The order dated 23.4.2015 passed by the State Consumer Disputes Redressal Commission, Punjab, (in short ‘the State Commission’) in Consumer Complaint No.79 of 2014 has been challenged by the complainant as well as the opposite party in FA No.250 of 2016 and FA No.680 of 2015. As these are cross appeal, the parties will be addressed as mentioned in the impugned order as complainant and the opposite party.

2.      Brief facts of the case are that the opposite party allotted flat no.201, block 3-A, second floor, phase 3, category A, Maya Garden, VIP Road, Zirakpur to the complainant.  The flat was allotted to the complainant vide allotment letter dated 28.5.2011.  Total amount paid by the complainant was Rs.36,82,374/- to the opposite party.  First of all opposite party failed to handover possession on the stipulated date that was on or before 30.12.2012, as per clause 5 of the agreement and even till date flat is not ready for offer of possession.  Second issue raised by the complainant was that Rs.1,10,374/- was illegally collected by the opposite party towards service tax.  When complainant visited the flat, he found lot of defects in it. It had specified wooden windows in the brochure but the windows present were made up of iron.  So, in this manner, he pointed out various other deficiencies to the opposite party. Complainant filed complaint being No.79 of 2014 before the State Commission.  While resisting the complaint, the opposite party on the other hand, pleaded that flat was very much ready for possession but the complainant did not come forward to take the possession.  At the same time, he is not expected to get the possession without paying dues.  Opposite party claimed to build the entire house, as per specifications.  Opposite party pleaded that Rs.1,10,374/- was collected towards tax to the Government of India.    However, State Commission vide its order dated 23.04.2015 passed the following order:-

“15. In view of the above discussion, the complaint is partly allowed. The opposite party is directed to deliver the possession of the flat in dispute to the complainant within one month of the payment of Rs.1,88,000/- plus Rs.3,96,210/- ; after deducting therefrom the amount allowed as compensation for the delayed payment and refund of service charges.  In case, the amount of that compensation and Rs.1,10,374/- comes more than the amount payable by the complainant, the opposite party shall pay the balance amount to the complainant at the time of delivery of possession and in that case, the possession is to be delivered and payment of excess amount is to be made within one month of the receipt of the copy of the order.  The opposite party is also directed to pay Rs.10,000/-, as litigation expenses.”   

3.      Hence the present appeals.

4.      Heard the learned counsel for the parties and perused the record.  The parties will be referred to as complainant and the opposite party for the sake of convenience for identification. Learned counsel for the opposite party has stated that appeal No.680 of 2015 has been filed by the opposite party being aggrieved by the order of the State Commission for refund of the service tax of Rs.1,10,374/-.  Learned counsel stated that though the payment of service tax is the responsibility of the opposite party, however, it has to be collected from the complainant.  The opposite party cannot pay service tax from its own pocket and the same has to be charged from the parties to whom the service is provided.  The State Commission has passed an order of refund of the service tax deposited by the complainant, which is against the law and therefore, cannot be sustained.  It was stated by the learned counsel that inadvertently due to mistake in the agreement it was stated that the service tax will be paid by the service provider i.e. the opposite party.  A clarification was published in the newspaper that this has been an inadvertent mistake in the agreement and actually the service tax will be paid by the allottee.  However, inspite of this clarification which is as per the law, the State Commission has not agreed with the contention of the opposite party and has allowed the refund of the service tax to the complainant.

5.      Learned counsel for the opposite party further stated that the complainant has filed appeal No.250 of 2016 for enhancement of the compensation for the delay in possession.  The State Commission has already allowed Rs.5/- per sq.ft. per month as compensation for delay, which is as per the builder-buyer agreement.  Both the parties are bound by the contract and the complainant cannot deserve more compensation then whatever has been agreed between the parties.  Leaned counsel further stated that the appeal filed by the complainant has been filed with delay of 191 days and no proper reasoning has been given in the application for condonation of delay for such delay.  Learned counsel pointed out that the complainant has mentioned in the application for condonation of delay that the complainant was not knowing that the appeal was to be filed within a period of 30 days.  In this regard, learned counsel submitted that ignorance of law cannot be any excuse for not applying the law.  Therefore, the appeal filed by the complainant deserves to be dismissed only on the ground of delay.

6.      On the other hand, learned counsel for the complainant stated that the State Commission has only allowed compensation of Rs.5/- per sq.ft. per month for the period of delay.  This order is as per the provision of the builder-buyer agreement.  It has been held by this Commission and by the Hon’ble Supreme Court that this meagre compensation does not reflect the actual loss that is suffered by an allottee who does not get the possession in time and gets the possession with delay.  This Commission has been awarding interest on the deposited amount @ 12% pa. from the date of due possession till actual possession.  Learned counsel for the complainant further stated that the agreement is binding on both the parties and the opposite party has clearly provided in the agreement that service tax will be borne by the opposite party.  Therefore, the publication in any newspaper will not make any difference so far as the individual agreement is concerned.  The State Commission has rightly decided the issue that the opposite party is liable to refund the service tax paid by the complainant. 

