Delhi

StateCommission

FA/06/242

SH. G.K. JAIN - Complainant(s)

Versus

M/S ANSAL PROPERTIES & INFRASTRUCTURE LTD. - Opp.Party(s)

05 Oct 2015

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION : DELHI

(Constituted under Section 9 of the Consumer Protection Act, 1986)

 

                                                                         Date of Decision : 07.10.2015

Date of arguments heard : 5.10.2015

First Appeal No. 242/2006

(Setting aside the order dated 6.5.2003 passed in Complaint Case No.496/2010 passed by the District Consumer Dispute Redressal Forum, K.G. Marg, New Delhi)

In the matter of

Sh. G.K. Jain

S/o late Shri R.K. Jain

R/o 7-A/2, Rajpur Road,

Delhi-110054.

 

……Appellant

Versus

1. M/s. Ansal Properties & Industries Limited

115, Ansal Bhawan,

16, K.G. Marg, New Delhi-110001.

       

2. M/s. STAR Estates Management (P) Ltd.

Antriksh Bhawan

22, K.G.Marg,

New Delhi-11001

•  

CORAM

 

Justice Veena Birbal, President

O.P. Gupta,Member(Judicial)

 

1.     Whether reporters of local newspaper be allowed to see the judgment?

2.     To be referred to the reporter or not?

 

 

 

O.P. Gupta, Member (Judicial)

 

1.         The present appeal has been filed against order dated 6.5.2003 passed by District Consumer Dispute Redressal Forum, K.G. Marg, New Delhi vide which the complaint filed by the appellant was dismissed.  At page 4 of the impugned order it has been observed that the complainant alleged that he spent Rs.35,000/- for carrying out the necessary repairs etc. but no proof of the same has been filed by the complainant nor any receipt of the expenses incurred by the complainant has been filed.  The complainant has also not filed Surveyor report or estimate of any Surveyor. Photographs filed by the complainant was not accepted nor the same showed that the said photos pertains to flat in question.  Thus it could not be concluded that complainant has suffered any loss due to negligence on the part of the OPs.
2. The impugned order further contains observations that the facts required detailed investigations, examinations and cross examinations of the witnesses at length, neither the complainant nor the OP had approached the Forum for examinations of any witnesses i.e. either of the Surveyor or of the person who carried out the work of repair of the complainant.
3. The appeal was filed in Feb., 2006 which is apparently barred by limitation.  The appellant moved an application under Section 5 and 14 of the Limitation Act for condonation of delay.  The Ld. Predecessor of this Commission allowed the appeal, set aside the impugned order and remanded the order back to the District Forum for contesting the same afresh on merits as the disputes and facts were neither complex nor involved detailed investigation vide order dated17.7.06.  The said order was passed without notice to the respondents as is depicted by the opening line of the order.
4. The respondent preferred a revision against the aforesaid order of this Commission which was registered as No.2629 of 2006 and was allowed by the National Commission vide order dated 2.8.10.  The order recites that principles of natural justice has not been followed by State Commission in as much as no adverse order could be passed without hearing the party.  There was no reference to application for condonation of delay in the order dated 17.7.06 passed by this Commission.  The order specifically contains directions to decide the issue of condonation of delay and then proceed with the matter.
5. This is how the matter is before us now.  We have gone through the application for condonation of delay.  The application simply mentions that the appellant has been diligently pursuing the remedy before the other courts.
6. During arguments, the Counsel for the appellant drew our attention to judgment of Civil suit filed by the appellant.  The Suit was decided by the Civil Judge vide judgment dated 15.9.04 and the Suit was dismissed.  The appellant preferred appeal against said judgment which was dismissed by Ld. ADJ vide order dated 6.7.05.  It is after dismissal of said appeal by ADJ that the appellant has preferred present appeal against the order of the District Consumer Forum passed on 6.6.03.  According to the appellant he was pursuing the remedy of Civil Suit and appeal against judgment in said Civil Suit due to observations made by District Consumer Forum.  He is entitled to exclude the time spent in said Civil Suit and appeal under Section 14 of the Limitation Act.
7. The Counsel for the respondents disputed arguments of the Counsel for the appellant and submitted that the District Forum decided the case on merits and not on the ground that Civil Suit was the remedy.  The observations regarding the matter requiring detailed investigations and examinations of witnesses were merely  incidental.  The said observation were viewed in that light by Civil Judge as well as by Ld. ADJ.  In para 13 of the order, Ld. Civil Judge found that there were no observations in the order of the Ld. District Forum that it did not have the jurisdiction.  Similar observations appear in para 12 of the judgment of the Ld. ADJ where he noted that order dated 6.6.03 of the Consumer Forum makes it clear that the Consumer Forum did not dismiss the complaint for want of jurisdiction, rather the same was dismissed on account of appellant’s failure to prove deficiency in service and the complaint had been dismissed on merits.
8. We find ourselves in complete agreement witht the arguments raised by Counsel for the respondent.  The order of the District Forum dismissed the complaint on merits and not on the grounds that it had no jurisdiction.  Thus the appellant ought to have challenged the said order at that very time. He unnecessarily went to Civil Court and then filed appeal against the order of the Ld. Civil Judge.  Thus there is no case made out for excluding the time spent in those proceedings.  Secondly, the application under Section 5 and 14 of the Limitation Act does not disclose any sufficient ground for condonation of delay.  The application is dismissed.  With this the appeal must automatically stand dismissed as being barred by limitation.
9. Any how, even on merits we do not find any force in the appeal.  The complaint was filed for recovery of Rs.35,000/- spent on repair, Rs.15,000/- on account of mental torture and agony and loss ofRs.21,500/- per month from Oct., 1995 due to non occupation of flat by the tenant.  Subject matter of the controversy is pretty and litigation is pending since 1996. It is not worthwhile to drag the respondent any further.  The complainant has not adduced any evidence before the District Forum to prove the expenses on repair. 
10. To sum up, the appeal is dismissed.
11. A copy of this order as per the statutory requirements be forwarded to the parties free of charge.  File be consigned to record room.

 

 

(Justice Veena Birbal)

President

 

(O.P. Gupta)
Member (Judicial)

 

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