Haryana

StateCommission

A/33/2017

PARSVNATH DEVELOPERS - Complainant(s)

Versus

RAJESH KUMAR - Opp.Party(s)

ASHWANI TALWAR

14 Nov 2022

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION HARYANA, PANCHKULA

 

                                                      First Appeal No.33 of 2017

                                                 Date of Institution: 10.01.2017

                                                          Date of final hearing: 14.11.2022

Date of pronouncement: 23.01.2023

 

Parsvnath Developers Limited, A company incorporated under the Provisions of the Companies Act, 1956 having its registered office at Parsvnath Tower, Near Shahdara Metro Station, Shahdara, Delhi-110032 (Through its authorized signatory Mr. Madan Dogra Deputy General Manager).

…..Appellant

Versus

Rajesh Kumar S/o Sh. Om Prakash, R/o H.No. G-59, second Floor South City-I, Gurgaon.

…..Respondent

CORAM:    S.P. Sood, Judicial  Member

                    Suresh Chander Kaushik, Member

 

Present:-    Mr.Satpal Dhamija, Advocate for the appellant.

                   Mr.Om Prakash father of Mr. Rajesh Kumar respondent in person.

                                                 ORDER

S P SOOD, JUDICIAL MEMBER:

          The present appeal No.33 of 2017 has been filed against the order dated 02.06.2016 of the District Consumer Disputes Redressal Forum, Sonepat (In short Now “District Commission”) in complaint case No.374 of 2015, which was allowed.

2.      There is a delay of 185 days in filing the appeal.  An appellant has filed an application under section 5 of the Limitation Act (in short “Act”)  for condonation of delay of  185 days wherein,  it is alleged that the impugned order was pronounced on 02.06.2016 and copy was prepared by the District Forum on 08.06.2016 and delivered to the advocate of the appellant at Sonepat on 15.06.2016. The appellant company has received  the certified copy of the impugned order on 15.07.2016.  The copy was forwarded to its advocate for seeking an opinion for filing appeal. The appeal was drafted and circulated on 01.12.2016 and same was approved by the legal cell of the appellant company.  The delay in filing the appeal is neither intentional nor willful but due to the reasons mentioned above. Thus, delay of 185 days in filing of the present appeal be condoned.

3.         Arguments Heard. File perused.

4.         Learned counsel for the appellant vehemently argued that as per facts mentioned above, it is clear that delay in filing appeal was not intentional.    Learned counsel for the appellant further argued that impugned order was pronounced on 02.06.2016 and copy of the same was prepared by the District Forum on 08.06.2016 and same was  delivered to the advocate of the appellant at Sonepat on 15.06.2016. Further argued that the appellant company has received the certified copy of the impugned order on 15.07.2016.  The appeal was drafted and circulated on 01.12.2016 and same was approved by the legal cell of the appellant company. Thus the delay be condoned in the interest of justice.

5.         This argument is not available.  A period of 30 days  as per the old Act and 45 days as per the new Act has been provided for filing an appeal against the order of the District Commission. The proviso therein permits the State Commission to entertain an appeal after the expiry of the period of 30 days as per the old Act and 45 days as per the new Act if it is satisfied that there is “Sufficient cause” for not filing the appeal within the prescribed period. The expression of sufficient cause has not been defined in the Act rightly so, because it would vary from facts and circumstances of each case.

6.                         The inordinate delay of 185 days cannot be condoned in the light of the following judgments passed by the Hon’ble Apex Court.

          The Hon’ble Supreme Court in case Bikram Dass Vs. Financial Commissioner and others, AIR, 1977 Supreme Court 1221 has held that;

“Section 5 of the Limitation Act is a hard task-master and judicial interpretation has encased it within a narrow compass. A large measure of case-law has grown around S.5, its highlights being that one ought not easily to take away a right which has accrued to a party by lapse of time and that therefore a litigant who is not vigilant about his rights must explain every days delay.”

          The Hon’ble National Commission in case Government of U.T. Electricity Department & Others versus Ram Lubhai, II(2006) CPJ 104 has held that:-

“Consumer Protection Act, 1986 – Section 15 –Appeal –Maintainability – Limitation –Condonation of delay– Resjudicata –Appeal filed after a delay of 44 days –Plea of procedural delay in getting approval for filing appeal – Appeal filed by complainant against order of District Forum decided and copy of order dispatched to parties prior to filing of appeal by opposite party –Appeal and application for condonation of delay dismissed –Matter once finally concluded by any Court cannot be reopened by same Court.”

               In R.B. Ramlingam Vs. R.B. Bhavaneshwari 2009 (2) Scale 108, it has   been 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.”

      In Ram Lal and Ors.  Vs.  Rewa Coalfields  Ltd., AIR  1962 Supreme Court 361, it has been observed;

“It is, however, necessary to emphasize that even after sufficient cause has been shown a party is not entitled to the condonation of delay in question as a matter of right. The proof of a sufficient cause is a discretionary jurisdiction vested in the Court by S.5. If sufficient cause is not proved nothing further has to be done; the application for condonation has to be dismissed on that ground alone. If sufficient cause is shown then the Court has to enquire whether in its discretion it should condone the delay. This aspect of the matter naturally introduces the consideration of all relevant facts and it is at this stage that diligence of the party or its bona fides may fall for consideration; but the scope of the enquiry while exercising the discretionary power after sufficient cause is shown would naturally be limited only to such facts as the Court may regard as relevant.”

