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FIRST APPEAL NO.129 OF 2014  Along with  (I.A. No.1200 of 2014(for Stay)



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FIRST APPEAL NO.129 OF 2014  Along with  (I.A. No.1200 of 2014(for Stay)

(I.A. No. 1201 of 2014 for Condonation of Delay)

(From order dated 16.08.2013 in Consumer Complaint No.272 of 2012 of State Consumer Disputes Redresdsal  Commission, Maharashtra, Mumbai)

 

 Tirupati Construction Through its Attorney: Mr.Chetan Kehsavlal 214, Laxmi Plaza, Laxmi Industrial Estate, New Link Road, Andheri(west), Membai, Maharashtra-400053.



                                        ...Appellant

     Versus    

 S. G. Kumar Having his office at Plot No. 111/1, Road No. 13, M.I.D.C. Andheri(E), Mumbai, Maharashtra-400093

….. Respondent

 BEFORE: 

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

    HON’BLE MRS REKHA GUPTA, MEMBER 

For the Appellant  : Mr. Prasouk Jain, Advocate and Mr.Udit Gupta, Advocate 

 Pronounced on: 1st July,2014 

ORDER 


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

      Being aggrieved by the impugned order dated 16.08.2013, passed by State Consumer Disputes Redressal Commission, Maharashtra, Mumbai (for short, ‘State Commission’), appellant has filed the present appeal.


2.   Brief facts are that Respondent/Complainant approached the Appellant/Opposite Party for booking a flat. After going through the brochure, respondent booked a flat bearing No.602 on 6thfloor, block no.13, D/wing, admeasuring 990 sq.ft. @ Rs.2,080/- per sq. ft. Thereafter, respondent made payment of part consideration of Rs.2 lacs by cheque for which  appellant issued receipt dated 15/03/2008, confirming and acknowledging the payment. It is stated that even after accepting the amount of Rs.2 lacs, the appellant has not executed the agreement to sale in the name of the respondent under the provisions of The Maharashtra Ownership Flats (Regulation of the Promotion, Construction, Sale, Management and Transfer) Act, 1963 (“The MOFA” for short). Even after a period of 18 months, appellant has neither constructed the building nor taken any steps.


3.   It is further stated by the respondent that appellant has never demanded further payments while he is ready and willing to pay the balance amount of consideration towards the said flat as agreed between the parties. As per the MOFA, executing the written agreement is the responsibility of the appellant.  Thus, appellant has contravened the provisions of the MOFA.  The cause of action has arisen in the year 2008. Since, appellant has not handed over the possession, it is a continuous cause of action.  Alleging not handing over the possession and not executing the agreement to sale, amount to deficiency in service on the part of the appellant, the complainant filed a consumer complaint before the State Commission with following prayers;

a)    To hold and declare the opposite party to be guilty of deficiency of service as per the provisions of the Consumer Protection Act, 1986.


b)    To direct the opposite party to execute an agreement for sale in respect of the flat being no.602 on 6th floor, block no.13, d-wing admeasuring 990 sq. ft. in the proposed scheme namely ‘Balaji Complex’ at near Sigrun Kingdom, purapada, Polinji Naka, Aghashi Road, Virar (W),Thane within the stipulated time period framed by this Hon’ble Commission and further to hand over the peaceful and vacant possession of the same after receiving the balance consideration towards the said flat at the agreed rate of `2,080/- per sq.ft.

      Or in the alternative

      To direct the opposite party to re-compensate the complainant the Market value of the said flat at the current market value prevailing in the same area from the date of the order passed in the above numbered complaint. 

      Or in the alternative

      To direct the opponent party to provide the complainant a flat admeasuring 990 sq.ft. in the same vicinity.


c)    Pending the hearing and final disposal of this complaint this Hon’ble Commission be pleased to restrain the Opposite party by an order and decree directing the opposite party for not to create any third right, title and interest in flats being flat no.602 on 6th floor, block no.13, d-wing admeasuring 990 sq.ft. in the proposed scheme namely ‘Balaji Complex’ at near Sigrun Kingdom, purapad, Polinji Naka, Aghashi Road, Virar (W), Thane in terms of the interim application.

d)   For interim reliefs in terms of prayer clause (c) above.

e)    To direct the opposite party to complete the incomplete work and obtain the occupation certificate from the competent authority and to form and register Co-operative Housing Society, Limited Company or Condominium of Apartments, as the case may be, and execute the Deed of Conveyance in favour of the said organization. 

  f)    To direct the opposite party to pay to the complainant the sum of 5,00,000/-(Rupess Five Lakhs only) towards the compensation for the inconvenience, mental agony and harassment caused to the complainant. 

 g)     To direct the opposite party to pay to the complainant the sum of `50,000/- (Rupees Fifty Thousand only) being the legal and other incidental expenses incurred by the complainant.



h)      Any further order as this Hon’ble Commission deed fit and proper.

