M/S. SUNIL BUILDERS & 2 ORS vs KAVERI CHS LTD. & 15 ORS

This Revision Petition, under Section 21(b) of the Consumer Protection Act, 1986 (for short "the Act") has been filed by the Builders, against order dated 13.08.2013, passed by the Maharashtra State Consumer Disputes Redressal Commission at Mumbai (for short "the State Commission") in Appeal No. 696 of 2010. By the impugned order, the State Commission has dismissed two cross Appeals filed by both the Complainants (First Appeal No. 61 of 2011) and by the Builders (First Appeal No.696 of 2010). The said Appeals had been preferred against the order, dated 15.05.2010, passed by the Mumbai Suburban District Consumer Disputes Redressal Forum at Bandra, Mumbai (for short "the District Forum") in Complaint No. 583 of 2007. The District Forum had held that the Complaint filed by the Complainants/Society was within limitation and there was deficiency in service on the part of the Builders in not obtaining Occupation Certificate and executing Deed of Conveyance in favour of Complainant No.1/Society. Accordingly, partly allowing the Complaint, the District Forum had directed the Builder Firm and its Partners to jointly and severally obtain the Occupation Certificate from the

Municipal Corporation of Greater Mumbai within a period of six weeks from the date of the said order and execute the conveyance deed in favour of Complainant No.1/Society in respect of the property mentioned in the agreement, within a period of six months from the date of their obtaining the Occupation Certificate. The District Forum had also directed that in the event of failure on the part of the Builders in this regard, they will pay to Complainant No.1/Society a sum of 1000/- per day from the date of expiry of the stipulated period of six weeks till the date of their obtaining the Occupation Certificate. Besides, the Builders were also directed to pay a sum of 95,700/- to the Municipal Corporation of Greater Mumbai towards Unauthorized Occupation Charges, sought to be recovered by them vide their letter dated 05.05.1999, as also 5000/- as litigation costs to Complainant No.1/Society.

Being aggrieved, as noted above, both the parties preferred the afore-noted Appeals before the State Commission. Relying on the judgment of the Hon''ble Supreme Court in Faqir Chand Gulati Vs. Uppal Agencies (P) Ltd. , (2008) 10 SCC 345, the State Commission endorsed the view of the District Forum that it was the Builder who had failed to execute the Conveyance Deed after obtaining the Occupancy Certificate from the Municipal Corporation of Greater Mumbai. Consequently, as noted above, the State Commission dismissed both the Appeals. Hence, the present Revision Petition by the Builders.

It is pointed out by the Office that this Revision Petition is barred by limitation, as there is a delay of 98 days in filing the same. Application praying for condonation of the said delay had been filed alongwith the Revision Petition. However, at the request of the Counsel for the Petitioners, vide order dated 27.11.2014, permission to file a better affidavit, explaining the said delay, was granted. In paragraphs 4 to 8 of the said affidavit, the explanation furnished is as under: "4. The Petitioners respectfully submit that there are only 2 partners in the said firm of M/s. Sunil Builders and tha the Petitioner No.2 Smt. Radhadevi Singh as an old lady aged about 78 years. She is also the mother of Mr. Sunil Singh, the Petitioner No.3 who is handling the entire work of the said firm.

Smt. Radhadevi Singh was also not keeping good health. She had undergone surgery in June 2012 for L2 compression wedging fracture. She had an accidental fall and injury to the chest in January, 2014. Hereto annexed and marked as Exhibit "H"(colly.) are copies of some of the treatment papers of Smt. Radhadevi Singh. The Petitioners respectfully submit that she is only a sleeping partner in the said firm and not participating in the business of the firm.

The Petitioner No.3 Mr. Sunil Singh is the only person handling the entire activities of the firm and unfortunately from 17/11/2013 he suffered acute pain the back and was unable to walk or travel due to tremendous pain in both the lower limbs and was advised complete bed rest since 17/11/2013. The Petitioners humbly submit that thereafter he had Liver Disorder Disease and was undergoing treatment till middle of February 2014. The complete case papers of his treatment have also been filed with the main Revision Petition and are at page nos. 28 to 76 of the compilation (alongwith its typed copes).