         

7.      Taking into consideration the pleas raised by appellant in the application for condonation of delay and settled principle of law, this Commission does not find it a fit case to condone delay of 185 days in filing of the appeal. Hence application filed for condonation of delay  in appeal No.33 of 2017 is dismissed. 

8.       The brief facts of the case are that vide application dated 06.09.2008 complainant booked flat and opposite party (OP) allotted Flat No.T6-104, first floor in Tower No.T-6 having area approx.1310 sq. feet equivalent to 121.70 sq. meters.  The basic price of flat was agreed as Rs.30,59,093/- including PLC, TLC, EDC, IDC and car parking etc. OP assured him to hand over the possession of the flat within 36 months from the date of foundation of tower with a grace period of six months but complainant did not receive any information from the OP till 06/2014 about completion of the project. He personally requested the OP through legal notice either to deliver the possession of the flat or to refund the deposited amount along with interest etc. but to no avail. Thus, there being deficiency in service on the part of the O.Ps, hence the complaint.

9.      In its written version, OP raised preliminary objections with regard to cause of action, jurisdiction and maintainability of complaint. On merits, OP submitted that complainant paid total amount of Rs.29,66,438/- out of which Rs.24,47,274/- was paid though bank loan.  OPs were unable to complete the construction of the flat within the stipulated time. OPs assured him to compensate as per clause 10(c) of the flat buyer agreement. Thus, there being no deficiency in service on the part of the OPs and dismissal of complaint as prayed for.

10.    After hearing both the parties, the learned District Commission, Sonepat has allowed the complaint vide order dated 02.06.2016, which is as under:-

“Accordingly, the respondents are hereby directed to pay interest at the rate of 09% per annum on the total defaulting amount which was to be paid by them to the complainant till the date of passing of this order.

          Thus, we find the respondents deficient in their services.  In our view, the complainant has been able to prove his case against the respondents.  Accordingly, we hereby direct the respondents to pay compensation to the tune of Rs.two lacs for rendering deficient services, for harassment and under the head of litigation expenses.  The respondents are further directed to deliver the possession of the flat to the complainant within a period of 60 days from the date of passing of this order, failing which, the respondents shall pay interest to the complainant at the rate of 12% per annum on the total defaulting amount lying deposited with the respondents.

          The respondents are further directed to pay regular installments to the complainant till handing over the possession of the flat without any default.  In case of failure on the part of the respondents, the complainant shall be entitled to charge interest at the rate of 12% per annum on the total defaulting amount.

          With these observations, findings and directions, the present complaint stands allowed.”

11.    Feeling aggrieved therefrom, OP-appellant has preferred this appeal.

12.    This arguments have been advanced by Sh. Satpal Dhamija, learned counsel for the appellant as well as Sh.Om Parkash, father of Mr. Rajesh Kumar respondent in person. With their kind assistance the entire record of the appeal as well as the original record of the District Commission including whatever evidence has been led on behalf of  both the parties has also been properly perused and examined.

13.    Learned counsel for the appellant argued that the vide application dated 09.06.2008 complainant along with Mr. Ravinder Dahiya applied for booking in the project and vide application 06.09.2008 Ravinder Dahiya transferred all his rights in favour of Complainant. Complainant paid Rs.29,66,438/- towards the said booking out of which Rs.24,47,274/- was paid through bank loan. Appellant started paying EMIs of Rs.26,085/- per month from 25.12.2008 and reimbursed 59 EMIs amounting to Rs.15,39,015/- towards bank loan.   Appellant sent letter dated 29.06.2015 to complainant inviting objections/suggestion for approval of revised building plan of Group Housing Colony measuring 28.105 acres in Sector 9 & 18, Sonepat. The construction work at the site was in progress and delay caused due to global recession which was beyond the control of the appellant. The appellant will compensate him as per clause 10(c) of the flat buyer agreement. The complainant was not entitled for the claim amount as prayed for.

14.    Respondent in person argued that initially the flat was booked by Mr. Ravinder Dahiya, which was later on transferred in the name of complainant on 06.09.2008 with assurance that the possession will be handed over to the complainant within 36 months but same was not delivered to him.  Learned District Commission has rightly allowed the complaint of the complainant and prayed for dismissal of the appeal.

15.    It is admitted that complainant is owner of the flat in question. It is also admitted that the complainant had paid Rs.29,66,438/- out of which Rs.24,47,274/- was paid though bank loan.  It is also admitted in the reply that OP did not hand over the possession of the flat in question due to global recession. The plea of the appellant that  they reimbursed 59 EMIs amounting to Rs.15,39,015/- towards bank loan as per the agreement, is not believable  because the appellant has not produced any evidence to prove the same. Since there was deficiency in service on the part of the OP, the complainant was duly compensated by the learned District Commission. The learned District Commission rightly allowed the claim of the complainant. The learned District Commission had committed no illegality while passing the order dated 02.06.2016.  The appeal stands dismissed on both counts delay as well as on merits.

16.    The statutory amount of Rs.25,000/-  deposited at the time of filing the appeal be refunded to the complainant-respondent against proper receipt and identification in accordance with rules, after the expiry of period of appeal and revision, if any filed in this case.

17.    Applications pending, if any stand disposed of in terms of the aforesaid judgment.

18.    A copy of this order be provided to all the parties free of cost as mandated by the Consumer Protection Act, 1986/2019. The order be uploaded forthwith on the website of the commission for the perusal of the parties.

19.    File be consigned to record room.

 

23^rd January, 2023              Suresh Chander Kaushik            S. P. Sood                                                                Member                                             Judicial Member    

S.K

(Pvt. Secy.)