BAPPANAND NARSHIMMAN ANNU vs HIRMANIDEVI G.S. GUPTA & ORS.

These three Revision Petitions, under Section 21(b) of the Consumer Protection Act, 1986 (for short "the Act"), have been filed by a real Estate Developer, Opposite Party No.2 in the Complaint, against a common order dated 13.07.2016, passed by the Maharashtra State Consumer Disputes Redressal Commission at Mumbai (for short "the State Commission") in Misc. Applications No. MA/16/44, MA/16/45 and MA/16/46 in/and First Appeals No. A/16/86, A/16/88 and A/16/90 respectively. By the impugned order, the State Commission has declined to condone the delay of 121 days caused in filing of the Appeals and has consequently dismissed the Appeals as not entertainable for hearing.

The Appeals, together with the aforesaid Applications, seeking condonation of delay, had been preferred by the Petitioner, questioning the correctness and legality of the order dated 21.05.2015, passed by the Mumbai Suburban District Consumer Disputes Redressal Forum at Bandra, Mumbai (for short "the District Forum") in Complaint Cases No. CC/12/120, CC/12/119 and CC/12/118, preferred by the Complainants. By the said order, the District Forum, while holding that the Complainants were "consumers" under the Act and there was deficiency in service on the part of the Opposite Parties, including the Petitioner, in not delivering the possession of the flats purchased by them, had partly allowed the Complaints, inter alia, directing that Opposite Parties No. 1 and 2, i.e. M/s Annappi Construction Company and the Petitioner herein respectively, shall jointly or severally hand over the possession of the flats to the Complainants after accepting the balance consideration amount, within four months from the date of the said order. The District Forum had also directed the Opposite Parties to pay a sum of 50,000/- as compensation towards the mental pain and a further sum of 10,000/- as litigation costs to each of the Complainants.

The occasion to file the Complaints arose under the following circumstances: In the year 2001/2002, the Complainants, who are related with each other, had entered into agreements with the Opposite Parties for purchase of three flats, admeasuring 225 sq. ft. each and had also parted with the sale consideration of 12,00,000/- in respect of each of the flats. As agreed by the Opposite Parties, the possession of the flats was to be delivered to the Complainants by 20.12.2002. However, even till the date of filing of the Complaints, the possession was not delivered to the Complainants. In this background, alleging deficiency in service on the part of the Opposite Parties in not delivering the possession of the flats, the afore-noted Complaints, praying for compensation for the delay caused in handing over the flats as well as for mental torture etc., came to be filed before the District Forum.

As noted above, the District Forum partly allowed the Complaint and issued the afore-noted directions to the Opposite Parties, including the Petitioner.

Aggrieved, the Petitioner carried the matter in further Appeals to the State Commission, with a delay of 121 days. The Petitioner had also filed Applications, seeking condonation of the said delay in filing the Appeals. For the sake of convenience, we shall refer to the explanation furnished in First Appeal No. 120 of 2012 (page 78 - 85 of the paper-book). Similar explanation furnished in the other two cases. In paragraphs 5 to 8 of the said Application, the Petitioner has furnished the following explanation:

"5. The Applicant further states that Order received on dated 17 th July, 2015. After receiving the said order copy Applicant has decided to prefer an Appeal before the Hon''ble Commission. Therefore on 14 August, 2015 Appellant instructed to the advocate to prefer an appeal before the Hon''ble State Commission on 17 th august, 2015. This advocate did not all study the papers and did not draft or did the adv file the appeal. Thereafter appellant then decided to change the advocate and the present adv come on record and after collecting all necessary papers have now filed the appeal after a delay of 121 days.

Thereafter the Appellant instructed to the advocate S.P. Associates to prefer an appeal before the Hon''ble Commission on 15 September, 2015. This appearing advocate studied all papers. Thereafter filed for certified copy application before Hon''ble Forum, thereafter received certified copy dated 14 th October, 2015.

Thereafter the Appellant instructed the advocate to prepare the appeal and there were documents, notification, orders of the SRA which were to be collected to prove that the entire transaction challenged is null and void and hence the delay in filing of the appeal.

On 2 nd December, 2015 Appeal memo sent for checking to the appellant. On 10 th December, 2015 appellants Manager has checked and requested appearing advocate that file an Appeal. On 11 th December, 2015 Appeal memo with Delay Condonation application given for Xeroxing. Lately appeal filed on 14 th December, 2015."

As noted above, by the impugned order the State Commission has held that the Petitioner has failed to make out a sufficient cause for the said inordinate delay and has accordingly dismissed the Applications for condonation of delay and resultantly the Appeals as well. Hence, the present Revision Petitions.

Since the Appeals have been dismissed by the State Commission on the ground of limitation, we are required to consider the question whether or not the State Commission has committed any jurisdictional error in not exercising the jurisdiction vested in it under Proviso to Section 15 of the Act and in not condoning the said delay in filing the Appeals. Accordingly, we have heard learned Counsel for the Petitioner on the said question.

Tested on the touchstone of the broad principles laid down in a catena of decisions of the Hon''ble Supreme Court, viz., ''sufficient cause'' cannot be construed liberally if negligence, inaction or lack of bonafides are attributable to the party, praying for exercise of such discretion in its favour, and that when a statute provides for a particular period of limitation, it has to be applied with all its rigors, as an unlimited limitation leads to a sense of uncertainty, we are of the view that the State Commission has not committed any jurisdictional error in coming to the conclusion that a case for condonation of the said delay was not made out.

It is manifest from the material on record that the Petitioner was duly represented by his Counsel before the District Forum. On 21.05.2015, when the District Forum had disposed of the Complaints, issuing certain directions to the Opposite Parties, including the Petitioner, the said Counsel was present before the District Forum. Since the said directions were to be complied with by the Opposite Parties within the specified time, the Petitioner''s Counsel must have communicated the same to him. Even after the statutory period of 30 days, provided for filing the Appeals, under Section 15 of the Act was already over, the Petitioner took 55 days in obtaining/receiving a copy of the impugned order. If the same was not received by the Petitioner within a reasonable period, he could have approached the District Forum or his Counsel to apply for the same, without waiting for the said period. Admittedly, on 17.07.2015 the Petitioner received the copy of the order passed by the District Forum. Yet, he took almost one month in instructing his Counsel to do the needful in the matter. It is alleged that the said Counsel did not take any action in the matter, necessitating the Petitioner to engage another Counsel. Since the Appeals were already barred by limitation and if the Petitioner was actually serious about pursuing the Appeals, he would have been on his toes and ought to have taken adequate steps to ensure that the Appeals were got prepared and filed within the shortest possible time. However, it was only on 15.09.2015, i.e. after one month, that the Petitioner instructed another Counsel to file the Appeals. While there was no whisper in the Application if any explanation was sought from the earlier Counsel for not filing the Appeals, the second Counsel also took three months in ultimately filing the Appeals before the State Commission, on 14.12.2015, i.e. with an inordinate delay of 121 days. It seems that the intention of the Petitioner was to somehow protract the matter on one pretext or the other, depriving the Complainants from enjoying the fruits of their success, despite having orders in their favour by the District Forum. In that view of the matter, we are equally not convinced with the explanation furnished by the Petitioner for the delay in filing the Appeals and, thus, no fault can be found with the impugned decision.

Accordingly, we are of the view that the State Commission, for the reasons stated in the impugned order, was fully justified in declining to condone the inordinate delay of 121 days in filing the Appeals and in dismissing the same on the ground of limitation. We do not read any material irregularity or illegality in the impugned order, requiring our interference in revisional jurisdiction.

Consequently, the Revision Petitions are dismissed in limine .