Chandigarh

StateCommission

A/320/2024

MANOHAR INFRASTRUCTURE AND CONSTRUCTIONS PVT. LTD - Complainant(s)

Versus

OM KUMAR - Opp.Party(s)

ANIL MEHTA

13 Nov 2024

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

 

 

Appeal No.	:	320 of 2024
Date of Institution	:	04.09.2024
Date of Decision	:	13.11.2024

1. M/s Manohar Infrastructure & Constructions Private Limited, Corporate office : SCO No.139-141, Sector 17C, Chandigarh-160017  through its Managing Director/Manager.
2. Tarninder Singh, Managing Director, M/s Manohar Infrastructure & Constructions Private Limited, Registered office at SCO No.139-141, Sector 17C, First Floor, Chandigarh.

 ……Appellants/opposite parties

V e r s u s

1. Om Kumar
2. Mannu Kumari

Both resident of House No.W2-301, Vatika Lifestyle Homes, Sector 83, Gurgaon (Gurugram)-122004.

 ….Respondents/complainants

 

BEFORE:              MR. RAJESH K. ARYA, PRESIDING MEMBER.

 

ARGUED BY       

 

Ms. Garima Pandey, Advocate for the appellants.

Sh. Sanjeev Gupta, Advocate for the respondents.

                            

PER RAJESH K. ARYA, PRESIDING MEMBER

                   In this appeal, the appellants have assailed the order dated 03.11.2023 passed by the District Consumer Disputes Redressal Commission-I, U.T., Chandigarh (in short the District Commission), whereby the consumer complaint bearing no.233 of 2021 filed by them was partly allowed and they were directed as under:-

“…..In the light of the aforesaid discussion, the present consumer complaint succeeds, the same is hereby partly allowed and OPs are directed as under :-

1.      To deliver actual physical possession of the subject plot to the complainants, complete in all respects i.e. after providing all the basic amenities, referred to above, and execute the sale deed, on receipt of balance sale consideration, EDC, PLC (if the subject plot is preferentially located) and also Govt. taxes as applicable, from the complainants. It is also made clear that the OPs are not entitled to charge IDC from the complainants, as there is no document on record to prove that the same was payable by the complainants.
2.      To pay delayed compensation to the complainants in the form of simple interest @ 9% per annum on the entire deposited amount w.e.f. the committed date of possession i.e. 21.10.2014 till the date of actual physical possession of the subject plot in all respects.
3.      To pay ₹50,000/- to the complainants as compensation for causing mental agony and harassment to them and also deficiency in providing service and adoption of unfair trade practice;
4.      To pay ₹10,000/- to the complainants as costs of litigation.

This order be complied with by the OPs within two months from the date of receipt of its certified copy, failing which, the payable amounts, mentioned at Sr.No.(ii) & (iii) above, shall carry interest @ 12% per annum from the date of this order, till realization, apart from compliance of remaining directions..…”

2.           The District Commission noted down the following facts of the consumer complaint narrated by the complainants in their complaints:-

