Revision dismissed with cost, the complaint had been filed without jurisdiction of the Forum

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION

NEW DELHI

 

REVISION  PETITION  NO.   2051    OF   2013

with

 I.A. No.3375 of 2013 (Stay Application)

 (From the order dated  25.3.2013  First Appeal No.193/2013  

  of the State Commission,  Haryana, Panchkula)

 

1.       DLF Home Developers Limited

DLF Centre, Sansad Marg,

New Delhi.

 

2.       Shri Atul Srivastava,

S/o Shri H.C. Srivastava,

DLF Centre,

Sansad Marg,

New Delhi – 110 001.                                              …Petitioners

 

Versus

 

1.       Shri Pradeep Kumar

S/o Shri Ram Chander Lathwal,

R/o 235, Sector-15,

Sonipat

 

2.       Shri Rajiv Kumar

S/o Sh. Bhagwan Singh

R/o H. No.2408,

Housing Board Colony

Sector-15,

Sonipat                                                                    ..Respondents

 

BEFORE:

 

 

HON’BLE MR. JUSTICE  V.B. GUPTA, PRESIDING MEMBER

HON’BLE  MRS. REKHA GUPTA,  MEMBER

           

 

For the Petitioners           :         Mr. H.L. Tiku, Senior Advocate with

Ms. Jasmeet Singh, Advocate

                                                              

 

 

 

 

 

 

Pronounced on:   7th June, 2013

ORDER

PER MR. JUSTICE V.B. GUPTA, PRESIDING MEMBER

          Present revision petition has been filed under Section 21(b) of the Consumer Protection Act, 1986 (for short, ‘Act’) against impugned order dated 25.3.2013, passed by State Consumer Disputes Redressal Commission, Haryana, Panchkula (for short ‘State Commission’).

2.       Brief facts are that respondents/complainants booked a residential flat in Express Green Sector MI, Manesar, DLF, New Gurgaon and deposited Rs.Five lacs with the petitioners/O.Ps. According to the agreement dated 4.4.2009, petitioners had to  give possession of the flat within a period of 2½ years from the date of agreement. Further, respondents had to pay Rs.48,50,000/- at the rate of Rs.2091.5  per square feet to the petitioners. On 14.10.2008 and 9.2.2009, petitioners issued  letters to the respondents to deposit an amount of Rs.4,70,116.40 paise and Rs.8,43,160.50 paise respectively, according to the amended schedule of payment of the petitioners.  The respondents issued two cheques amounting to Rs.7,40,000/- as part payment as the petitioners did not obtain the agreement in respect of the said flat in time and due to which, the loan could not be sanctioned in time from the concerned bank. It is further alleged that petitioners, vide letter dated 27.7.2009 cancelled the part payment made by the respondents. Despite issuing legal notice dated 31.10.2009, petitioners have not cancelled the cancellation letter in respect of the said flat. Thus, there was deficiency in service on the part of the petitioners.

3.       In its  written statement,  petitioners admit that on deposit of Rs.5 lacs  as booking amount, respondents were allotted apartment measuring 1760 sq. ft. alongwith parking space, vide letter of allotment dated 15.9.2008 at basic sale price of Rs.26,81,040/-. In addition to the said amount, respondents had to pay some additional amount as charges for parking space, EDC, IDC, maintenance security, interest on maintenance security and the total amount comes to Rs.49,37,999.99 paise. However, respondents miserably failed to adhere to the payment plan as opted by them. According to clause No.19 of the application for allotment it clearly states that petitioner company would endeavor to complete the construction of the dwelling unit within three years from the date of execution of the agreement. On 2.4.2009, petitioner company informed all the allottees that the payment plan was being changed. The respondents failed to pay any of the complete instalments despite issuing the demand notices and reminders.  Petitioner company left with no option but to cancel the allotment of the said apartment on 15.9.2009. The respondents requested the petitioners to restore the property conditionally that they would remit all the overdue payment alongwith delayed interest by 15.9.2009. The respondents sent two cheques of Rs.5,50,000/- and Rs.1,90,000/- to the petitioners but the same were returned back with the condition that the property shall only be restored if the respondents made the complete payment of the outstanding amount of Rs.12,89,604/-. Due to non-fulfilment of the terms and conditions of the application for allotment by the respondents, the flat is cancelled by the petitioners. The amount stands forfeited by the petitioners as per the terms and conditions of the application for allotment. Thus, there was no deficiency in service on the part of the petitioners.

