Chandigarh

StateCommission

A/158/2016

Parsvnath Developers Limited - Complainant(s)

Versus

Dr. Alok Agnihotri - Opp.Party(s)

Ashwani Talwar Adv.

26 May 2016

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

 

Appeal No.	:	158 of 2016
Date of Institution	:	24.05.2016
Date of Decision	:	26.05.2016

 

1. Parsvnath Developers Limited, through its Director, Parsvnath Royale, Behind Society No.105/11, Sector 20, Panchkula.

 

2. The Director, Parsvnath Developers Limited, Registered and Corporate Office, 6^th floor, Arunachal Building, 19, Barakhamba Road, New Delhi – 110001.

 

1 and 2 above through their Authorised Signatory, Mr. R. C. Gupta, General Manager, Parsvnath Developers Limited, Parsvnath Tower, Near Shahdara Metro Station, Shahdara, Dehli-110032.

 

……Appellants/Opposite Parties No.1 & 2.

 

Versus

1. Dr. Alok Agnihotri, aged 60 years son of Sh. B. D. Agnihotri, Resident of H.No.1694, Sector 15, Panchkula.

…..Respondent/Complainant.

 

2. The Chairman, Chandigarh Housing Board, 8, Jan Marg, Sector 9, Chandigarh.

 

                  ....Respondent/Opposite Party No.3.

 

Appeal under Section 15 of the Consumer Protection Act, 1986.

                  

BEFORE:     JUSTICE JASBIR SINGH (RETD.), PRESIDENT.

                   SH. DEV RAJ, MEMBER.

                   MRS. PADMA PANDEY,MEMBER.

 

Argued by:

Sh. Aftab Singh Khara, Advocate for the applicants/appellants.

 

PER JUSTICE JASBIR SINGH (RETD), PRESIDENT

(ORAL)

            As per office report, record of the District Forum has been received.

2.         Alongwith the appeal, an application for condonation of delay of 116 days as per the applicants/appellants (as per the office report 115 days), in filing the appeal, has been filed.

3.         This application for condonation of delay has been filed by the applicants/appellants (Parsvnath Developers Limited) to condone the delay in filing an appeal against order dated 04.12.2015 passed by District Consumer Disputes Redressal Forum-II, UT, Chandigarh (in short ‘the Forum’) in Consumer Complaint No.339 of 2015.

4.         There is a delay of more than 115 days in filing this appeal. As per averments made in this application, aforesaid, certified copy of the impugned order was delivered to the Counsel for the applicants/appellants at Chandigarh on 01.01.2016. Thereafter, he sent that order to the appellants at Delhi, which was received on 08.01.2016. To condone the delay, it is averred as under :-

“5. It is submitted that the issue whether compensation under Clause 9(c) of the Flat Buyer Agreement is payable 100% by the Appellant only was considered by the Hon’ble State Commission in several original complaints and execution applications in which this Hon’ble State Commission had passed orders similar to the impugned order i.e. burdening the appellant alone under Clause 9(c) of the Flat Buyer Agreement. It is submitted that the said orders have been assailed by the Appellant before the Hon’ble National Commission in Execution Appeal (reference Execution Appeal No.15 of 2015 ; Execution Appeal No.01 of 2016 ; Execution Appeal No.4 of 2016 ; Execution Appeal no.19 of 2016 ; Execution Appeal No.10 of 2016) which are pending disposal and few of Executions appeals are listed for final hearing on 03.06.2016.

6. It is submitted that since the issue involved in the captioned Appeal and the aforesaid Execution Appeal is same, the Appellant herein had not preferred the statutory appeal from the Impugned Order to avoid multiplicity of litigation as much as possible.”

5.         It is stated that issue, which is being raised in this appeal, is pending before the Hon'ble National Consumer Disputes Redressal Commission, New Delhi in various appeals filed by the applicants/appellants and with a view to avoid multiplicity of proceedings, it was decided not to file this appeal. The said reason is no ground to condone the delay. Of their own, the appellants chooses not to file the appeal, knowing fully well that if it is not filed, the order passed on 04.12.2015, under challenge, will become final and order passed in any other case cannot alter that judgment. As per facts on record, there is a deliberate delay in filing the appeal. The excuse given for condoning the delay is very casual. Delay has not properly been explained. It appears that the appellants woke up only when they received notice in the Execution Application filed by respondent No.1/complainant to realize the amount due to him. It is nowhere stated, as to when notice in the Execution Application was received by the appellants. Otherwise also, the amount involved in this case is very less and issue, in dispute, when the impugned order was passed, had already been settled by various judgments of this Commission and by the Hon'ble National Consumer Disputes Redressal Commission, New Delhi and the Hon’ble Supreme Court.