“….It transpires from the allegations as projected in the consumer complaint that on 22.10.2011, the complainants booked a residential plot measuring 200 sq. yards @ ₹18,500/- per sq. yard in the locality namely ‘Palm Garden’ in the project being developed by the OPs in Mullanpur (New Chandigarh), District SAS Nagar, Mohali (hereinafter referred to as “subject plot”). The complainants were assured that the possession of the subject plot would be handed over within two years as most of the approvals and sanctions had already been received. The complainants submitted application (Annexure C-1) to the OPs and paid booking amount of ₹11,10,000/-, being 30% of the total sale consideration i.e. ₹37.00 lacs, and the OPs acknowledged the said amount by putting stamp on application form (Annexure C-1) itself on 24.12.2011.  It was also agreed that the total sale consideration excludes EDC and PLC (if any). A copy of payment plan is Annexure C-2. As the complainants were not having any property near Chandigarh, they wanted to shift to Chandigarh and for that purpose they had purchased the subject plot. Thereafter, the complainants visited the office of the OPs in the month of April 2012 for getting the allotment letter and for execution of buyer’s agreement, but, the complainants were assured by the OPs that the same will be executed within six months. After the aforesaid period, when the complainants again approached the OPs, nothing positive was done. Thereafter, in the month of March 2013 when the complainants raised the issue of delay in commencement of the development works at the project with the OPs, no positive response was given by them and only then the complainants came to know that, in fact, OPs were not having even a single approval for the development of the project, which fact was not disclosed by the OPs to the complainants at the time of receiving the huge amount from them. In the month of March 2014, complainants again approached the OPs for getting the allotment letter and execution of buyer’s agreement and at that time, OPs asked the complainants to further deposit 20% of sale consideration for getting the allotment letter and on this again the complainants deposited ₹7,40,000/- with the OPs and in this manner till 22.4.2014, complainants had paid total amount of ₹18,50,000/- i.e. 50% of the total sale consideration.  Even after paying the aforesaid amount to the OPs, they could not execute the allotment and buyer’s agreement and when the complainants visited the project site, they were shocked to see that no development activity was there except that some flags were put at the entrance.  Even the representatives of the OPs disclosed that now the CLU was received by the OPs and the development work will be started. Vide letter (Annexure C-3), OPs had undertaken that the allotment would be made by December 2014. It is further alleged that instead of issuing the allotment letter, OPs only issued acknowledgement dated 24.6.2014 (Annexure C-5) to the complainants and on seeing the same complainants were shocked that the OPs had arbitrarily incorporated the condition of paying Govt. levies and IDC (Internal Development Charges) which were not even agreed upon between the parties at the time of booking the subject plot, especially when the basic sale price of the subject plot was ₹18,500/- per sq. yards (excluding EDC and PLC charges).  Moreover, there was no need to issue the acknowledgement dated 24.6.2014, when the OPs had already acknowledged the receipt of the booking amount of ₹11,10,000/-. In this manner, the aforesaid act of the OPs in incorporating the condition of payment of Govt. levies and IDC by the complainants in the acknowledgment (Annexure C-5) amounts to indulgence in unfair trade practice.  Not only this, as the OPs had received a huge amount from the complainants for the sale of the subject plot, knowing fully well that they were not having the requisite approvals from the competent authorities, the aforesaid act of the OPs amounts to deficiency in service and unfair trade practice.  Even till the year 2017, there was no development work on the project site and this manner the OPs could not commence the development of the area in order to provide the subject plot to the complainant.  As the OPs have been demanding hidden charges and further started demanding ₹2,000/- per sq. yards towards IDC in the year 2018-19, the said act of the OPs amounts to unfair trade practice on their part.  Vide email dated 8.2.2021 (Annexure C-9), the complainants again requested the OPs to issue the allotment letter, but, with no result.  Since the complainants have been waiting for the possession of the plot for the last more than 8 years, but, all their hopes have been dashed which caused mental and physical harassment to the complainants.  Not only this, the OPs have started demanding more money from the complainants in order to execute the buyer’s agreement, which is against the provisions of The Punjab Apartment & Property Regulation Act, 1995 (hereinafter referred to as “PAPRA”) and Real Estate Regulatory Authority (hereinafter referred to as “RERA”).  In this manner, the aforesaid acts of the OPs clearly amount to deficiency in service and unfair trade practice. OPs were requested several times to admit the claim, but, with no result.  Hence, the present consumer complaint.” 

3.           The opposite parties put in appearance and filed their written version, which was noted down by the District Commission as under:-

“….OPs resisted the consumer complaint and filed their written version, inter alia, taking preliminary objections of maintainability, concealment of facts, limitation and also that the complainants are not covered under the definition of consumer.  It is further alleged that, in fact, the complainants were informed about the project approval and issuance of CLU in favour of the answering OPs and also about the status of the project at the time of expression of interest was executed. The competent authority had granted completion period till 13.6.2018 towards the project of the OPs, which was later on extended upto 31.12.2022 and it was for the complainants to come forward to execute the plot buyer’s agreement and comply with the terms and conditions. Even otherwise also, without prejudice to the defence of the OPs which was taken, no prejudice would be caused to the complainants if at the initial stage OP company was not having permission from the competent authority since a valid title could have been transferred in the name of the complainants after the allotment of the plot.  The OP company had also submitted application for extension of the completion of the project as some part of the mega project was yet to be completed whereas the major portion of the project has already been completed and the competent authority had granted extension regarding completion of the project upto 31.7.2019, which was later on extended upto 31.12.2022. The OP company had acquired land for the mega project and in this manner has been exempted from the provisions of the PAPRA, regarding which notification has already been issued on 25.1.2017.  The OP company had submitted application for the mega housing project as it was the owner of more than 100 acres of land and the fixed capital investment was also more than 100 crores and the project was later on sanctioned.  However, the project of the OP company was approved on 22.3.2013 by the Govt. of Punjab and thereafter formal agreement was signed and executed with the Govt. on 14.6.2013 and after the addition of more land, the mega project for the total area of 234.37 acres with an investment of ₹845 crores was sanctioned and the competent authority had also granted the completion period for the entire project upto 13.6.2018.  In this manner, the case of the OPs was under process and there was some procedural delay on the part of the Govt. in issuing the notification in this regard and the delay in completion of the project was only due to the considerable delay in approval by the Govt. for which the answering OPs are not responsible.  It is further alleged that the OP company has already allotted plots to the number of customers who have deposited amount as per the schedule and in this manner the complainants have no locus standi or cause of action to file the present consumer complaint.  On merits, the facts as stated in the preliminary objections have been reiterated. The cause of action set up by the complainants is denied.  The consumer complaint is sought to be contested.”

