Chandigarh

StateCommission

A/18/2023

M/s Sahara India Pariwar - Complainant(s)

Versus

Amarjit Singh - Opp.Party(s)

Vaibhav Narang, Subhash Chand , Sapna Khurana & Devansh Khanna Adv

17 Feb 2023

ORDER

 

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

 

Appeal No.	:	18 of 2023
Date of Institution	:	03.02.2023
Date of Decision	:	17.02.2023

 

 

 

 

 

M/s Sahara India Pariwar (City Homes Division), SCO 1110-1111, Sector 22-B, Chandigarh-160022.

 2^nd Address:

M/s Sahara India Pariwar (Sahara City Homes Marketing and Sales Corporation) Command Office, Sahara India Bhawan, 1 Kapoorthala Complex, Lucknow, Uttar Pradesh-226024 through its Managing Director.

…Appellant/opposite party

V e r s u s

 

Amarjit Singh son of S.Makhan Singh r/o House No.2635, Phase-7, Mohali, Punjab.

….Respondent/complainant

BEFORE:

JUSTICE RAJ SHEKHAR ATTRI, PRESIDENT. MR.RAJESH K. ARYA, MEMBER

  

Present:-    Sh. Vaibhav Narang, Advocate for the appellant/opposite party.

                  

 

JUSTICE RAJ SHEKHAR ATTRI, PRESIDENT

 

                   This appeal has been filed by the appellant/opposite party, as it is aggrieved of the order dated 30.11.2021, passed by the District Consumer Disputes Redressal Commission-II, U.T., Chandigarh, whereby consumer complaint bearing no.07 of 2020 filed by the respondent/complainant was partly allowed as under:-

“…… In the light of above discussion, this consumer complaint deserves to succeed. The same is accordingly partly allowed.  The Opposite Party is directed as under :-

(i)    To refund the amount of Rs.4,42,100/- to the Complainant with interest @ 8% per annum from the date of respective payments, till realization.

(ii)   To pay Rs.25,000/- as compensation to the complainant for the deficiency in service, unfair trade practice and harassment caused to him.

(iii)   To also pay a sum of Rs.11,000/- to the complainant as litigation expenses. 

This order shall be complied with by Opposite Party within one month from the date of receipt of its certified copy, failing which, it shall be liable to pay interest @12% p.a. instead of 8% p.a. on the amount mentioned at Sr.No.(i) from the date of respective payments till realization and also to pay interest @12% p.a. on the compensation amount mentioned at Sr.No.(ii) from the date of filing the complaint till its realization, besides paying litigation expenses mentioned at Sr. No.(iii) above..…..”

 

2.           Following facts narrated by the complainant in his complaint were noted down by the District Commission in the order impugned:-

 

“……Briefly stated, the facts of case as alleged by the complainant are that  the OP floated a scheme for the sale of housing unit, commercial unit and other properties under “Sahara City Homes” Scheme and he opted for the same and subsequently, he was allotted independent ROW HS , Unit Area measuring 172.65 sq. meters, terrace area 52.71 sq. mtrs.  He made the first payment of Rs.2,16,050/- on 02.12.2004 against receipt (Annexure C-1). He further deposited Rs.2,26,050/- against receipt dated 23.12.2004 (Annexure C-2 Colly.).   However, the OP failed to do anything till 2011 inspite of receiving Rs.4,42,100/-. Subsequently, the OP offered three options and he opted for the option for waiting to project to commence subject to final decision of the Hon’ble High Court of Punjab and Haryana as he was under bona fide belief that the litigation will come to its conclusion within 2-3 years but even after 9 years there seems to be very bleak chances that the unit was to be allotted soon.  It has further been averred that he requested the OP to refund the deposited amount along with interest but to no effect.….”. 

 

3.           The reply filed by the opposite party was noted down by the District Commission in the order impugned as under:-

 

“……that the affordable houses were to be given on the leasehold basis. It has further been pleaded that the OP offered to refund him the entire amount with interest @ 8% p.a. vide Annexure C-3 but remained  associated with the project on his wish and will and filed the case after a gap of more than 9 years after such an offer.  It has further been pleaded that the complainant has failed to discharge his burden by bringing him within the definition of consumer and thus raising any consumer dispute. It has further been pleaded that they offered the complainant vide Annexure C-3, the intention to refund the amount with 8% interest but he opted to stay in the project till the decision of pending litigations. The remaining allegations have been denied, being false. Pleading that there is no deficiency in service on its part, a prayer for dismissal of the complaint has been made.…..”

