SRI KRISHNA ESTATE AND CONSTRUCTION PVT. LTD. vs SURYA NARAYAN PATRA S/O BASANTA PATRA

Present Revision Petition has been filed by the Petitioner /Opposite Party against the impugned order dated 31.07.2015, passed by Odisha State Consumer Disputes Redressal Commission at Cuttack (for short, ''State Commission'') in First Appeal No.22 of 2014.

Brief facts of the case are that Respondent/Complainant that Petitioner/Opposite Party floated a housing scheme in the name and style of "Krishna Garden Annex" for sale of plots measuring an area 27.5 decimals each and constructing core house over it. The Respondent/Complainant being motivated by the terms of the scheme deposited Rs.60,000/- towards booking charge and thereafter on 27.2.2OO8 deposited Rs.3,00,0O/- as the consideration amount of land was fixed at Rs.3,60,OOO/-. On getting the said amount, the Petitioner executed an agreement with him on 13.7.2OO7, wherein he was made the absolute owner of the land. He also sought for a Core house to be constructed by the Petitioner over it as per the scheme and gave a blank cheque of Rs.8,40,000/-. But since no construction work was started, he wanted to know the reason for delay and wrote a letter in this respect to the appellant. In reply, the Petitioner vide letter dated 6.11.2009 confirmed the payment of Rs.3,60,000/- made by the respondent, but expressed his inability to construct the house within the time committed, as the building plan had not yet been approved by B.D.A. Thereafter, the Petitioner in another letter dated 22.7.2O10 intimated the respondent to get the amount deposited by him refunded by submitting the original money receipts and the deed agreement. So being aggrieved with it, the respondent filed the Complaint with prayer to direct the Petitioner to construct the core house within an area of Ac.27.5 decimals over sub-plot no. 38 at "Krishna Garden Annex" of Mouza : Jagamara and give delivery of the same to him as per the agreement dated 13.7.2OO7 and to pay Rs.90,000/- towards compensation for mental agony and harassment, besides Rs.10,000/- towards cost of litigation.

The Petitioner resisted the Complainant and filed written version inter alia stating that though respondent paid Rs.60,000/- towards booking amount + instalment of Rs.3,00,000/- + registration charge of Rs.7O,00O/-, yet he failed to pay any other instalments. The Respondent had never given any cheque amounting to Rs.8,40,OOO/- to him. As no instalment towards the construction of the house as per the agreement was paid by the Respondent the construction work could not be started. Accordingly, the Petitioner prayed to dismiss the Complaint.

District Consumer Disputes Redressal Forum, Khurda, Bhubaneswar (for short, ''District Forum'') vide its order dated 25.11.2013, while allowing the Complaint held as under;

" Before we arrive at a decision on the above points, it would be prudent to study the conditions of agreement. So far as the scheme in question is concerned, the OP appears to have agreed for both the sale of sale as well as construction of core house over the land for a consideration amount of Rs.3,60,000/- & Rs.8,40,000/- respectively. Undoubtedly, the first part has been completed and in our considered opinion, record of right stands in the name of the complainant who is the legal owner of the plot No. 38 under the scheme allotted by the OP. As regards, the land part, on one hand, the complainant alleged to have not received any sale deed and on the other hand, the OP stated to have handed over the sale deed. In view of the settled law, such a controversial issue cannot come under the purview of C.P. Act,1986 and this Forum cannot give any specific direction to the OP for handing over the sale deed. Rather, the Complainant may approach the competent authority of Revenue Department to get a duplicate copy of the same.

So far as the construction part is concerned, we perused the payment schedule which is a part of agreement wherein it has been clearly stated that Rs. 1,20 , 000/- is due on completion of foundation. Since the OP in its letter dated 22.07.2010 expressed the delay in construction due to non-availability approved plan of BDA and no time frame to complete the house was committed, we believe that the complainant has not done anything wrong in delaying to pay the installments. As we have already stated the land & construction of house under the scheme is one unit and cannot be separated, cancellation of allotment on the ground of non-payment of installment is not acceptable. Further, the complainant being a consumer under the C.P. Act, 1986 has every right to get his queries clarified and the OP being Developer-cum-Builder, cannot taken any coercive attitude of taking extreme step by cancelling the allotment in the event of default. Interest can only be levied, if there will be any deviation in paying the installments as per the demand confirming phase-wise construction work from time to time but in this instant case, there is no evidence of any construction made by the OP. Further during course of adjudication, the learned counsel for the complainant submitted that as yet, no construction over the land in question under the scheme has been started but in case of other plot owners under the scheme, the construction work by the OPY in some cases is under progress. Thus, it gives us a belief that necessary BDA approval has been obtained by the OP. Hence it is abundantly clear that there is deficiency in service on the part of the OP and as such he is liable to pay compensation.

