M/S. AMEYA DEVELOPERS PROP SURESH RAJARAM DHARMADHIKARI vs MRS. VIDYA MOHAN SALOKHE

The present revision petition no. 414 of 2016 has been filed against the judgment dated 08.09.2015 of the Maharashtra State Consumer Disputes Redressal Commission, Mumbai (''the State Commission'') in First Appeal no. 958 of 2015.

The facts of the case as per the respondent/ complainant are that the respondent had purchased a unit no. B 2, Adm. 630 sq feet, 1 st Floor Pinnac Shivalay within the jurisdiction of the Kolhapur Municipal Corporation at Rs.10.50 lakh from the petitioner/ opposite party. Sale agreement was entered between the parties on 09.05.2011. The aforesaid flat was initially used by one Mr Sandip Redekar as a tenant. Therefore, it was agreed between the parties that Rs.10.00 lakh would be paid as a sale price of the flat and Rs.50,000/- would be paid for the interior repairs and alterations. For payment of consideration, the respondent took a loan from the Co-operative Credit Society and paid the entire consideration of Rs.10.50 lakh. Thereafter, the respondent decided to take a loan from the LIC Housing Finance Limited to settle the loan of credit Co-operative Society. The LIC Housing Finance Limited vide their letter dated 19.08.2011 on scrutiny of the loan application, enclosed documents asked for some clarifications. It was then that the respondent came to know that the said suit property was sanctioned for the purpose of commercial use and the municipal authorities had not agreed to sanction the property for residential purpose. The respondent, therefore, filed a complaint before the District Consumer Disputes Redressal Commission, Kolhapur (''the District Forum'') alleging deficiency in service and sought directions against the petitioner to get sanction for the aforesaid property from the Kolhapur Municipal Corporation as a residential area as also execution of the sale deed and Rs.10,000/- for mental agony.

The petitioner denied the allegations. He stated that the said sale price of the unit was agreed at Rs.15.62 lakhs. The respondent had only paid Rs.10.50 lakhs till 19.04.2011 and thereafter the respondent did not pay the agreed amount of Rs.05.15 lakhs, and so possession of the said unit was not given to him. The respondent was also liable to pay the additional registration charges, MSEB Charges, lift and maintenance. The petitioner alleges that the respondent has filed the complaint in order to avoid payment of the due amounts.

The District Forum vide order dated 17.07.2015 while partly allowing the complaint gave the following order:

"Complainant''s complaint is partly allowed.

Opponent should get the plan sanctioned by Kolhapur Municipal Corporation regarding Unit no. B 2, with area of 58.55 sq mt on first floor, in apartment named as Pinnak Shivalay, as residential unit and get all other legal formalities completed and execute the sale deed in favour of complainant.

Opponent should pay to complainant Rs.5,000/- for mental pain and Rs.3,000/- for expenses for complaint application.

Within 30 days after receipt of certified copy of above order, opponent should comply with order."

Aggrieved by the order of the District Forum, the petitioner filed an appeal before the State Commission. The State Commission vide its order dated 08.09.2015 while dismissing the appeal in limine observed as under:

"Transaction as admitted by the learned counsel for the appellant/ opponent is within the provisions of the - The Maharashtra Ownership Flats (Regulation of the Promotion, Construction, Sale, Management and Transfer) Act, 1963 (the MOFA for brevity). Agreement to sale has been executed and duly registered on 09.05.2011. As provided under the provisions of the MOFA and model agreement thereunder any provisions inconsistent therewith is not binding on the parties. The written note dated 29.04.2011 is outside the registered agreement to sale. Therefore, order impugned is not inconsistent with the legal provisions and therefore does not suffer from any infirmity. We do not find any valid ground as to how this first appeal is tenable for admission. Therefore, we are of the view that appeal is unsustainable and liable to be dismissed. We hold accordingly and pass the following order:

Appeal is dismissed in limine with no order as to costs."

Hence, the present revision petition.

The present revision petition has been filed with a delay of 60 days along with an application for condonation of delay being IA no. 1520 of 2016. However, as per the report of the Registry, the delay is 62 days.

We have perused the application as also heard the learned counsel for the petitioner. The only reason given in the application for condonation of delay is that the present revision petitioner was unable to consult his counsel as he was travelling out of station for his business purpose and he could contact his counsel only on his return for filing the revision petition and handed over the papers to him. The petitioner has failed to give any reasons for the day to day delay of 62 days and as also not given any details regarding the absence for which he could not contact his counsel. This view is further supported by the following judgment:

In Anshul Aggarwal v. New Okhla Industrial Development Authority , IV (2011) CPJ 63 (SC), it has been 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".

In R.B. Ramlingam v. R.B. Bhavaneshwari , I (2009) CLT 188 (SC)= I (2009) SLT 701=2009 (2) Scale 108, it has been observed that "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 Ram Lal and Others v. Rewa Coalfields Ltd ., AIR 1962 Supreme Court 361, it has been observed that "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 Section 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 bonafides may fall for consideration; but the scope of the inquiry 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 Sow Kamalabai, W/o Narasaiyya Shrimal and Narsaiyya, S/o Sayanna Shrimal Vs. Ganpat Vithalroa Gavare , 2007 (1) Mh. LJ 807, it was held that "the expression ''sufficient cause'' cannot be erased from Section 5 of the Limitation Act by adopting excessive liberal approach which would defeat the very purpose of Section 5 of Limitation Act. There must be some cause which can be termed as a sufficient one for the purpose of delay condonation. I do not find any such ''sufficient cause'' stated in the application and no such interference in the impugned order is called for".

In Balwant Singh Vs. Jagdish Singh & Ors ., ( Civil Appeal no. 1166 of 2006 ), decided by the Apex Court on 08.07.2010 it was held:

"The party should show that besides acting bonafide, it had taken all possible steps within its power and control and had approached the Court without any unnecessary delay. The test is whether or not a cause is sufficient to see whether it could have been avoided by the party by the exercise of due care and attention. [Advanced Law Lexicon, P. Ramanatha Aiyar, 3rd Edition, 2005]".

Accordingly, we find that there is no ''sufficient cause'' to condone the delay of 62 days in filing the present revision petition. The application for condonation of delay is without any merit as well as having no legal basis and is not maintainable. Consequently, the present revision petition being time barred by limitation is dismissed with no order as to cost.