Gruhlaxmi Constructions And Land Developers vs Suresh Kailash Gupta

COUNSEL for the petitioner present. Arguments heard. Costs deposited. The complainant Dr. Sona Kailash Gupta and Gruhlaxmi Constructions, the OP, entered into an agreement dated 18.10.2006. The OP/petitioner agreed to sell plots of land bearing Nos. 46 and 47 and received a total consideration in the sum of Rs.2,01,000/ -. He was yet to pay Rs.92,300/ - . The complainant requested the OP to execute the sale deed. The OP did not execute the sale deed. Consequently, the complainant filed a complaint before the District Forum. The District Forum partly allowed the complaint and ordered: - "1) The complaint of the complainant is partly allowed.

2) The opposite party is directed to execute the sale deed of the plots in favour of the complainant by receiving the balance amount under the Agreement and the amount of development charges as per letters (dated 25/02/12) (Letters Exhibit -7,8), upto 30th June, 2013 from the date of passing of the order.

3) The opposite party is directed to give receipt of payment of development charges to the complainant.

4) In the alternative, if it is not possible to execute the sale deed of the said plots till 30/06/2013, then pay her the total amount of Rs.9,00,000/ - as cost of the said plots at the rate of Rs.300/ - Per Square Feet for the said plots admeasuring 3000 Square Feet, within 30 days after 01/07/2013.

5) If the aforesaid amount is not paid within 30 days, then interest @12% per annum shall be charged on the said total amount.

6) The complainant be paid Rs.10,000/ - towards the mental and physical harassment and Rs.1,000/ - towards the costs of litigation.

7) The opposite party is directed to comply this order within 60 days from the receipt of copy of the order, otherwise the complainant shall be entitled to initiate proceeding under Section 27 of the Consumer Protection Act, 1986.

8) Copies of this order be sent to the parties".

THE OP preferred an appeal before the State Commission, which was dismissed mainly on the ground, it being filed beyond the period of time. There was delay of 9 months and 25 days.

ACCORDING to the petitioner/OP he had engaged the Advocate Mr. Vipin Kulkarni in original complaint before the District Forum. However, Advocate Mr. Vipin Kulkarni after filing the reply to the said complaint did not appear before the said Forum. He also did not inform the petitioner/OP about the progress made in that complainant. Consequently, the OP was proceeded against ex -parte. It is strange that the petitioner does not know as on which date, it was proceeded against ex -parte. The record to that respect did not see the light of the day. The counsel for the petitioner could not throw light on that point. The date of limitation will start from the day it was proceeded against ex -parte. However, the clear picture does not begin to jell. The other allegation of the OP is that the District Forum did not communicate copy of the impugned order of its decision dated 02.05.2013. Advocate Mr. Vipin Kulkarni was also not supplied the copy of the order. The OP came to know when the arrest warrant was issued against it in the 2nd week of March. The applicant obtained the copy on 25.03.2014. He contended that the delay of 9 months and 25 days was not deliberate. The counsel for the petitioner has tried to put up a new defense in support of his case. He submits that the petitioner was suffering from Angina pain. No medical certificate, for the period in dispute, was produced either before the State Commission or before this Commission. Medical certificate dated 21.03.2014 was however, produced which does not explain the delay in question.

IT was also submitted that the rate of Per Sq. Ft. is Rs.32/ - only but the District Forum has awarded the compensation at the rate of Rs.300/ - per sq.ft. It is contended that the District Forum has taken a higher view in this respect.

ALL these arguments have left no impression upon me. There is no evidence on the record that any action was taken against Mr. Vipin Kulkarni, Advocate. No complaint with the Bar Council of India was filed against him. Day to day delay has not been explained to the satisfaction of this Commission. This has become a fashion to blame the Advocate for negligence, inaction and passivity on his part.

IN Banshi Vs. Lakshmi Narain, 1993 1 RLR 68, it was held that reason for delay was sought to be explained on the ground that the counsel did not inform the appellant in time, was not accepted since it was primarily the duty of the party himself to have gone to lawyer''s office and enquired about the case.

IN Jaswant Singh Vs. Assistant Registrar, Co -operative Societies, 2000 126 PunLR 83, it was observed that cause of delay was that the counsel of the appellant in the lower Court had told them that there was no need of their coming to Court and they would be informed of the result, as and when the decision comes, was held to be a story which cannot be believed.

