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Judgment
Revision Petition no. 2965 of 2016 has been filed against the judgment dated 29.08.2016 of the Telangana State Consumer Disputes Redressal Commission, Hyderabad (''the State Commission'') in Appeal no. FAIA no. 433 of 2016 in FASR no. 1141 of 2016.
The facts of the case as per the respondent/ complainant are that the respondent became a member of the petitioner/ opposite party vide Membership no. 24610. On the instructions of the petitioner, the respondent paid a sum of Rs.10,500/- as initial payment and Rs.100/- towards membership fee. The petitioner after receiving the said initial payment issued a Membership and allotment letter, dated 06.03.2001 in favour of the respondent. The petitioner allotted plot no. 12 admeasuring 310 sq yards in the project namely "East City", Sector, Extension Block D, situated at Bibinagar, Nalgonda District. The cost of the said plot was Rs.1,33,000/- (the total cost of the said plot was Rs.1,46,630/- - 10% discount given to the defence personnel, i.e., Rs.13,330/-). As per the agreed terms, the respondent was to pay the balance amount of Rs.1,22,800/- in 48 monthly instalment of Rs.2,550/- per month. The last instalment due was on March 2005. The respondent paid the entire amount as agreed to the petitioner by 28.02.2005. The petitioner gave a receipt dated 28.02.2005 in favour of the respondent mentioning that balance due was stated - 0 - (nil Balance).
In spite of several visits and demands made by the respondent for registration, the petitioner has failed to execute the sale deed. The respondent retired from service in the month of August 2005. After retirement also the respondent has made several visits to the office of the petitioner and requested for registration of the plot. Instead of executing the sale deed, petitioner through letter, dated 07.03.2007 requested the respondent to pay Rs.31,000/- towards registration charges. After receiving the said letter the respondent addressed a letter dated 24.03.3007 to the petitioner that he required six months'' time to arrange the registration charges, the petitioner received the said letter but did not raise any objection. The respondent paid Rs.31,000/- to the petitioner towards registration charges through banker''s cheque bearing no. 416335 dated 05.01.2008. He also handed over his driving licence, PAN Card, passport size photographs to Sri M Venkateshwarlu, Customer Care in charge for the purpose of registration of sale deed and signed on the relevant documents. The petitioner promised to execute the sale deed within a few days but failed to do so. The respondent then received a letter dated 31.01.2008 from the petitioner requiring him to pay the registration charges. It was also mentioned in the said letter that the petitioner had changed the plot and its location to Sector V, Block ZP, Plot no. 12 (CP) and requested the respondent to pay Rs.87,600/-.
The petitioner/ OP while in their reply admitted all facts and stated that some persons claiming themselves as legal heirs of the original land owners had approached the court and obtained stay in respect of the lands in sector extension, Block D, of East City. So the registration could not be done immediately. Therefore, the plots allotted to the members in Block D of extension sector were shifted to Sector V of East City wherein plots were ready for registration and the same was intimated to the respondent through letter dated 04.04.2007 for his consent. The revised statement of account dated 07.04.2007 was also sent to the respondent requesting him to pay the registration charges and other charges to a tune of Rs.54,250/-. The respondent had not responded to the said letter. However, he sent a Banker''s Cheque for Rs.31,000/- on 05.01.2008. As the respondent did not give any reply about the shifting of the plot in Sector IV, it was taken as a deemed consent of the respondent and as such the petitioner has sent a revised statement of account adjusting an amount of Rs.35,000/- sent by him towards development charges for the newly allotted plot and requested the respondent to send registration charges and other charges to a tune of Rs.87,600/- to get his plot registered, through a letter dated 31.01.2008. On receipt of the said letter the respondent addressed a letter dated 12.02.2008 stating that he had never agreed for such shifting of plot and requested to register the plot allotted to him earlier. The petitioner then had addressed a letter to the respondent stating the land wherein the plot of the respondent was located cannot be registered as it was under litigation.
