National Consumer Disputes Redressal
1. M/S Arihant Builders vs Gaurav Anand Co-Op. Housing Society ... on 9 October, 2012
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO. 3048 OF 2011 With I.A. Nos.1 & 2 of 2011 (For Stay & Delay) (From the order dated 29.06.2010 in Appeal No. 1253/2007 of the State Commission, Maharashtra) 1. M/s Arihant Builders 2. Shri Maganbhai M.Shah 3. Shri Dhirajbhai Dedhia All having their office at 3, Yashwant Building, Ram Maruti Road, 4th Cross Lane, Ghantali, Thane (W), 400602 .Petitioners Versus Gaurav Anand Co-op. Housing Society Ltd. Kopari, Near Eastern Express Highway, Octroi Cheek Naka, Thane (E) 400603 .........Respondent BEFORE : HONBLE MR. JUSTICE V.B. GUPTA, PRESIDING MEMBER For the Petitioner : Mr. Anand Patwardhan, Advocate Pronounced on : 9th October, 2012 ORDER
PER MR. JUSTICE V.B.GUPTA, PRESIDING MEMBER Present revision, has been filed challenging order dated 29.6.2010, passed by Maharashtra State Consumer Disputes Redressal Commission, Mumbai (for short, State Commission). Along with it, an application seeking condonation of delay of 288 days has also been filed.
2. Brief facts of the case are that respondent/complainant had purchased a flat from the petitioners and possession of which was given to him. However, acquisition certificate has not been received by the respondent. Further, there are certain defects in the work as per agreement and many amenities and facilities were not provided. Accordingly, respondent filed a complaint alleging deficiency on the part of the petitioners before the District Consumer Disputes Redressal Forum, Thane (for short, District Forum).
3. Petitioners in their written version denied the allegations of the respondent.
4. District Forum, vide its order dated 31.07.2007, partly allowed the complaint and passed the following directions ;
1. That complaint bearing No.211/2005 is partly allowed regarding the cost of RS.5,000/- (Rupees five thousand only) awarded to the complainant from the respondents No.1 to 3 and incur the expenses for self.
2. That the respondents No.1 to 3 as per the clause 8 sub clause a to s should provide the facilities within two months from the receipt copy of this judgment and for mental torture the respondents No.1 to 3 should pay amount of Rs.20,000/- (Rupees twenty thousand only) the complaint as against the respondents no.4 is rejected.
5. Aggrieved by the order of the District Forum, petitioners filed an appeal before the State Commission. However, appeal of the petitioners was dismissed in default due to non-appearance vide the impugned order, which reads as under ;
Appellants and their counsel are absent. Mr.Ashutosh Marathe, Advocate for the respondent is present. Hence, we pass the following order :
ORDER
(i) Appeal stands dismissed for default.
(ii) No order as to costs.
6. This is how the matter has reached before this Commission.
7. It is contended by learned counsel for the petitioners that petitioners came to know about the dismissal of their appeal due to default only when they contacted their Advocate, who after receipt of the certified copy of the order filed an application for restoration of the appeal. The earlier counsel could not appear before the State Commission due to illness and petitioners were also unable to appear in person on the date of hearing, since they were not aware of the same. Under these circumstances, there are sufficient grounds for setting the impugned order.
8. The grounds on which the condonation of delay has been sought are reproduced as under;
2. The Applicants state that soon after receiving the copy of the order the petitioners approached their Advocate who was on record of the Honble State Commission, who said that because of his health and other commitments, he was not able to attend the matter when it was dismissed and accordingly prepared a Misc. Application seeking restoration of the said appeal which is pending before the Honble State Commission and the next date of hearing of the said application is 30.11.2011.
3. The Applicants state that since the said application for restoration is pending before the Honble State Commission and the first certified copy of the impugned order is annexed to the said restoration application which is required to be file with the said restoration application, the Applicants have to apply for second copy which is received by the applicants on __/09/2011.
4. The Applicants state that though the said restoration application is yet to be decided by the Honble State Commission, the petitioners herein filing this Revision Petition before this Honble National Commission because of the view taken by the Honble Supreme Court in their recent judgment dated 19/08/2011, in the matter of Civil Appeal No.4307 of 2007, Rajeev Hitendra Pathak & Others Vs. Achyut Kashinath Karekar & Another in which the Honble Supreme Court held that the District Fora and the State Commission does not have power to review its own order. Hence, there is delay of about 288 days in filing the revision petition which is not intentional or deliberate and hence this application.
9. There is nothing on record to show that after entrusting the papers to their earlier counsel, petitioners ever enquired from him as to what steps he was taking for filing the revision petition. It is surprising the note that the application does not mention the name of earlier counsel. There is nothing on record to show that any complaint before the Bar Council or any legal notice was served upon to earlier counsel for his negligent act. Such like stories putting blame on previous counsel can be created any time . Moreover, false allegations are often made against the counsel so that the delay should be condoned. Moreover, petitioners have not placed on record any document to show that their previous counsel could not appear before the State Commission due to illness and what was the nature of his illness and for what period that counsel remained ill. It appears that petitioners went into deep slumber and woke up only when they received the notice of execution application on 16.6.2012.
