Shivdarshan Builders & Developers vs. Sanjiv S/o Somaji Barai dated 2012-01-25
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION
REVISION PETITION NO.3859 OF 2011
(Against the order dated 21.9.2011 in MA/10/271 in Appeal No.CC/252/2009 of the State Commission, Maharashtra, Circuit Bench at Nagpur)
1. Shivdarshan Builders & Developers,
Through its partner Shri Sanjay Madhukarrao Mahakalkar,
Resident of 97, Ridge Road, Raghuji Nagar,
2. Sanjay S/o Madhukarrao Mahakalkar
R/o 97, Ridge Road, Raghuji Nagar, Nagpur
3. Ajay S/o Madhukarrao Mahakalkar,
R/o 97, Ridge Road, Raghuji Nagar, Nagpur. ….…Petitioners
1. Sanjiv S/o Somaji Barai,
R/o T-3, Shivdarshan Apartments,
11-12, Umrer Road,
2. Smt. Sarala W/o Sanjiv Barai,
R/o T-3, Shivdarshan Apartments,
11-12, Umrer Road, Dighori, Nagpur. ….Respondents
HON’BLE MR. JUSTICE V.B. GUPTA, PRESIDING MEMBER
For the Petitioners : Mr. Jagdish Chandra Shukla, Advocate
Pronounced on: 25th January, 2012
PER MR. JUSTICE V.B. GUPTA, PRESIDING MEMBER
By way of present revision petition, petitioner has challenged order dated 21.9.2011 passed by State Consumer Disputes Redressal Commission, Nagpur (for short as State Commission). Vide impugned order, State Commission dismissed the appeal as well as application for condonation of delay in filing of the appeal, against order dated 16.9.2009 passed by the District Consumer Forum, Nagpur.
2. Brief facts of this case are that respondents (who were complainants in the District Forum) filed a complaint under Section 12 of the Consumer Protection Act, 1986 (for short as ‘the Act’) against petitioners/opposite parties. It has been alleged by respondent no.1 that he is a teacher and respondent no.2 is his wife. Petitioners are doing the business of constructing Apartments. They had decided to construct Apartments and shops on Plot No.11 and 12 of Budhulkheda Street Scheme of Nagpur Improvement Trust at Mouza Dighori Nagpur and the said scheme was named as “Shivdarshan Apartments”. Respondent no.1 decided to purchase Apartment No.T-3 and Respondent no.2 has decided to purchase Shop No.F-2 in the said scheme. The price thereof was Rs.7,00,000/- and Rs.4,00,000/- respectively and the agreement to execute Sale Deed of Shop and Apartment was done. It is further stated by respondents that from time to time they had paid total Rs.11,000,00/- to the petitioners but they have not executed sale deeds.
3. It is further stated by respondents that petitioners had obtained signatures on many blank form and had obtained loan of Rs.5,00,000/- from Exis Bank and the said additional amount has been appropriated by the respondents.
4. It is also alleged that respondents have left many deficiencies in the construction and have done construction of low standard. Therefore, respondents demanded refund of Rs.5,00,000/- with interest with removal of deficiencies in construction of shop and apartment and execution of sale deed of shop and apartment.
5. District Forum issued notice of the complaint to the petitioners and Shri R.H. Agrawal, Advocate was present on their behalf on 17.7.2009 and had sought time to file reply. But despite giving opportunity, he was not present on 6.8.2009, District Forum, therefore, ordered to proceed without written reply of the petitioners.
6. District Forum partly allowed the complaint and passed the following order:-
1. The complaint of the complainant is partly allowed.
2. Opposite party is directed to execute sale deed of Apartment No.T-3 and Shop No.F-2 to the complainants and the expenses for the said sale deed shall be borne by the complainants.
3. Opposite party is directed to refund Rs.5,00,000/- taken in excess from the complainant with 12% interest p.a. from the date of filing of complaint i.e. 20.04.2009 till its payment.
4. Opposite party is directed to pay Rs.10,000/- for deficient construction to the complainant.
5. Opposite party is directed to pay Rs.10,000/- for physical and mental harassment and Rs.3,000/- towards cost of the complaint.”
