Raj Construction vs Naila Ashfaque Saudagar

THE main controversy revolves round the fact whether OP Nos. 1 and 2 should be given an opportunity to file the written statement after the expiry of more than 489 days from their service. Counsel for the petitioner present. The order dated 03.10.2012 passed by the State Commission runs as follows: - "Heard Mr. Prakash Kadam, Advocate for the complainant. None present for the opponents. Their postal acknowledgements show that notices of the opponents were received on their behalf by one Mr.Sadam. Under the circumstance, we direct the complainant to file Service Affidavit under Section 28 -A of Consumer Protection Act, 1986. Matter stands adjourned to 06/12/2012".

THE order dated 06.12.2012 passed by the State Commission runs as follows: - "06.12.2012: Mr. P.B. Kadam, Advocate for the Complainant. Complainant - Smt.Naila A. Saudagar files service affidavit as per Provisions of Section 28 -A of the Consumer Protection Act in respect of Opponent Nos.1 to 4. Mr. Faiyaz Shaikh, Opponent No.4 present. In the circumstances, complaint to proceed in the absence of other partners of the Opponent firm M/s.Raj Construction, viz.Opponent No.2 - Mrs.Asma Begum sheikh and Opponent No.3 - Riaz Shaikh. Since Opponent No.1 Partnership firm is represented by Opponent No.4 Mr.Faiz Shaikh before us, we find that the firm is appropriately served and now represented. The Partner of Opponent No.4 Mr. Faiz Shaikh files Application -cum -affidavit stating that the complaint is liable to be dismissed and prayed accordingly. No formal written version is filed. Hence, complaint to proceed in the absence of their written version but it is made clear in the application stating the ground on which the complaint should be dismissed. Thus, we direct the parties to lead their respective evidence under Section -13(4) of the Consumer Protection Act, 1986 by filing their affidavits and/or affidavits of their witnesses, if any. Parties are further directed to prepare their affidavits well in advance and serve copies thereof before hand to the other side. On receipt of such affidavits from the other side, the parties are at a liberty to file their counter -affidavits, if any. Such counter -affidavits shall also be prepared well in advance and copies thereof shall be exchanged with the other side at -least a fortnight prior to the next date of hearing. Affidavits, counter -affidavits and relevant documents shall be presented before the State Commission on 22/01/2013".

COUNSEL for the Opponents -1 and 2 appears. It is clear that Mr. Faiyaz Shaikh appeared on behalf of Opponents 1, 2 and 3. OP -1 firm was served through one Mr. Sadam. Counsel for the petitioner submits that Mr. Sadam is not the petitioner''s employee and the service upon the petitioner does not stand effected. Counsel for the petitioner further submits that thereafter the petitioner appeared before the Consumer Forum as the summon was pasted on the firm. Counsel for the petitioner submits that petitioner should be permitted to file W.S., though, he has filed the evidence by way of affidavit. The case pertains to the year 2012. Three years have already elapsed. The counsel for the petitioner submits that the complainant had taken three dates and on two occasions the case was adjourned because the Commission had no time. It is contended that there is no much delay on his part, hence his application should be allowed subject to costs. Counsel for the petitioner further submits that they have filed the evidence by way of affidavit before the Registrar and it is yet to be allowed by the Commission to be placed on the record.

ALL these arguments have left no impression upon me. As many as three years have elapsed. The intention of the petitioner is to procrastinate the case unnecessarily. It wants to gain time on one pretext or the other. This case is pending before this Commission since 08.07.2014. There was a delay of 489 days in filing the Revision Petition. Counsel for the petitioner submits that he is not having the file today and cannot tell, when did he move the application for condonation of delay. Commission has searched the file. The grounds taken in the application for condonation of delay are reproduced as follows: - "1) That the Applicant has approached this Hon''ble Commission against the order dated 06.12.2012 passed by the State Consumer Disputes Redressal Commission, Maharashtra, Mumbai, whereby opportunity to file written statements has been closed. It is submitted that one Mr. Faiz Shaikh had appeared before Hon''ble State Commission and had filed application -cum -affidavit stating that the complaint is liable to be dismissed. It is submitted that on the said representation of Mr. Faiz Shaikh impugned order has been erroneously passed by State Commission.

2) That the applicant being illiterate lady has been suffering with various health problems and she was never informed about the said proceedings. It is submitted that the petitioner came into knowledge of the proceedings pending before State Commission, Mumbai, on last week of January, 2014, and Vakalatnama as well as written statement on behalf of the applicant was ready filed on 10/02/2014. It is respectfully submitted that the Vakalatnama was taken on record but the Written Statement was rejected. That the applicant time and again requested the Hon''ble court to allow him to file the reply so that he may take his stand but his request was not acceded hence there is a delay in filing the present petition. It is stated that there is a delay of Eighteen months in approaching this Hon''ble court seeking liberty to file written statement/reply".

THE petitioner Smt. Asma Begum Shaikh has placed a number of medical certificates before this Commission which pertain to July 2012 only. It is stated that she is suffering from thyroid, diabetes etc. It is stated that the firm has two partners namely Asma Shaikh and Shamim Saikh. Mr. Riaz Shaikh, Son of Asma Shaikh, who is present in the Commission today, admits that Shamim Shaikh, her daughter is quite alright and never fell sick. The company is represented by both the partners. Even if, she has not been arrayed as a party, she stands covered by Respondent No.1. There is a huge delay of 489 days. In the application for condonation of delay, it is admitted that Faiyaz Shaikh has filed an affidavit stating that the complaint is liable to be dismissed. Consequently, the authority to Mr. Faiyaz Shaikh was never called into question. He appeared on behalf of all the respondents as per the order sheet detailed above.

IT is difficult to fathom, who is Sadam. The petitioner was served through Mr. Sadam, whether he is an employee or not, is to be explained by the Respondent No.1. Why did he accept the notice on behalf of the firm? No affidavit of Mr. Sadam was placed on the record. It is for the Respondent No. 1 and nobody else to clarify that who is Mr. Sadam. He took the summons at the right address.

THOUGH , the case was filed on 08.07.2014, yet, the counsel for the petitioner did not show any willingness to get its disposal immediately. The order sheet reveals that there were defects in the Revision Petition and time was given to the petitioner to remove the defects. On 31.10.2014, at the request of the petitioner, lower Court''s record was summoned, which was received but the counsel for the petitioner did not appear in the Court on 09.12.2014 further delaying the case. Thereafter, the case was restored vide order dated 23.01.2015 and the case was fixed for final arguments on 11.02.2015. On 11.02.2015, only Mr. Riaz Mohd. Shaikh appeared and deposited the costs. Counsel for the petitioner did not appear. Annoyed by the conduct of the counsel, the case was fixed for hearing on the next day i.e. today. After the elapse of three years, the petitioner cannot be allowed to file the written statement and re -open the case.

THE Revision Petition is hopelessly barred by time and has no merits, therefore, the same is dismissed.