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Judgment
REVISION petition no. 4359 of 2012 has been filed against the order of the State Consumer Disputes Redressal Commission, Mumbai, Circuit Bench at Aurangabad (the ''State Commission '') in First Appeal no. 223 of 2008 and First Appeal no. 1356 of 2008, decided under a common judgment and order dated 27th July 2011, in complaint case no. 76 of 2006 by respondent nos. 1 and 2 who were complainants no. 1 and 2.
DISTRICT Consumer Disputes Redressal Forum, Dhule (the ''District Forum '') vide its order dated 31st January 2008 gave the following order: (i) "The application filed by the applicant is against non-applicant nos. 1 and 2 and is partially allowed. (ii) Within sixty days from the date of this order, the non-applicant nos. 1 and 2 shall complete the work of construction over plot no. 7 and shall deliver the possession and execute the sale deed. (iii) It is after receipt of the possession as shown in column no. 2 of the order and after execution of the sale deed, the applicants shall pay an amount of Rs.1,20,000/- to the non-applicant nos. 1 and 2 towards the balance price consideration as per agreement. (iv) As referred to above in column no. 2 of the order, if the non-applicant nos. 1 and 2 shall fail to deliver the possession within sixty days and shall not execute the sale deed then, the non-applicant nos. 1 and 2 shall refund the amount of Rs.1,70,000/- to the applicants jointly and severally within 30 days thereof. And by way of monetary losses, over this amount, they shall pay the penal interest at the rate of 15% per annum right from 18.07.2006, the date of filing of complaint, till its realisation. (v) Within sixty days from today, the non-applicant nos. 1 and 2 shall jointly and severally do pay an amount of Rs.15,000/- to the applicants by way of mental torture. (vi) The non-applicants shall pay jointly and severally an amount of Rs.1,000/- to the applicant within sixty days from today by way of cost of the application ".
Aggrieved by the order of the District Forum, two appeals were filed before the State Commission. Appeal no. 223 of 2008 was filed by the original complainants and appeal no. 1356 of 2008 was filed by the respondents. As per the State Commission ''s order: "Aggrieved by the said judgment and order the complainants came in appeal with the prayer to set aside the order of the District Forum on the ground that they had never prayer for the relief of possession of the said house and the execution of the sale deed. In fact they had demanded the refund of Rs.1,70,000/- as the said plot is illegal and there was no building permission taken from the local planning authority. Whereas the respondents came in appeal with the request to quash and set aside the impugned judgment and order on the ground that the District Forum having made observations that the constructions was being done after the building permission obtained from Municipal Council the order was made against them ".
THE State Commission came to the following conclusions and ordered as under: "On the other hand, the appeal of the original opponents bearing no. 1356 of 2008 carries no merit, however, since the rate of interest awarded as on Rs.1,70,000/- and also the amount of mental agony awarded by the District Forum appears to be on higher side. We are of the view to allow the said appeal partly by modifying the Forum ''s order, according. Hence, the following order: (i) Appeal no. 223 of 2008 is allowed. (ii) Appeal no. 1356 of 2008 is partly allowed. (iii) The impugned judgment and order passed by the District Forum is hereby quashed and set aside and the respondents individually and severally directed to refund Rs.1,70,000/- to the complainants with the interest @ 9% per annum instead of 15% from the date of filing the complaint i.e., 18.07.2006 till the realisation of the amount, within a period of 30 days. (iv) The respondents are also directed to pay to the complainants Rs.10,000/- instead of Rs.15,000/- towards mental agony and Rs.2,000/- towards cost of the complaint within a period of 30 days, failing which the interest @ 9% will have to be paid till realisation of the amount ".
Hence, the present revision petition.
THE main grounds for the revision petition are as follows: The courts below ought to have considered that the legal notice was issued by the complainants only in respect of specific performance of contract. The petitioner builders too had agreed to hand over the physical possession of the row house informing that almost 90% of the construction work is over and minor finishing is remaining for want of certain items agreed to be supplied by the complainants towards fixtures etc. The demand was also raised for balance consideration. At the other hand, the consumer complaint was filed for simplictor refund of the earnest amount together with penal interest, which was not permissible under law. The claim raised in complaint and the legal notice of demand thus, varied for. This is the gross illegality and injustice caused to the builders affecting their good will and reputation in the local market at Dhule. To overcome this difficulty, the builders showed their willingness to perform the agreement, which in ordinary course other builders may be accepted open heartedly. Yet, the present petitioners remain firm stating that they will accept the balance payment and will execute final sale deed in favour of the complainant no. 1, it rather shows their bonafides and good will. The claim for simplictor refund of money before fora is neither permissible nor legal. The basic grievance raised was about illegal and unauthorised construction raised by the builder. The copy of the judgment and order passed in regular Civil Suit no. 405 of 2004 was the certificate issued stating that the alleged construction and site intended to be sold out to the complainant is legal and proper and the complainants cannot refuse to purchase it under any pretext. Merely saying that the alleged construction is not as per Municipal permission is not sufficient to maintain a consumer complaint. The complainant have not proved and established this charge. At the other hand, the civil court judgment filed on record shows that it is a legal and proper construction. Yet, the forum was swayed away with such a half-hearted pleadings and the scanty evidence filed on record. The act of filing of civil suit by the builder does not mean and suggest that it is unauthorised construction work.