7. Aggrieved by the order of the District Forum, petitioners filed an appeal before the State Commission. Alongwith with it, petitioners filed an application for condonation of delay in filing of the appeal praying to condone the delay of 135 days.
8. State Commission, vide impugned order rejected the application for condonation of delay as well as the appeal.
9. This is how the matter has reached before this Commission.
10. It is contended by learned counsel for the petitioners that petitioners have engaged a counsel for contesting the matter. However due to personal reasons the counsel could not appear nor did he file brief, nor handed over the same to the petitioners to file appeal within limitation and thus no fault can be attributed to the petitioners for delay in filing of the appeal.
11. It is further contended that in the absence of any allegation of deficiency in service or unfair trade practice on the part of the petitioners , impugned order could not have been passed and delay in filing of the appeal could have been condoned by imposing costs.
12. It is also contended that on merits the petitioners have a good case since District Forum wrongly ordered for payment of Rs.5 lakhs to the respondents.
13. State Commission in its impugned order observed;
“On perusal of the record, we find much force in the submission of Mr. Murty learned counsel for the non applicant/complainant. Though the grandmother of the counsel for the appellant/applicant was ailing and was admitted in the hospital, the copies of the medical case papers which are produced by the applicant reflect that his grandmother was admitted in the hospital for the period from 4/8/2009 to 8/8/2009 only. Therefore, the contention of the applicant that due to illness of his counsel’s grandmother he could not attend the hearing before the District Forum and hence ex parte order came to be passed, cannot be accepted.
Though the matter was adjourned before the District Consumer Forum till 16/9/2009, no explanation is given by the applicant and also his advocate Shri Agrawal in his affidavit as to why Advocate Agrawal did not appear before the District Consumer Forum after 8/8/2009. However, it is contended that father of Advocate Agrawal was also ailing but no documents; medical case papers in support of this contention are filed on record. It is also not disclosed as to when the father of Mr. Agrawal was ailing. It is submitted by Advocate Shukla that due to old age of the father of Advocate Agrawal, his illness of Hyper Tension, Diabetics etc. is recurring. But the same cannot be considered as a ground for preventing Mr. Agrawal from appearing before the District Forum.
Not only this, but no explanation is given by the applicant as to why the appeal was not filed till 16/5/2010 and why the applicant waited till issuance of bailable warrant and non bailable warrant. No explanation is given as to why he did not respond to bailable warrant though it was executed. Considering all these facts, the above authorities of Supreme Court on which learned counsel for the applicant relied, cannot be taken into consideration.
Mr. Murty, learned counsel for the non applicant, relying on the authority of Supreme Court in the case of Balwantsingh vs. Jagdishsingh and others (2010 SCC 685 submitted that in absence of sufficient cause no such inordinate delay can be condoned. Considering the undisputed facts of this case, we have no hesitation to accept the submission of Mr. Murty, learned counsel for the non applicant/complainant. It is well settled law that in the absence of any just and reasonable cause, delay cannot be condoned and that too specifically the inordinate delay.
For the foregoing reasons, we are declined to condone the delay and pass the following order:-
1. Application for condonation of delay is rejected.
2. Consequently, the appeal also stands rejected.”
14. It is an admitted fact that petitioners did not appear before the District Forum inspite of service. It is also an admitted fact that counsel for petitioners Shri R.H. Agarwal was present on behalf of petitioners before the District Forum on 17.7.2009 and had sought time to file reply. But despite giving opportunity, counsel for petitioners was not present even on 6.8.2009. Hence, order was passed by the District Forum without the written reply of the petitioners and after considering the complaint, documents and affidavit of the respondents.
15. Admittedly, appeal filed by the petitioners before the State Commission was hopelessly barred by time. Relevant extracts of application for condonation of delay are reproduced as under:-
“It is further submitted that the counsel for these appellants had not informed the fact that an “Ex parte” order is passed by the District Forum against these appellants. However, when the appellants received the order on 30.11.2009 they immediately contacted their Advocate, who assured to file an Appeal before this Hon’ble Commission, however, nothing was being done by him despite repeated requests and therefore, finally these appellants have withdrawn the file which he reluctantly handed over on 10.5.2010 and thereafter, these appellants are approaching this Hon’ble Commission. Thus, there is a delay of 135 days in filing the appeal, which is not due to the fault on the part of these appellants but they were restrained by their counsel from approaching this Hon’ble Commission in time, on one pretext or the other. The delay thus, deserves to be condoned since the same is due to the negative attitude of their counsel and these appellants may kindly be pardoned for the same in the facts and circumstances of the case.”