 

4.           The complainant filed rejoinder to the written reply of the opposite party, controverting its stand and reiterating his own version.
5.           The District Commission after hearing counsel for the parties and on going through the documents on record, partly allowed the complaint in the manner stated above. Hence this appeal has been filed by the appellant/opposite party.
6.           Alongwith this appeal, the appellant/opposite party has filed application bearing no.67 of 2023 for condonation of delay of 385 days in filing this appeal.
7.           We have heard the  counsel for the appellant at the preliminary stage and scanned the material available on the record.
8.           Before deciding this case, it is significant to mention here that this Commission has to keep in mind the broad principles laid down in a catena of decisions of the Hon’ble Supreme Court, viz. ‘sufficient cause’ cannot be construed liberally if negligence, inaction or lack of bonafides are attributable to the party, praying for exercise of such discretion in its favour, and that when a statute provides for a particular period of limitation, it has to be applied with all its rigors, as an unlimited limitation leads to a sense of uncertainty.
9.           Order in the consumer complaint bearing no.07 of 2020 was pronounced by the District Commission on 30.11.2021 in the presence of both the Counsel for the parties. This appeal should have been filed before this Commission within a period of 45 days from the date of passing of the order i.e. from 30.11.2021 but no appeal was filed upto 03.02.2023. Admittedly, there is a delay of 385 days in filing this appeal by the appellant/opposite party. However, to get condoned the said delay of 385 days, it has been averred by the appellant/opposite party in para nos.3 to 5 of the application as under:-

 

“….. 3. That the judgment was passed on 30.11.2021. It would be pertinent to mention here that previously one Nitin Sharma Advocate was legal retainer in the appellant company. He has been assigned the case for filing before this Hon'ble Court. He had informed the company that case has already been filed and notice has been issued.

 

4. That in September, 2022 he has left the company and has shifted abroad as per the information received by the company. It would be pertinent to mention here that before leaving he did not give any handover and due to which many files have been misplaced or not found in the office. Then on 08.12.2022 appellant/company deputed new legal retainer and she has done her due diligence and while tracking all cases of company, she came to know that the appeal in this case has not been filed.

 

5.  

 

10.           Perusal of the aforesaid averments made in the application reveals that following grounds have been taken by the appellant/opposite party  for condonation of delay of  385 days in filing the appeal:-

 

1. Earlier, one Nitin Sharma, Advocate, was legal retainer in the appellant company, who had been entrusted this case for filing before this Commission and he had informed the company that case has already been filed and notice has been issued.

 

2. However, in September, 2022, Nitin Sharma, Advocate left the company and shifted abroad.On 08.12.2022 company deputed new legal retainer and it came to the knowledge that appeal in this case had not been filed by Nitin Sharma.

 

11.           During arguments also, the aforesaid averments were reiterated by Counsel for the appellant.  We have considered these averments but the same did not carry any weight. It is significant to mention here that no document has been placed on record to prove that this appeal was ever entrusted to Nitin Sharma, Legal Retainer aforesaid, for filing the same before this Commission. What to speak of placing on record any document aforesaid,  no  cogent and convincing evidence in support of other averments made in the application for condonation of delay aforesaid has been placed on record by the appellant. The appellant has failed to convince this Commission as to how and why the company failed to notice for 385 days with regard to non-filing of the appeal against the order impugned. Thus, it can easily be said that it was on account of lethargic attitude of the appellant, which resulted in the appeal being filed with a delay of 385 days, over and above the stipulated period of 45 days, as provided under the Act. Had the appellant been aggrieved of fastening of liability against it by the District Commission and diligent enough, it ought to have been on its toes to contest the same before this Commission by way of filing appeal, which was not so done. 

Therefore, in our view, the appellant has not explained sufficient cause for condoning the delay. The Hon’ble Supreme Court repeatedly in number of cases like R.B. Ramlingam v. R.B. Bhavaneshwari, I (2009) CLT 188 (SC)= I (2009) SLT 701=2009 (2) Scale 108; Ram Lal and Others v. Rewa Coalfields Ltd., AIR 1962 Supreme Court 361, Bikram Dass Vs. Financial Commissioner and others AIR 1977 Supreme Court 1221 and Office of the Chief Post Master General & Ors. Vs. Living Media India Ltd. & Anr. 2012 STPL(Web) 132 (SC) has not condoned the delay for want of sufficient cause. Not only as above, the Hon’ble Supreme Court in Sanjay Sidgonda Patil Vs. Branch Manager, National Insurance Co. Ltd. &Anr., Special Leave to Appeal (Civil) No. 37183 of 2013, decided on 17.12.2013, had refused to condone the delay of even 13 days, for want of sufficient cause.

