Samarth Developers A Proprietary Firm Of Bhavesh Chunilal Shah vs Devang Vasantrai Vora

THIS revision petition has been filed by the Petitioners/OPs against the impugned order dated 08.07.2010 passed by the Maharashtra State Consumer Disputes Redressal Commission, Mumbai (in short, ''the State Commission '') in Appeal No. 719 of 2008 - M/s. Samarth Developers Vs. Mrs. Aruna Bipin Parekh & Anr. by which, while allowing appeal partly, order passed by District Forum was upheld, but rate of interest was reduced.

BRIEF facts of the case are that complainant/respondent filed complaint before the District Forum and alleged that flat was booked with Petitioner No. 1/OP No. 1 for a total consideration of Rs.10.00 lakhs. OP No. 2/Petitioner No. 2 is sole proprietor of OP No. 1/Petitioner No. 1. Total consideration of Rs.7,67,000/- was paid by the complainant, but OP neither handed over possession of the flat, nor sale deed was registered. Alleging deficiency on the part of OPs, complainant filed complaint. OP even after service did not appear before the District Forum and learned District Forum proceeded ex-parte against him and allowed complaint and directed OP to handover possession of the flat with clear title or refund Rs.10.00 lakhs with 18% p.a. interest and further to pay compensation of Rs.50,000/- for mental agony. Appeal filed by the petitioner was partly allowed by the learned State Commission vide impugned order and amount of refund was reduced from Rs.7,67,000/- to Rs.5,67,000/- and rate of interest was reduced from 18% to 12% p.a. against which, this revision petition has been filed along with application for condonation of delay. Impugned order was passed on 8.7.2010, whereas revision petition was filed on 9.10.2012 along with application for condonation of delay. Paragraphs 3 to 5 of the application for condonation of delay are reproduced as under: "3. The petitioners respectfully submit that the original certified copy of order dated 8.7.2010 passed by Hon ''ble State Commission was received by their Advocate on 31.8.2010 and sent to the petitioners at their Mumbai address when Mr. Bhavesh Chunilal Shah, the sole proprietor of M/s. Samarth Developers was away at his native place at Gujarat on some domestic problems and therefore, he did not receive the copy of the order. 4. The petitioner No. 2 having suffered losses had disposed of the construction business and had settled down at his native village at and post: Dediapada, Rajpipla, Gujarat and therefore, he did not get the copy of the order sent by his Advocate 5. The petitioners submit that the petitioner no. 2 came back to Mumbai in August 2012 when he received the copy of the order and rushed to his Advocate and instructed him to file this Revision Petition and therefore there is a delay of 22 months which is not intentional but due to circumstances beyond his control. The petitioners are filing this application for condonation of delay of 22 months and pray that the petitioners may kindly be excused and condone the delay in filing this Revision Petition ".

IN support of this application, petitioner also filed affidavit and later on affidavit of parents of the petitioner was filed on 12.4.2013.

PERUSAL of application for condonation of delay reveals that impugned order was received by petitioner ''s Advocate on 31.8.2010 and was sent to the petitioner at his Mumbai address, when petitioner no. 2, the sole proprietor of petitioner no. 1 was away at his native place at Gujarat on account of some domestic problems. It was further alleged in the application that due to losses, petitioner no. 2 disposed of construction business and settled at his native village Dediapada, Rajpipla, Gujarat. As per application, petitioner no. 2 came back to Mumbai in August, 2012; then he received copy of the impugned order and contacted his Advocate, who filed revision petition immediately. In this application, no domestic problem has been explained by the petitioner. In support of this application, petitioner has filed affidavit of his parents, which runs as under: "We Shri Chinubhai M. Shah aged 76 years and Smt. Savitaben C. Shah aged about 74 years, both of Mumbai, Indian Inhabitants, residing at B/701, Shreeji Krupa, Fadia Road, Kandivali (W), Mumbai - 400 067 do hereby state on soleman affirmation as under:- We say that because of our old age we are suffering from various ailment and illness since past 3 to 4 years and that our elder son Bhavesh Chinubhai Shah is being taking care of us since all these years and attends to all our needs and treatments all these years. We say that he always have to be with us for various reasons and accompany us for our treatments and assist us for various visit to doctors and medical practitioners ".

