Vatsala Rajan Vaidya vs Aj Homes S V Builders

THIS appeal has been filed by the appellants against the order dated 9.7.2013 passed by the Maharashtra State Consumer Disputes Redressal Commission, Mumbai (in short, ''the State Commission'') in Complaint Case No. CC/12/123 Dr. Vatsala Rajan and Anr. Vs. M/s. Raj Homes S.V. Builders and Ors. by which, complaint was allowed.

BRIEF facts of the case are that complainants/Respondent No. 1 and 2 entered into an agreement dated 21.1.2010 with OP/appellants and Respondent No.3 for purchase of flat no. 601 on the 6th floor in ''A'' Wing for a consideration of Rs.65,14,400/ -. As per agreement, possession of flat was to be given by 31.8.2010. Complainants had paid Rs.55,37,240/ - to the OP, but inspite of repeated requests, possession of flat was not given to the complainants. Alleging deficiency on the part of Ops, complainants filed complaint before State Commission. OPs were proceeded ex -parte, as they refused to take notice. Learned State Commission after hearing complainants allowed complaint and directed OPs to deliver possession of flat within 3 months failing which, Rs.1,000/ - will be paid as fine per day to the complainant till delivery of possession of flat subject to making payment of Rs.9,77,160/ - by the complainant to OPs at the time of taking possession and OPs were further directed to pay cost of Rs.25,000/ -. Appellants filed appeal against the impugned order along with application for condonation of delay.

HEARD learned Counsel for the appellants on application for condonation of delay and perused record. Learned Counsel for the appellants submitted that on account of differences between the Appellant Partners, appeal could not be filed in time and in such circumstances, delay in filing appeal may be condoned.

IN the application for condonation of delay it has not been mentioned that how many days delay is to be condoned. As per office report, there is delay of 332 days in filing appeal. Paragraph 3 of the application for condonation of delay runs as under: "3. The Hon''ble State Commission was pleased to partly allow the complaint by its order dated 9.7.2013, however, there were several disputes between the partners of the appellants. The appellants were not in a position to resolve the same for a long time. With the mediation of some well -wishers the differences were sorted out very recently i.e. in the last week of August, 2014. The Appellants immediately contacted their counsel in first week of August. The Counsel immediately drafted the Appeal and sent it for verification. The appellants after receipt of the same immediately sent it to their counsel at Delhi. The Counsel took some time in filing the matter".

Perusal of application reveals that it has nowhere been mentioned when dispute arose between the partners of appellant, when they resolved and what was the outcome of dispute. Appellants have merely mentioned that with the mediation of some we -wishers differences were sorted out in last week of August, 2014 and then appellants contacted their Counsel and appeal was filed on 4.9.2014. There is no explanation at all for condonation of delay what to talk of reasonable explanation. As there is inordinate delay of 332 days, this delay cannot be condoned in the light of the following judgment passed by the Hon''ble Apex Court.

IN R.B. Ramlingam Vs. R.B. Bhavaneshwari, 2009 2 Scale 108, it has been 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."

IN Ram Lal and Ors. Vs. Rewa Coalfields Ltd., 1962 AIR(SC) 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."

HON ''ble Supreme Court after exhaustively considering the case law on the aspect of condonation of delay observed in Oriental Aroma Chemical Industries Ltd. Vs. Gujarat Industrial Development Corporation, 2010 5 SCC 459as under; "We have considered the respective submissions. The law of limitation is founded on public policy. The legislature does not prescribe limitation with the object of destroying the rights of the parties but to ensure that they do not resort to dilatory tactics and seek remedy without delay. The idea is that every legal remedy must be kept alive for a period fixed by the legislature. To put it differently, the law of limitation prescribes a period within which legal remedy can be availed for redress of the legal injury. At the same time, the courts are bestowed with the power to condone the delay, if sufficient cause is shown for not availing the remedy within the stipulated time."

HON ''ble Apex Court in Post Master General and Ors. Vs. Living Media India Ltd. and Anr., 2012 3 SCC 563 has not condoned delay in filing appeal even by Government department and further observed that condonation of delay is an exception and should not be used as an anticipated benefit for the Government departments.

HON ''ble Apex Court in Anshul Aggarwal Vs. New Okhla Industrial Development Authority,2012 2 CPC 3 observed as under: "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".

Thus, it becomes clear that there is no reasonable explanation at all for condonation of inordinate delay of 332 days. In such circumstances, application for condonation of delay is dismissed. As application for condonation of delay has been dismissed, appeal being barred by limitation is also liable to be dismissed.

CONSEQUENTLY , appeal filed by the appellants is dismissed as barred by limitation at admission stage with no order as to costs.