FA.No.1426/2007  against I.A.No.53/2007 in G.R.No.4428/2006, District Forum-I Visakhapatnam.

Between:

Kanduri Thiruvengalacharyulu S/o.late K.Appalahari

Hindu, aged about 50 years, Resident of

D.No.50-50-1, G-1, Swarna Residency, TPT Colony

Visakhapatnam.                                                                                .Appellant/                                                                                                                                          Complainant

And

M/s.Sri Swarna Developers

Rep. by its Managing Partner

Sri T.V.Raghava Rao, S/o.Ramachandra Rao,

Hindu, aged 53 years, T-9, Swarna Residency,

Pent house, D.No.50-51-1, TPT Colony,

Visakhapatam-530 013.                                                                  Respondent/

                                                                                                            Opposite party

Counsel for the Appellant: Mr.S.R.Sanku                                                                                                                                                                                                                                                                                                                               

Counsel for the Respondent.Mr.K.Someshwar Kumar

                        QUORUM:SMT.M.SHREESHA, HON’BLE MEMBER.

AND

SRI K.SATYANAND, HON’BLE MEMBER.     

TUESDAY, THE TWENTY FIFTH DAY OF AUGUST,

TWO THOUSAND NINE

ORAL ORDER: (Per Hon’ble Sri K.Satyanand, Member .)

                                                                                                                                                                                                                        ***

            This is an appeal filed by the unsuccessful complainant/petitioner before the District Forum seeking condonation of delay of 137 days in filing a consumer complaint.

        The facts that led to filing this appeal are briefly  as follows:

          According to the complainant the delay was actuated on account of the protracted negotiations made by the complainant with the opposite party to get the grievance redressed by the latter.  The applicant also adverted to the merits in the complaint saying that the opposite party in the proposed complaint did not complete the works as agreed and violated the terms and conditions of the agreement and ultimately handed over the flat with unfinished works for which the complainant allegedly incurred an expenditure of Rs.75,000/-.  More or less the complaint filed appears to be one for recovery of Rs.1,91,250/- with interest at the rate of 24% p.a. for some excess amount that he paid to the builder among other reliefs.

        The petition to condone delay was opposed by the opposite party  stating that he handed over possession to the complainant on 9-5-2004 and he had passed a receipt duly recording his satisfaction as to the quality of work and the present condone delay petition was also devoid of any truth as there was no occasion for protracted negotiations and even the delay quantified was less than that had actually occurred. 

        On a consideration of the arguments addressed by both sides, the District Forum dismissed the petition saying that the delay was not properly explained by showing sufficient cause and in any view of the matter, the petitioner accepted the flat and after fully satisfying himself took possession under a delivery letter dated 9-5-2004 as tendered by the respondent/opposite party.

        Aggrieved by the said order, the complainant filed the present appeal contending inter alia that the District Forum was wrong in dismissing the petition and it failed to consider the material facts pleaded in the affidavit and without following the spirit of the case law especially of the Hon’ble Apex court and National Commission that the consumers were entitled for easy remedy.

        Heard both sides.

        The point for consideration is whether there are any infirmities in the order of the District Forum?

          Admittedly the complainant filed a petition to condone the delay of 137 days.  He did not give any reasons except that the delay occurred on account of the lengthy negotiations between himself and the builder with a view to sort out the differences between them.  But the fact remains that he had taken possession of the flat admittedly as far back as on 9-5-2004.  The complainant filed a copy of the said letter, document No.13 and it is indeed the document known as flat delivery letter in which the owner complainant clearly signified to the factum that ‘”taken over the flat in good condition” shutting him out to contend to the contrary. No doubt there are some corrections which appear to have been made by the complainant himself under his signature dated 9-5-2004 but that pertains to some rights conceded in favour of the builder.  The correctness or otherwise of the corrections belongs to the domain of the enquiry in the complaint if the complaint deserves to be taken cognizance of but there are no such prospects here as the very delay was not properly explained and the complainant turned out to be one for recovery of money paid in excess.  We go by the prayer in the complaint and surely that pertains to the realm of a suit for recovery of  money paid in excess.   Thus even if we view the whole matter from the angle of merits in the case, the complaint suffers from serious infirmities.  Perhaps, these two circumstances made the District Forum dismiss the petition.  We do not also see any grounds to condone the delay as basically the delay was not convincingly explained apart from the tenuous merits in the complaint itself.  

        For the reasons stated above, the appeal is liable to be dismissed and therefore dismissed accordingly but without costs in the circumstances of the case.

MEMBER.           

                                                                                      MEMBER

                                                                         Dated 25-8-2009