Per Justice Sham Sunder , President This appeal is directed against the order dated 2.8.2011 , rendered by the District Consumer Disputes Redressal Forum-I, U.T. Chandigarh (hereinafter to be referred as the District Forum only), vide which it accepted the complaint and directed the Opposite Parties (now appellants) as under ; “to pay interest @12% per annum over amount of Rs.28,44,552/-, deposited by the Complainant with the Opposite Parties, till the date of handing over the possession of the Plot in question. The Opposite Parties shall also pay Rs.25,000/- as compensation for causing mental and physical harassment to the Complainant & adopting unfair trade practice, along with litigation costs assessed at Rs.10,000/- ” 2. Plot No.367 measuring, 300 Sq. yards in Mohali Hills, was allotted to the complainant, by the Opposite Parties. Prior to allotment, the complainant filed advance registration form dated 19.11.2005, alongwith which, a cheque in the sum of Rs.6,00,000/- was attached. The basic price of the plot, as per advance registration form, was Rs.10,000/- per sq. yard +EDC, as applicable per square yard, as per the prevailing rate on allotment of PLC, if applicable. This advance registration form was duly accepted by the Opposite Parties. According to the complainant, at the time of issuance of provisional allotment letter dated 8.3.2007, the Opposite Parties stated therein the price of the plot at the rate of Rs.11,500/-, instead of Rs.10,000/- per sq. yard. It was stated that the price, so quoted, in the provisional allotment letter by the Opposite Parties, was against the terms and condition of the advance registration form. The complainant requested the Opposite Parties not to charge the price @ Rs.11,500/- per square yard. They assured that the excess amount shall be adjusted, in future instalments, but they failed to adjust Rs.4,50,000/-, charged in excess, in respect of the price. It was further stated that, in all, the complainant deposited Rs.28,44,522/-, towards the part price of plot, by way of instalments, till 16.9.2008. When the complainant visited the site, it was found that no development work, had been undertaken, and, as such, he stopped payment of the remaining instalments. A letter dated 26.2.2010, was also written to the Opposite Parties, for not undertaking the development of project, but to no avail. It was further stated that, as per the agreement dated 18.06.2007, executed between the parties, the project was to be completed within two years, but till 23.9.2010, the date of filing the complaint, the same was not completed. It was further stated that the aforesaid acts of the Opposite Parties, amounted to deficiency, in rendering service, and indulgence into unfair trade practice. When the grievance of the complainant, was not redressed, left with no alternative, a complaint under Section 12 of the Consumer Protection Act,1986(hereinafter to be called as the Act only), was filed by him, for directing the Opposite Parties to make payment of Rs.4,50,000/-, charged in excess as price of the plot, alongwith interest @ 15% p.a ; to pay compensation in the sum of Rs.2.00 lacs, for harassment and mental agony alongwith interest @ 18% p.a. ; to refund or adjust 10% EDC charges deposited with the Opposite Parties, to pay 15% interest over the total deposited amount of Rs.28,44,552/- till the handing over of physical possession of the plot, in question. 3. The Opposite Parties, in their reply, denied that the advance registration form towards registration of any plot in 2005, was issued by them, to the complainant. It was stated that the complainant came into contact with the Opposite Parties only on 6.9.2006, and signed the application form, towards the registration of expression of interest, in a residential plot, which clearly indicated the basic price, per square yard, as Rs.11,500/-. It was further stated that with the application for registration of expression of interest, the complainant deposited a sum of Rs.10,35,000/- vide cheque No.964640. It was further stated that the Opposite Parties did not receive any payment from the complainant, prior to 6.9.2006. It was further stated that the complainant defaulted, in making payment of the price of the plot, by way of instalments. It was denied that the development work was not going on, at the spot. It was further stated that the Opposite Parties had already offered possession of 800 plots, on the completion of infrastructure work. It was denied that the rate of the plot offered, was different, than the one, mentioned in the allotment letter. It was denied that the Opposite Parties were either deficient, in rendering service, or indulged into unfair trade practice. The remaining averments, were denied, being wrong. 4. The parties led evidence, in support of their case. 5. After hearing the Counsel for the parties, and, on going through the evidence and record of the case, the District Forum, accepted the complaint, in the manner, referred to, in the opening para of the instant order. 6. Feeling aggrieved, the instant appeal was filed, by the appellants/Opposite Parties. 