012 (2) CPC 3 (SC) it was held as under:-
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
18. Recently, the National Consumer Disputes Redressal Commission, New Delhi in Regional Provident Commissioner, Guntur Vs. S. Siva Sankar Rao, Revision Petition No.1617 of 2014, decided on 01.05.2014, whereby five other similar Revision Petitions bearing No.1618, 1619, 1620, 1645 and 1796 all of 2014, were decided, while dealing with the issue as regards condonation of delay of 61, 62 and 78 days in filing the said Revision Petitions, placed reliance on Office of Chief Post Master General & Ors. Vs. Living Media India Ltd. & Anr., 2012 STPL (Web) 132 (SC), wherein the Honble Apex Court held as under:-
13. In our view, it is the right time to inform all the government bodies, their agencies and instrumentalities that unless they have reasonable and acceptable explanation for the delay and there was bonafide effort, there is no need to accept the usual explanation that the file was kept pending for several months/years due to considerable degree of procedural red-tape in the process. The government departments are under a special obligation to ensure that they perform their duties with diligence and commitment. Condonation of delay is an exception and should not be used as an anticipated benefit for government departments. The law shelters everyone under the same light and should not be swirled for the benefit of a few. Considering the fact that there was no proper explanation offered by the Department for the delay except mentioning of various dates, according to us, the Department has miserably failed to give any acceptable and cogent reasons sufficient to condone such a huge delay.
Accordingly, the appeals are liable to be dismissed on the ground of delay.
19. The National Commission, in Para 8 of the order, held that in these cases, day to day delay was not explained. The cases are barred by limitation.
20. Further, in Paras 9 to 13, the National Commission held as under:-
9. This view neatly dovetails with the following authorities. In Anshul Aggarwal v. New Okhla Industrial Development Authority, IV (2011) CPJ 63 (SC), R. B. Ramlingam v.
R. B. Bhavaneshwari, I (2009) CLT 188 (SC)= I (2009) SLT 701=2009 (2) Scale 108, Ram Lal and Others v. Rewa Coalfields Ltd., AIR 1962 Supreme Court 361, and Bikram Dass vs. Financial Commissioner and Ors. AIR 1977 SC 1221.
10. The latest view taken by the Supreme Court is in Civil Appeal No. 19896 of 2013 in the case M/s Ambadi Enterprise Ltd. Vs. Smt. Rajalakshmi Subramanian, decided on 12th July 2013 wherein SLP was dismissed upholding the judgment of this Commission, where the delay of 78 days was not condoned.
11. Again the Apex Court while dismissing the Special Leave to Appeal (Civil) No. 33792 of 2013 in Chief Officer, Nagpur Housing & Area Development Board &Anr. V. Gopinath Kawadu Bhagat, decided on 19.11.2013, upholding the order of this Commission where 77 days delay was not condoned.
12. Above all, in Sanjay Sidgonda Patl Vs. National Insurance Co. Ltd. & Ors., decided by the Apex Court while dismissing the Special Leave to Appeal (Civil) No. 37183 of 2013, decided on 17.12.2013, upholding the order of this Commission wherein delay of 13 days was not condoned.
13. Consequently, we find that the case is barred by time. However, we refrain from giving the view on the merits of this case.
21. A bare reading of the first proviso, engrafted to Section 15 of the Act, makes it clear, that the material part of the language thereof, is pari-materia to Section 5 of the Limitation Act, 1963. Keeping in view the principle of law, laid down, in the aforesaid cases, it is to be seen, as to whether, the applicant/appellant/Opposite Party, has been able to establish that it was on account of non-receipt of summons in the complaint and copy of the exparte order, that it could not file the appeal, against the order dated 11.02.2013, in time. It is evident from the District Forum order passed in consumer complaint No.628 of 2012, dated 31.01.2013, that summons issued to the applicant/appellant/Opposite Party was received back with the report that the officials present at the premises refused to accept the same (summons). The order dated 31.01.2013 passed by the District Forum reads as under:-
Summons issued to OP received back with the report that officials present at the premises refused to accept the summons. In view of the above said report, OP has been duly served. Neither the Managing Director of OP is present nor any authorized agent has appeared on its behalf. So, OP is proceeded as ex-parte.
Now, for ex-parte evidence, if any and arguments, to come up on 08.02.2013.
It may be stated here that the address of the Opposite Party given in the complaint and in the appeal is the same. The summons for the service of the Opposite Party, in the complaint, were sent at that address when the officials present there (at that address) refused to accept the same. Refusal was, thus, deemed to be good service. It is also evident that certified copy of the order dated 11.02.2013 was sent at the same address of the applicant/appellant/Opposite Party, viz. Office House No.89, Sector 8-A, Chandigarh through Process Server who visited the same thrice to deliver the same (copy of the ex-parte order) but the same could not be delivered as the Security guard told that there was nobody and he refused to disclose his name. Thus, the applicant/appellant/Opposite Party deliberately avoided, firstly, to receive the summons and, thereafter, certified copy of the order to derive benefit on the pretext of non-receipt of the same. When none appeared, on behalf of the Opposite Party, in the complaint, it was rightly proceeded against exparte. He was, thus, well aware of the pendency of the consumer complaint as also of the passing of the exparte order dated 13.01.2013. Thus, simple averment that the summons and certified copy of the exparte order issued by the District Forum were never received by the applicant/appellant/ Opposite Party is not a sufficient ground, for condonation of delay of 670 days, as per it (the applicant/appellant) (as per the office report 660 days). Therefore, it could be said that the applicant/appellant was not diligent enough to file the appeal within the stipulated period. The prescribed period of limitation, as envisaged by Section 15 of the Act, for filing an appeal is 30 days, from the date of receipt of a certified copy of the order. The applicant/appellant did not act, with due diligence, resulting into delay of 670 days, (as per the office report 660 days), in filing the appeal, which is about more than 1 Year 9 Months beyond the prescribed period of limitation. The cause, set up by the applicant/appellant, in the application, for condonation of delay, could not be said to be plausible. The delay, in filing the appeal was, thus, intentional, willful and deliberate. Since, no sufficient cause is constituted, from the averments, contained in the application, coupled with the facts available on record viz. refusal to accept the summons and orders, the delay of 670 days, (as per the office report 660 days), cannot be condoned. The principle of law, laid down, in the aforesaid cases, is fully applicable to the facts of the instant case. The application is, thus, liable to be dismissed.
