Viyayak Anant Waikar vs Ramesh Vasant Shelar

HEARD Counsel for the petitioner.

THE complainants/respondents had entered into an agreement on 2.5.2001 for purchase of a flat to be constructed by the present petitioner. According to the complainant, he had paid a sum of Rs. 2,2,000, but the petitioner did not carry out the construction work and as such, he sought refund which was not granted. The complainant, therefore, approached District Forum. Before the District Forum, notice was issued to the present petitioner and the packet containing notice was returned to the District Forum with endorsement ''Refused''. The service on the petitioner was held to be legal and proper vide order dated 17.3.2009 and the matter was proceeded ex parte against the present petitioner. These facts are contained in paragraphs 2 and 3 of the order of the District Forum. The District Forum allowed the complaint and directed the present petitioner to pay the said amount of Rs. 2,02,000 with 9% interest from the date of such payment i.e. 6.3.2002 till realization thereof.

THE petitioner challenged the said order of the District Forum in appeal before the State Commission. The appeal was filed with delay of 208 days. The State Commission dismissed the appeal on the ground that no sufficient cause has been shown to condone delay. This order is subject matter of challenge in revision before us.

WE have gone through the condonation application, which was filed before the State Commission. In this application, it is stated that the petitioner had shifted his office and residence to Flat No. 204, Laxmi Niwas, CTS No. 893, Sadashiv Peth, Pune -411 030. It is further stated that earlier office of the petitioner at 785, Kasba Peth, Pune had been closed, but some members of his joint family continued to reside in other parts of the Wada property. It may be mentioned here that the address mentioned in the agreement dated 2.5.2001 and the complaint was Dnyanraj Constructions, 785 Kasba Peth, Pune - 411 011 through its proprietor Mr. Vinayak Anant Waikar. The complaint was filed on 19.3.2003. There is nothing on record to suggest that the petitioner had informed the complainant about the change of address given in the agreement dated 2.5.2001 so that the complainant could have served the petitioner on the changed address. Be that as it may, according to the petitioner, the notice was returned as ''Not Claimed'' and never refused. However, the findings of the District Forum in para 3 of the order categorically state that the packet containing notice was returned with endorsement ''refused'' Even otherwise, if Registered A.D. letter is not claimed it amounts to ''refusal''. The petitioner had further stated in the application for condonation of delay filed before the State Commission that it appears that tender of the notice was made to some distant relative of the appellant, who obviously refused to accept the notices. No affidavit of the distant relative of the applicant has been filed to substantiate this fact. The petitioner further states that the impugned judgment dated 27.7.2009 was posted on his old address of the applicant and he was informed by his one of the friends that the opponents were discussing their success in the Pune District Consumer Redressal Forum. Neither the name of the said friend has been disclosed nor any affidavit of friend has been filed in support of such submission. It was also not disclosed when the petitioner was informed by his friend. It is stated in the application for condonation of delay that thereafter the petitioner tried to get in touch with his earlier Advocate. When the petitioner had tried to get in touch with his earlier Advocate is nowhere disclosed. According to the petitioner, the file being old could not be traced by the Advocate. However, no affidavit of the Advocate has been filed. In our opinion, no sufficient grounds had been shown by the petitioner for condoning delay and the State Commission was right in dismissing the condonation application.

IN view of the above, we do not find any merit in this revision and the revision is hereby dismissed with no order as to costs.

AT the time of hearing, learned Counsel for the petitioner had agreed to deposit the entire decretal amount including interest and cost. However, subsequently, a sum of Rs. 1 lac was deposited.

THE amount of Rs. 1 lac, which has been deposited by the petitioner in this Commission, shall be sent to the District Forum for payment thereof to the complainant towards decretal amount due under the award of the District Forum. The complainant shall be free to file execution proceedings in respect of the balance amount which may be still due after adjustment of Rs. 1 lac. Revision Petition dismissed.