4.           The contesting parties led evidence in support of their case.
5.           The District Commission after hearing the contesting parties and on going through the material available on record partly allowed the consumer complaint, as stated above.
6.           Hence this appeal.
7.           Alongwith this appeal, the appellant has also filed miscellaneous application bearing No.797 of 2024 for condonation of delay of 239 days (as per office 244 days) in filing the same.   
8.           The record of the District Commission was requisitioned and received by this Commission.
9.           We have heard the contesting parties and have gone through the material available on the entire record, very carefully.
10.           First coming to the application for condonation of delay, it may be stated here that Section 41 of the Consumer Protection Act, 2019 (in short CPA 2019) provides as under:-

“………..41. Any person aggrieved by an order made by the District Commission may prefer an appeal against such order to the State Commission on the grounds of facts or law within a period of forty-five days from the date of the order, in such form and manner, as may be prescribed:

Provided that the State Commission may entertain an appeal after the expiry of the said period of forty-five days, if it is satisfied that there was sufficient cause for not filing it within that period:

•  

 

11.           The term sufficient cause has the same meaning as provided under Section 5 of the Limitation Act. Before deciding this case, it is significant to mention here that this Commission has to keep in mind the broad principles laid down in a catena of decisions of the Hon’ble Supreme Court, viz. ‘sufficient cause’ cannot be construed liberally if negligence, inaction or lack of bonafides are attributable to the party, praying for exercise of such discretion in its favour, and that when a statute provides for a particular period of limitation, it has to be applied with all its rigors, as an unlimited limitation leads to a sense of uncertainty.
12.           Record transpires that the respondents/complainants instituted consumer complaint bearing no.233 of 2021, which was decided on 03.11.2023, yet, the appeal has been filed by the applicants/appellants only on 04.09.2024 i.e. after a huge delay aforesaid. It has only been mentioned in para no.4 (a to c) of the application for condonation of delay, as under:-

“…… a. That the order in the Consumer Complaint bearing no; 233 of 2021 was passed on 03.11.2023 and a copy of the order was dispatched to the Applicants/Appellants on 17.11.2023

b. That the present matter pertains to multi acre project and involved voluminous documents and the same had to be given by the Appellants/Applicants to his counsel. The Applicants hasn't received the brief from the earlier counsel as there was a process of shifting of offices wherein the files pertaining to the said matter were lost. As a result, it took considerable time in the procurement of the contents of the said file. An affidavit to that effect is attached herewith as Annexure A-1. Apart from documents requisite permissions were also to be obtained from the Appellants/Applicants which took a considerable time. It is submitted that a lot of time was spent in procuring and assessing the voluminous documents and hence has resulted into delay for filing the present appeal.

c. That after a considerable lapse of time, finally the counsel for the Appellants/Applicants received the documents and permissions from the Appellants/applicants, delay caused was because of the busy schedule of the parties involved along with the bulkiness of the said documents.….…”

