APPEARED AT THE TIME OF ARGUMENTS

PRONOUNCED ON:     9^th April    2018

ORDER

PER DR. B.C. GUPTA, PRESIDING MEMBER

          This first appeal has been filed under section 19 read with section 21(a)(ii) of the Consumer Protection Act, 1986, against the impugned orders dated 22.04.2016 and 12.08.2016, passed by the Delhi State Consumer Disputes Redressal Commission, (hereinafter referred to as “the State Commission”) in Consumer Complaint No. 225/2015, filed by the present respondent, vide which, the right of the appellant/opposite party (OP) to file written version to the consumer complaint was closed.

2.      Briefly stated, the facts of the case are that the respondent/complainant Dr. Kulvinder Singh Bahl filed the consumer complaint no. 225/15 before the Delhi State Commission against the present appellant/OP builder, saying that he had booked a residential space of 1499 sq. ft with them vide application dated 10.09.2011 and a floor-buyer agreement was entered between him and the opposite party on 21.03.2012.  The complainant had made a total payment of Rs. 29,39,445/- till the date of making the complaint, which constituted about 80% of the total consideration for the said property.  However, even after the expiry of a period of 30 months from the date of the agreement, the OP builder had not been able to provide possession of the said residential property to him, as laid down in the terms and conditions of the agreement.  The complainant filed the consumer complaint in question, seeking directions to the OP builder to refund the sum of Rs. 29,39,445/- deposited by him alongwith interest @ 18% per annum and also to pay compensation for deficiency in service, litigation cost etc.

3.      It has been admitted by the appellant in the grounds of appeal itself that notice of the consumer complaint was sent to the appellant/OP builder and the date of hearing was fixed as 02.12.2015.  The OP builder put in appearance before the State Commission on 02.12.2015, on which date, a copy of the complaint was handed over to the learned counsel for the appellant and the matter was adjourned to 22.04.2016.  However, the OP builder did not put in appearance on the next date of hearing i.e. 22.04.2016, on which date, the following order was recorded by the State Commission:-

“22.04.2016 

C-225/15

Present:       Complainant in person.

                   None for OP.

                   OP has failed to file written version despite the fact that more than 4 months have expired since OP put an appearance and put up of complaint.  Right of OP to file written statement stands closed.

          Complainant to file exparte evidence within 8 weeks.

                    List on 12.8.16.

                                                          (O.P. Gupta)

                                                          Member (Judicial)”

4.      On the next date of hearing i.e. 12.08.2016 as well, none appeared for the OP builder before the State Commission and the following order was recorded by the State Commission:-

“12.08.2016 

C-225/15

Present:       Shri Arun Kumar, counsel for complainant.

                    None for OP.

                    Complainant has filed evidence by affidavit.

                   List for arguments on 2.3.17.

                                                                             (O.P. Gupta)

                                                                    Member (Judicial)”

5.      The present appeal has been filed by the OP builder, challenging the above two orders of the State Commission with the prayer that the said orders should be set aside and the right of the appellant to file written version to the complaint should be restored.  The respondent/complainant has filed reply to the memo of appeal, saying that the appeal had been filed after a delay of 71 days and no sufficient grounds had been given for the condonation of such delay.  It has further been stated that the learned counsel for the appellant/OP builder is stated to have been unwell on the date of hearing i.e. 22.04.2016.  However, no such evidence of any medical treatment had been placed on record to substantiate the version of the OP builder.  Even if the learned counsel was unwell, the appellant/OP builder had enough time to file reply to the consumer complaint within the time permissible under law.  It is further stated that according to the appellant/OP builder, they had filed an application dated 05.07.2016 before the State Commission, seeking extension of time for filing the written statement.  However, there was no evidence to prove that such application was ever filed before the State Commission.  Moreover, it was the case of the OP builder that they had appeared before the State Commission on 12.08.2016, but still, their submissions were not recorded by the State Commission.  The said statement of the OP builder was absolutely false.  The respondent/complainant prayed that there was no merit in the appeal and the same should be dismissed.

6.      During hearing before this Bench, the learned counsel for the appellant/OP builder admitted that they had made appearance before the State Commission on 02.12.2015 and also received copy of the paper book on that date.  However, on the next date of hearing i.e. 22.04.2016, their counsel could not be present before the State Commission.  The learned counsel stated that they had filed an application before the State Commission on 05.07.2016, seeking extension of time for filing the written version, but they again could not appear before the State Commission on the next date of hearing i.e. 12.08.2016.  The learned counsel has drawn attention to an order passed by the Hon’ble Supreme Court in Reliance General Insurance Co. Ltd. & Anr. vs. M/s. Mampee Timbers and Hardwares Pvt. Ltd. & Anr., passed in Civil Appeal No. 2990/2017 on 10.02.2017, in which it has been stated as follows:-

          “We consider it appropriate to direct that pending decision of the larger bench, it will be open to the concerned Fora to accept the written statement filed beyond the stipulated time of 45 days in an appropriate case, on suitable terms, including the payment of costs, and to proceed with the matter.”

          The learned counsel requested that they should be allowed to file their written version, subject to payment of certain cost etc.

