RAVI SALASKAR PROPRIETOR vs KIRIT SHAH, & ORS.

By these First Appeals, under Section 19 of the Consumer Protection Act, 1986 (for short "the Act"), a Real Estate Developer, the sole Opposite Party in the Complaints under the Act, calls in question the correctness and legality of a common order dated 21.07.2016, passed by the Maharashtra State Consumer Disputes Redressal Commission, Mumbai (for short "the State Commission") in Complaint Cases No. CC/03/223 and CC/03/224. By the impugned order, while holding that there was deficiency in service on the part of the Appellant herein in not completing the construction work as also not obtaining the Occupation Certificate from the Bombay Municipal Corporation (B.M.C.) in respect of the flats in question, the State Commission has partly allowed the Appeals, preferred by the Respondents/Complainants, inter alia, directing the Appellant to complete the incomplete work of the building ''Philipa'', as per the specifications mentioned in the agreements executed in favour of the Complainants; take requisite steps to obtain Occupation Certificate to form Cooperative Housing Society of the flat purchasers and get the same registered; and execute conveyance deed in favour of Cooperative Housing Society, within a period of three months form the date of the said order, with a default stipulation of payment of 3,000/- per day till compliance of the order. Further, while Complainants No. 2, 4 & 5 in Complaint Case No. CC/03/223 were directed to pay to the Appellant the balance consideration of 3,60,000/- and 50,000/- and 2,50,000/- respectively, the Appellant was directed to pay to the Complainants in both the Complaints collectively 5,00,000/- and 50,000/- as compensation for mental agony and litigation costs respectively.

Since both the Complaints involve more or less similar facts, same Opposite Party, common issues and have been disposed of by the State Commission by a common order, these Appeals, filed against the said order, are also being disposed of by this common order.

The circumstances, necessitating filing of the Complaint, as culled out from the impugned order, are as under: The Complainants are occupants of the building, christened as ''Philipa'', constructed by the Appellant on CTS No. 91 at Village Gundivli, Taluka Andheri (East), Mumbai. In respect of the said land, which originally belonged to the heirs of deceased John Philip and others, a development agreement, dated 07.10.1994, was entered into between the Appellant and the original landlord, who executed a power of attorney, dated 09.10.1994, in favour of the Appellant. Subsequently, the Complainants had booked their respective flats with the Appellant and resultant agreements were also entered into between them. The necessary details, as regards number of flats, date of agreements, amounts paid and date of possession etc. are referred to in the impugned order. The Complainants alleged that in addition to the consideration amount, the Appellant had also collected certain amounts from them towards legal fee, share money, society formation charges, BSES deposit, water deposit and water boring charges etc. Subsequently, the Complainants were handed over possession of the flats between the period October, 2001 and March, 2002. Later on, the Complainants found that certain works were incomplete and the Appellant had also not obtained Completion and Occupation Certificate from the B.M.C. Accordingly, they decided not to pay to the Appellant the balance sale consideration. Though the Complainants were assured that the said incomplete works would be completed but there was no progress. Aggrieved with the said inaction on the part of the Appellant as also having other grievances against the Appellant, noted in the impugned order, the afore-noted Complaints, praying for the appropriate reliefs, came to be filed before the State Commission.

Upon notice, the Appellant contested the Complaints by filing its Written Version.

On analysis of the evidence adduced by the parties before it, the State Commission, as noted above, came to the conclusion that there was deficiency in service on the part of the Appellant in not completing the construction work and not obtaining the Occupation Certificate from the B.M.C. in respect of the flats in question and consequently issued the afore-noted directions to the Appellant.

Hence, the present Appeals.

It is pointed out by the office that the Appeals are barred by limitation, inasmuch as there is a delay of 115 days in filing the same. Identical Applications, praying for condonation of the delay, have been filed along with the Appeals. In paragraphs 3 - 4 of the same, the Appellant has furnished the following explanation:

"3. That after passing the impugned order, the Appellant-Opposite Party received the certified copy of the impugned order on 06.08.2016. Thereafter, the Appellant in order to find out the legal remedies approached the advocate at Bombay. However, due to inappropriate advice, the Appellant pursued to prepare the First Appeal to be filed before the Hon''ble State Commission at Mumbai itself. However, when it came to the light of the Appellant that the First Appeal was only maintainable at Hon''ble National Commission at New Delhi, the Appellant contacted another advocate to find out the appropriate procedure. Thereafter, the counsel at Delhi was requested to take up the case of the appellant and do the needful. The counsel for the Appellant asked for the necessary documents alongwith the appropriate instructions in order to prepare the draft of the First Appeal. Thereafter, the draft of the first appeal was prepared and sent for finalization to the Appellant at Bombay.

That thereafter, the affirmation of the First Appeal was done and the final copy was sent at New Delhi for the purpose of filing. There are certain documents like the Agreements entered into between the Appellant and another Mr. Vishwasrao, the proprietor of M/s Equinox which was not legible and therefore, the said documents were again requested to be sent by the Appellant. After finalization of the copy of the First Appeal alongwith the annexures to be filed, the same was filed before this Hon''ble Commission. In this process substantial delay has occurred which is neither intentional nor deliberate, but only due to the reasons mentioned above."

In our opinion, the explanation furnished by the Appellant is absolutely unsatisfactory and, therefore, the Appeals deserve to be dismissed as barred by limitation.

At the outset, it may be noted that though the office has reported that there is a delay of 115 days in filing the Appeals but actually there is some more delay. If reckoned from the date of issuance of free certified copy of the impugned order to the Appellant, i.e. 15.07.2016, there would be delay of 135 days in filing the Appeals. The said delay is sought to be explained, inter alia, on the plea that the Appellant was wrongly advised that against the impugned order passed by the State Commission, the First Appeals would also lie before the State Commission itself; on coming to know about the fact that the Appeals were required to be filed before this Commission, the Appellant assigned the matter to his Counsel; the Counsel asked for necessary documents; thereafter the draft of the First Appeals was prepared and sent for finalization to the Appellant at Bombay; and ultimately the Appeals were filed before this Commission on 29.12.2016. While the plea as regards the wrong advice is not supported with any explanation/affidavit from the Counsel concerned, the Application is also conspicuously silent with regard to date-wise developments taking place in the matter. In the absence of the said details, it is clear that the entire explanation has been furnished in a mechanical manner, which does not inspire any confidence. It seems that the Appellant has nothing to say as regards the delay and is interested only in protracting the matter on one pretext or the other to gain time to comply with the directions, subject matter of the Appeals, and in case the said unexplained delay is condoned and the Appeals are entertained, the Complainants, who, despite having been put in possession of their respective flats in the years 2001/2002, have still not got a clear title in respect thereof, besides sufferings on account of incomplete construction work, they would be put to further undue harassment at the hands of the Appellant.

In view of the above, we have no hesitation in holding that the Appellant has failed to make out a "sufficient cause" for condonation of inordinate delay of over 100 days in filing the present Appeals. Accordingly, we decline to condone the said inordinate delay.

In coming to the aforesaid conclusion, we have also kept in mind 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 belated petitions filed against the orders of the Consumer Foras are entertained.

Consequently, the Appeals are dismissed on the short ground of limitation.