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Judgment
THIS revision petition no. 2309 of 2012 has been filed under section 21 (b) of the Consumer Protection Act, 1986 against the order dated 16.11.2011 passed by the Maharashtra State Consumer Disputes Redressal Commission, Mumbai (the ''State Commission '') in appeal no. 637 of 2007. The brief facts of the complaint as per respondent no. 1/ complainant are as follows:
THE complainant is residing at Indraprastha Apartment and the same was constructed by the respondent - Builder, Developer and Contractor and the said Apartment was constructed on the property, the description of the property is as follows: The property bearing Survey no. 188, Hissa no. 5 and Survey no. 188, Hissa no. 4/ 3A area admeasuring about 2760 sq mtrs., situated within the Grampanchayat Mauje Nachane, within the limits of Ratnagiri City Council the flat no. 20 is constructed in Indraprastha Apartment buildings. The above property was owned by deceased Shirish Jaitpal (the husband of respondent no.1 and father of respondent nos. 2 and 3 and son of respondent no. 4) and constructed Indraprastha Apartment through M/s Bhagwati Construction Company, who died in an accident and after his death the respondents are the legal heirs and they are looking after the day to day affairs of the said firm. The complainant is a member of the said building, the flat in his possession was purchased by him by registered sale deed. The complainant Society was formed on 09.12.2005, at that time 49 flats were sold and 11 flats unsold. However, since the inception of the flat ''s possession the respondents have never cooperated with the complainant society and on each occasion had adopted an adamant policy with regard to cutting off the water supply and locking the electricity pump room. Regarding the same, complaint was also made. In spite of repeated demand to form Society, however, the respondents had not formed the same in time and many interruptions were made by the respondents in the formation of the society. Legally the respondents are bound to do so. A resolution was passed on behalf of the Society within which all the rights and power given in favour of Shri Sanjay Shivajirao, a member of the Society and its Management Committee on behalf of the complainant ''s Society -the present complaint.
THE said property described herein above the respondents are legally bound to transfer the said property in favour of the complainant - society, however, the complainant repeatedly demanded, in spite of that the respondent did not transfer the same in favour of the complainant -society. The complainant - society was registered and formed on 09.12.2005 as per the requisite registration the respondents should have transferred the said property in favour of the complainant - society after registration of 4 months, however, eight months over, the respondents did not to do so, the prime demand is to convey the said property in favour of complainant - society by the respondents. After formation and registration of the society the remaining flats were sold by the respondents. Some flats are in the name of the relatives, however, tenants were living in the said flats, however, the tenants '' maintenance charges are not being deposited with the society. The said maintenance charges are being deposited with the respondents. Previously for some flats the electricity was provided through a common meter, therefore the electricity Bill was paid by the complainant - society. However, unsold flats in B Wing, Block no. G - 3 the said flat was given on rental basis and no electricity bill, monthly service bill and water charges were paid. However, at the time of registration of the society in Z Form, an affidavit made mentioned/ narrated that the said flats will not be allotted or given for leave and licence or lease basis as per paragraph 6 of the said affidavit. The same has been violated and hence the complainant - society filed the complaint for recovery of the maintenance charges which include service tax, non-occupation tax, sinking fund and electricity charges.
THE petitioner as well as respondent no. 2 and 3/ opposite party no. 1, 2 and 3 in their combined written statement have denied all the allegations of respondent no. 1/complainant, that land and building had not been conveyed, that the society ''s members have not given the maintenance charges of Rs.18,016/- and also not given the Society registration expenses of Rs.8,100/- therefore, the conveyance is pending due to the non-payment of the same is pending. It is specifically mentioned in paragraph 5 of the agreement to sale that Conveyance will be done after the receipt of entire payment, otherwise the conveyance will not be conveyed. Regarding the same as per section 11 of Maharashtra Flat Ownership Act, 1963 is clearly mentioned. The respondents sent the notice dated 04.01.2006 to the complainant it is specifically mentioned regarding the maintenance charges and also in the letter dated 17.01.2006, 07.03.2006 and 10.05.2006 regarding the maintenance charges is informed to the complainant - Society. The complainant has not replied any letter and it is not mentioned regarding the maintenance charges is not due and payable by them nor the maintenance charges paid by them. Due to the above, the respondents have not conveyed or transferred the said property in favour of the complainant society.
