National Consumer Disputes Redressal
Cordcon Builders Pvt. Ltd. & Anr. vs Valerian Anthony Diago on 16 April, 2015
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI FIRST APPEAL NO. 123 OF 2013 (Against the Order dated 10/04/2012 in Complaint No. 38/2009 of the State Commission Maharastra) 1. CORDCON BUILDERS PVT. LTD. & ANR. REGISTERED OFFICE AT SAGAR CITY COMPLEX, V.P. ROAD, ANDHERI (W), MUMBAI-400058 2. MR. TAJDIN M. MAREDIA, DIRECTOR OF CORDCON BUILDERS PVT. LTD., MUMBAI-400058 ...........Appellant(s) Versus 1. VALERIAN ANTHONY DIAGO BOTH RESIDING AT 51/52, 'A' MAHIM MANSION, M.M.C. ROAD, MAHIM (W), MUMBAI-400016 2. MRS. LEENA VALERIAN DIAGO, 51/52, 'A' MAHIM MANSION, M.M.C. ROAD, MAHIM (W) MUMBAI-400016 ...........Respondent(s)
BEFORE: HON'BLE MR. JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER
For the Appellant : Mr. Anand Patwardhan, Advocate For the Respondent : Mr. D.J. Kakalia, Mr. Hasan Murtaza &
Mr.Shikhar Bhardwaj, Advocates
Dated : 16 Apr 2015 ORDER
PER JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER
This appeal has been filed by the appellant against the order dated 10.04.2012 passed by the Maharashtra State Consumer Disputes Redressal Commission, Mumbai (in short, 'the State Commission') in Consumer Complaint No. CC/09/38 - Mr. Valerian Anthony Diago & Anr.Vs. Cordcon Builders Pvt. Ltd. & Ors. by which, complaint was allowed.
2. Brief facts of the case are that complainant/respondent agreed to purchase flat No. 1404 measuring 626 sq. ft. from OP/appellant for a sum of Rs.36,28,075/- vide agreement dated 2.3.2006. Complainant paid Rs.34,46,674/- and remaining Rs.1,81,404/- were to be paid at the time of receiving possession. It was further submitted that OP has not handed over possession of flat along with occupancy certificate. Alleging deficiency on the part of OP, complainant filed complaint with a prayer for possession and compensation at the rate of Rs.25,000/- per month from 1.3.2007 till handing over possession. OP resisted complaint and submitted that on account of Public Interest Litigation filed before High Court of Bombay construction was stayed from 20.4.2005 to 20.2.2008 as the Municipal Corporation, Slum Rehabilitation Authority issued orders for stopping work and withheld permission for construction. It was further submitted that there was no delay in the project on the part of OP and prayed for dismissal of complaint. Learned State Commission after hearing both the parties allowed complaint and directed OP to handover vacant possession of flat along with occupancy certificate within 4 months, after obtaining balance of Rs.1,81,404/-. OP was further directed to pay interest @ 18% p.a. on deposited amount from 16.10.2009 till handing over possession and further awarded cost of Rs.25,000/- against which this appeal along with application for condonation of delay was filed.
3. Heard learned Counsel for the parties on application for condonation of delay.
4. Learned Counsel for the appellant submitted that strictly speaking there is no delay from receipt of copy of impugned order on 4.1.2013 and there is delay of 124 days if it is computed from 13.8.2012 for which necessary explanation has been given; hence, delay may be condoned. On the other hand, learned Counsel for the respondent submitted that as appellant was aware about the impugned order on the date of pronouncement and as he did not apply for certified copy till 3.1.2013 there is delay of about 270 days without any explanation; hence, application for delay be dismissed.
5. As per office report, there is delay of 151 days in filing appeal which has been computed on the basis that copy of order was received by appellant on 14.8.2012 and appeal was filed on 11.2.2013.
6. Appellant in application for condonation of delay admitted that on 10.4.2013, operative part of the order was pronounced by State Commission, but as full judgment had not been dictated certified copy was not given to the appellant till it was received on 4.1.2013 by hand. Learned Counsel for the appellant admitted before this Commission on 26.8.2013 that State Commission pronounced judgment on 10.4.2012 in the presence of Counsel for the appellant, but also mentioned that only operative portion of the order was pronounced and detailed order was issued subsequently. It was further observed in order sheet dated 26.8.2013 that certified copy of the order was issued on 14.8.2012, but according to the Counsel for the appellant, it was despatched much later.
7. In application for condonation of delay, it was mentioned that it is incorrect and doubtful that certified copy of order was sent by learned State Commission on 14.8.2012, but it has been admitted in the application that appellant came to know about impugned order when complainant sent copy of the order through his Advocate on 28.12.2012 by post at the registered address of the appellant. It was further submitted that appellant applied for certified copy which was received on 4.1.2013.
8. In the application it has nowhere been mentioned that when appellant applied for certified copy which was received on 4.1.2013 and in such circumstances, it can be presumed that appellant applied on 4.1.2013 and he was provided certified copy of impugned order on the same day.