THE penal interest awarded by the Forum was reduced from 15% to 9%. However, the fact that the agreement to sale has been executed for, the builder intimated to take possession of the site in question, yet, the complainants failed to pay the balance consideration. It has caused much financial loss to the builder. As per the request made by the complainants, many more changes and alterations were made in the house structure. Further, the complainants have caused much mouth publicity. In the local market, therefore, the builder has lost his good will and reputation in the entire city and for that purposes only, they have insisted and asked for specific performance of contract. They are ready to hand over the house and to execute final deed. In this back ground of the matter, the petitioners were justified in claiming that the plea of illegal construction is wrong and even civil court has given a finding in favour of the builder and therefore, the complainants be forced/ compelled to pay the balance consideration with delayed payment charges and to get the sale deed duly executed in their favour. Fora awarded 15% interest to complainants. At the other hand it was denied in case of the builder who claimed 18% penal interest from the complainant towards the balance amount to be received from the complainants for specific performance of contract. Along with the revision petition, there is an application for condonation of delay. In the application, nowhere are the number of days to be condoned mentioned. As per the office report, there is a delay of 317 days. The reasons given in the application for condonation of delay are as follows:
REVISION petitioners have filed a revision petition arising out of the judgment and order passed by the State Commission, Mumbai, Circuit Bench at Aurangabad. The judgment and order has been passed on 27.02.2011. Almost after a period of lapse of one month the copy was ready for delivery. The same was delivered to the counsel for the revision petitioners by hand. However, as the petitioner no. 2 Shri Suresh Bhaskar Yeolekar who is aged about 72 years at this juncture was seriously ill and there was no other elderly male member in the family except the petitioner no. 1, Sandeep to take care of the ailing father. The petitioner no. 2 is suffering from Paralysis and Parkinsons for last more than 15 years and therefore, even otherwise in normal course he requires due care and attention. In the last week of August 2011 he further suffered from High Blood Pressure and was advised to take complete bed rest. Naturally, for more than a period of two months, the petitioner no. 2 could not move out. In the meantime, it is only after receipt of the notice, in execution proceedings the revision petitioner no. 1 could make up his mind to move to this Commission on and after 05.11.2011. Thereafter, the necessary papers were collected and it was decided to file this revision petition. There was delay of hardly 10 to 15 days in moving the revision petition from the date of original order passed by State Commission. Along with an application for delay condonation, the matter was drafted, settled and forwarded to the National Commission, New Delhi, on and after 05.12.2011. The affidavits duly sworned before the Notary Public, its Xerox copies are filed herewith for the perusal of this Hon ''ble Commission to establish the fact that by 05.12.2011 the revision petition was otherwise ready.
THE judgment and order was passed on 27.07.2011. The order was ready for dispatch by the registry/ office of the Circuit Bench, Aurangabad by 26.08.2011. While the outward entry was taken by the outward department clerk vide outward no. 1046 dated 26.09.2011 on which day, the order was about to be dispatched by post. In fact, it remained to be forwarded by post for one or the other unknown reasons. It is thereafter, the above said judgment and order along with two different covering envelopes and personally handed over to the advocate for appellant nos. 1 and 2 separately on 04.10.2011 in the office of the Commission/ Circuit Bench, Aurangabad. And there after the revision petition was prepared and forwarded by Speed Post to this Commission in between 06.12.2011 to 15.12.2011 at its old address of Janpath Bhavan, Old Indian Oil Bhavan, New Delhi. The petitioner submits that the office of National Commission was under shifting and therefore, the service report of the post department could not be received by petitioners in time. On couple of occasions during pendency of the complaint and even in the first appeals, attempts were made to settle the matter out of court, which fact can be established from the court proceedings. Relief of specific performance was granted by the Forum, to which, respondent builder was ready to comply with and the first appeal was restricted to the point of penal interest, which was refused to be awarded to the builder in case of execution of the final sale deed on their part. At the other hand, complainants were interested only in refund of money and nothing more than that.