AFTER formation of the Society, regarding the sold flats that the information was not provided is totally incorrect one and denied by the respondents herein and all the flat holders as per the information of the respondents they became the members of the said Society and their particulars are as follows: S no. Flat Purchaser ''s name Flat no. 1. Shri Vijay Garade A G 3 2. Shri Anant Govind Surve A G 5 3. Shri Sanjay Adavade A 301
RESPONDENT no. 4/ OP no. 4 in her written statement has stated that ''actually the said Apartments were constructed by her deceased son - Shirish Janardha Jaitpal as a Builder, Development after his accidental death, respondent no. 4 is one of the legal heirs of the deceased Shirish Jaitpal. After death of respondent no. 1 ''s husband, she looks after all the affairs, as respondent no. 4 is an old aged person. For looking after the affairs of the construction activities and other allied activities this respondent had given Notarised Power of Attorney dated 28.05.2004 and 03.06.2004 to look after the maintaining the said construction activities. In the month of June 2006, it was noticed by the respondent no. 4 by virtue of the Notarised Power of attorney the respondent no. 1 had acted illegally and this respondent had cancelled and revoked the Power of Attorney dated 22.06.2006, pursuant to the same a reference letter was given to respondent no. 1 by Registered Post AD. However, respondent no. 1 has sent false reply on 23.06.2006. Actually the respondent no. 4 has no business with the property, only after death of this respondent ''s son she has 1/4th share in the said property. Therefore, this respondent has given the reply to the present complaint, therefore the respondent no. 4 should be deleted from the complaint. Respondent no. 4 has not entered into any transaction with the complainant - society directly or indirectly and respondent no. 4 has not given any false assurance to the complainant society. Till date all the transactions byrespondent no. 1 have been done without the consent of respondent no. 1, therefore respondent no. 4 has no concern with the complaint.
THE District Consumer Disputes Redressal Forum, Ratnagiri, (the ''District Forum '') in their order dated 23.04.2007, gave the following order: "1. Petitioner/ appellant, herein should execute conveyance deed in favour of the complainant. 2. Amount of Rs.18,016/- towards the maintenance and Rs.8,100/- towards registration charges to pay the same to the respondent no. 1. 3. Petitioner/ appellant should inform the unsold flats to the complainant society. 4. Petitioner/ apellant should pay the maintenance amount of Rs.20,900/- to the complainant. 5. Petitioner/ appellant should remit the amount of Rs.75,950/- which is received under the pretext of Society registration fees to the complainant. 6. Petitioner/ apellant should remove the chain in the covered parking and do not prevent while parking the flat purchasers. 7. Petitioner/ apellant should make arrangement to provide 24 hours water supply and the loosed wall to reconstruct the same. 8. Petitioner/ appellant should make arrangement to close the telephones wires which are lying in the air near the building. 9. The leakage should be removed or to make good in respect of the flats no. AG1, AG 4, BG 2, B - 104, B 202, C 303 and CG1. 10. Petitioner/ appellant should pay an amount of Rs.20,000/- towards the physical and mental torture and an amount of Rs.10,000/- towards the costs of this complaint to the complainant. 11. The above order should be implemented by the parties hereto on or before 23.06.2007, if such party are failed to comply the same, other party to file recovery proceeding under the provisions of Consumer Protection Act ".