Furthermore, the Hon’ble Supreme Court in  Anshul Aggarwal vs. New Okhla Industrial Development Authority [(2011) 14 SCC 578] has held that while deciding an application for condonation of delay, the Consumer Commissions have to keep in mind that the special period of limitation has been prescribed under the Act for filing appeals and revisions in consumer matters and the object of expeditious adjudication of the consumer disputes will get defeated if highly belated petitions filed against the orders of the consumer foras are entertained.

12.           Under above circumstances, we are of the considered view that in the present appeal no sufficient cause/reason has been made out by the appellant to condone the delay of such a huge period of 385 days in filing this appeal and consequently we dismiss the application for condonation of delay.
13.           As far as reliance placed by Counsel for the appellant on the case titled as Harvinder Singh Vs. Sir Ganga Ram Hospital and ors., 2015 (3) C.P.R. 909 (NC) is concerned, it may be stated  here that in this case, the appellant had  placed on record documentary evidence to support his case qua delay of 560 days in filing the appeal and also the appellant had proved that he has taken action against the previous counsel before Bar Council of Delhi, who failed to discharge his professional duties and handled the case of the complainant negligently. However, in the present case, as stated above, the appellant has failed to place on record any evidence to prove the averments contained in the application for condonation of delay of 385 days. As such, reliance placed by the appellant on Harvinder Singh’s case (supra) is misplaced.
14.           Counsel for the appellant while touching the merits of the case has submitted that there is a relationship of tenant and landlord between the parties, therefore, the respondent is not a consumer. He further submitted that in view of judgment Sonic Surgical Vs National Insurance Company Limited, 2010 (1) SCC 135, the District Commission has no  territorial jurisdiction to entertain the consumer complaint. We have heard this contention and are of the considered view that since we have dismissed the application for condonation of delay in filing this appeal holding the same without any substance, as such, we refrain ourselves to touch the merits of this case.  Our this view is supported by the ratio of law laid down by the Hon’ble Supreme Court in the case of  State Bank Of India Vs. M/s. B.S.  Agricultural Industries (I), Civil Appeal No.2067   of  2002, decided on  20.03.2009, wherein it was held that if the case is barred by time and yet the consumer fora decides the same   on   merits,   it   would be committing an illegality and, therefore, the aggrieved party would be entitled to have such order set aside. Resultantly, this appeal stands dismissed being barred by limitation.
15.           Consequently, the application bearing no.68 of 2023 (stay) also stands dismissed having been rendered infructuous.
16.           Certified copies of this order be sent to the parties, free of charge.
17.           The  file be consigned to Record Room, after completion