16. In entire application for condonation of delay, it is nowhere stated as to why petitioners were not present before the District Forum inspite of service. There is no explanation for their non-appearance.
17. In application for condonation of delay, it has been admitted by the petitioners that they have received the order of District Forum on 30.11.2009 and had contacted the Advocate who had assured to file an appeal before the State Commission but nothing was done by him despite repeated requests and therefore they have finally withdrawn the file which the Advocate reluctantly handed over on 10.5.2010.
18. In the entire application of condonation of delay, nowhere name of that Advocate has been mentioned to whom the file was handed over by the petitioners. There is also nothing on record to show that petitioners ever took any action against that Advocate.
19. However, petitioners have taken an altogether different plea before the State Commission with regard to their application for condoantion of delay of 135 days. There petitioners took plea that father of the Advocate was ill (which was not the case of the petitioners as per averments made in the application for condoantion of delay).
20. The case which was pleaded before the State Commission on behalf of the petitioners as per impugned order is as under:-
“It is submitted by Shri Shukla, learned counsel for the applicant that the impugned judgement is ex-parte as the applicant/opponent could not remain present before the District Consumer Forum, Nagpur as he was not informed about the date of hearing by his earlier counsel Advocate V.C. Agrawal. It is further submitted that Advocate Agrawal also could not attend the Forum as his father as well as grand mother were ailing and his grand mother was hospitalized in Kunal Hospital, Nagpur and, therefore, he was required to attend his grand mother etc. Therefore, the impugned order came to be passed ex parte.
It is further submitted by Advocate Shukla that the applicant and Advocate Agrarwal came to know about the impugned order on 25/9/2009 when they received the notice sent by complainant along with the copy of impugned order. Thereafter also, Advocate Agrawal could not file the appeal as his father as well as grand mother were ailing and his grand mother was hospitalized in Kunal Hospital Nagpur and, therefore, he was required to attend his grand mother etc. Thus, according to him, there was reasonable ground for such delay in filing the appeal and submitted to condone the delay etc.
21. Thus, petitioners have taken altogether new pleas at the time of arguments before the State Commission, which was not their case as per application for condonation of delay filed in the State Commission. As already observed above, there is no explanation as to why the petitioners did not appear before the District Forum in spite of receipt of the notice.
22. It is well settled that “sufficient cause” for non appearance in each case, is a question of fact. Delhi High Court in New Bank of India Vs. M/s Marvels (India): 93 (2001) DLT 558, has held;
“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 bonafide 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.”
23. 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.”
24. 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.”
25. 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.”
26. As no reasonable explanation for delay in filing the appeal having been given, it is held that no sufficient cause nor any cogent reason has been shown which entitles the petitioner to have the delay condoned.
27. Even on merits, petitioners have no case as District Forum with regard to the complaint of respondents has held;
“This fact is proved from the documents filed by complainants at page No.72, 73 and 74. Therefore, complainants have paid Rs.11,00,000/- for shop and Apartment to opposite party. Similarly while we perused documents filed by the complainant, it is proved from Document No.77 and 78 that possession of the shop and apartment is given by opposite party on 27.2.2008.
