Haryana

StateCommission

A/1590/2017

JINDAL REALTY LIMITED - Complainant(s)

Versus

DEVRAJ SINGH - Opp.Party(s)

SANJEEV SHARMA

23 Aug 2022

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION HARYANA, PANCHKULA

                                                                                 

                                                         First Appeal No.1590 of 2017

                                                 Date of Institution: 21.12.2017

                                                        Date of Final hearing: 23.08.2022

Date of pronouncement: 28.10.2022

Jindal Realty Limited (earlier known as Jindal Realty Pvt. Ltd. registered office at DSM 609-610, 6^th Floor, DLF Tower, Shivaji Marg, Najafgarh Road, Moti Nagar, New Delhi.

…..Appellant

Versus

Devraj Singh S/o Late Sh.Kishan Singh R/o VPO Bhatgaon, Tehsil and Distt.Sonepat 131001, Haryana.

…..Respondent

CORAM:    Mr.S.P.Sood, Judicial  Member

                    Mr. Suresh Chander Kaushik, Member

                   

Present:-    Mr.Sanjeev Sharma, Advocate for the appellant.

                   Mr.R.S.Sharma, Advocate for the respondent.

 

                                                 ORDER

S P SOOD, JUDICIAL MEMBER:

          The present appeal No.1590 of 2017 has been filed against the order dated 05.06.2017 of the District Consumer Disputes Redressal Forum, Sonepat (In short  now “District Commission”) in complaint case No.265 of 2017, which was allowed.

2.      There is a delay of 169 days in filing the appeal.  An appellant has filed an application under section 5 of the Limitation Act (in short “Act”)  for condonation of delay of  169 days wherein,  it is alleged that  summons were never received by  the appellant, as the respondent had given incorrect (old) address of the appellant. The knowledge of pending case at District Forum, Sonepat came to knowledge of applicant/appellant from respondent/complainant on 28.11.2017, when he informed of the same on email.  The order dated 05.06.2017 was never received by the applicant/appellant.   Thus, delay of 169 days in filing of the present appeal be condoned.

3.         Arguments Heard. File perused.

4.         Learned counsel for the appellant vehemently argued that as per facts mentioned above, it is clear that delay in filing appeal is not intentional.    Learned counsel for the appellant further argued that summons were never received by  the appellant, as the respondent had given incorrect (old) address. Further argued that the knowledge of pending case at District Forum, Sonepat came to knowledge of applicant/appellant from respondent/complainant on 28.11.2017, when he informed of the same on email.  The impugned order dated 05.06.2017 was never received by the applicant/appellant.   Thus the delay be condoned in the interest of justice.

5.         This argument is not available.  A period of 30 days has been provided for filing an appeal against the order of the District Commission. The proviso therein permits the State Commission to entertain an appeal after the expiry of the period of 30 days if it is satisfied that there is “Sufficient cause” for not filing the appeal within the prescribed period. The expression of sufficient cause has not been defined in the Act rightly so, because it would vary from facts and circumstances of each case.

6.                         The inordinate delay of 169 days cannot be condoned in the light of the following judgments passed by the Hon’ble Apex Court.

          The Hon’ble Supreme Court in case Bikram Dass Vs. Financial Commissioner and others, AIR, 1977 Supreme Court 1221 has held that;

“Section 5 of the Limitation Act is a hard task-master and judicial interpretation has encased it within a narrow compass. A large measure of case-law has grown around S.5, its highlights being that one ought not easily to take away a right which has accrued to a party by lapse of time and that therefore a litigant who is not vigilant about his rights must explain every days delay.”

          The Hon’ble National Commission in case Government of U.T. Electricity Department & Others versus Ram Lubhai, II(2006) CPJ 104 has held that:-

“Consumer Protection Act, 1986 – Section 15 –Appeal –Maintainability – Limitation –Condonation of delay– Resjudicata –Appeal filed after a delay of 44 days –Plea of procedural delay in getting approval for filing appeal – Appeal filed by complainant against order of District Forum decided and copy of order dispatched to parties prior to filing of appeal by opposite party –Appeal and application for condonation of delay dismissed –Matter once finally concluded by any Court cannot be reopened by same 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., 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.”