Pronounced

18. Because it has been held above
19. that this complaint is barred by limitation, as such, in our considered opinion, even then if
20. we proceed further on merits of this case, it would be nothing but commission of an
21. illegality on the part of this Commission. Our this view is supported by the ratio of law
22. laid down by the Hon’ble Supreme Court in the case of  State Bank Of India vs M/s.
23. B.S.  Agricultural     Industries  (I   ),     CIVIL   APPEAL   NO.  2067   of  2002,     decided  20  
24. March, 2009   ,      wherein it was held as under:-          
25. “………If the complaint is barred by time and yet, the consumer forum
26. decides   the   complaint   on   merits,   the   forum   would   be   committing   an
27. illegality and, therefore, the aggrieved party would be entitled to have such
28. order set aside……”
29. Because it has been held above
30. that this complaint is barred by limitation, as such, in our considered opinion, even then if
31. we proceed further on merits of this case, it would be nothing but commission of an
32. illegality on the part of this Commission. Our this view is supported by the ratio of law
33. laid down by the Hon’ble Supreme Court in the case of  State Bank Of India vs M/s.
34. B.S.  Agricultural     Industries  (I   ),     CIVIL   APPEAL   NO.  2067   of  2002,     decided  20  
35. March, 2009   ,      wherein it was held as under:-          
36. “………If the complaint is barred by time and yet, the consumer forum
37. decides   the   complaint   on   merits,   the   forum   would   be   committing   an
38. illegality and, therefore, the aggrieved party would be entitled to have such
39. order set aside……”
40. Because it has been held above
41. that this complaint is barred by limitation, as such, in our considered opinion, even then if
42. we proceed further on merits of this case, it would be nothing but commission of an
43. illegality on the part of this Commission. Our this view is supported by the ratio of law
44. laid down by the Hon’ble Supreme Court in the case of  State Bank Of India vs M/s.
45. B.S.  Agricultural     Industries  (I   ),     CIVIL   APPEAL   NO.  2067   of  2002,     decided  20  
46. March, 2009   ,      wherein it was held as under:-          
47. “………If the complaint is barred by time and yet, the consumer forum
48. decides   the   complaint   on   merits,   the   forum   would   be   committing   an
49. illegality and, therefore, the aggrieved party would be entitled to have such
50. order set aside……”
51. Because it has been held above
52. that this complaint is barred by limitation, as such, in our considered opinion, even then if
53. we proceed further on merits of this case, it would be nothing but commission of an
54. illegality on the part of this Commission. Our this view is supported by the ratio of law
55. laid down by the Hon’ble Supreme Court in the case of  State Bank Of India vs M/s.
56. B.S.  Agricultural     Industries  (I   ),     CIVIL   APPEAL   NO.  2067   of  2002,     decided  20  
57. March, 2009   ,      wherein it was held as under:-          
58. “………If the complaint is barred by time and yet, the consumer forum
59. decides   the   complaint   on   merits,   the   forum   would   be   committing   an
60. illegality and, therefore, the aggrieved party would be entitled to have such
61. order set aside……”
62. Because it has been held above
63. that this complaint is barred by limitation, as such, in our considered opinion, even then if
64. we proceed further on merits of this case, it would be nothing but commission of an
65. illegality on the part of this Commission. Our this view is supported by the ratio of law
66. laid down by the Hon’ble Supreme Court in the case of  State Bank Of India vs M/s.
67. B.S.  Agricultural     Industries  (I   ),     CIVIL   APPEAL   NO.  2067   of  2002,     decided  20  
68. March, 2009   ,      wherein it was held as under:-          
69. “………If the complaint is barred by time and yet, the consumer forum
70. decides   the   complaint   on   merits,   the   forum   would   be   committing   an
71. illegality and, therefore, the aggrieved party would be entitled to have such
72. order set aside……”
73. Because it has been held above
74. that this complaint is barred by limitation, as such, in our considered opinion, even then if
75. we proceed further on merits of this case, it would be nothing but commission of an
76. illegality on the part of this Commission. Our this view is supported by the ratio of law
77. laid down by the Hon’ble Supreme Court in the case of  State Bank Of India vs M/s.
78. B.S.  Agricultural     Industries  (I   ),     CIVIL   APPEAL   NO.  2067   of  2002,     decided  20  
79. March, 2009   ,      wherein it was held as under:-           
80. “………If the complaint is barred by time and yet, the consumer forum
81. decides   the   complaint   on   merits,   the   forum   would   be   committing   an
82. illegality and, therefore, the aggrieved party would be entitled to have such
83. order set aside……”
84. Because it has been held above
85. that this complaint is barred by limitation, as such, in our considered opinion, even then if
86. we proceed further on merits of this case, it would be nothing but commission of an
87. illegality on the part of this Commission. Our this view is supported by the ratio of law
88. laid down by the Hon’ble Supreme Court in the case of  State Bank Of India vs M/s.
89. B.S.  Agricultural     Industries  (I   ),     CIVIL   APPEAL   NO.  2067   of  2002,     decided  20  
90. March, 2009   ,      wherein it was held as under:-          
91. “………If the complaint is barred by time and yet, the consumer forum
92. decides   the   complaint   on   merits,   the   forum   would   be   committing   an
93. illegality and, therefore, the aggrieved party would be entitled to have such
94. order set aside……Consequently, all the pending applications stand disposed of accordingly. Certified Copies of this order be sent to the parties, free of charge.

The file be consigned to Record Room, after completion.

Pronounced

17.02.2023

 

Sd/-

 [JUSTICE RAJ SHEKHAR ATTRI]

PRESIDENT

 

 

Sd/-

(RAJESH K. ARYA)

MEMBER

Rg.