6.         It was held in Smt.Tara Wanti Vs State of Haryana through the Collector, Kurukshetra AIR 1995 Punjab & Haryana 32, a case decided by a Full Bench of the  Punjab and  Haryana High Court,  that sufficient cause, within the meaning of Section 5 of the Limitation Act, must be a cause, which is beyond the control of the party, invoking the aid of the Section, and the test to be applied, would be to see, as to whether, it was a bonafide cause, in as much as, nothing could be considered to be bonafide, which is not done, with due care and attention. In  New Bank of India Vs. M/s Marvels (India): 93 (2001) DLT 558, Delhi High Court,  it was held as under:-

“No doubt the words “sufficient cause” should receive liberal construction so as to advance substantial justice. However, when it is found that the applicants were most negligent in defending the case and their non-action and want of bonafides are clearly imputable, the Court would not help such a party. After all “sufficient cause” is an elastic expression for which no hard and fast guide-lines can be given and Court has to decide on the facts of each case as to whether, the defendant who has suffered ex-parte decree has been able to satisfactorily show sufficient cause for non- appearance and in examining this aspect, cumulative effect of all the relevant factors is to be seen.”

7.         In  Oriental Insurance Co. Ltd. vs. Kailash Devi & Ors. AIR 19107 Punjab and Haryana 45, it was held as under:-

“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 bonafides is imputable to the applicant. The discretion to condone the delay is to be exercised judicially i.e. one is not to be swayed by sympathy or benevolence.

8.             In R.B. Ramalingam Vs. R.B. Bhuvaneswari, 2009 (2) Scale 108, the Supreme Court observed as under:-

“We hold that in each and every case the Court has to examine whether delay in filing the Special 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”.

9.              In Balwant Singh Vs. Jagdish Singh and Ors, V (2010) SLT 790=III (2010) CLT 201 (SC), it was held as under:-

“The party should show that besides acting bona fide, it had taken all possible steps within its  power and control and had approached the Court without any unnecessary delay. The test is whether or not a cause is sufficient to see whether it could have been avoided by the party by the exercise of due care and attention. [Advanced Law Lexicon, P. Ramanatha Aiyar, 3rd Edition, 2005]”

 

10.           In Mahant Bikram Dass Chela Vs. Financial Commissioner and others, AIR 1977, S.C. 2221, it was held as under:-

“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 Section 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 litigation who is not vigilant about his rights must explain every days delay”

 

11.  In Ansul Aggarwal Vs. New Okhla Industrial Development Authority, 2012 (2) CPC 3 (SC) it was held 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”

            A bare reading of the first proviso, engrafted to Section 15 of the Act, makes it clear, that the material part of the language thereof, is pari-materia to Section 5 of the Limitation Act, 1963. Admittedly, it was choice of the appellants not to file an appeal against order dated 04.12.2015. It has been so said in this application. Reason given to condone the delay is not acceptable. If the appellants were not happy with the order passed and were of the opinion that, it does not meet the legal parameters, it was their bounden duty to file appeal within a period of limitation. However, it was not done.

12.        In view of above discussion and the law settled in the afore-cited judgments, the application for condonation of delay stands dismissed.

13.        In this view of the matter, the appeal filed by Opposite Parties No.1 and 2 (Parsvnath Developers Limited) also fails and the same is dismissed, with no order as to costs.

14.        Certified copies of this order be sent to the parties, free of charge.

15.        Complete record alongwith a certified copy of this order be sent to the Forum, immediately, so as to reach there before the date fixed.

16.        File be consigned to the Record Room after completion.

Pronounced

May 26, 2016.

[JUSTICE JASBIR SINGH (RETD.)]

PRESIDENT

 

 

 

(DEV RAJ)

MEMBER 

 

 

 

(PADMA PANDEY)

      MEMBER

 Ad/Rb