4.  State Commission admitted the complaint after hearing the respondent on 14.1.2013 and notice after admission was sent to the appellant. As per the impugned order, the notice was duly served upon the appellant. However, the appellant remained absent and under these circumstances, complaint of the respondent was proceeded in the absence of the written versions of the appellant.


5. Thereafter, State Commission, vide impugned order partly allowed the complaint and passed the following directions;

        “The opponent is directed to hand over possession of the flat no.602 on 6th floor, block no.13,D/wing, admeasuring 990 sq.ft. in the proposed scheme namely ‘Balaji Complex’ at near Sigrun Kingdom, purapada, Polinji Naka, Aghashi Road, Virar (W), Thane to the complainant after payment of balance amount of consideration by the complainant within a period of 2 months from the date of this order”.

       6.  Being aggrieved by the order of the state Commission, appellant has filed the present appeal.

       7. Along with it, an application seeking condonation of delay of 148 days has been filed.

       8. We have heard learned counsel for the appellant on the application for condonation of delay.

       9. The main plea of the appellant’s counsel is that since the appellant was already contesting a connected matter filed by the same complainant with respect to the Flat No.601 before the State Commission in (Complaint Case No.CC/12/273), hence, there was no reason for the appellant not to contest the present case pertaining to Flat No.602 when the identical facts are involved. Learned counsel for appellant on the ground of condonation of delay, has placed reliance upon the following judgments;

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

                 (2012)12 SC 693;

 

         (ii)     B.T.Purshothama Rai Vs. K.G. Utyaya


                 and Ors.

                 (2011) 14 SCC 86;

 

       (iii)      Indian Oil Corporation Ltd. & Ors. Vs. Subrata Borah Chowlek


                 (2010) 14, SCC 419;

 

       (iv)       State of Nagaland Vs. Lipok AO & Ors.



                 (2005) 3 SCC 752;

 

        (v)       N. BalakrishnanVs. M. Krishnamurthy



                 (1998) 7 SCC 123;

                

       (vi)       Collector Land Acquisition, Anantnag    &

                 Anr. Vs. Mst. Ktiji & Ors.

                 1987(2) SCC 107;

 

       (vii)      Rafiq & Anr. Vs Munshilal & Anr.



                 (1981) 2 SCC 788 and 

 

       (viii)     Chilukuri Adarsh Vs. M/s Ess Ess Vee



                 Constructions

                 2012(3) CPR 104(NC)

                 III(2012)CPJ 315 (NC)

      

       10.     The grounds on which condonation of delay have been sought read as under;

   “4. That the Respondent filed the complaint no. CC/12/273 and CC/12/272 for Flat No. 601 and 602 respectively in the Hon’ble State Commission on 25.10.2012. That the Appellant received notice with respect Flat No.601 in CC/12/273 and has been diligently representing the said case before the State Commission.

 

        5. That sometime in the month of September-October the Appellant received a notice dated 05.09.2013 from the Counsel of the Respondent informing the Appellant about the impugned judgment dated 16.08.2013 in CC/12/272 w.r.t.Flat No.602. The appellant was shocked with the said news  as it was not even aware of any proceedings pertaining to the said case. That it is pertinent to mention that even though the said notice claimed to have come with a copy of the judgment the same was not attached with the notice. Therefore the Complainant contacted its counsel who immediately applied for a certified copy of the judgment. The Registry of the State Commission on 31.10.2013 prepared the certified copy of the said judgment.


 

        6.   That on a perusal of the judgment the Appellant was shocked that the State Commission had recorded that the Appellant was duly served in the matter and therefore it was expedient to apply for a complete set of the paper-book. The counsel for the appellant was instructed to apply for the paper-book in CC/12/272 accordingly.

 

        7.   That the complete set of the paper book was prepared by the Registry on 07.12.2013 and was collected by the Appellant shortly thereafter. The photo copy of the same was sent to the present counsel of the Appellant. However since the counsel of the Appellant was not available for any comments since he had gotten married in December and was not in the country and resumed office from the first week of January.



