C.VISWANATH

1. The present Revision Petition is filed by the Petitioner under Section21(b) of the Consumer Protection Act, 1986 against Order passed by the Karnataka State Consumer Disputes Redressal Commission, Bangalore (hereinafter referred to as the “State Commission”) in F.A. No. 1240/2011 dated 25.07.2013.

    

2. In the Complaint, it was stated that in July, 2004, the Petitioner booked a flat in the Respondent’s project. It was further stated that as per the agreement to sell and construction agreement, the flat with all facilities was to be completed and delivered by 30th April 2006. After a delay of 25 months, the flat was delivered to the Petitioner on 26th May 2008. As per para 17 of the construction agreement the builder shall became liable to pay to the purchaser monthly rental compensation of Rs.7,500/-commencing from 60 days after the due date of delivery till the actual date of delivery. Hence, after deducting the grace period of 60 days, the Respondent was required to pay compensation of Rs.1,72,500/- for 23 months delay. It was alleged by the Petitioner that there was a gross violation of construction agreement, as facilities promised were not given to the Petitioner. Hence, the present Complaint.

    

3. The Respondent filed written version stating that the Complaint is barred by limitation. The sale deed has been executed in the year 2008 and the possession of the flat had also been given in the year 2008 itself. Thus, the Complaint was not maintainable. The Respondent constructed the apartment as mentioned in the joint development agreement. Even after repeated requests from the Respondent, the Petitioner did not make payments as agreed in the construction agreement. He made payments on 9th April and 10th April 2008. Hence, the Respondent could not handover the possession of the Flat. The delay occurred due to late payments. Hence, there was no negligence on the part of the Respondent. It was further reiterated that 25% of the land had been transferred to BDA, the BDA has to provide Civic Amenity site. The Respondent had planned to construct gazebo in between the building but fire department objected to construct the same. The Respondent had undertaken to construct swimming pool and the same was under construction. The Respondent Company was not liable to pay rental compensation. The Respondent deposited Rs.2,77,00,000/- to the department, the same has not been refunded to the Respondent Company. Hence, the Respondent is not in a position to refund the service tax. Therefore, the Respondent requested to dismiss the Complaint.

    

4. District Forum, vide order dated 21.02.2011, dismissed the Complaint and gave liberty to the Petitioner to approach Civil Court for getting the appropriate relief/reliefs.

    

5. Aggrieved of the order passed by the District Forum, the Petitioner filed Appeal before the State Commission. State Commission, vide order dated 25.07.2013, partly allowed the appeal of the Petitioner and set-aside the order passed by the District Forum. The Respondent was directed to pay Rs.1,72,500/- to the Petitioner within a period of sixty days from the date of receipt of the order. On failure, to do so, the Petitioner was entitled for interest on the awarded amount at the rate of 9% pa from the date of filing of the complaint till its realization. The Respondent was further directed to pay litigation expenses of Rs.5,000/- to the Petitioner.

    

6. Aggrieved of the order passed by the State Commission, the Petitioner filed the present Revision Petition before this Commission.

    

7. On 29.01.2018, this Commission has held that even on the second call none appeared on behalf of the Petitioner. It appeared that that the Petitioner had lost interest in the matter. Hence, the Revision Petition was dismissed for non -prosecution. Thereafter, Petitioner filed M.A. No. 18 of 2019 for restoration of the present Revision Petition on 17.12.2018.

    

8. On perusal of record, it is noticed that the Petitioner had not been appearing in the matter since 13.08.2014.The Petitioner did not appear to be serious about pursuing his case.After a delay of almost one year, Petitioner filed an application for restoration of this Revision Petition, citing health reasons.The investigation report dated 3.09.2012 filed by the Petitioner does not show the present stage of treatment of the Petitioner. Except this single page of investigation report, Petitioner has not filed any other document, which show the details of his health condition.The report does not also show that the Petitioner was suffering from Cancer, as it is noted as follows:

   “suggested a repeat biopsy form right central lobe to rule out malignancy.”

    

9. The Restoration Application has been filed after a delay of more than 10 months of the matter being dismissed due to non-prosecution.This is a reflection on the conduct of the Petitioner.He is non-serious about prosecuting his case.No sufficient cause or reason is shown that the Petitioner is serious about his case in the past or even after the Revision Petition has been dismissed for non-prosecution.

    

10. In view of the above, the MA/18/2019 filed by the Petitioner for the restoration of R.P. No. 4767 of 2013 is dismissed.