Avdhut Construction Builders And Developers vs Joy Chacko Konnukudi

IN this revision petition there is challenge to order dated 30.6.2010, passed by State Consumer Disputes Redressal Commission, Mumbai (for short as ''State Commission '') vide which appeal of the petitioners was dismissed for non-prosecution.

BRIEF facts of this case are that, respondent/complainant booked a residential flat admeasuring 399 sq. ft. in Shreedevi Complex a building developed by the Petitioners/opposite parties for the consideration of Rs.5,00,000/- in the month of December, 2006. A receipt of the same was issued by the petitioner. It is further stated that respondent also paid an amount of Rs.20,000/- in cash though there is no receipt of the same but petitioners have admitted the same in letter dated 10.3.2008. It is further stated by respondent that he has also paid some amount to the brokers by name Mr. Khan, Mr. Suresh, Mr. Irfan Sayed as well as Mr. Kulkarni Rs.1,500/-, Rs.20,000/-, Rs.4,000/- and Rs.4,800/- respectively for completion of the transaction. At the time of completion of the agreement, petitioners demanded an amount of Rs.1,00,000/- in addition to agreed amount. So, petitioners did not execute the Sale Deed. Respondent also came to know that petitioners have obtained loan on the said flat, in the name of another person. Therefore, respondent filed a consumer complaint against petitioners for possession of the said flat on payment of balance amount of Rs.3,30,000/- by the respondent.

NOTICE of the complaint filed before the District Forum was issued to the petitioners. Petitioners appeared before the District Forum on

6.2008. THEY were supplied with the set of documents. Shri Pratap Singh, Advocate appeared on their behalf and also filed his vakalatnama. However, thereafter, none appeared on behalf of the petitioners on 27.6.2008, 18.7.2008 and 6.8.2008 before the District Forum. Accordingly, petitioners were proceeded ex parte. 5. District Forum, vide its order dated 8.8.2008, partly allowed the complaint and passed the following directions; "a) As provided in Explanation of Issue No.1, Agreement of the disputed premises be registered in favour of the complainant and the complainant should deposit the remaiing consideration amount of Rs.4,30,000/- (Rupees four lakh and thirty thousand only) with the opposite parties within two months from the Registration of the Agreement. b) The interest at the rate of 12% per annum on Rs.1,70,000/- (Rupees one lakh and seventy thousand only) should be paid to the complainant from the period of 25th June, 2007 till the date on which the order has been passed. c) The complainant should be paid Rs.20,000/- (Rupees twenty thousand only) by way of compensation for mental harassment. d) Rs.3,000/- (Rupees three thousand only) be provided to the complainant by way of legal expenses. If the opposite parties no.1 and 2 will not abide with the above order within the prescribed period, the complainant will be entitled to get above entire amount from the opposite parties no.1 and 2 jointly and severally along with the interest at the rate of 12% per annum from the date on which the order has been passed till the amount has been actually received. "

Aggrieved by the order of District Forum, petitioners filed an appeal before the State Commission. Vide impugned order appeal of the petitioners was dismissed for non-prosecution for the following reasons; "Mr.Ramesh Shinde-Advocate for the appellant is absent. Direction given on 27/4/2010 for production of certain documents are not produced before the State Commission. Appellant is a builder. He is also not present. Therefore appeal is dismissed for non prosecution. It is clarified that the stay order which was granted on 20/1/2009 was only upto the returnable date and the returnable date was 23/4/2009. Thereafter, said stay order was not extended by the State Commission. It was also not confirmed within 45 days. Therefore, stay was not in force and since the matter is dismissed it is not in force. Respondent/original complainant is at liberty to execute the order passed by the District Consumer Forum. "

ALONGWITH present revision petition, an application for seeking condonation of delay of 472 day has also been filed on behalf of the petitioners.

WE have heard the learned counsel for the petitioners and have gone through the records. Taking up application for condonation of delay first, it has been admitted by the petitioners themselves that they had received notice from the District Forum and on 5.6.2008 their Advocate filed his vakalatnama and has assured them that he will do the needful and conduct the matter on behalf of the petitioners. However, thereafter, petitioner no.2 fell ill and was admitted in a Nursing Home and was advised bed rest for a period of two months, so he did not appear before the District Forum and accordingly the complaint was decided ex parte.

IT is further stated that when matter was lastly fixed before the State Commission on 30.6.2010, on that date there was marriage ceremony of real brother of the Advocate for the petitioners and as such he could not attend the proceeding. The Advocate for petitioners had informed them to attend the matter. Since, petitioner no.2 is a senior citizen and was suffering from various ailments, as such he could not appear on 30.6.2010 and appeal was dismissed for non-prosecution. Immediately thereafter, petitioners filed an application for restoration but in view of the judgement of Hon ''ble Supreme Court in "Rajeev Hitender Pathak and others ", since application for restoration is not maintainable, petitioners withdrew the same and had filed this revision petition.

