Anant Shankar Jadhav vs Bhaskar Gajanan Kadne

THIS order shall dispose of application dated 29.5.2010 filed on behalf of petitioner for condonation of delay.

BEFORE dealing with this application, it will be fruitful to narrate brief facts of the case. An agreement for sale of flat in question was executed between petitioner and respondent. Respondent, who is a purchaser has paid partial consideration of Rs.2,10,000/- to the petitioner out of total consideration of Rs.2,30,000/- Since, respondent did not get the possession of the flat, therefore, he filed a complaint before District Consumer Disputes Redressal Forum, Mumbai Suburban Dist., (for short District Forum). District Forum vide order dated 4.4.2008, allowed the complaint. The operative portion of the order read as under : 1. Opponent shall pay Rs.2,10,000/- with 18% p.a. interest to the complainant from the date of payment, till realization. 2. Opponent shall pay Rs.5,640/- the amount paid by the complainant towards stamp duty, with 18% p.a. interest to the complainant from the date of payment, till realization. 3. Opponent shall pay Rs.3,008/- the amount paid by the complainant towards registration charges, with 18% p.a. interest to the complainant from the date of payment, till realization. 4.Opponent shall pay Rs.1,000/- towards cost of the proceeding to the complainant. 5. Opponent shall comply all the above orders within two months from the date of this order failing which he is liable to pay 10% interest on above amounts.

Aggrieved with the decision of District Forum, petitioner filed appeal before Maharashtra State Consumer Disputes Redressal Commission, Mumbai (for short State Commission). State Commission vide impugned order dated 6.3.2009, dismissed the appeal of petitioner, since there was delay of ten months in filing of the appeal. The operative portion of impugned order read as under : There is delay of ten months in filing the appeal. Therefore, appellant filed an application for condonation of delay. It is stated in the application for condonation of delay that the appellant was held up at Ratnagiri to look construction work and therefore, he could not file appeal in time. Inordinate delay of ten months is not at all satisfactorily explained. We are not inclined to condone the delay. Prayer for condonation of delay stands rejected.

THIS is how the present revision is before us. Along with it, the petitioner has filed an application for condonation of delay. It is contended by learned counsel for the petitioner that petitioner has got a good case on merit especially in view of the fact that if the project is delayed due to force majeure conditions then petitioner is not liable to pay interest as per clause 7 of the Agreement. State Commission, without going into merits of the case has dismissed the appeal on the ground of limitation.

OTHER contention is that petitioner has already paid the principal amount from time to time before District Forum in the Execution proceedings. Since, discussions were going on between the parties on the rate of interest and in the hope of settlement, petitioner did not file the revision petition and thus, there was delay of about 6 months in filing of the present revision petition. Hence, delay in filing of revision petition may be condoned, otherwise, petitioner will be put to grave hardship, which cannot be compensated in terms of money. Learned counsel for petitioner has relied upon a decision of Honble Supreme Court in the matter of Collector Land Acquisition Anantnag & Anr. Vs. Mst. Katiji & Ors. (1987 CLR.97 SC) in which the Court observed ; Ordinarily a litigant does not stand to benefit by lodging an appeal late. Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this, when delay is condoned the highest that can happen is that a cause would be decided on merits after hearing the parties. Petitioner, in entire application for condonation of delay has nowhere stated as to how much delay is there in filing of this revision petition. It is simply prayed that delay of about six months in filing of revision petition may be condoned.

THE impugned order was passed on 6.3.2009, whereas, this revision petition has been filed on 2.6.2010.

PETITIONER, has nowhere stated as to when he received the copy of order and on which date he applied for certified copy of the same. Assuming that, there was delay of six months in filing of this petition, the question which arise for consideration is as to whether this delay of six months has been sufficiently explained by the petitioner or not and whether, there are sufficient grounds for condonation of delay or not.

The only reason mentioned seeking condonation of delay in the application is that ; The petitioner submits that he has already paid the principal amount from time to time before the District Forum in the Execution Application No.144/2008 and discussions were going on between the parties on the rate of interest and in the hope of settlement the petitioner did not file the Revision petition and hence there was delay of about 6 months in filing of the present Revision petition.

IN entire application, it is nowhere stated as to on which date the negotiations started and with whom petitioner was having negotiations and where the negotiations took place. It is well settled law that each delay has to be explained. It is not that the Court, in a mechanical manner will allow the application for condonation of delay.

IT is also 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. In Ram Lal and Ors. Vs. Rewa Coalfields Ltd., AIR 1962 Supreme Court 361, it has been observed; It is, however, necessary to emphasise 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. 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.

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.

IN entire application, no cogent and sufficient ground has been mentioned seeking condonation of delay, except for bald assertion that discussions were going on between the parties on the rate of interest and in the hope of settlement, petitioner did not file the revision petition. No details of such discussions have been mentioned in the application for condonation of delay. Even otherwise, it is apparent from the record that the petitioner is very careless and gross negligent in pursuing this litigation since earlier also there was delay of ten months in filing of the appeal before the State Commission where petitioner has challenged the order of District Forum.

Thus, it is apparently clear that no illegality, irregularity or jurisdictional error has been committed by the State Commission, which calls for interference by this Commission.

UNDER these circumstances, application for condonation of delay being not maintainable, is dismissed. Consequently, the present revision petition is not maintainable, as it is barred by limitation, and the same is hereby, dismissed. Pending application also stands dismissed. No order as to cost.