Regarding the blank cheque given by the complainant which is denied by the Complainant, without pressurizing the OP for return of the same, rather to inform the concerned bank not to honour the same under intimation to the OP.

In the result, the complaint is hereby allowed on merit against the OP. The OP is hereby directed not to claim installment & interest thereof unless the construction work as per the approved BDA plan is started. The OP is further directed to construct the committed core house over the sub-plot no. 38 situated at Mouza: Jagamara, Bhubaneswar Sahar, Unit No. 20, Khata No. 972, Plot No. 957 under " Krishna Garden Annex Scheme" already registered in favour of the complainant within a time frame under the agreement in four of the complainant within a time frame under the agreement in vogue and realize the installment amount on demand as per the payment schedule of the said agreement. The complainant is directed to strictly adhere to the conditions of the said agreement, failing which he is liable for any consequential action by the OP under the conditions of agreement. The construction of core house as stated above be started by the OP within a period of three months from the date of communication of this order and delivered the physical possession to the complainant within thirty months as per the agreement, failing which the complainant is at liberty to execute the or der against the OP in accordance with law. If the complainant fails to pay the required installment as per the schedule of payment on receipt of demand from time to time confirming the stage of construction of core house, the O(P may proceed for legal action as per the terms & conditions of the said agreement. Litigation is cost is fixed at Rs.2,000/- payable by the OP to the complainant within the stipulated period of three months ."

Being aggrieved by the order of the District Forum, the Petitioner/Opposite Party filed an Appeal before the State Commission. The State Commission while dismissing the Appeal, vide their order dated 31.07.2015, observed as under ;

" On perusal of the record, it is found that the respondent paid Rs.60,000/- towards booking charge and Rs.3,00,000/- towards first instalment. Of course the first instalment was not paid within 45 days of booking as required by the agreement. The appellant accepted the said amount without raising objection and thereby acquiesced to it. As per the respondent, he did not pay the second instalment since the foundation was not completed. In such event the appellant has no right to cancel the allotment. In the decision Ansal Properties and Infrastructure Ltd. (Supra) the Hon''ble National Commission held that respondent therein was under obligation to make payment of instalments dues and get possession of shop, but he failed to make payment of the allotments as per terms of allotment letter. So appellant rightly cancelled the allotment. In the case of Magan (supra) the Hon''ble National Commission also held that if there was violation of terms and conditions of the agreement, the opposite party therein had every right to cancel the allotment. In the present case, as per the agreement the respondent was to pay Rs.3,00,000/- within 45 days of booking. Even though he paid the same after expiry of the stipulated period, still then the appellant accepted it and as such, as rightly submitted by the learned counsel for the respondent, it implied that he acquiesced to it. Since no foundation work had b''ben started, the respondent had every right not to pay the second lnstallment.

Section 3 of the C.P. Act reads as follows:-

" The provisions of this Act shall be in addition to and not in derogation of the provisions of any other law for the time being in force ."

In view of such provision, even if there is an arbitration clause in the agreement, still then there is no bar for the District Forum to entertain the C.D. Case.

We do not find any illegality or irregularity in the impugned order to be interfered by this Commission. Accordingly, the appeal stands dismissed and the order of the District Forum is hereby confirmed ."

Hence, this Revision Petition.

This Revision Petition has been filed along with an application for condonation of delay of 88 days. The Respondent/ Complainant has opposed the application for condonation of delay by filing his written arguments.

I have heard the Counsel for the Parties and gone through the record very carefully.

The relevant reasons given in Para 2 of the application by the Petitioner for condoning the delay of 88 days, read as under:

" That after the drafting of the Petition the same was sent to the appellant for signature and in the transit an inordinate delay occurred and thereafter, the counsel for the Appellant suffered from Typhoid on the due date of filing and in this process the Petition was attracted by a delay of 88 days ."