AGGRIEVED by the order of the District Forum the petitioner/respondent no. 1 filed an appeal no. 637 of 2007 before the State Commission. The State Commission vide order dated 16.11.2011, dismissed the application for condonation of delay on the following grounds: "This is an application for condonation of delay in filing the miscellaneous application no. 539 of 2010 for restoration of an appeal no. 637 of 2007 which stood dismissed for default on 29.03.2010. Since there is a delay of 122 days in filing this application for restoration, this application is accompanied with an application for condonation of delay. These application are opposed by respondent/ original complainant Society on the ground that the delay of 153 days and not only of 122 days and further that the reasons mentioned in the application are not at all convincing and the delay is not satisfactorily explained. The order which sought to be recalled is dated 29.03.2010 and which reads as under: Appellant is absent. Appellant has not provided two sets of appeal memo. Respondent ''s advocate is present. Hence, this appeal is dismissed for defaults. Thus, it is clear that on that on that day none was present for the appellant and the impugned order was passed in those circumstances, firstly for their non-appearance and since directions earlier were not complied with. Before dismissal, as per impugned order the matter was taken up on 1st February 2010. On that day pursis was given to hear the application for the stay and that mater was adjourned to 29.03.2010. As per the certified copy of the impugned order filed along with this application it could be see that copy of the said order was first issued by the Commission to the parties on 20.07.2010. It ought to have been received in the normal course. It is not disputed that it was sent on current address. However, there is no statement made in the application as to on which date said copy was received. However, endorsement further shows that the first copy which was issued on 20.07.2010 was delivered to him and the duplicate copy thereafter was obtained by the applicant/appellant on 30.08.2010. Therefore, the delay ought to have been counted from 20.07.2010 to meet this application for recalling the order, in other words for restoration. The reasons mentioned seeking condonation of delay, relevant for the purpose of decision of this application for condonation of delay are contained in paragraphs nos. 7 to 11. It first concluded that impugned order received by the applicant/appellant on 13.08.2010 when it received a notice in execution application under section 27 of the Consumer Protection Act, 1986. Thereafter, it is pleaded that mother of the applicant - Ms Anagha was hospitalized due to her ailment and therefore, she could not take immediate steps and thereafter she herself hospitalised since April 2010. Then it is further stated that from 01.09.2010 she was not keeping well again. It is contended that on 30th August 2010 she obtained the certified copy and then made this application. Though it is not expected to go too technically to scan reasons given to explain the delay on day-to-day but it is reasonably expected that the delay should be properly explained. The delay is tried to be explained making statement that the applicant/appellant ''s mother was ill and hospitalized. The statement is vague and does not show that the applicant was so circumtised that it was not possible for her to attend her routine life or there exists circumstances (no statement including such circumstances is made) from which it could be reasonably inferred that it was really not possible for her to take steps to file the application in time. Considering the totality of the circumstances, we find that this enormous delay is not at all satisfactorily explained. Reasons mentioned for so called delay are not at all convincing. We hold accordingly and the pass the following order: Application for condonation of delay stands dismissed. In the result Miscellaneous Application no. 539 of 2010 for restoration viz., the recalling the order dismissing the appeal in default is not maintainable ".
Hence, the present revision petition. - The main grounds for the revision petition have been that the learned Court ought to have adopted a common procedure as is being adopted by the State Commission, Maharashtra, Mumbai when the matter is admitted and kept sine-die. The State Commission, Maharashtra, Mumbai ought to have issued a notice to the respective parties of the final hearing there is a delay in the present appeal this exercise has not been done by the State Commission. This shows that the State Commission has not exercised the jurisdiction vested under the law. Hence, the impugned judgment and order may be quashed and set aside. - Learned Court has not at all considered the fact that the mother of the applicant, who is aged and was having heart problem at the relevant time and when the applicant no. 1 produced medical certificate to that effect this aspect was not at all considered in the prospective sense. Hence, interference of this Court is necessary. - Learned Court ought to have considered that the applicant no. 1 herself was not well as she herself was having fever and severe malaria and she was taking medical treatment from his doctor in addition to this the applicant has produced the medical certificate, documents of the petitioner/applicant no. 1 certifying that the petitioner/applicant no. 1 was having fever and having severe malaria. This aspect has not all considered by the State Commission in its prospective sense and came to the wrong conclusion. Hence, interference of this Hon''ble court is necessary.
ALONG with the revision petition an application for condonation of delay has also been filed. The reasons given in the application for condonation of delay of 120 days are as follows: The applicant states that the applicant is a widow and she is having two school going children and one aged mother and aged father. The applicant states that the applicant i.e., widow is the only person in her family to look after the entire family and the entire family is dependent upon the applicant herein. The applicant states that after getting the impugned judgment and order dated 16.11.2011 in the month of December 2011, the applicant approached the trial court Advocate for taking advice to take appropriate steps in respect of the said impugned judgment. The applicant states that the trial court advocate assured that he will give and suggest the name and refer the matter to appropriate Advocate who will file appropriate proceedings before this Hon ''ble National Commission. The applicant states that the applicant being a widow and does not have any contacts with the Advocate practicing this Hon ''ble Commission, therefore, the applicant solely relied and depended upon the trial court Advocate. Therefore, the applicant states that the aforesaid reasons were beyond the control of the present applicant, therefore, delay may be condoned. Applicant states that the applicant kept following up with the said Advocate from time to time. Applicant states that some time he responded that he is in contact with the Advocate at Delhi, sometime had said that he could not get the time to contact the Delhi Advocate. Applicant states that in the month of April 2012, the said Advocate raised his hand and informed the applicant that he is unable to refer my matter. It was shocking and surprising for me. The applicant states that due to the aforesaid reasons the applicant could not approach this Hon ''ble Court as the reasons beyond the control of the present applicant.
