Kadam Brothers And Developers vs Unmesh Ganpatrao Sathe

THESE Revision Petitions under Section 21(b) of the Consumer Protection Act, 1986 (for short the "Act") are directed against the order of the Maharashtra State Consumer Disputes Redressal Commission, Mumbai (for short "State Commission") in M.A. Nos. 220 and 221 of 2014 in a/w First Appeals Nos. A/14/561 and A/14/562 respectively. By the impugned order, the State Commission dismissed the Appeals on grounds of limitation holding that the reasons cited by the Appellants are not sufficient to condone the delay and confirmed the order of the District Consumer Disputes Redressal Forum, Kolhapur (for short "District Forum") in Complaints No. CC/12/99 and CC/12/98 respectively. By its order, the District Forum partly allowed the Complaints directing the firm to execute the sale deeds of the subject Flats in Ram Vilas Apartment; to provide parking place as per the Agreement; to pay ?9,000/ - towards compensation and ?3,000/ - towards costs.

AS a common issue is involved in both the Revision Petitions and even the background facts are identical, both these Petitions are being disposed of by this common order. However, in order to appreciate the subject matter of the case involved, we shall briefly refer to the facts of Appeal No. 563 of 2015.

BRIEFLY put, the material facts in the case are that the Respondent, Unmesh Ganpatrao Sathe, who is the original Complainant before the District Forum, paid an amount of ?2,85,000/ - and entered into an agreement of sale with the Builder on 22.3.1995 for purchase of Flat No. 106 admeasuring 818 sq. ft. in Ram Vilas Apartment. The Complainant pleaded that inspite of repeated requests to issue the completion certificate and execute the sale deed, there was no response from the Builder. The Petitioner/Opposite Party pleaded in their reply before the District Forum that Kadam Brothers is a partnership firm and in the Partnership Deed there is a clause that if any dispute arises, it should be solved as per the provisions of Indian Arbitration Act, 1950. Hence, the present complaint is not maintainable before the Consumer Forum. It is also pleaded that a Regular Civil Suit No. 1885/2012 has been filed on 5.5.2012 to declare the subject agreement as null and void and notices were also issued to the Complainants. The Opposite Party further pleaded that the Complainant had illegally occupied the said Flat and therefore, they had no right to demand for provision of parking place or the issuance of completion certificate. The Complainant ought to have filed a suit for specific performance in the Civil Court as the District Forum has no jurisdiction to decide the Complaint.

THE District Forum observed that R.C.S. was filed on 5.5.2012, which is subsequent to 12.4.2012, the date on which the Complaint was filed. The Forum also held that the Civil Judge did not pass any order stating that the agreement of sale is null and void. The Forum, after careful perusal of the agreement of sale deed, dated 19.4.2001 and GPA dated 21.12.1991 and 22.3.1995 concluded that Shri Dilip Narayan Kadam, partner of Kadam Brothers and Developers has been given the power to develop the property bearing C.T.S. No. 1871 and therefore, he can execute the registered sale deed of Flat No. 106 in Ram Vilas Apartment in favour of the Complainant. The District Forum also directed the Opposite Party to provide parking place and pay compensation of ? 9,000/ - and costs of ?3,000/ -.

DIS -satisfied with the said order, the Respondent firm preferred an Appeal before the State Commission with a delay of more than 30 days.

IT was submitted by the Appellant that the consumer complaint was decided by the District Forum on 29.3.2014, free copy was issued to the Appellant on 4.4.2014 and the Appeal was filed on 3.7.2014 with a delay of more than 30 days. It was further submitted by the Appellant that there was summer vacation between 5.5.2014 to 8.6.2014 and after excluding the vacation period, delay is only of 30 days. The State Commission did not accept this reasoning and observed that even during summer vacation, the office of the State Commission remained open and there is a Holiday Incharge who looked after all urgent matters. There was nothing stopping any of the partners from filing an Appeal during the summer vacation. With respect to the medical ground taken by the Appellant, the State Commission observed that there was nothing on record to show that the partner was suffering from serious illness which prevented him from preferring an Appeal or meeting his Advocate. One certificate of Sharda Clinic was filed which showed that his daughter was treated in the hospital from 22.4.2014 till 2.5.2014. As the Appellant is one of the partners, the State Commission held that any other partner could have preferred an Appeal within limitation and that ground of daughter''s illness is not sufficient reason enough to condone the delay.

HENCE , this Revision Petition.

BRIEFLY put, on merits, admittedly an agreement of sale was executed between Unmesh Ganpatrao Sathe, the Complainant and the Petitioner firm on 22.3.1995 for purchase of Flat No. 106 admeasuring 818 sq. ft. in Ram Vilas Apartment for an amount of ?2,85,000/ -. It is the Respondent''s case that inspite of repeated requests, provision of parking place; issuance of completion certificate and execution of sale deed have not been done by the Petitioner''s firm.

THE learned counsel for the Petitioner submitted that the Petitioner is a registered partnership firm and as per the Partnership deed dated 20.10.1988, there were five partners, whose names are as follows: Shri Yeshwantrao Abajirao Kadam; Shri Shivajirao Abajirao Kadam; Shri Hanumantrao Abajirao Kadam; Shri Prataprao Narayanrao Kadam; Shri Dilip Narayanrao Kadam.