4.       District Consumer Disputes Redressal Forum, Sonepat (for short, ‘District Forum’) vide order dated 17.7.2012, allowed the complaint.

5.       Aggrieved by the order of the District Forum, petitioners filed appeal before the State Commission. Alongwith appeal, an application for condoantion of delay of 193 days was also filed.

6.       Vide its impugned order, State Commission dismissed the appeal on the ground of limitation as well as on merits

7.       Hence, this revision.

8.       We have heard the learned counsel for the petitioner on application for condonation of delay and have gone through the record. 

9.       It has been contended by learned counsel for the petitioner that earlier counsel never communicated to the petitioners about the decision of the District Forum and as such petitioners could not take appropriate steps to challenge the decision passed by the District Forum within the requisite time. However, after knowing about the decision of the District Forum, petitioners immediately applied for the certified copy of the order and thereafter new counsel was engaged. Thus, delay in filing of the appeal before the State Commission was not intentional. The explanation furnished by the petitioners seeking condonation of delay is bonafide.  It is further contended that petitioners’ case on merits is very good and an opportunity should be granted to the petitioners to put forward the case before the State Commission. Further, State Commission has given no reason for not condoning the delay. Moreover, it has gone into the merits of the case.

10.     In support, learned counsel has relied upon the following judgments;

i)             B. Madhuri Goud  Vs. B. Damodar Reddy

 2012(7) SCALE 230;

ii)           S. Ganesharaju Vs. Narasamma

2012(4)SCALE 152 and 

iii)         Anshul Aggarwal  Vs. New Okhla Industrial Development Authority

IV (2011) CPJ 63 (SC)

11.     The  grounds on which condonation of delay has been sought are  reproduced as under;

“2.      That the order dated 17.07.2012 passed  by the Ld. District Forum came into the knowledge of the applicant/appellant on making inquiry from his counsel about the above titled case which was pending before the Ld. District Consumer Disputes Redressal Forum, Sonepat and on inquiry it was transpired to applicant/appellant that the Ld. District Forum had already decided the case on 17.07.2012, but the decision and fate of the Ld. District Consumer Disputes Redressal Forum, Sonepat was never communicated by the counsel engaged by the applicant/appellant, reason being the appellant company could not take appropriate steps to challenge the decision passed by Ld. District Consumer Forum within the requisite period of time. Hence, the inordinate delay of 193 days has been caused.

3.       That after knowing about the decision passed by the Ld. District Forum in the first week of February, 2013 applicant applied for the certified copy of the order dated 17.07.2012 on 06.02.2013 and the same was supplied to the applicant/appellant on 07.02.2013 and thereafter applicant engaged the undersigned –counsel to file the present appeal before this Hon’ble Commission.

4.       That a good prima facie is made out in favour of the appellant and is likely to be succeeded and the above mentioned delay in filing the present appeal is not intentional because of the facts narrated above.”

 

                   No other ground finds place therein.

 

12.     It is a matter of fact that petitioners  have failed to offer convincing rationale of reasons in support of their application. It is surprising to note that the application does not mention the name of the earlier counsel. There is nothing on record to show that any complaint has been filed before the Bar Council or any legal notice was served upon earlier counsel. There is also nothing on record to show that petitioners have initiated any action against their earlier counsel for deficiency in services, under the Act. Affidavit of earlier counsel also did not see the light of the day. The petitioners are supposed to explain the ‘day-to-day’ delay but the needful was not done. Such like stories can be created at any time. To our mind, in such like cases, false allegations are often made against the counsel so that the delay should be condoned. It is the duty cast on the petitioners themselves to find out as to what has happened to  their case and why appeal has not been filed. They cannot put entire 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 this case speak for itself. This view is further emboldened by the following authorities;

              13.  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.”