9. The core question to be decided is from which date limitation for filing appeal should run.
10. Admittedly, order was pronounced in presence of appellant by the learned State Commission on 10.4.2012 and appellant was having knowledge about the impugned order. Appellant has not mentioned in the application that he applied for certified copy in time before 4.1.2013 and has not placed any document depicting that he applied for certified copy before 4.1.2013. Thus, it becomes clear that almost after about 9 months he applied for certified copy of the impugned order inspite of having knowledge of the impugned order. Section 12 (2) of Limitation Act runs as under:
"(2) In computing the period of limitation for an appeal or an application for leave to appeal or for revision or for review of a judgement, the day on which judgement complained of was pronounced and the time requisite for obtaining a copy of the decree, sentence or order appealed from or sought to be revised or reviewed shall be excluded.
Thus, limitation runs from the date of pronouncement/knowledge and in such circumstances limitation for filing appeal started from 10.4.2012 and period taken in obtaining certified copy is to be excluded for the purpose of calculation of condonation of delay. Apparently, appellant applied for certified copy on 4.1.2013 and he received copy on the same day; hence, only one day for getting certified copy of the impugned order is to be excluded for computation of limitation for filing appeal.
11. Learned Counsel for the appellant submitted that period of limitation is to be calculated from the date of receiving free copy as provided under Regulation 21 of the C.P. Regulations, 2005. This argument is devoid of force because this provision only directs to the Consumer Fora to give parties free of cost copy of the order, but it nowhere specifies that limitation will run from the date of receipt of free copy. If a party does not receive free copy at all, it cannot be held that limitation will not run against him till he receives certified copy. Limitation will run from the date he obtains knowledge of the order passed by Consumer Fora and only period taken in obtaining certified copy will be excluded. Appellant should have applied for certified copy of order on 10.4.2012, when judgment was pronounced in his presence and as he did not apply for certified copy uptill 4.1.2013, period from 11.4.2012 to 3.1.2013 cannot be excluded from period of limitation provided for filing appeal.
12. Learned Counsel for the appellant further submitted that appeal was sent through courier on 11.1.2013 to National Commission, but on account of mistake on the part of courier it was delivered to this office on 11.2.2013. In support of this contention affidavits of Mr. Tajdin M. Maredia, Appellant No.2 and letter of courier agency have been filed in which it has been mentioned that by mistake this courier was misrouted to unknown destination and after great search it was found and delivered to National Commission on 11.2.2013. Merely because Counsel for the appellant provided memo of appeal to the courier on 11.1.2013 which was delivered by courier to this office on 11.2.2013, this period of 30 days can also not be condoned.
13. Learned Counsel for the appellant submitted that as correction in the name of complainants was carried out by State Commission on 21.6.2013 as per RTI information, there was no question of delay as appeal had already been filed on 11.2.2013. This argument is devoid of force because by correction dated 21.6.2013 only name of the Complainant No. 2 has been inserted in the order because earlier name of Complainant No. 1 and others was mentioned in the order. Not only this, when appeal had already been filed on 11.2.2013, no question arises for claiming limitation from 21.6.2013.
14. Apparently, there is delay of 270 days in filing appeal. As there is inordinate delay of 270 days, this delay cannot be condoned in the light of the following judgment passed by the Hon'ble Apex Court.
15. In R.B. Ramlingam Vs. R.B. Bhavaneshwari 2009 (2) Scale 108, it 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."
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. Hon'ble Supreme Court after exhaustively considering the case law on the aspect of condonation of delay observed in Oriental Aroma Chemical Industries Ltd. Vs. Gujarat Industrial Development Corporation reported in (2010) 5 SCC 459 as under;
"We have considered the respective submissions. The law of limitation is founded on public policy. The legislature does not prescribe limitation with the object of destroying the rights of the parties but to ensure that they do not resort to dilatory tactics and seek remedy without delay. The idea is that every legal remedy must be kept alive for a period fixed by the legislature. To put it differently, the law of limitation prescribes a period within which legal remedy can be availed for redress of the legal injury. At the same time, the courts are bestowed with the power to condone the delay, if sufficient cause is shown for not availing the remedy within the stipulated time."
18. Hon'ble Apex Court in (2012) 3 SCC 563 - Post Master General & Ors. Vs. Living Media India Ltd. and Anr. has not condoned delay in filing appeal even by Government department and further observed that condonation of delay is an exception and should not be used as an anticipated benefit for the Government departments.
19. Hon'ble Apex Court in 2012 (2) CPC 3 (SC) - Anshul Aggarwal Vs. New Okhla Industrial Development Authority observed 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".
Thus, it becomes clear that there is no reasonable explanation at all for condonation of inordinate delay of 270 days. In such circumstances, application for condonation of delay is dismissed. As application for condonation of delay has been dismissed, revision petition being barred by limitation is also liable to be dismissed.
20. Consequently, the revision petition filed by the petitioner is dismissed as barred by limitation at admission stage with no order as to costs.
......................J K.S. CHAUDHARI PRESIDING MEMBER