 

        8.   The counsel of the Appellant informed the Appellant that the copies sent were dull/cut and incomplete and therefore sought the entire certified copy of the proceedings before the State Commission be sent to him as legible  copies of the same are required to be filed along with the appeal.

 

        9.  The appellant sent the same and accordingly the counsel for the Appellant prepared the draft appeal and sent the same along with the draft applications and affidavits to be vetted, signed and Notarized by the Appellants.


 

        10. The said process took some because the attorney of the Appellant was not keeping well. However the same was sent by the Appellants to the counsels in Delhi as soon as possible.

 

       11.  That the appellant has a good defence on the merits of the case and procedural law should not be permitted to take away the substantive right of the appellant to defend the case on merits, especially when the Respondent has approached the State Commission with unclean hands”.  


          

11.  It is appellant’s own case, that it had received  notice dated 05.09.2013 from the counsel for the respondent intimating the appellant about the order passed in the present case(CC/12/272).Admittedly, knowledge had come to the appellant about passing of the exparte order in this case, as earlier as on 05.09.2013. However, there is no explanation as to why the present appeal was filed only on 21.2.2014, that is, after a period of more than 4 months.

12.  Interestingly, appellant in the present appeal has nowhere pleaded that it did not receive any notice from the State Commission. Thus, silence on the part of the appellant amounts to admission with regard to the service of the notice from the State Commission. 

13.  It is well settled that ‘sufficient cause’ with regard to condonation of delay in each case, is a question of fact.

14.  In Ram Lal and Ors. Vs. Rewa Coalfields Ltd., AIR 1962 Supreme Court 361, the Court 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”.

 


15.  In R.B. Ramlingam Vs. R.B. Bhavaneshwari, 2009 (2) Scale 108”, Apex Court has 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. 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”.  

 

17.  Apex Court in “Anshul Aggarwal vs. New Okhla Industrial Development Authority, IV (2011) CPJ 63 (SC)” laid down 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”.

 

18.    Thus, ex-facie gross negligence, deliberate inaction and lack of bonafides are imputable to the appellant. Under the circumstances, no grounds whatsoever are made out for condoning the long delay of 148 days.  


19.  Moreover, observations made by the Hon’ble Apex Court in the authoritative pronouncements discussed above, are fully attracted to the facts and circumstances of the case.

20.  However, none of the judgments cited by learned counsel for the appellant are applicable to the facts of the present case.

21. It appears that the only intention of the appellant is just to deprive the respondent/ complainant the fruits of the award passed by the State Commission.

22.  Accordingly, we do not find any sufficient ground to condone the long delay of 148 days and dismiss the application for condonation of delay. Consequently,the present appeal stand dismissed being barred by limitation.

23.  No order as to cost.

……..……………………J



(V.B. GUPTA)

PRESIDING MEMBER

…………………………



(REKHA GUPTA)

MEMBER

SSB/                                               

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI

 

REVISION PETITION NO. 1484 OF 2014

(From the order dated 25.07.2013 in Appeal No.495/2011 of the Delhi State Consumer Disputes Redressal Commission)

                                                                                                 

Smt. Ratna Deb Wd/o Late Sqn. Ldr. K.K. Deb Ganeshpur, Uttarkashi Uttarakhand And 

427, Ashoka Enclave-III Sector-35, Faridabad

                                                       ... Petitioner

Versus

 Sanjay Dodhi Valley Construction Company Pvt. Ltd. Uttarkashi Main Market Uttarkashi, Uttarakhand

                                                   …  Respondent

 BEFORE 

          HON’BLE MR. JUSTICE D.K. JAIN, PRESIDENT


HON’BLE MRS. VINEETA RAI, MEMBER

HON’BLE MR. VINAY KUMAR, MEMBER

 

For the Petitioner



 

 

:  Petitioner in person



For the Respondent

 

:  Mr. Arjun Singh Bhili, Advocate

 Pronounced 2nd July, 2014

ORDER

PER VINEETA RAI, MEMBER 

1.       This revision petition has been filed by Smt. Ratna Deb, Petitioner herein and Complainant before the District Consumer Disputes Redressal Forum, Delhi (for short “the District Forum”) being aggrieved by the order of the Delhi State Consumer Disputes Redressal Commission, Delhi (for short “the State Commission”) for awarding a compensation of Rs.60,000/-, apart from Rs.5000/- as costs of litigation, which was far less than she had asked for.  The revision petition has also been filed with a delay of 108 days over and above the statutory period of 90 days provided for filing such revision petitions.