Second important point in the present complaint is that complainant has submitted that opposite party had received Rs.5.00 lakhs from Axis Bank, over and above Rs.11.00 lakhs, directly, by way of laon in the name of complainant no.1. This fact is proved from page No.75 and 76 of the complaint. At the time of oral arguments, the complainant has filed the statement of Loan Account in the name of complainant No.1. On minutely perusing the documents filed and the statement of complainant, the total price of shop and the apartment is Rs.11,00,000/- which is paid by complainant and the opposite party had received Rs.5,00,000/- in their name by pay order of Axis bank. Opposite party has no right to receive the said additional amount. On the contrary, opposite party had received the notice sent by complainant on 26..2.2009 and this fact is proved from the documents filed by the complainant, but the opposite party had not given any reply to the said notice. Not only this, the opposite party though present in the instant complaint, through Advocate, have not filed any reply to the complaint. Therefore, after perusal of the documents filed by the complainant and his statement, the opposite party had taken Rs.5,00,000/- in excess. Therefore, in the opinion of the Forum, the said amount should be refunded to the complainant with interest @ 12% p.a. from date of filing of complaint i.e. 20.4.2009 till its actual payment.
In the present case, complainants have made construction of apartment of low standard and the water is leaking there and the stone skirting of Gas Otta has left place and there is no cover on the meter as mentioned in the complaint but no expert evidence is filed only photograph is filed. On our perusal, there are certain deficiencies in construction. Therefore, in our opinion, opposite party should pay Rs.10,000/- for deficient construction to the complainant.
In the present complaint, complainant has demanded Rs.25,000/- for physical and mental harassment but the said demand is not proved with evidence and hence does not appear to be correct. However, as mentioned above by us, opposite party had given deficient services and have adopted unfair trade practice therefore, in our opinion, opposite party should pay Rs.10,000/- to the complainant and Rs.3,000/- as cost of the complaint.
In the present case, complainant had paid Rs.11,00,000/- fully to the opposite party yet the sale deed is not given for the shop and the apartment. On the contrary, opposite party had executed Registered Agreement of Sale in favour of the complainant. Similarly, it is the responsibility of the opposite party to make construction on the plots of Nagpur Improvement Trust, after obtaining sanction from all Government level. Therefore, it is the opinion of the forum that opposite party should execute sale deed of apartment and shop to the complainant and the complainant should bear the expenses for the same.
In the present case, the opposite party had not challenged the submissions of the complainant in the complaint.”
28. It is well settled that under Section 21 (b) of the Act, scope of revisional jurisdiction is very limited. Hon’ble Supreme Court in Mrs. Rubi (Chandra) Dutta Vs. M/s United India Insurance Co. Ltd. 2011 (3) Scale 654 has observed ;
“Also, it is to be noted that the revisional powers of the National Commission are derived from Section 21 (b) of the Act, under which the said power can be exercised only if there is some prima facie jurisdictional error appearing in the impugned order, and only then, may the same be set aside. In our considered opinion there was no jurisdictional error or miscarriage of justice, which could have warranted the National Commission to have taken a different view than what was taken by the two Forums. The decision of the National Commission rests not on the basis of some legal principle that was ignored by the Courts below, but on a different (and in our opinion, an erroneous) interpretation of the same set of facts. This is not the manner in which revisional powers should be invoked. In this view of the matter, we are of the considered opinion that the jurisdiction conferred on the National Commission under Section 21 (b) of the Act has been transgressed. It was not a case where such a view could have been taken by setting aside the concurrent findings of two fora.”
29. It is also well settled that no leniency should be shown to such type of litigants, who in order to cover up their own fault and negligence goes on filing meritless petitions in different foras.
30. Thus, no jurisdictional or legal error has been shown to call for interference in the exercise of powers under Section 21 (b) of the Act. Since, two fora below have given detailed and reasoned orders which does not call for any interference nor they suffer from any infirmity or erroneous exercise of jurisdiction. Thus, present petition is hereby, dismissed with punitive costs of Rs.50,000/- (Rupees Fifty Thousand only).
31. Out of the costs imposed upon the petitioners, Rs.25,000/- (Rupees twenty five thousand only) be paid to the respondents by cheque in their names. Remaining cost of Rs.25,000/- (Rupees twenty five thousand only) be deposited by cheque in the name of “Consumer Legal Aid Account” of this Commission, within one month from today.
32. In case, petitioners fail to deposit the said costs within the prescribed period, then they shall also be liable to pay interest @ 9% p.a., till realization.
33. Costs awarded to the respondents shall be paid only after expiry of the period of appeal or revision preferred, if any.
34. List on 2nd March, 2012 for compliance.