I have heard the learned Counsel for the Parties. The Counsel for the Petitioner contended that the delay occurred in filing the Revision Petition on account of time taken in transit of the Petition from Odisha to Delhi as also because the Counsel for the Petitioner suffered from Typhoid. The Counsel could not, however, give the number of days taken in transit of the Petition from Odisha to Delhi or the details thereof. Further, no medical certificate has been placed on record to support the contention that the Counsel for the Petitioner had suffered from Typhoid and if so for how many days and the dates thereof.

It is well settled that "sufficient cause" for condoning the delay in each case is a question of fact.

In Ram Lal and Ors. Vs. Rewa Coalfields Ltd., AIR 1962 Supreme Court 361 , it has been observed ;

" 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 S.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 bona fides may fall for consideration; but the scope of the enquiry 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."

Similarly, in Oriental Insurance Co. Ltd. vs. Kailash Devi & Ors. AIR 1994 Punjab and Haryana 45 , it has been laid down that ;

" There is no denying the fact that the expression sufficient cause should normally be construed liberally so as to advance substantial justice but that would be in a case where no negligence or inaction or want of bona fide is imputable to the applicant. The discretion to condone the delay is to be exercised judicially i.e. one of is not to be swayed by sympathy or benevolence ."

In R.B. Ramlingam Vs. R.B. Bhavaneshwari, 2009 (2) Scale 108, Supreme Court observed ;

" 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 ."

Hon''ble Supreme Court in Anshul Aggarwal vs. New Okhla Industrial Development Authority, IV (2011) CPJ 63 (SC) has laid down 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 ."

Decision of Anshul Aggarwal (Supra) has been reiterated in Cicily Kallarackal Vs. Vehicle Factory, IV (2012) CPJ 1(SC) 1, wherein Hon''ble Supreme Court observed ;

" 4 . This Court in Anshul Aggarwal v. NOIDA, (2011) CPJ 63 (SC) has explained the scope of condonation of delay in a matter where the special Courts/ Tribunals have been constituted in order to provide expeditious remedies to the person aggrieved and Consumer Protection Act, 1986 is one of them. Therefore, this Court held that while dealing with the application for condonation of delay in such cases the Court must keep in mind the special period of limitation prescribed under the statute (s).

In the instant case, condoning such an inordinate delay without any sufficient cause would amount to substituting the period of limitation by this Court in place of the period prescribed by the Legislature for filing the special leave petition. Therefore, we do not see any cogent reason to condone the delay.

Hence, in the facts and circumstance of the case as explained hereinabove, we are not inclined to entertain these petitions. The same are dismissed on the ground of delay ."

It is petitioner''s own case, that after drafting of the Petition the same was sent to the Petitioner/Appellant for signature and in the transit an inordinate delay occurred. However, in the entire application, the Petitioner failed as on which date the draft of the Petition was sent to the Petitioner for signature and by which mode, through Post or Courier. Nor any receipt of any kind has been placed on record to establish that the alleged delay occurred during transit of draft Petition from Odisha to Delhi. Moreover, even there is nothing on record to show that on which date and for what period, the counsel for the Petitioner had allegedly suffered from Typhoid. The Petitioner has also failed to produce any medical certificate in this regard to show that during the illness(Typhoid), the Counsel for the Petitioner had been advised completely bed rest and during that period he did not do any kind of practice as an Advocate. The plea taken by the Petitioner for condoning the delay thus holds no water. In the application, the Petitioner has failed to give the day to day explanation for condoning the inordinate delay of 88 days in filing this Revision Petition. It is well settled, that it is the duty of a litigant also to pursue his litigation in a diligent manner and he cannot shift the entire blame for delay on its counsel. A valuable right has accrued in the favour of the respondents. That right cannot be lightly brushed aside. Thus, inordinate delay of 88 days in filing the Petition cannot be condoned since no sufficient cause has been shown by the Petitioner.

The observations made by various Courts in the authoritative pronouncements discussed above, are fully attracted to the facts and circumstances of the case. Thus, gross negligence, deliberate inaction and lack of bonafides is imputable to the Petitioner. No sufficient ground has been shown for condoning the inordinate delay of 88 days. Under these circumstances, present Revision Petition stands dismissed being barred by limitation.

No order as to cost.