7.      I have given a thoughtful consideration to the arguments advanced by the learned counsel for both the parties and examined the record.  So far as the question of refund of service tax is concerned, the agreement clearly provides that the opposite party shall pay the service tax.  The agreement is binding on both the parties and therefore, the opposite party cannot later on say that this clause was inadvertently recorded in the agreement.  Both the parties have signed the agreement with their eyes open and therefore, the State Commission has rightly allowed the refund of the service tax in the present case.  In fact, this concession being given by the opposite party may have been a driving force for continuing with the booking with the opposite party. Therefore, I do not find any force in the appeal filed by the opposite party as no other point was pressed in the appeal.

8.      Coming to the appeal filed by the complainant, it is seen that the same is filed with a delay of 191days.  The application for condonation of delay reads as under:-

“2.     That the certified copy of impugned order dated 23.4.2015 was received by the appellant through post on 10.8.2015, but thereafter could not file the appeal against impugned order within the period of limitation, as the appellants was requesting the respondent to comply with the order passed by the Ld. State Commission.,

3.     That the applicant was not in the knowledge that the appeal has to be filed within a period of 30 days.

4.     That the appeal bearing No.FA/680/2015 against the same impugned order has been filed by the respondent & the same is listed for first hearing of appearance of appellant for 18.03.2016.

        It is therefore, respectfully prayed that keeping in view afore narrated fact & circumstances, the application for condonation of delay of 191 days may kindly be condoned in the interest of justice.”

9.      From the above, it is clear that no proper reasoning has been given by the complainant for the huge delay of 191 days in filing the appeal.  Special limitation periods have been prescribed under Consumer Protection Act, 1986, its Rules 1987 and its Regulations 2005 for speedy disposal of consumer disputes. Hon’ble Supreme Court in Anshul Aggarwal vs. New Okhla Industrial Development Authority, IV (2011) CPJ 63 (SC) has laid down that;

“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.”

10.   Decision of Anshul Aggarwal (Supra) has been reiterated in CicilyKallarackal  Vs. Vehicle Factory, IV (2012) CPJ 1(SC) 1, wherein Hon’ble Supreme Court observed:-

         “4. This Court in Anshul Aggarwal v. NOIDA, (2011) CPJ 63 (SC) has explained the scope of condonation of delay in a matter where the special Courts/ Tribunals have been constituted in order to provide expeditious remedies to the person aggrieved and Consumer Protection Act, 1986 is one of them. Therefore, this Court held that while dealing with the application for condonation of delay in such cases the Court must keep in mind the special period of limitation prescribed under the statute (s).

  5.    In the instant case, condoning such an inordinate delay without any sufficient cause would amount to substituting the period of limitation by this Court in place of the period prescribed by the Legislature for filing the special leave petition. Therefore, we do not see any cogent reason to condone the delay.      

6.      Hence, in the facts and circumstance of the case as explained hereinabove, we are not inclined to entertain these petitions. The same are dismissed on the ground of delay”.

11.    In R.B. Ramlingam Vs. R.B. Bhavaneshwari, 2009 (2) Scale 108, Hon’ble Supreme Court observed:-

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

12.    This Commission in Branch Manager, Shriram Transport Finance Company Ltd. vs. Mukeer Ahmed Shiddhiqui, 2015 SCC OnLine NCDRC 3375 has observed the following: 

“18.   Recently, larger bench of this Commission in  “PNB Metlife India Insurance Company Ltd. Vs. Asha Agarwal, II(2015) CPJ 666(NC)” in case of delay,  has observed;

“6.   It is trite that discretion to condone delay has to be exercised judiciously, based on facts and circumstances of each case. ‘Sufficient cause’ cannot be construed liberally if negligence, inaction or lack of bona fides are attributable to the party, praying for exercise of such discretion in its favour. It is equally well settled that when a statute provides for a particular period of limitation, it has to be applied with all its rigor. An unlimited limitation leads to a sense of uncertainty and, therefore, limitation prevents deprivation of what one may have acquired. xxxxxxxxxxxxxxxx.”

13.    The above authoritative judgments are equally applicable in the present case.  It is seen that the complainant has not displayed reasonable diligence in prosecution of his appeal.  Clearly, negligence and deliberate inaction are imputable to the complainant in filing his appeal. He has already been granted compensation as per the agreement between the parties. Therefore,  there seems to be no convincing reason otherwise also to condone the delay.  The negligence of law cannot be made a ground for condoning the delay because as soon as a person receives an order against which he wants to appeal, he should take appropriate steps immediately with diligence.  The other ground taken by the complainant is that after getting the order of the State commission he was requesting the opposite party to comply with the impugned order of the State Commission.  This ground implies two things.  First that the complainant was not really aggrieved by the impugned order and second that he wasted his valuable times in requesting the opposite party for compliance of the impugned order instead of utilising this time for taking the legal steps to file the appeal if required.  The third ground taken by the complainant is that as the appeal filed by the opposite party has been admitted and proceedings going ahead, his appeal be also admitted and delay condoned.  This means that the complainant’s appeal has been filed because the opposite party has filed the appeal.  None of these grounds can justify the condonation of delay of 191 days.  In fact, these grounds weaken the case of the complainant on merit as well because the complainant actually was not aggrieved with the impugned order and was making efforts to get the impugned order complied with by the opposite party. Thus, I do not find any merit in the application for condonation of delay in filing appeal No.250 of 2016.  Accordingly, this application is dismissed and consequently, appeal is also liable to be dismissed.

14.    Based on the above discussion, both the appeals 680 of 2015 and 250 of 2016 are dismissed.