THE partners were individual owners of plot No. CS No. 1871 and mutually decided to consolidate the respective areas in their possession and form one plot and convert the said plot for the purpose of carrying out the activity of construction of multi -storied building for their residential use as well as for the sale of flats/shops and garages etc. The partners agreed and covenanted with each other and from 20.10.1988 consolidated their capital contribution to the said firm''s business of development under the name and style of ''KADAM BROTHERS''. Copy of general power of attorney executed by the partners is in favour of Dilip Narayanrao Kadam. Shri Shivajirao Abajirao Kadam died on 9.3.2002 and thereafter, two partners Shri Hanumantrao Abajirao Kadam and Shri Yeshwantrao Abajirao Kadam expired on 31.8.2006 and 13.6.2007 respectively. Currently the firm has only two partners. It is the case of the Petitioner firm that the legal heirs of the deceased partners are not giving consent for the execution of the sale deed.

IT is to be noted here that M/s. Kadam Brothers, Petitioner''s firm had filed regular Civil Suit bearing No. 1885/12 on 5.5.2012 against the present Respondent for cancellation of Agreement. The said civil suit filed through partner -Dilip Kadam was dismissed with costs by order dated 26.09.2014 by Civil Judge, Junior Division, Kolhapur. The said copy of the Judgment in civil proceedings was filed before the State Commission. The construction made by the Petitioner firm was regularised by Municipal Corporation, Kolhapur by order dated 16.12.2013 and a certificate was also issued to that effect.

A brief perusal of Paras 18 and 20 of the Partnership Deed shows that the firm intended to continue the partnership even in the event of death of any of the partners and nominated Shri Dilip Narayanrao Kadam as the Managing partner responsible for the day -to -day management and/or to conduct all the affairs of the firm. Hence, the contention of the Petitioner''s firm that they are ready and willing to execute the sale deed but the legal heirs are not consenting is unsustainable, as it is a partnership firm and all partners are jointly and severally liable and the Complainant cannot be made to suffer for any internal disputes between the partners. For all the afore -mentioned reasons, we do not see any merit in these Revision Petitions.

WITH respect to condonation of delay, it is pertinent to note that the Appellant firm had filed before the State Commission an application to condone the delay of 90 days on the following grounds: (i)The Appellant is a Partnership firm and that its partner is ignorant of the procedure of law and therefore, he could not meet his Advocate and file Appeal within the prescribed time limit.

(ii) The Appellant could not meet his Advocate due to ill health and also due to ill health of his daughter, who was admitted in the Hospital and that the Appellant''s mind was not in a proper condition to meet or take advice from his Advocate. The Appellant had submitted the report of the hospital and the medical prescriptions.

The Appeal is being filed with 90 days delay, the lower court order is dated 29.3.2014, free copy was issued on 4.4.2014, the court opened after summer vacation on 4.6.2014 and therefore, the Appeal is filed on 3.7.2014. If the delay is not condoned, the Appellant would suffer an irreparable loss.

THE first ground taken in the delay application is that the partner is ignorant of the procedures of law. We note that the partners of the Appellant firm had filed different proceedings and suits before different courts and definitely have knowledge of law and moreover ignorance of law cannot be used as an excuse.

THE next ground for condonation of delay raised by the Petitioner firm is the illness of Dilip Narayanrao Kadam and his daughter''s ill health. We observe from the record that there is no medical certificate filed with respect to the health condition of Dilip Narayanrao Kadam, but only a prescription pertaining to his daughter''s illness of Viral Hepatitis and Cholecystitis was filed. The medical record shows that the daughter was admitted in Shraddha Hospital on 22.4.2014 and discharged on 2.5.2014. We agree with the observation made by the State Commission that the Appellant is one of the partners in the Petitioner''s firm and any other partner also could have preferred an Appeal within the limitation period and therefore, the ground of illness is not a substantial reason to condone the delay.

IN Anshul Aggarwal v. New Okhla Industrial Development Authority, 2011 4 CPJ 63 The Hon''ble Apex Court held as under: "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".

It must be mentioned here that the authority in the case of Anshul Aggarwal v. New Okhla Industrial Development Authority pertains to the Consumer Protection Act.

IN R.B. Ramalingam Vs. R.B. Bhuvaneswari, 2009 2 Scale 108, the Supreme Court observed as under: - "We hold that in each and every case the Court has to examine whether delay in filing the Special 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".

THE learned counsel for the Review Petitioner submitted that the delay in filing an Appeal before the State Commission was of mere 30 days and is not an inordinate delay. We rely on the judgment of the Apex Court in Sanjay Sidgonda Patel vs. National Insurance Co. Ltd. and Ors. in SLP Civil No. 37183 of 2013, in which the Apex Court confirmed the order of this Commission and did not condone the delay of 13 days as the plea of being under medical treatment remained unsubstantiated.

IN the instant case, the Petitioner has made vague averments in his application for condonation of delay with regard to his ill health. It is a well settled proposition that if sufficient cause is not proved nothing further has to be done; the application for condonation has to be dismissed on that ground alone.

KEEPING in view the principles of law enunciated in the above judgments, it is to be seen whether sufficient cause has been shown for condonation of the delay or not. The application is absolutely vague and no cogent or sufficient cause has been shown nor any period has been mentioned as to when the Petitioner was ill and what was the period of limitation. The Petitioner did not produce the medical treatment record substantiating the partner''s ill health. Only a prescription of his daughter''s hospital admission has been filed. It would be pertinent to point out that in the State Commission Petitioner was duly represented by his counsel. Thus, it cannot be said that Petitioner was not aware of the facts. Since, no reasonable explanation has been given, we hold that no sufficient cause nor any cogent reason has been given which entitles the Petitioner to have the delay condoned.

CONDONING the delay at this stage would cause grave injustice and further harassment to the Respondent/ Complainant who cannot benefit from the order of the District Forum. To reiterate, the Complainant cannot be made to suffer for any internal disputes among the partners. We do not find any material irregularity in the impugned order warranting our interference. Hence, these Revision Petitions are devoid of any merit and are dismissed at the admission stage. No order as to costs.