NIDHEES BUILDER vs N.K. SHARMA

THROUGH the medium of this application condonation of delay for setting aside the ex parte order dated 7/12/2004 has been prayed. The applicant is Mr. Murti Gupta. In the application it is inter alia pleaded that he had no knowledge of the proceedings initiated against him as well as passing of the order. It was only on 8/6/2005, that he got the knowledge when notice was served upon him in the execution proceedings initiated against him. According to him the order has been obtained by practising fraud and thus is liable to be set aside. The order has been challenged after a period of about one and half years. (Appeal along with application filed on 6/6/2006). Non-applicant respondent has opposed the application that there exists no "sufficient cause" t o condone the delay because delay is intentional and there is no merit in the appeal.

THE controversy between the parties lies in a narrow compass. THE non-applicant respondent is a consumer who vide agreement dated 26.6.1990 purchased flat No. 01 in Block-C on the ground floor of the Commercial Residential Complex known as "Nideesh Apartments" Trikuta Nagar, Jammu. That in terms of the agreement; non-appliant respondent had to pay rupees two lacs and ten thousand to the applicant-appellant but by adopting coercisive methods the latter succeeded in getting Rs.2,46,270.65 from the former. THE applicant-appellant had also obtained a sum of Rs. 12,855 as registration fee including stamp duty but till date did not transfer the title by executing registered sale deed. THE written version of the applicant-appellant was closed by the Forum on 5.3.2004. After the ex parte trial of the complaint the Forum has directed the applicant-appellant to refund Rs. 25,527.65 along with interest at the rate of 6% per annum from 3.1.1995 to the non applicant-respondent and to transfer the ownership rights of the flat in question within one month''s time in favour of the non-applicant respondent . He had also to pay Rs. 2,000 as litigation charges. THE case was fixed on 19.4.2007 but the Counsel of the applicant/appellant was not present. It was fixed for today i.e. and today also he is absent. The Legislature has conferred the power to condone the delay in order to enable the Court to do substantial justice to parties by disposing of matters on merits. The expression sufficient cause employed by the Legislature in the J&K Consumer Protection Act, 1987 (hereinafter referred to be as the Act) is elastic to enable the Commission to apply law in a meaningful manner which subserves the ends of justice that being the life purpose for the existence of the Forums created under the Act. When the factual matrix of the case in hand is viewed from this angle it transpires that applicant-appellant is not approaching the Commission with clean hands and clear conscience. After the filing of the appeal ( which is accompanied by application for condoning the delay) the applicant/appellant is constantly remaining absent from 18.1.2007. Now the question which remains to be determined is whether the delay which is sought to be condoned is genuine or mala fide. Mr. Oswal, Advocate has contended that execution petition was filed on 14/3/2005 before the Forum for the satisfaction of the order because applicant/appellant had failed to execute the sale deed in favour of the non applicant/respondent (herein) as well as he had not returned the amount of Rs. 25,527.65 along with interest at the rate of 6% per annum from 30.1.1995. That before filing the execution petition, the applicant/appellant had been informed vide registered notice which was received by him on 8/1/2005. Thus, he has sufficient knowledge from 8/1/2005. In support of his contention Mr. Oswal, Advocate has produced, (i) certified copy of the execution petition dated 14/3/2005, (ii) postal receipt bearing No. 623 for sending registered notice and acknowledgement of the receipt of that notice by the applicant/appellant dated 8.1.2005. These documents are placed on record because, non-applicant/respondent had moved an application for seeking permission to produce these documents on record and application is supported by an affidavit. After the production of these documents, the edifice built up by the applicant/appellant about his ignorance of passing of the impugned order crumbles like a house of cards. This shows that applicant/appellant is not approaching the Commission in a bona fide manner, but he has mala fide intentions. The applicant/appellant''s conduct in this manner disentitles him to seek the relief of condonation of delay. In this view of the matter, we do not find sufficient cause to condone the delay.

Be that as it may the appeal filed herein seems to be meritless. The Forum has rightly dismissed the plea of the applicant/appellant to set aside its order. It is well reasoned ex parte order and under the Act the Forum has no jurisdiction to set it aside. The Apex Court in the case of Jyotsana Arvind Kumar Shah & Ors. v.s. Bombay Hospital Trust, III (1999) CPJ 1 (SC)=VII (1999) SLT 146=1999 (1) CPR 86 SC, has held that Consumer Protection Act has not provided Forum with any jurisdiction to set aside ex parte reasoned order. Viewing the matter from all aspects we do not find any cause and not to talk of "sufficient cause" to condone the delay. Hence, in this result, the application is dismissed as meritless. Application dismissed.