The District Consumer Disputes Redressal Forum III, Hyderabad (''the District Forum'') vide its order dated 16.11.2015, while partly allowing the complaint gave the following order: i)"The opposite party shall execute a registered sale deed in favour of the complainant in respect of Plot no. 12, admeasuring 310 sq yards in East City Sector, Extension, Block D situated at Bibi Nagar, Nalgonda District;
ii)The opposite party shall furnish a copy of the approved layout sanctioned by the competent authority in respect of East City Sector, Extension Block D, situated at Bibi Nagar, Nalgonda District.
iii)The opposite party shall pay the complainant a sum of Rs.1,00,000/- towards punitive damages;
iv)The opposite party shall pay the complainant a sum of Rs.1,50,000/- towards compensation.
v)The opposite party shall pay the complainant a sum of Rs.2,000/- towards costs.
Time for compliance is 30 days.
In case the opposite party fails to comply with the order within the stipulated period then the opposite party shall be liable to pay the amounts awarded under Clause 3 (punitive damages) and Clause 4 (Compensation) shall carry interest @ 15% per annum from the date of default in complying the order till realisation. This interest is awarded as a pointer to other unfair and unethical builders/ realtors".
Being aggrieved by the order of the District Forum, the petitioner/ opposite party filed an appeal before the State Commission. The appeal was filed along with an application to condone the delay of 70 days, on the ground that after receipt of the copy of order on account of old age ailments, the deponent was not attending the office regularly, hence, he could not instruct his counsel to file the appeal within time and that the opponent had undergone cataract surgery and as per doctor''s advice, he was confined to bed rest. While this being so, his counsel was also suffering with severe back pain and unable to attend office work as a result of which, he could not file the appeal within time and thereby there occurred delay in preferring this appeal which is neither wilful nor wanton. Therefore, the petitioner/ appellant sought to condone the delay in filing the appeal.
The State Commission while dismissing the appeal on limitation observed as under:
" 8. No bona fides are shown to accept the version of the petitioner/ appellant to condone the delay of 70 days in filing the appeal. It is to be considered that the delay of 70 days added with the period of limitation of 30 days becomes the time frame of 100 days. The petitioner is a limited company represented by as many number of Directors with all the technological instruments and implements of fast communication under its command as also the men at its disposal. Therefore, it is no wrong to expect such a big Company to act in a swift and speedy manner with earnest alacrity in all its decisions and acts. The cause for the delay shown by the petitioner appears to be superficial without any evidence. This commission do not see any reasonable ground to accept the version of the petitioner. It is a battle between a tiny individual and powerful entity wherein the condonation of such delay and laxity would render, the object of the act fully negated.
To prefer an appeal, it is not mandatory for the deponent himself to go over to his counsel in person. The petitioner could have instructed his counsel to prepare an appeal since the counsel on record was well aware of passing of orders by the forum below. It is evident from the record, the counsel who is representing the petitioner/ appellant in this case is also the counsel in other appeals on behalf of the petitioner company. In cases bearing CC no. 63 of 2007, CC no. 64 of 2007, EA no. 23 of 2012, EA no. 1 of 2015, FA no. 457 of 2013, FA no. 420 of 2013, FA no. 1015 of 2013, FA no. 345 of 2014, FA no. 709 of 2014, FA no. 130 of 2015, FA no. 149 of 2015 and FA no. 158 of 2015, the same counsel has been representing the matters and appearing before this Commission regularly. Hence, question of counsel suffering with severe back pain and unable to attend the office work appears to be false.
There are no merits in the arguments advanced by the learned counsel for the petitioner/ appellant. It is to be stated that in the cases of delay, the matters have to be resolved by applying principles of natural justices, equity etc. In the case on hand, the petitioner/ appellant failed to produce any evidence on record to show sufficient cause to condone the delay. The petitioner failed to explain as to what the order Director and employees of the Company were doing. Nothing is placed on record to show that the deponent is the only persons authorised to prefer the appeal on behalf of the petitioner company.