13.           We have considered these contentions but the same are of no use to the applicants because no sufficient cause has been shown by them to condone the huge delay of 239 days (as per office 244 days) in filing the appeal. The explanation given by the applicants, referred to above, is not plausible. If the Officers/Officials of the applicants were not diligent enough and took a lot of time in procuring the case file and assessing the voluminous documents, that act itself is sufficient to say that the applicants were not serious in the matter. Furthermore, it is also evident from the record that the applicants have been regularly appearing before the District Commission starting from 26.04.2024, in the execution proceedings under application no. 58 of 2024 filed by the respondents. This application pertains to the enforcement of the order dated 03.11.2023, passed by the District Commission in Consumer Complaint no. 233 of 2021. Despite their active participation in the execution proceedings, the applicants have failed to provide any justifiable reason for their decision to engage in these proceedings rather than challenging the order in question through an appeal, as prescribed under the CPA 2019. The applicants' participation in the execution proceedings, rather than seeking timely redress by filing an appeal, raises serious questions regarding their intentions and the absence of any coherent explanation for this delay. Notably, the execution proceedings are still ongoing before the District Commission. It appears that, in an attempt to avoid the legal consequences of those proceedings, the applicants have now resorted to filing this appeal, after a substantial delay of 239 days (as per the office record, 244 days). This delay is not only considerable but has been submitted without any adequate or convincing explanation, further undermining the applicants' position.  In light of these circumstances, the applicants' failure to act in a timely manner, coupled with their lack of sufficient explanation for the delay in filing this appeal, raises significant concerns regarding their bona fide intentions and the merits of their claim.
14.           In view of the facts narrated above, this Commission is of the view that there is no sufficient explanation on behalf of the applicants regarding filing this appeal alongwith application for condoning the huge delay of 239 days (as per office 244 days) in filing the same.
15.           In “Basawaraj and Ors. Vs. The Spl. Land Acquisition Officer, AIR 2014 SC 746”; the Hon’ble Apex Court had observed inter alia –

“9. Sufficient cause is the cause for which Defendant could not be blamed for his absence. The meaning of the word “Sufficient” is “adequate” or “enough”, inasmuch as may be necessary to answer the purpose intended. Therefore, the word “sufficient” embraces no more than that which provides a platitude, which when the act done suffices to accomplish the purpose intended in the facts and circumstances existing in a case, duly examined from the view point of a reasonable standard of a cautious man. In this context, “sufficient cause” means that the party should not have acted in a negligent manner or there was a want of bona fide on its part in  view of the facts and circumstances of a case or it cannot be alleged that the party has “not acted diligently” or “remained inactive”. However, the facts and circumstances of each case must afford sufficient ground to enable the Court concerned to exercise discretion for the reason that whenever the Court exercises discretion, it has to be exercised judiciously. The applicant must satisfy the Court that he was prevented by any “sufficient cause” from prosecuting his case, and unless a satisfactory explanation is furnished,  the Court should not allow the  application  for condonation of delay. The court has to examine whether the mistake is bonafide or was merely a device to cover an ulterior purpose.”

16.           The Hon’ble Apex Court in Sanjay Sidgonda Patil vs. Branch Manager, National Insu. Co. Ltd. & Anr., Special Leave to Appeal (Civil) No.  37183 of 2013 decided on 17.12.2013, confirmed the order of the Hon’ble National Commission and refused to condone the delay of even 13 days. 
17.           Similarly in Pundlik Jalam Patil Vs. Executive Engineer, Jalgaon Medium Project, (2008) 17 SCC 448, it was observed by Hon’ble Apex Court that the court cannot enquire into belated and stale claims on the ground of equity. Delay defeats equity. The Courts help those who are vigilant and “do not slumber over their rights”.
18.           In “Anil Kumar Sharma Vs. United India Insurance Co. Ltd. & Ors., IV (2015) CPJ 453 (NC), the Hon’ble National  Commission had observed as follows –

“12……… . we are not satisfied with the cause shown to justify the delay of 590/601 days. Day to day delay has not been explained. Hon’ble Supreme Court in a recent judgment of “Anshul Aggarwal Vs. New Okhla Industrial Development Authority, IV (2011) CPJ 63 (SC)” has held that – “while deciding the application filed for condonation of delay,  the Court has to keep in mind that 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 the  appeals and revisions,  which are highly belated are entertained.”

19.           In, “Lingeswaran Etc. Versus Thirunagalingam in Special Leave to Appeal (C ) Nos. 2054- 2055 of 2022, decided on 25.02.2022”, similarly, the Hon’ble Apex Court had observed inter alia –

“5. We are in complete agreement with the view taken by the High Court. Once  it was found even by the learned trial Court that delay has not been properly explained and even there are no merits in the application  for condonation of delay, thereafter,  the matter should rest there and the condonation of delay application was required to be dismissed. The approach adopted by the learned trial Court that, even after finding that, in absence of any material evidence it cannot be said that the delay has been explained and that there are no merits in the application, still to  condone the delay would be  giving a premium to a person who fails to explain the delay and who is  guilty of delay and laches.  At this stage, the decision of this Court in the case of Popat Bahiru Goverdhane V. Land Acquisition Officer, reported in (2013) 10 SCC 765 is required to be referred to. In the said decision, it is observed and held that the law of limitation may harshly affect a particular party but it has to  be applied with all its rigour when the statute so prescribes. The Court has no power to extend the period of limitation on equitable  grounds. The statutory provision may cause hardship or inconvenience to a particular party but the Court has no choice  but to enforce it giving full effect to the same.”

