M/s Arihant Builders vs. Gaurav Anand Co-op. Housing Society Ltd. dated 2012-10-09
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION
REVISION PETITION NO. 3048 OF 2011
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
Gaurav Anand Co-op. Housing Society Ltd.
Kopari, Near Eastern
Octroi Cheek Naka,
Thane (E) – 400603 .........Respondent
HON’BLE MR. JUSTICE V.B. GUPTA, PRESIDING MEMBER
For the Petitioner : Mr. Anand Patwardhan, Advocate
Pronounced on : 9th October, 2012
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 :
(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 Hon’ble 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 Hon’ble 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 Hon’ble 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 Hon’ble State Commission, the petitioners herein filing this Revision Petition before this Hon’ble National Commission because of the view taken by the Hon’ble 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 Hon’ble 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 litigant’s 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 lawyer’s 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 ma