 

14.     Similarly, in Oriental Insurance Co. Ltd. vs. Kailash Devi & Ors.

AIR 1994 Punjab and Haryana 45, it has been laid down that;

                 “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 bona fide is imputable to the applicant. The discretion to condone the delay is to be exercised judicially i.e. one of is not to be swayed by sympathy or benevolence.”

 

15.     In R.B. Ramlingam Vs. R.B. Bhavaneshwari, 2009 (2) Scale 108it

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.     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.”

        The   expression  “sufficient cause”   employed  in   Section 5 of the Indian Limitation Act, 1963 and similar other statutes is elastic enough to enable the courts to apply the law in a meaningful manner which  sub serves the   ends  of   justice. Although, no hard and fast rule can be laid down  in dealing with the applications for condonation of delay, this Court has  justifiably advocated adoption of a liberal approach in condoning the delay of short duration   and a  stricter   approach where the delay is inordinate – Collector, Land   Acquisition,  Anantnag v. Mst. Katiji (1987)2 SCC 107, N. Balakrishnan v. M. Krishnamurthy (1998) 7 SCC 123 and 10 Vedabai v. Shantaram Baburao Patil (2001) 9 SCC 106”.

17.     Apex  Court  in Anshul Aggarwal  Vs.   New   Okhla   Industrial Development Authority, IV (2011) CPJ 63 (SC) has observed ;

        “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.     This Commission in Mahindra Holidays & Resorts India Ltd. vs. Vasantkumar H. Khandelwal and Anr., Revision Petition No.1848 of 2012 decided on 21.5.2012 has held;

    “that under the Consumer Protection Act, 1986 the District Forum is supposed to decide the complaint within a period of 90 days from the date of filing and in case of some expert evidence is required to be led then within 150 days. The said Bench dismissed the revision petition on the ground that it was delayed by 104 days.”

19.     It is well settled that Qui facit per alium facit per se. Negligence of a litigant’s agent is negligence of the litigant himself and is not sufficient cause for condoning the delay. See M/s. Chawala & Co. vs. Felicity Rodrigues, 1971 ACK 92.

20.     In B Madhuri Goud (Supra), Andhra Pradesh High Court has condoned the delay of 1236 days in filing of the appeal. However, Apex Court after considering various judgments on Section 5 of Limitation Act, 1963, allowed the appeal and application seeking condonation of delay of 1236 days in filing the appeal was dismissed.

21.     In  S. Ganesharaju (Supra) there was delay of only 53 days which was satisfactorily explained and that is why the same was condoned.

22.     There is nothing on record to show that petitioners were being represented by an illiterate person. It has nowhere stated in the entire application for condonation of delay as to on which date knowledge came to the petitioners about passing the impugned order dated 17.7.2012. Petitioner no.1 who is a builder/developer must be having its legal department and large number of lawyers at its disposal. Therefore, it was expected from petitioner to have been vigilant and careful in pursuing the litigation which was pending before the fora below. Thus, gross negligence, deliberate inaction and lack of bonafide is imputable to the petitioner. Petitioner in order to cover up its own negligence, has shifted the entire burden upon the previous counsel which cannot be justifiable under any circumstances.

23.     Thus, in our view, the discretion exercised by the State Commission for declining the petitioners’ prayer for condonation of delay of 215 days does not suffer from any legal infirmity and the possibility of this Commission forming a different opinion in the matter of condonation of delay cannot justify interference with the impugned order under Section 21(b) of  the Act.

24.     The present revision petition being having no merit, is hereby dismissed in limine with cost of Rs.10,000/- (Rupees ten thousand only).

25.    Petitioners are directed to deposit the cost by way of demand draft in the name of ‘Consumer Legal Aid Account’ of this Commission within eight weeks from today. In case, petitioners fail to deposit the cost within prescribed period, then they shall be liable to pay interest @ 9% p.a. till its realization.

26.     Pending application, if any,  stand disposed of.

27.     List on 16.8.2013  for compliance.

                                                                                 …..…………………………J

                                         (V.B. GUPTA)

                            PRESIDING MEMBER

 

 

                                                                                         …..…………………………

                                   (REKHA GUPTA)

                                                                                                                              MEMBER

 

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