IN Bhandari Dass Vs. Sushila, 1997 2 RajLW 845, it was held that accusing the lawyer that he did not inform the client about the progress of the case nor had he sent any letter, was disbelieved while rejecting an application to condone delay.

THIS is an alleged fault of the advocate and is nothing but a ruse to make sure that the application would be accepted under all the circumstances.

FURTHERMORE copy of the impugned order was sent by Registered AD to the respondent on 16.05.2013 alongwith her letter informing the applicant that she is willing to pay the remaining amount as per agreement and to get registered the sale deed of the plot. The said letter alongwith copy of the impugned order was received by the petitioner on 18.05.2013 as is apparent from the track report obtained by the complainant from internet. The complainant also sent a letter to the OP by registered A.D. post, dated 25.07.2013 which was received by the OP on 27.07.2013 and as per the track report the OP received the same. The notice for Execution Petition was also sent which was received by the wife of the OP. However, when the non -bailable warrants were issued, he preferred to appear before the Executing Court. Evidence also reveals that the OP had tried to ditch the other allottees as well as is apparent from the Hitavada Newspaper. This clearly goes to show that the OP was sufficiently served. He was aware of the service. The case is hopelessly barred by time and following authorities neatly dovetail with this view.

IN Anshul Aggarwal v. New Okhla Industrial Development Authority, 2011 4 CPJ 63 , 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".

SIMILAR view was taken in R.B. Ramlingam v. R.B. Bhavaneshwari, 2009 1 CutLT 188), Ram Lal and Others v. Rewa Coalfields Ltd., 1962 AIR(SC) 361, Office of the Chief Post Master General and Ors. Vs. Living Media India Ltd. and Anr., 2012 1 SCR 1045 and Bikram Dass Vs. Financial Commissioner and others, 1977 AIR(SC) 2221.

THE latest view was taken by the Apex Court in the case "Sanjay Sidgonda Patl Vs. National Insurance Co. Ltd. and Ors.", decided by the Apex Court while dismissing the Special Leave to Appeal (Civil) No. 37183 of 2013, decided on 17.12.2013, upholding the order of this Commission wherein delay of 13 days was not condoned.

SIMILAR view was taken by the Apex Court while dismissing the Special Leave to Appeal (Civil) No. 33792 of 2013 in Chief Officer, Nagpur Housing and Area Development Board and Anr. V. Gopinath Kawadu Bhagat, decided on 19.11.2013, upholding the order of this Commission where 77 days delay was not condoned and again delay of 78 days was not condoned in the case reported in M/s Ambadi Enterprises Ltd. Vs. Smt. Rajalakshmi Subramanian, in Special Leave to Appeal (Civil) No. 19896 of 2013 decided on 12.07.2013.

THE orders passed by the Fora below, who have given the concurrent findings, cannot be faulted. The price of land has increased by leaps and bounds. Delay on the part of the petitioner tantamounts to harassment, mental agony etc. There is no evidence which may go to show that the complainant is a defaulter. Although, the petitioner has contended that he had sent the notices for demand through UPC but UPC record did not see the light of the day. This does not stand established that the complainant is a defaulter. No argument was raised in this context as well. Round about one decade has elapsed but the sale deeds are yet to be executed. The petitioner has got the option either to execute the sale deeds or to pay the compensation already stated above.

NOW -a -days, people have no fear of Law, perhaps, they are advised to wait till the warrant of attachment or imprisonment is issued against them. Justice delayed is not only justice denied -it is also justice circumvented - Justice mocked and the system of justice undermined. However, the Law is back -bone which keeps the man erect. It is apparent that the petitioner adopted the Fabian policy to feather its own nest i.e. to make profits for himself/itself often at the expenses of others.

THE Revision Petition is, therefore, dismissed with costs of Rs.50,000/ -. The complainant has already paid the amount in question, if she has not complied with the order of the District Forum/State Commission, she is directed to comply with the same, within 30 days from the date of receipt of this order and the OP to execute the sale deed within 60 days from the receipt of this order, otherwise the petitioner will have to pay extra penalty of Rs.10,000/ - per month till the sale deeds are executed or in the alternative, the amount specified by the District Forum be paid within a period of 30 days from the date of receipt of this order. The compensation in the sum of Rs.50,000/ - be also paid to the complainant, within a period of 30 days from the receipt of this order otherwise, it will carry interest @ 9% p.a. till its realization.