THE execution proceedings went on. The petitioners and their advocate expected that the notice will emerge from the Commission about date of hearing. Almost six to eight months they waited for the letter from this Commission. Lastly on 05.11.2012 with the help of a local advocate from New Delhi the registers were extensively searched and it was noticed that tapal has not been received by this Commission or that, it has not been duly registered for one or the other technical problems. The District Forum has now fixed the matter on 26.11.2012 and has already served the bailable warrants upon these petitioners and thus, it had become just and expedient for them to move this Commission forthwith. The revision petitioners submit that upon perusal of the entire documents and affidavits duly annexed with this petition, it will reflect that drafting and typing job was over by 05.12.2011 and the petitioners have forwarded the documents by post within a week or so. As such by 15.12.2011 or there about, the documents should have been delivered at the old address of this Commission. To the misfortune of the revision petitioners, the original postal receipt was misplaced and could not be traced out in spite of much efforts on their part. The petitioners undertake to file the copy of the postal receipt on recorder as and when traced out. The delay therefore, caused in submitting this duplicate paper book of entire compilation of revision petition on the fact of its record deserved to be condoned for. We have heard the learned counsel for the petitioner and have carefully gone through the records. In the application for condonation of delay it is nowhere mentioned as to when the impugned order was received by the petitioner. It has also been stated by the petitioner that the petitioner no.2 has been suffering from Paralysis and Parkinsons for more than 15 years. Counsel for the petitioner on an enquiry has stated that petitioner no. 1 is a builder and has many people working for him. However, he could not explain why then the petitioner no. 1 could not file the application in time. Petitioner no. 1 has also stated in paragraph 2 of the application that it was only after the receipt of the notice in execution proceedings, petitioner no 1 could make up his mind to move and file the revision petition on and after 05.11.2011. Nowhere in the application he has mentioned about the specific dates. In paragraph 3 of the application he has stated that the impugned order was ready for dispatch by registry/office of the Circuit Bench, Aurangabad on 26.08.2011. While the outward entry was taken by the outward department clerk vide outward no. 1046 dated 26.09.2011 on which date the order was about to be dispatched by post. In fact it remained to be forwarded by post for one or the other unknown reasons. It is thereafter, the above said judgment and order along with two different covering envelopes were personally handed over to the Advocate for the petitioners separately on 04.10.2011 in the office of the Commission/ Circuit Bench, Aurangabad. The counsel for the petitioner could not explain how these facts came to his notice.
THE petitioner has also stated that the revision petition was prepared and forwarded by Speed Post to the National Commission in between 06.12.2011 to 15.12.2011 at the old address at Janpath Bhavan, New Delhi. Petitioner submits that the office of the National Commission was under shifting and therefore, the service report of the postal department could not be received in time by the petitioners. Nowhere in the application, has it been stated by the petitioner when the revision petition was sent by speed post. It is pertinent to mention here that the Speed post articles can be tracked on line also. It may be further pointed out that the office of the National Commission has already been shifted in August 2011 and as such there was no question of its being shifted in November 2011. It would appear that petitioners have been wilfully not carrying out the orders of the Fora below, and they have also taken no timely action on the revision petition filed against the said orders. It was taken up only when the execution proceedings were initiated by the District Forum and bailable warrants were issued. It is only then that the petitioners decided to file the revision petition and they have made a vain attempt to justify the delay in filing the revision petition on medical grounds of one of the petitioners. However, petitioners have not only failed to do so but they have also not thought it fit to mention the number of days of delay in filing the present revision petition sought to be condoned. In brief the petitioners have failed to explain the inordinate delay of 317 days.
THIS view is further supported by the following authorities. In Anshul Aggarwal v. New Okhla Industrial Development Authority, IV (2011) CPJ 63 (SC), it has been held that "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 ".
In R.B. Ramlingam v. R.B. Bhavaneshwari, I (2009) CLT 188 (SC)= I (2009) SLT 701=2009 (2) Scale 108, it has been observed that "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 Ram Lal and Others v. Rewa Coalfields Ltd., AIR 1962 Supreme Court 361, it has been observed that "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 Section 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 bonafides may fall for consideration; but the scope of the inquiry 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. "
In Sow Kamalabai, W/o Narasaiyya Shrimal and Narsaiyya, S/o Sayanna Shrimal Vs. Ganpat Vithalroa Gavare, 2007 (1) Mh. LJ 807, it was held that "the expression ''sufficient cause '' cannot be erased from Section 5 of the Limitation Act by adopting excessive liberal approach which would defeat the very purpose of Section 5 of Limitation Act. There must be some cause which can be termed as a sufficient one for the purpose of delay condonation. I do not find any such ''sufficient cause '' stated in the application and no such interference in the impugned order is called for ".
IN Balwant Singh Vs. Jagdish Singh and 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] ".
Accordingly, we find that there is no ''sufficient cause '' to condone the delay of 317 days in filing the present revision petition. The application for condonation of delay is without any merit as well as having no legal basis and is not maintainable. Consequently, the present revision petition being time barred by limitation and is dismissed with cost of Rs.10,000/-. (Rupees ten thousand only).
PETITIONER is directed to pay Rs.5,000/- to the respondent directly by way of demand draft and the balance amount of Rs.5,000/- be deposited by way of demand draft in the name of "Consumer Legal Aid Account " of this Commission within eight weeks from today. In case the petitioner fails to deposit the said amount within the prescribed period, then it shall be liable to pay interest @ 9% per annum till realisation.