2.       In her application seeking condonation of delay, the Petitioner has stated that this occurred because she did not receive copy of the final order of the State Commission purportedly mailed to her through registered post on 05.09.2013.  Although she visited the office of the State Commission on a number of occasions, she could not get the required information and it was only after she had seen the orders of the State Commission on the internet that she managed to get a copy of the final order on 19.03.2014.  In her verbal submissions before us while reiterating the above reasons, she also pointed out that perhaps the letter sent to her in Uttarkashi, Uttarakhand may not have reached because of the extensive damage caused in the area by inundation/floods in July/August, 2013.  In order to ascertain the veracity of these contentions, we requested the State Commission to send us the original file on the subject and from a perusal of the same we note that there is no evidence on record regarding dispatch through registered post of the first/free copy of the order to the Petitioner.  The only receipt pertains to the copy that she received on 19.03.2014.  In view of these facts, we accept the explanation offered by her, regarding delay in filing this revision petition and condone the same.

3.       So far as the facts of the case are concerned, the Petitioner, who is a senior citizen and resident of Ganeshpur, Uttarkashi, Uttarakhand, had stated that she had purchased a house/cottage from the Respondent for her own living and had paid a total amount of Rs.8,50,000/- for the same on 31.03.2002.  However, when Respondent finally handed over possession of the cottage to the Petitioner on 16.10.2002 with a delay of about four months from the stipulated date, she found that it was unfinished and the materials used, including the tiles and plywood, were of very inferior quality.  The shutters had not been properly installed and the electrical fittings were incomplete.  Moreover, the workmen of the Respondent caused great discomfort and mental pain and disturbance to the Petitioner while she was performing the griha pravesh puja.  Despite all requests to redress the various deficiencies noted by her, the Respondent failed to do so and instead raised a demand of Rs.1,18,483/-.  She, therefore, filed a complaint before the District Forum, requesting for quashing of said demand and for compensation of Rs.3,00,000/- on account of physical and mental harassment suffered by her.  She also requested that the Respondent be directed to remove the defects/deficiencies and pay her a sum of Rs.5,00,000/- for getting the cottage in final shape as per the brochure.    

4.       Respondent on being served admitted that a contract between the parties had been entered on 31.03.2002 and a sale deed for Rs.8,50,000/- was executed in favour of the Petitioner.  The cottage was to be constructed as per the layout plan and for any additional works/alterations/renovations etc., charges had to be paid for separately.  Respondent as a goodwill gesture arranged for a free accommodation in Uttarkashi so that the Petitioner could supervise the construction.  She pressed for some additional works, which resulted in delay in the execution of the work, for which she was charged the additional amount of Rs.1,18,483/-.  However, Petitioner refused to pay this amount, leading to a dispute between the parties.  Respondent contended that the construction work was as per the layout plan and there was no deficiency/shortcoming as alleged by the Petitioner.

5.       The District Forum, after hearing the parties and on the basis of evidence filed before it, disposed of the complaint by holding that the Petitioner will not be liable to pay the entire amount of Rs.1,18,483/- for the additional works done by the Respondent and the amount of Rs.50,000/- already paid by her would be taken as full and final payment of the bills on that account.  The District Forum also ordered payment of Rs.5000/- as costs to the Petitioner.

6.       Being aggrieved, the Petitioner filed an appeal before the State Commission.  The State Commission appointed a Local Commissioner to inspect the premises and give a report, who after due inspection in the presence of the parties reported that most of the specifications agreed between the parties were complied with and the deficiencies as alleged by the Petitioner did not exist.  The State Commission while maintaining the relief granted to the Petitioner by the District Forum directed the Respondent to also pay Rs.60,000/- within a period of 30 days by observing as follows:

15.The complainant/appellant is an old lady of about 72 years. She had to run from pillar to post in order to get habitable cottage. According to the complainant, the construction carried out by the builder was of poor quality and fittings and fixtures were not in accordance with the specifications. The report of the Local Commissioner belies most of the allegations and apprehensions of the complainant/appellant. However, it cannot be said that they were totally baseless or non-existent.


16.The Tribunal/Forum while adjudicating the matter must ensure substantial justice. In the process hard facts must be taken into consideration. In the present case, there has been bitter dispute between the builder and the customer/purchaser. The builder is always stronger party being a resourceful person in comparison to an ordinary buyer. Builder is more likely to manipulate the things in his favour, therefore, all the complaints of the appellant should not be lightly taken and brushed aside. Few of her complaints may be true and real. The matter is peculiar in nature and direct evidence was hardly available.