THUS , there has been some delay in filing of this revision petition. However, the same was not deliberate nor intentional but is has been caused due to the reasons stated above. Petitioners have a good case on merit and as such delay be condoned. It is well settled that "sufficient cause for non-appearance in each case is a question of fact ".

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. "

IN "R.B. Ramlingam Vs. R.B. Bhavaneshwari, 2009 (2) Scale 108 ", Supreme Court 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. "

Recently, Supreme Court in "Anshul Aggarwal vs. New Okhla Industrial Development Authority, IV (2011) CPJ 63 (SC) " has 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. "

AS apparent from the record, conduct of petitioners show that they have taken the present litigation in a very casual manner. Firstly, their counsel had appeared before the District Forum after due service and filed his vakalatnama but later on petitioners absented consecutively for three dates of hearing and as such were proceeded ex parte.

THEREAFTER , appeal filed by the petitioners before the State Commission was also pursued in a very casual and leisure manner. Before the State Commission, neither petitioners nor their counsel appeared and accordingly State Commission, dismissed their appeal for non-prosecution. Even thereafter, petitioners did not learn any lesson and have filed this revision petition much beyond the period of limitation. As per application for condonation of delay, petitioners have put entire blame on their counsel and have also stated that due to old age and ailment, petitioner no.2 could not appear. There is no medical evidence on record with regard to the ailments of petitioner no.2 nor there is any evidence to show that petitioner no.2 remained confined to bed for 472 days and was not doing any work at all during the period.

THUS , petitioners who have been pursuing this litigation in a very casual and careless manner and knowingly they have chosen not to appear before the fora below and as such they should suffer the consequences of their non-appearance.

MOREOVER , petitioners have been pursuing wrong remedy before the fora below despite their being no provision of restoration or for review of any order passed by the fora below, thus under these circumstances, petitioners should suffer the natural consequences. In this context, it would be pertinent to refer to a decision of Hon ''ble Supreme Court in M/s. Advance Scientific Equipment Ltd. & Anr. Vs. West Bengal Pharma & Photochemical Development Corporation Ltd. (Appeal (Civil) Nos.17068 - 17069/2010, decided on 9 July 2010) wherein it observed inter alia, as under:- " .....We are further of the view that the petitioners'' venture of filing petition under Article 227 of the Constitution was clearly an abuse of the process of the Court and the High Court ought not to have entertained the petition even for a single day because an effective alternative remedy was available to the petitioner under Section 23 of the Act and the orders passed by the State Commission did not suffer from lack of jurisdiction".

SINCE , petitioners had no defence before the District Forum, averments made by respondent goes unrubutted and a valuable right has accrued to the respondent. Petitioners are having the possession of the flat as well the entire consideration amount deposited by the respondent, with them. Thus, petitioners wants to have the cake and eat it too. Whereas respondent after having paid the entire consideration amount of the flat is still without any roof. Under these circumstances, it is manifestly clear that only intention of the petitioners is to grab the hard earned money of the respondent and not to give him the flat in question.

IN Ravinder Kaur Vs. Ashok Kumar, AIR 2004 SC 904, Apex Court observed; "Courts of law should be careful enough to see through such diabolical plans of the judgment debtor to deny the decree holders the fruits of the decree obtained by them. These type of errors on the part of the judicial forum only encourage frivolous and cantankerous litigations causing law ''s delay and bringing bad name to the judicial system.

We do not find any infirmity or ambiguity in the impugned order passed by the State Commission when petitioners themselves are careless and negligent in pursuing their litigation before the fora below.

IN our opinion, present revision petition is nothing but a gross abuse of the process of law. The present revision petition is totally frivolous and bogus one and has been filed just to deprive the respondent, the fruits of decree. As such, the same is liable to be dismissed with punitive costs.

ACCORDINGLY , we dismiss the present revision petition with punitive costs of Rs.30,000/- (Rupees thirty thousand only). Petitioners are accordingly directed to deposit the costs by way of cross cheque for the sum of Rs.30,000/- (Rupees thirty thousand only) in the name of "Consumer Legal Aid Account " within four weeks from today.

IN case, costs are not deposited within the prescribed period, then petitioners shall be liable to pay interest @ 9% p.a., till realization.

PENDING applications, if any, stand dismissed. List on 31.8.2012 for compliance.