Perusal of affidavit of parents reveals that petitioner is residing at petitioner ''s address shown in the petition since a long period and petitioner being eldest son was taking care of his parents and was living with them for their treatment, etc. in Mumbai. Thus, it becomes clear that petitioner was residing in Mumbai at the same address, which has been shown in the impugned order as well as in the revision petition since long period and he has not shifted to Gujarat. Petitioner has not given any specific address of Gujarat and has not shown what was he doing since last 2 years in Gujarat. Thus, it becomes clear that on the false pretext of shifting to Gujarat, this application for condonation of delay of 22 months has been filed by the petitioners. As there is no explanation for condonation of delay, application for condonation of delay is liable to be dismissed.

LEARNED Counsel for the petitioner during the course of arguments placed reliance on various authorities of the Apex Court. He placed reliance on AIR 1987 SC 1353 - Collector, Land Acquisition, Anantnag and Anr. Vs. Mst. Katiji and Ors. in which it was held that if sufficient cause exists for condonation, delay should be condoned. He also placed reliance on (1998) 2 SCC 142 - G. Ramegowda, Major and others Vs. Special Land Acquisition Officer, Bangalore in which it was held that if delay occurred due to fraud and unusual conduct of Government Pleaders, court may condone the delay in the interest of justice. We agree to the principals laid down in aforesaid citations, but aforesaid citations do not provide any assistance to the cause of petitioner. He has also placed reliance on AIR 1996 SC 1623 - State of Haryana Vs. Chandra Mani & Ors. in which delay of 109 days was condoned. He also placed reliance on (2002) 10 SCC 176 - National Insurance Co. Ltd. Vs. Giga Ram and Ors. in which 105 days delay was allowed to be condoned. He also placed reliance on AIR 2005 SC 2191 - State of Nagaland Vs. LipokAO and Ors. in which delay of 57 days was allowed to be condoned. He also placed reliance on 2012 (4) SCALE 152 - S. Ganesharaju (D) Thr. L.Rs. and Anr. Vs. Narasamma(D) Thr. L.Rs. and Ors. in which delay of 53 days was allowed to be condoned. In the present case, there is delay of 22 months in filing revision petition and that too with the prayer to condone delay on the basis of false affidavit without any explanation at all. In such circumstances, inordinate delay of 22 months in filing revision petition cannot be condoned and application for condonation of delay is liable to be dismissed with cost.

AS there is inordinate delay of 22 months, this delay cannot be condoned in the light of the judgment passed by the Hon ''ble Apex Court and the National Commission in (1) (2010) 5 SCC 459 - Oriental Aroma Chemical Industries Ltd. Vs. Gujarat Industrial Development Corporation and Anr.; (2) (2012) 3 SCC 563 - Office of The Chief Post Master General and Ors. Vs. Living Media India Ltd. and Anr. and (3) 2012 (2) CPC 3 (State Commission) - Anshul Aggarwal Vs. New Okhla Industrial Development Authority. Perusal of impugned order reveals that as per argument of Counsel for the petitioner before the State Commission, appropriate relief has already been granted to the petitioner; even then, he has filed this revision petition unnecessarily with so much inordinate delay of 22 months.

CONSEQUENTLY , application for condonation of delay is dismissed and in turn, revision petition filed by the petitioner is dismissed at admission stage with Rs.10,000/- as costs.

PETITIONER is directed to deposit the cost by way of demand draft in the name of "Consumer Welfare Fund " as per Rule 10A of the Consumer Protection Rules, 1987, within four weeks from today. In case, petitioner fails to deposit the cost within the prescribed period, then it shall be liable to pay interest @ 9% p.a. till realization. List for compliance on 3.7.2013.