22. However, the judgments relied upon by the applicant/appellant in Tukaram Kana Joshi & Ors. through Power of Attorney Holder Vs. M.I.D.C. & Ors., and The State of Karnataka & Ors. Vs. Vivekananda M. Hallur & Ors.s cases (supra) are totally distinguishable on facts. In Tukaram Kana Joshi & Ors. through Power of Attorney Holder Vs. M.I.D.C. & Orss case (supra), the matter pertained to the claim due to the appellants for the land acquired by the respondent authorities, whereas in The State of Karnataka & Ors. Vs. Vivekananda M. Hallur & Ors.s case (supra), the delay was condoned on account of the financial implications on State exchequer and that the Division Bench had not adverted to any substantial grounds urged by the State particularly with reference to the provisions of Article 5(e)(i) and Explanation (ii) of the Karnataka Stamp Act, 1957. The facts of these cases, thus, being distinguishable, no help from the principle of law, laid down therein, can be drawn by the applicant/appellant.
23. The next question, that arises for consideration, is, as to whether, this Commission can decide the appeal, on merits, especially, when it has come to the conclusion, that there is no sufficient cause, for condonation of delay of 670 days, as per the applicant/appellant (as per the office report 660 days), in filing the same (appeal). The answer to this question, is in the negative, as provided by the Apex Court in State Bank of India Vs B.S. Agricultural Industries (I) II (2009) CPJ 29 (SC). The question before the Apex Court, was with regard to the condonation of delay, in filing the complaint, in the first instance, beyond the period of two years, as envisaged by Section 24A of the Act. The Apex Court was pleased to observe as under;
Section 24A of the Act, 1986 prescribes limitation period for admission of a complaint by the Consumer Fora thus:
24A. Limitation period(1) The District Forum, the State Commission or the National Commission shall not admit a complaint unless it is filed within two years from the date on which the cause of action has arisen.
(2) Notwithstanding anything contained in Sub-section (1), a complaint may be entertained after the period specified in Sub-section (1), if the complainant satisfies the District Forum, the State Commission or the National Commission, as the case may be, that he had sufficient cause for not filing the complaint within such period:
Provided that no such complaint shall be entertained unless the National Commission, the State Commission or the District Forum, as the case may be, records its reasons for condoning such delay.
It would be seen from the aforesaid provision that it is peremptory in nature and requires Consumer Forum to see before it admits the complaint that it has been filed within two years from the date of accrual of cause of action. The Consumer Forum, however, for the reasons to be recorded in writing may condone the delay in filing the complaint if sufficient cause is shown. The expression, shall not admit a complaint occurring in Section 24A is sort of a legislative command to the Consumer Forum to examine on its own whether the complaint has been filed within limitation period prescribed thereunder. As a matter of law, the Consumer Forum must deal with the complaint on merits only if the complaint has been filed within two years from the date of accrual of cause of action and if beyond the said period, the sufficient cause has been shown and delay condoned for the reasons recorded in writing. In other words, it is the duty of the Consumer Forum to take notice of Section 24A and give effect to it. If the complaint is barred by time and yet, the Consumer Forum decides the complaint on merits, the Forum would be committing an illegality and, therefore, the aggrieved party would be entitled to have such order set aside.
24. The principle of law, laid down, by the Apex Court in State Bank of Indias case (supra), is equally applicable to the filing of an appeal, under Section 15 of the Act. In case, this Commission, decides the appeal, on merits, after coming to the conclusion, that it is barred by time, it would amount to committing an illegality, in view of the principle of law, laid down in State Bank of Indias case (supra).
25. For the reasons, recorded above, the application for condonation of delay of 670 days, as per the applicant/appellant (as per the office report 660 days), being devoid of merit, must fail, and the same is dismissed. Consequently, the appeal, under Section 15 of the Act, is also dismissed, being barred by time, at the preliminary stage, with no order as to costs.
26. Certified copies of this order, be sent to the parties, free of charge.
27. The file be consigned to Record Room, after completion.
Pronounced.
January 15, 2015.
Sd/-
[JUSTICE SHAM SUNDER (RETD.)] PRESIDENT Sd/-
(DEV RAJ) MEMBER Sd/-
(PADMA PANDEY) MEMBER Ad STATE COMMISSION (First Appeal No.9 of 2015) [M/s Silver City Housing & Infrastructure Limited Vs. Sh. Ajay Jagga &Anr.] Argued by:Sh. Sandeep Bhardwaj, Advocate for the applicant/ appellant.
Date the 15th day of January, 2015.
ORDER Vide our detailed order of the even date, recorded separately, the application for condonation of delay of 670 days (as per the office report 660 days), being devoid of merit, is dismissed. Consequently, the appeal under Section 15 of the Act, is also dismissed, being barred by time, at the preliminary stage, with no order as to costs.
(DEV RAJ) MEMBER (JUSTICE SHAM SUNDER (RETD.)) PRESIDENT (PADMA PANDEY) MEMBER Ad