Except the unsubstantiated allegation that the delay was occasioned as the deponent underwent cataract surgery and as per doctor''s advice, he was confined to bed. Except making this bald assertion, nothing is placed on record to vouch safe the said contention. This explanation is not a sufficient cause and no other reasonable ground was pleaded. When delay of 70 days is sought to be condoned, necessarily some evidence has to be filed warranting taking cognizance of the matter. It cannot be considered in a routing and mechanical manner".
Hence, the present revision petition.
We have heard the learned counsel for the petitioner. Counsel for the petitioner has contended that the State Commission has erred in not considering that no hard and fast line can be drawn as to ''sufficient cause'' in a given case. He has also contended that refusal to condone the delay has resulted in meritorious matter being thrown out at the very threshold of appeal and cause of justice being defeated. The District Forum has issued the order which is not enforceable, as the District Forum has ordered execution and registration of the sale deed in favour of the respondent in respect of plot no. 12 in East City Extension Sector, Block D. The same is under litigation. We have gone through the record. It is seen that the allotment was made on 06.03.2001 and as per the payment plan entire amount was paid by 28.02.2005. Thereafter, the registration fee was also paid by 05.01.2008 as and when asked. We find that the opposite party was opting and indulging in dilatory tactics with regard to handing over the physical possession of the plots as also the registration of the sale deed in favour of the respondent who has put in his hard earned money and still has not got the plot even after 16 years. In fact the District Forum in their order have observed that " the plea of the opposite party that the subject plot has fallen under litigation and the complainant is allotted plot no. 12 in Sector V in Block ZP was turned down as no iota of evidence is produced in support of their defence".
Coming to the order of the State Commission we find that the State Commission has correctly observed that the petitioner has failed to explain as to why other Directors and Employees of the Company could not have given instructions to the counsel to take necessary action in the matter. It is also noted from the order of the District Forum that the Counsel who was representing the petitioner and supposedly suffering from back pain and unable to attend the office work was regularly representing the petitioner in other First Appeals before the State Commission throughout this period. Hence, we agree with the State Commission that the petitioner has failed to give sufficient cause to condone the day to day delay of 70 days.
At the same time, it is also well settled that "sufficient cause" with regard to condonation of delay in each case, is a question of fact.
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]".
In Ram Lal and Ors. Vs. Rewa Coalfields Ltd., AIR 1962 Supreme Court 361 , it has been observed;
"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 S.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 bona fides may fall for consideration; but the scope of the enquiry 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."
Similarly in Oriental Insurance Co. Ltd., vs Kailash Devi and Ors. AIR 1994 Punjab and Haryana 45 , it has been laid down that:
"There is no denying the fact that the expression sufficient cause should normally be construed liberally so as to advance substantial justice but that would be in a case where no negligence or inaction or want of bona fide is imputable to the applicant. The discretion to condone the delay is to be exercised judicially i.e. one of is not to be swayed by sympathy or benevolence."
In R.B. Ramlingam Vs. R.B. Bhavaneshwari, 2009 (2) Scale 108 , it has been observed:
"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 the matter of Anshul Aggarwal vs. New Okhla Industrial Development Authority , IV (2011) CPJ 63 (SC), the Apex Court has highlighted the object of Consumer Protection Act particularly expeditious and in expensive remedy to the consumers.
"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".
Further, the petitioner has failed to give any reasons to explain the day to day delay of 70 days. Accordingly, we find that there is no ''sufficient cause'' to condone the delay of 70 days in filing the present revision petition.
Counsel for the petitioner has cited the compilation of cases relied upon by him. The judgments cited by the learned counsel for the petitioner are not applicable to the case on hand.
Thus, we find that no jurisdictional or legal error has been shown to us in the impugned order to call for our interference under Section 21 (b) of Act. The order of the State Commission does not call for any interference nor does it suffer from any infirmity or erroneous exercise of jurisdiction or material irregularity. Thus, the present revision petition is dismissed and we uphold the order of the State Commission.