17.Keeping these things in mind, we broadly agree with the finding of the Ld. Lower Court but we are of the considered view that the Ld. District Forum ought to have suitable awarded compensation. We, therefore, fixed an amount of Rs. 60,000/- as compensation to be paid by the Respondent-1 towards mental pain, agony and harassment meted out to the complainant/appellant. To this extent, Impugned order dated 9.8.2011 stands modified.”

 

7.       Still not satisfied with the enhanced relief given by the State Commission, the Petitioner has filed the present revision petition.


8.       Petitioner in person and Counsel for the Respondent made verbal submissions before us.

9.       Petitioner vehemently argued that apart from the delay of 3 months in handing over the possession of the cottage, there was no electricity and water connection, incomplete plastering; even the doors and windows did not have shutters.  She also challenged the report of the Local Commissioner and stated that there were at least 10 specific deficiencies and defective workmanship in respect of the cottage, which included poor quality of plywood and glass panes with no anti-termite treatment, poor quality of flooring with broken tiles instead of mosaic/marble flooring as assured, smaller bathroom sizes with no geyser, defective plumbing, no electricity and water connection and also no road or infrastructure around the cottage.  Apart from this, earthquake proofing was not done and the registration of the title documents as promised by the Respondent was also not done although she had paid extra money of Rs.17,500/- for the same.  Because of poor security there was a major theft in the premises on 10.10.2010 resulting in loss of valuable articles.  Petitioner, therefore, contended that the compensation that she should now be paid should be over Rs.35,00,000/-, which included Rs.20,00,000/- towards loss of valuable articles in her cottage and Rs.4,00,000/- for causing mental and physical harassment for 9 years. 

10.     Counsel for the Respondent on the other hand reiterated the submissions made before the Fora below and stated that the Local Commissioner appointed by the State Commission was a retired Executive Engineer, who thoroughly inspected the premises in the presence of the Petitioner and gave a credible technical report that there were no defects or deficiencies, the plumbing and earthquake proofing had been done and the infrastructure around the premises was complete.  The slight delay in handing over the possession of the cottage was because of the difficult attitude of the Petitioner, who kept making unreasonable demands and being abusive to the Respondent and the labourers who were constructing the cottage.  

11.     We have heard the Petitioner in person and learned Counsel for the Respondent. 

12.     At the outset, it may be stated that this is the second round of litigation.  In the first round, the District Forum had dismissed the complaint, with liberty to the Complainant, Petitioner herein, to approach a Civil Court or any other Court for relief as the case involved complex and complicated questions, which required detailed evidence.  The State Commission, while disposing of the appeal filed against the order of the District Forum, remitted the matter back to the District Forum for deciding it afresh within three months.  This Commission before whom the Petitioner filed a revision petition against the order of the State Commission, however, upheld the order of the State Commission and directed the District Forum to decide the complaint within a period of six months.  The Hon’ble Supreme Court too disposed of the writ petition filed by the Petitioner as not maintainable but with a direction to the District Forum to dispose of the complaint within a period of three months.   

13.     We have carefully considered the submissions made by the Petitioner as also the Counsel for the Respondent and have also gone through the comprehensive report of the Local Commissioner, who is a retired Executive Engineer.  We note that he had inspected the cottage in the presence of the Petitioner and one Shri R. Notiyal from the Respondent company and taken relevant photographs.  From a perusal of this report, we agree with the finding of the State Commission that, except for some termite infestation in the frames of windows and doors, which had been made of natural wood, there were no other defects or deficiencies, as alleged, and the cottage was constructed in terms of the construction and layout plans and as per the agreement entered into between the parties.  Apart from verbal submissions made vehemently by the Petitioner, she has not been able to produce any independent or credible evidence before us to displace the report of the Local Commissioner.  This report after due consideration had been accepted by the State Commission.  We see no reason in our revisional jurisdiction to disagree or dispute with the order of the State Commission, which is upheld in toto.

14.     Accordingly, the present revision petition stands dismissed with no order as to costs.    

……………………………….



(D.K. JAIN, J.) PRESIDENT

 

………………………………



(VINEETA RAI) MEMBER

 ………………………………



(VINAY KUMAR) MEMBER

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION  NEW DELHI 



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