The Petitioners humbly submit that despite of bad health during January - February, 2014 Mr. Sunil Singh contacted the local Advocate in Mumbai and instructed to prepare the Revision Petition. Accordingly the Revision Petition was prepared and signed by both the Partners on 27/02/2014 in Mumbai.

That the Petitioners humbly submit that the delay of 100 days in filing the Revision Petition was not intentional nor deliberate but due to the circumstances beyond their control namely, the health problem of Mr. Sunil Singh, the active partner who only knows the details of the matter."

We have heard learned counsel for the Petitioners on the question of delay.

To say the least, the explanation furnished is not only vague, it is self-contradicting as well. Petitioners'' emphasis on the ill-health of Smt. Radhadevi Singh, Petitioner No.2, pales into insignificance, when in the same paragraph, Petitioner No.3, her son, states that she was a sleeping partner and all affairs of the Firm were being looked after by him. Even otherwise, we find that she had a past history of hypothyroidism and hypertension and on 08.06.2012 a surgery was performed on her, i.e. much before 13.08.2013, when the impugned order had been passed by the State Commission, and the chest injury, which had been suffered by her in January 2014, was also not grave in nature, as there was only pain in the right side of the chest and nothing else. Coming to the plea relating to the medical problem of Petitioner No.3, stated to be the only person responsible for the affairs of the firm, even if, for the sake of argument, we accept the contention of the said Petitioner that when on 17.11.2013 he had experienced acute pain in his back, rendering him unable to walk or travel, he had been advised complete bed rest and it was only in January-February, 2014 that he could contact his Advocate for doing the needful in the matter, the fact remains that the impugned order had been passed by the State Commission in the presence of Counsel for the Petitioners on 13.08.2013; the free certified copy of same had been received by the Petitioners on 31.08.2013; and Petitioner No.3 had suffered the afore-stated ailment after more than three months from the date of passing of the impugned order, during which period no action had been taken by him to challenge the impugned order. Besides, we find that no specific dates have been indicated by the Petitioners as to when they actually contacted their Advocate for taking necessary action in the matter. Admittedly, the Petitioners had contacted their Advocate in January-February, 2014, who filed the present Revision Petition on 07.03.2014. However, by this time the Revision Petition was barred by limitation, as there was delay of 98 days in filing the same, for which no satisfactory explanation is forthcoming from the Petitioners.

In view of the above, we are not at all convinced with the explanation furnished by the Petitioners and are of the view that they are trying to misuse the process of the Court to somehow wriggle out of the directions issued by the Fora below. It is pertinent to note that the

Complainants had purchased their respective flats and taken possession thereof as far back as in the year 1990 and they are still made to run from pillar to post to have a clear title over their flats by getting the Conveyance Deed executed, which the Petitioners/Builders are trying to avoid because for getting Occupation Certificate from the Municipal Corporation of Greater Mumbai, a pre-requisite for execution of Conveyance Deed, they have to complete certain formalities, including payment of certain charges. We are convinced that the present Revision Petition, at this belated stage, is nothing but sheer harassment to the Complainants, which cannot be permitted.

Bearing in mind the afore-stated facts and the observations of the Hon''ble Supreme Court in Anshul Aggarwal vs. New Okhla Industrial Development Authority [(2011) 14 SCC 578] to the effect that while deciding an application for condonation of delay, the Court has to keep in mind that the special period of limitation has been prescribed under the Act for filing appeals and revisions in consumer matters and the object of expeditious adjudication of the consumer disputes will get defeated if highly belated petitions filed against the orders of the Consumer Foras are entertained, we are not inclined to condone delay of 98 days in filing of the present Revision Petition, which, in our opinion, is definitely inordinate, when looked at from the point of view of the hapless Complainants, the owners of the flats.

Consequently, the Revision Petition is dismissed in limine on the ground of limitation.