7.      The respondent/complainant, who argued the case in person, stated that in response to the notice sent by the State Commission on 17.11.2015, the OP builder had put in appearance before the State Commission on 02.12.2015, when a copy of the paper book was delivered to him.  However, there was no valid reason for their non-appearance on the next date of hearing i.e. 22.04.2016.  They had not filed any evidence in support of their version that their counsel was sick on that date.  The complainant stated that the appellant builder had six more cases listed before the State Commission on that day, which were attended by some counsel or the other.  There was no justification, therefore, to allow this appeal.

8.      I have examined the entire material on record and given a thoughtful consideration to the arguments advanced before me.

9.      There is a delay of 72 days in filing the present appeal as reported by the Registry.  An application for condonation of delay has been filed by the appellant/OP builder, in which it has been stated that after obtaining a copy of the order of the State Commission dated 22.04.2016, they had taken appropriate steps by filing an application before the State Commission, which was supposed to be listed on the next date of hearing i.e. 12.08.2016.  On the said date, the appellant came to know that the said application was not on the record of the State Commission, and the State Commission did not mark their attendance on that date i.e. 12.08.2016.  They then decided to challenge both the orders dated 22.04.2016 and 12.08.2016 and for that purpose, they prepared draft of the instant appeal and handed over the same to the clerk of the counsel for the appellant, who had to visit his home town due to some emergency in September- October, 2016.  The appellant came to know in the month of November, 2016 that the said appeal had not been filed and the draft was still in the custody of clerk.  The appellant then filed the appeal before this Commission on 22.11.2016. 

10.    From the version given above by the appellant/OP builder, it is abundantly clear that no valid ground has been stated for the condonation of delay in filing the present appeal.  It is very much clear from the application for condonation of delay that the appellants were well aware of the orders passed on 22.04.2016 as well as 12.08.2016, but still they took a very casual approach in the matter, due to which, the appeal could not be filed in time.  The explanation given by the appellant that the draft of the instant appeal remained in the custody of the clerk of the counsel, does not provide any cogent and convincing explanation for the delay of 72 days in filing the appeal.  The instant appeal, therefore, deserves to be dismissed on this ground alone.  We are supported in this view in a judgement made by the Hon’ble Supreme Court in Anshul Aggarwal vs. New Okhla Industrial Development Authority, IV (2011) CPJ 63 (SC), in which, it was observed as follows:-

“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”.

11.    Now, coming to the merits of the case, it is admitted by the appellant/OP builder that they appeared before the State Commission on 02.12.2015 and obtained a copy of the paper book on that day.  In accordance with section 13 of the Consumer Protection Act, the appellant/OP builder were required to file the written version to the said complaint within a period of 30 days of the receipt of the paper book.  Such period could be extended by another 15 days as laid down in section 13 itself.  However, the appellants did not file any application, seeking extension in time for filing the written version.  If they had received a copy of the paper book on 02.12.2015, they could have filed the written version within the extendable period of 45 days only i.e. upto 16.01.2016 under section 13(2) of the Act.  The Hon’ble Supreme Court in their order passed on 04.12.2015 in Civil Appeal No. 10941-10942 of 2013, New India Assurance Co. Ltd. vs. Hilli Multipurpose Cold Storage (Pvt.) Ltd., held that written version could be filed only within the time prescribed under section 13(2) of the Act.  At the moment, the issue stands referred to a larger Bench of the Hon’ble Supreme Court as per the order passed in Civil Appeal No. 1083-1084/2016, Bhasin Infotech and Infrastructure Pvt. Ltd. vs. Grand Venezia Buyers Association and allied matters on 11.02.2016.  As stated by the Hon’ble Supreme Court in Reliance General Insurance Co. Ltd. & Anr. vs. M/s. Mampee Timbers and Hardwares Pvt. Ltd. & Anr. (supra), the time for filing the written version can be extended in the meantime ‘on suitable terms’ in appropriate case, but in the present case, neither any valid explanation has been forthcoming for non-filing of the written version within time, nor any application was moved within time, seeking extension of time.  As per the version of the appellants, they had filed an application before the State Commission on 05.07.2016, meaning thereby that the application for extension of time was filed after a period of seven months, of the receipt of paper book.  In the given circumstances, therefore, there is absolutely no justification for condoning the delay in filing the written version. 

12.    It is further observed that the appellant/OP builder even failed to appear before the State Commission on the next date of hearings i.e. 22.04.2016 and 12.08.2016.  We have no reason to differ with the contention raised by the respondent/complainant that the OP builder have not been able to explain their absence in any manner before the State Commission. 

13.    Based on the discussion above, it is held that there is no merit in the present appeal, because the appellants have miserably failed to explain the reasons for non-filing of the written version to the consumer complaint for such a long time and also for their non-appearance on the subsequent dates of hearing.  Moreover, this appeal having been filed with a delay of 72 days is not maintainable on grounds of delay.  In the interest of justice, however, it is ordered that if the appellants choose to appear on the next date of hearing, the State Commission shall allow them to participate in the proceedings, but they shall be permitted to file their written arguments only in terms of Regulation 13 of the Consumer Protection Regulations, 2005 at the stage of final hearing of the matter.

14.    The present appeal is, therefore, ordered to be dismissed on merits as well as on grounds of limitation.  There shall be no order as to costs.