10. It is the duty cast on the petitioners themselves to find out what has happened to their case as to whether revision has been filed or not. Petitioners cannot put all the blame upon their counsel. The facts of this case rather reveal negligence, inaction and passivity on the part of the petitioners themselves. The facts of present case speak for itself. This view is further emboldened by the following authorities ;
(i) In Ram Lal and Others v. Rewa Coalfields Ltd., AIR 1962 Supreme Court 361, it has been observed that 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 Section 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 bonafides may fall for consideration; but the scope of the inquiry 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.
(ii) It is well settled that Qui facit per alium facit per se. Negligence of a litigants agent is negligence of the litigant himself and is not sufficient cause for condoning delay. See M/s. Chawala & Co. Vs. Felicity Rodrigues, 1971 ACJ 92 ;
(iii) In Victor Albuquerque Vs. Saraswat Co-operation Bank Ltd., AIR 1988-Bom 346, it was held that where the facts showing clear negligence of party during entire period of limitation and no sufficient cause sustained for delay in filing appeal, the delay cannot be condoned ;
(iv) In Banshi Vs. Lakshmi Narain 1993 (1) R.L.R. 68, it was held that reason for delay was sought to be explained on the ground that the counsel did not inform the appellant in time, was not accepted since it was primarily the duty of the party himself to have gone to lawyers office and enquired about the case, especially when the case was regarding deposit of arrears of rent. The statute also prescribes a time bound programme regarding the deposit to be made;
(v) In Delhi Development Authority Vs. Ramesh Kumar 61 (1996) DLT 99 (DB)=1996 (2) CCC 150 (Del), it was observed that when appellant found grossly negligent and administrative delays have not been properly explained, application for condonation liable to be dismissed ;
(vi) In Bhandari Dass Vs. Sushila, 1997 (2) Raj LW 845, it was that accusing the lawyer that he did not inform the client about the progress of the case nor has he did sent any letter, was disbelieved while rejecting an application to condone delay ;
(vii) In Jaswant Singh Vs. Assistant Registrar, Co-operative Societies, 2000 (3) Punj. L.R. 83, it was laid down that cause of delay was that the counsel of the appellant in the lower Court had told them that there was no need of their coming to Court and they would be informed of the result, as and when the decision comes, was held to be a story which cannot be believed ;
(viii) In Sow Kamalabai, w/o Narasaiyya Shrimal and Narsaiyya, s/o Sayanna Shrimal Vs. Ganpat Vithalroa Gavare, 2007 (1) Mh. LJ 807, it was held that the expression sufficient cause cannot be erased from Section 5 of the Limitation Act by adopting excessive liberal approach which would defeat the very purpose of Section 5 of Limitation Act. There must be some cause which can be termed as a sufficient one for the purpose of delay condonation. I do not find any such sufficient cause stated in the application and no such interference in the impugned order is called for ;
(ix) In R.B. Ramlingam v. R.B. Bhavaneshwari, I (2009) SLT 701= I (2009) CLT 188( SC), it has been observed that 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 and
(x) Lastly, In Anshul Aggarwal v. New Okhla Industrial Development Authority, IV (2011) CPJ 63 (SC), it has been held 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.
11. Thus, there is nothing on record to show that petitioners ever made any attempt to contact their Advocate to know about the fate of the revision to be filed before this Commission. Moreover, petitioner no.1 is a partnership firm having two partners, that is, petitioners no.2 and 3. Thus, gross negligence, deliberate inaction and lack of bonafides is imputable to the petitioners.
12. Further more, it is apparent from the record that petitioners are pursuing this litigation in a very careless and negligent manner and that is why due to non appearance of petitioners as well their counsel, their appeal filed before the State Commission was also dismissed in default. It appears that the only intention of the petitioners is not to comply with the order of the District Forum and to cause harassment to the respondent/complainant by filing frivolous appeal/petitions and then not pursuing the same in a diligent manner.
13. Accordingly, no sufficient grounds are made out for condoning the long delay of 288 days in filing the present revision petition. The application for condonation of delay under these circumstances is not maintainable and the present revision petition being barred by limitation is hereby dismissed with cost of Rs.10,000/-(Rupees Ten Thousand only).
14. Petitioners are directed to deposit the cost of Rs.10,000/- (Rupees Ten Thousand Only) by way of demand draft in the name of Consumer Legal Aid Account within four weeks from today.
15. In case, petitioners fail to deposit the cost within the prescribed period, then it shall also be liable to pay interest @ 9% p.a., till realization.
16. List on 23.11.2012 for compliance.
.J (V.B.GUPTA) PRESIDING MEMBER