20.           The Hon'ble National Commission in the matter of Prem Prakash Goel vs. Green Carriers and Contractors (Delhi) Pvt. Ltd. as reported in II (2014) CPJ 22 (NC) held that that the fragile explanation for the condonation of delay does not ring the bell. Day to day explanation not having been furnished the delay cannot be condoned.
21.           In Central Bank of India vs. Ayodha Prasad Awasthi , I (2015) CPJ 712 (NC) also, the Hon'ble National Commission held that specific periods have been prescribed for filing of appeal and revision petitions under the law to ensure that fruits of awards or decree are not unduly delayed to successful litigants. Cogent explanation is to be given in support of each request for condonation of delay. Petitioner failed to explain the delay satisfactorily so as to constitute sufficient cause. Delay was not condoned.
22.           Not only above, the respondents also placed reliance in case ‘United India Insurance Company Ltd. Versus Tilda Riceland Pvt. Ltd.’, First Appeal No.2356 of 2019, which was dismissed by Hon’ble National Commission vide order dated 10.08.2020 being barred by limitation and while doing so, it was held that the appellants – United India Insurance Company Ltd. was required to explain each and every day’s delay. In this case also, there was procedural delay of 129 days. The Hon’ble National Commission further held that as per the Hon’ble Apex Court, the settled legal proposition of law of limitation has to be applied with all its rigour when the statue so prescribes, though it may harshly affect a particular party. Further reliance has been placed in case ‘Dwarkadhis Projects Pvt. Ltd. Versus Manoj Panwar’, First Appeal No.770 of 2019 decided by Hon’ble National Commission on 06.08.2020. In this case, the ground of delay in filing the appeal was misplacement of files, which was held to be not plausible. It was held that the appellant failed to show reasonable diligence in prosecuting the appeal and dismissed the application for condonation of delay, consequently, the appeal was also dismissed.  
23.           However, the judgment relied upon by the appellants in case titled ‘Karnail Singh Versus Piara Singh’, Regular Second Appeal No.2131 of 2002 decided on 29.05.2002 by Hon’ble Punjab and Haryana High Court is of no help to them being distinguishable on facts as in the said case, the delay occurred on account of misplacing of the brief of mixing up the same in decided cases by the outgoing clerk, which the Hon’ble High Court held excusable and sufficient cause for condoning the delay of 698 days in the said case. However, in the instant case, as already held above, despite the fact that the appellants were appearing in execution proceedings before the District Commission, they did not took due diligence in filing the present appeal within limitation.
24.           In view of peculiar facts and circumstances of this case, this Commission is of the view that there is no ground to condone the huge delay of 239 days (as per office 244 days) in filing this appeal. Thus, miscellaneous application bearing No.797 of 2024 for condonation of delay in filing this appeal stands dismissed with no order as to costs.
25.           Under above circumstances, if this Commission still proceed further on merits of this case, it would be nothing but commission of an illegality on the part of this Commission, in view of principle of law laid down by the Hon’ble Supreme Court in the case of State Bank of India Versus M/s. B.S. Agricultural Industries (I), Civil Appeal No. 2067 of 2002, decided 20 March, 2009,    wherein it was held once the case is barred by time and yet, the consumer Commission decides it on merit, it would be committing an illegality and, the aggrieved party would be entitled to have such order set aside. Further the Hon’ble National Commission in case ‘Surappaneni Vidyasagar Versus Ramachandra Krishna Bhat’ Revision Petition No.599 of 2020, decided on 12.11.2020, while relying upon the judgment of Hon’ble Apex Court in case State Bank of India Versus M/s. B.S. Agricultural Industries (I) (supra) held that the State Commission while passing impugned orders dismissed appeals filed by petitioner both on ground of inordinate delay as well as on merits which could not have been done and thus, the impugned orders are vitiated in law, which were set aside by Hon’ble National Commission while allowing the said revision petition.
26.           Resultantly, this appeal stands dismissed being barred by limitation.
27.           Pending application(s), if any, stand disposed of accordingly.
28.           Certified copies of this order be sent to the parties free of charge forthwith.
29.           File be consigned to Record Room after completion.

Pronounced

13.11.2024

 

 (RAJESH K. ARYA)

PRESIDING MEMBER

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