THE applicant states that she is a widow and she is the only member who is required to run everywhere. The applicant states that the applicant ''s mother is 62 years of old age and she is a heart patient with Pulmonary, Hyper Tension with Deefvein, thrombin, Dee cellulites. The applicant states that on 15.02.2012 the applicant ''s mother was complained pain in her chest, she was admitted at Sparsh Clinic on 15.02.2012 to 23.02.2012. The applicant states that the mother of the applicant after discharge advised regular treatment and periodic follow-up therefore, the applicant is required to be with her mother. The applicant states that about 2 months the applicant was required to be with her aged mother as there is no male member in her family who will look after and assist her. The applicant states that Dilip Kulkarni the Doctor who has given regular and periodical treatment for congenital heart disease - Esinmeger Syndrome. The said Dr Kulkarni is still giving periodical treatment of the mother of the applicant herein. The applicant states that the father of the applicant is also aged and he is not able to assist the present applicant as his both knees are not supporting him. The applicant states that the father of the applicant ''s knee is not supporting to stand own foots as both the knees are getting paid and therefore, he is not in a position to stand. The applicant states that father of the applicant is also aged and he is also required regular treatment on his both the knees. The applicant states that due to the aforesaid reasons the applicant could not approach this Hon ''ble Court within time. The applicant craves leave to refer to any rely upon the medical certificate at the time of oral hearing of this application.
THE applicant states that the applicant is having two school going children. The applicant states that the applicant is required to take care of the patient i.e., aged mother as well as her father and also required to take her school going children and their examination, school etc. The applicant states that the children ''s examination was held in the month of April/ May 2012 and therefore due to the examination of the children the applicant could not get time to approach this Hon ''ble Court challenging and filing the present revision petition. The applicant states that due to the aforesaid reasons the applicant could not approach this Hon ''ble Court as the reasons beyond the control of the present applicant. Hence, the delay may be condoned on the aforesaid ground.
THE applicant states that in the mid may vacation of 2012 one of her friends gave the contact number of the present advocate. Thereafter, she forwarded may papers to him. The applicant states that as it is bulky proceedings and being only lady and widowed women she could not attend his office at Delhi. Therefore, sometime has been lapsed for giving instruction and preparation of the present proceedings. The applicant states that due to the aforesaid reasons the applicant could not approach this Hon ''ble Court as the reasons beyond the control of the present applicant. No prejudice, would be caused to the respondent if this application is allowed, whereas if this application is not allowed, grave and irreparable loss will be caused to the applicant which cannot be compensated in terms of money. Even otherwise, for meeting ends of justice, the applicant submits that the application be allowed. It is seen that the petitioner has taken almost the same plea in the application for condonation of delay that she had taken before the State Commission. She has appended some medical certificates. The first being regarding herself where she has stated that she has been suffering from viral fever with severe myalgia from 01.09.2010 to 05.09.2010 and rest for her mother who appears to be suffering from Chronic heart disease. The impugned order was dated 16th November 2011 and was received by the petitioner on 17th November 2011. She filed the petition on 14th June 2012. We have heard the learned counsel for the petitioner and have gone through the records. We agree with the State Commission that the reasons given are vague and do not show that the petitioner was so circumcised that it was not possible for her to attend her routine life or there exists circumstances from which it could be reasonably inferred that it was really not possible for her to take steps to file the application in time. It is also not been satisfactorily explained that the petitioner could not suitably pursue her cause. The petitioner has failed to give sufficient cause for condonation of delay of 120 days. It is well settled that ''sufficient cause '' for condoning the delay in each case is a question of fact.
THE Apex court in the case of "Anshul Aggarwal v. New Okhla Industrial Development Authority, IV (2011) CPJ 63 (SC), it has been held 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 ". Accordingly, the present revision petition being time barred by limitation and is dismissed with cost of Rs.10,000/- (Rupees ten thousand only).
PETITIONER is 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 the petitioner fails to deposit the said cost within the prescribed period, then it shall be liable to pay interest @ 9% per annum till realisation. List on 2nd August 2013 for compliance.