         

7.      Taking into consideration the pleas raised by appellant in the application for condonation of delay and settled principle of law, this Commission does not find it a fit case to condone delay of 169 days in filing of the appeal. Hence application filed for condonation of delay  in appeal No.1590 of 2017 is dismissed. 

8.       The brief facts of the case are that on 15.01.2011, the then oP  present appellant allotted a plot No.B122 measuring 359 yards in Jindal Global City  to Amit Aggarwal  for Rs. 42,92,303, which was payable in installments.  As per agreement dated 14.01.2013, the OPs present appellant had to deliver the possession of the plot within 24 months from the date of agreement.   In total, the complainant paid a sum of Rs.42,81,143/- to the OPs. The complainant was shocked when the plot was changed to B-132 instead of B-122 which was only 344.45 sq. yards.  The complainant demanded the refund of increased IFMS of Rs.150/- per sq. yards on 244.45 sq. yards. The complainant requested the OPs to refund Rs.51668/- for increased IFMS, Rs.62001 for PLC charges and Rs.4200/- for stamp duty, but, to no avail. Thus there was  deficiency in service on the part of the OPs.

9.      OPs/appellant were proceeded against ex parte vide order dated 24.10.2016.

10.    After hearing counsel for the complainant, the learned District Commission, Sonepat has allowed the complaint vide order dated 05.06.2017.

11.    Feeling aggrieved therefrom, OP-appellant has preferred this appeal.

12.    Learned counsel for the appellant vehemently argued that  the complainant was subsequent purchaser and was not entitled for compensation as prayed for. During the pendency of the agreement, the appellant was legally entitled to retain the money till 14.07.2013. The area of new plot stood reduced from 359 sq. yards  to 344.45 sq yards. The respondent has signed an supplementary agreement as well as Indemnity bond whereby he has accepted change of plot number, reduced area  as well as increased IFMS charges. Legal notice dated 12.10.2015 was duly replied by OP/appellant vide letter dated 26.10.2015. the respondent has signed maintenance agreement dated 24.08.2015 with Appellant and M/s Metro Facility Management Pvt. Ltd.  As per the agreement, the appellant had given maintenance rights for plots to the M/s Metro Facility Management Pvt. Ltd. The respondent has not impleaded  the Metro Facility Management Pvt. Ltd. in the complaint filed by him  as Metro Facility Management Pvt. Ltd. was a necessary party for proper adjudication. The basic value of the plot was Rs.31,00,050/- and value was more than Rs.20/- lacs so the present complaint was not maintainable before the learned District Commission.

13.    It is not disputed that the plot was allotted to one of Sh.Amit Aggarwal and thereafter the complainant purchased the plot in the year 2011.  It is also not disputed that the area of the plot was reduced. It is also not disputed that the appellant delivered  the possession of the plot to him on 24.08.2015 instead of 14.01.2013 .  The plea of the appellant was that it had given maintenance rights for plots to the M/s Metro Facility Management Pvt. Ltd. is not tenable in the eyes of law because the complainant neither purchased the flat from Metro Facility nor issued any notice towards deficiency in service. Learned District Commission rightly directed the OP to pay Rs.35,000/- to the complainant as the OP had delayed the possession of the plot. Learned District Commission rightly allowed the complaint.

14.    Resultantly, the contentions raised on behalf of the present appellant stands rejected as rendered no assistance and found to be untenable and the order passed by the learned District Commission does not suffer from any illegality or perversity and is well reasoned and accordingly stands maintained for all intents and purposes.  Hence,  the appeal  stands dismissed on both counts delay as well as on merits.

15.    The statutory amount of Rs.25,000/- deposited at the time of filing the appeal be refunded to the appellant against proper receipt and identification in accordance with rules, after the expiry of period of appeal/revision, if any.

16.    Applications pending, if any stand disposed of in terms of the aforesaid judgment.

17.    A copy of this order be provided to all the parties free of cost as mandated by the Consumer Protection Act, 1986/2019. The order be uploaded forthwith on the website of the commission for the perusal of the parties.

18.    File be consigned to record room.

 

28^th October, 2022  Suresh Chander Kaushik                        S. P. Sood                                                    Member                                                         Judicial Member

S.K

(Pvt. Secy.)