State Consumer Disputes Redressal Commission
M/S.Vatika Vihar Builders And ... vs Shri.Paragkumar Madhukar Bhosle on 28 March, 2018
Cause Title/Judgement-Entry STATE CONSUMER DISPUTES REDRESSAL COMMISSION MAHARASHTRA NAGPUR CIRCUIT BENCH NAGPUR First Appeal No. A/15/170 ( Date of Filing : 18 Mar 2015 ) (Arisen out of Order Dated 22/09/2011 in Case No. 92/2011 of District Nagpur) 1. M/S.VATIKA VIHAR BUILDERS AND DEVELOPERS J.B.WING,MANGALWARI COMPLEX,SADAR BAZAR,NAGPUR NAGPUR ...........Appellant(s) Versus 1. SHRI.PARAGKUMAR MADHUKAR BHOSLE ROOM NO-2,PRATAP KRIDA MANDAL QUARTERS,NEAR SMRUTI BHAWAN,AKLUJ,TAH MALSHIRAS,SOLAPUR SOLAPUR ...........Respondent(s) BEFORE: HON'BLE MR. B.A.SHAIKH PRESIDING MEMBER HON'BLE MRS. Jayshree Yengal MEMBER For the Appellant: Mrs.S.K.Paunikar. For the Respondent: Advocate Shri S.S.Murthy. Dated : 28 Mar 2018 Final Order / Judgement Per Shri B.A.Shaikh, Hon'ble Presiding Member.
1. We have heard advocate Smt.S.K.Pounikar who appeared for the appellant and advocate Shri S.S.Murthy who appeared for the respondent on the application made for condonation of delay that occurred in filing of the appeal. We have also perused the entire record and proceedings of the appeal.
2. The learned advocate of the appellant explained the delay on the lines of the submission made in the application. The delay of 90 days is shown in the application as occurred in filing of the appeal. The explanation given for condonation of delay in brief is as under.
3. The appellant who was the original opposite party in the complaint was not aware of the filing of the complaint before the District Consumer Forum below and about the final order dated 22/09/2011passed in that complaint. The appellant learnt about that final order only when the notice was received by the appellant from Executive Magistrate, dated 20/12/2014, alongwith copy of that order for seizure of movable articles lying in the office of the appellant. Therefore the appellant took search of the record of that complaint and got acknowledge that impugned order was passed on 22/09/2011 by the Forum. The appellant applied for certified copy of that order on 05/03/2015. But the record of that complaint was not traceable in the office of the District Forum Nagpur. However after the said record was traceout, certified copy of the order was furnished by the Forum to the opposite party/appellant and then this appeal was filed on 17/03/2015. Thus the appellant submitted that the delay from 20/12/2014 till filing of the appeal is of 90 days and that the said delay may be condoned for the aforesaid reasons.
4. The original complainant/respondent appeared and filed reply to the said application. It is stated in that reply by the respondent that the respondent vide notice dated 28/12/2011 had intimated the appellant about the decision of the Forum and called upon the appellant to comply with that order. Copy of that order was also annexed to that notice. The said notice was received by the appellant, but it was not complied with by the appellant and no appeal was also filed soon after getting copy of that order alongwith the notice. Thus the appellant was aware of that order in the month of December 2011 and therefore it is denied that the appellant learnt about that order for the first time on 20/02/2014. No sufficient cause is shown for not preferring the appeal within time. False reasons are given in the application for condonation of delay. Therefore the respondent prayed that the application made for condonation and said delay may be rejected.
5. The learned advocate of the respondent Mr.S.S. Murthy made submission on the lines of the aforesaid reply and requested that the application may be rejected.
The respondent's advocate also filed copy of the notice dated 28/12/2011 alongwith the copy of postal slip and acknowledgement about receipt of that notice by the appellant. The said documents are not disputed as produced in the appeal. They prove that the respondent's advocate had issued notice on 28/12/2011 to the appellants informing the appellant about decision and calling upon the appellant to comply with that order. The acknowledgement of that notice shows that it was duly served by the appellant. Therefore we find that the case of the appellant can not be accepted and believed that it learnt about impugned order on 20/12/2014 when notice from the Executive Magistrate of Nagpur was received for seizure of the moveable articles of the appellant.
6. It is also pertinent to note that even after receiving notice dated 20/12/2014 by the appellant, no application was made immediately by the appellant to the District Forum for obtaining certified copy of the impugned order. The said application for copy was filed on 05/03/2015. Therefore the appellant did not taken prompt steps even after receiving notice from the Executive Magistrate on 20/12/2014.
7. The appellant submitted that the record of the complaint was missing from the Forum. However there is no document in support of the said submission that the record was missing from the Consumer Forum for certain period. Hence the said submission can not be accepted.
8. The copy of the impugned order filed by the appellant also shows that the first free copy was issued by the said Consumer Forum to the appellant on 03/11/2011. It is stated in the present application that the appellant did not receive that free copy of impugned order.
9. We also find that before the District Consumer Forum also the appellant did not appear after service of notice. The District Consumer Forum therefore proceeded ex-parte against the appellant, as observed in the impugned order.
10. We thus find that as the appellant already got knowledge of impugned order from the notice dated 28/12/2011 served by the advocate of the respondent, the appellant ought to have taken immediate steps at least after service of that notice, for filing of the appeal. However the appellant took no steps till 05/03/2011when appellant applied for obtaining certified copy of impugned order.
11. The impugned order was passed on 30/09/2011 and the appeal was filed on 17/03/2015. Thus there is a inordinate delay of more than three years and five months in filing of the appeal and the delay is not only of 90 days.
12. We thus find from the above reasons that the appellant was not diligent in taking steps for filing of the appeal. On the contrary we find that the aforesaid inordinate delay has been occurred in filing of the appeal, only because of total inaction and gross negligence on the part of the appellant. Therefore such a long delay can not be condoned. If such a long delay is condoned without any satisfactory reason it would defeat the very object of expeditious disposal of the appeal filed under the Consumer Protection Act. Hence application deserves to be rejected.
ORDER // I. The application made for condonation of delay is rejected. The appeal is dismissed as time barred. III. No order as to cost in the appeal. IV. Copy of this order be furnished to both parties free of cost. [HON'BLE MR. B.A.SHAIKH] PRESIDING MEMBER [HON'BLE MRS. Jayshree Yengal] MEMBER