7. Alongwith the appeal, an application for condonation of delay of 82 days, as per the applicants/appellants (76 days as per the office report), was filed. It was stated, in the application, that the copy of the final order, as well as the complete case file, was sent to the Head Office of the Opposite Parties for further necessary action, and approval, for filing the appeal and, in the process of decision making, the delay of 82 days occurred, which was neither intentional, nor willful. It was further stated that , as such, there was sufficient cause for condonation of delay of 82 days. 8. We have heard the Counsel for the applicants/appellants, and have gone through the record, carefully. 9. The first question, that arises for consideration, is, as to whether, there is sufficient cause, for condonation of delay of 82 days, as per the applicants/appellants(76 days as per the office report), in filing the appeal under Section 15 of the Act. It was held inSmt.Tara Wanti Vs State of Haryana through the Collector, Kurukshetra AIR 1995 Punjab & Haryana 32, a case decided by a Full Bench of the Punjab & Haryana High Court, that sufficient cause, within the meaning of Section 5 of the Limitation Act, must be a cause, which is beyond the control of the party, invoking the aid of the Section, and the test to be applied, would be to see, as to whether, it was a bona-fide cause, in as much as, nothing could be considered to be bonafide, which is not done, with due care and attention. In New Bank of India Vs. M/s Marvels (India): 93 (2001) DLT 558, Delhi High Court held as under ; “No doubt the words “sufficient cause” should receive liberal construction so as to advance substantial justice. However, when it is found that the applicants were most negligent in defending the case and their non-action and want of bonafides are clearly imputable, the Court would not help such a party. After all “sufficient cause” is an elastic expression for which no hard and fast guide-lines can be given and Court has to decide on the facts of each case as to whether the defendant who has suffered ex-parte decree has been able to satisfactorily show sufficient cause for non- appearance and in examining this aspect, cumulative effect of all the relevant factors is to be seen.” 10. In Oriental Insurance Co. Ltd. vs. Kailash Devi & Ors. AIR 1994 Punjab and Haryana 45, it was held as under; “There is no denying the fact that the expression sufficient cause should normally be construed liberally so as to advance substantial justice, but that would be in a case where no negligence or inaction or want of bonafides is imputable to the applicant. The discretion to condone the delay is to be exercised judicially i.e. one of is not to be swayed by sympathy or benevolence.” 11. Keeping in view the principle of law, laid down, in the aforesaid cases, now let us see, as to whether, the applicants/appellants, have been able to establish that it was, on account of the circumstances, beyond their control, that they could not file the appeal, in time. The appeal could be filed within 30 days, from the date of receipt of a copy of the order. The grounds taken up by the applicants/appellants, in the application, for condonation of delay, are that, the same (delay) occurred in the process of getting approval of the Head Office of the Opposite Parties. After coming to know of passing of the order dated 2.8.2011, or at the most on receiving its certified copy, the officials of the Opposite Parties should have exercised due diligence, in getting the necessary approval of the Head Office, for filing the appeal. The delay of 82 days, which is about 3 times, more than the normal period of filing an appeal U/s 15 of the Act, was on account of the complete inaction and lack of bonafides, attributable to the applicants/appellants. The cause, set up by the applicants/appellants, in the application, for condonation of delay, could not be said to be such, as was beyond their control, which prevented them, from filing the appeal in time. The delay, in filing the appeal was, thus, intentional and deliberate. The applicants/appellants, therefore, failed to establish any sufficient cause, in filing the appeal, after such a long delay of 82 days (as per the office report 76 days). Since, no sufficient cause is constituted, from the averments , contained in the application, the delay of 82(as per the office report 76 days) cannot be condoned. The application is, thus, liable to be dismissed. 12. Coming to the merits of the appeal, the Counsel for the appellants, submitted that the District Forum did not fix any time frame, within which, possession of the plot was required to be delivered by the Opposite Parties, to the Complainant. He further submitted that while granting relief, referred to, in the opening para of the instant order, the District Forum, did not mention that the possession of the plot, shall be delivered, to the complainant, on payment of the remaining unpaid price of the plot, as per the payment schedule. He further submitted that, on account of this reason, the complainant was taking benefit, that he was not liable to pay the balance price of the plot due, against him. He further submitted that the development activity is going on, at the spot. He further submitted that, even, possession to 800 allottees has already been handed over. He further submitted that the order of the District Forum, being illegal, is liable to be set aside. After giving our thoughtful consideration, to the contentions, advanced by the Counsel for the appellants, and, on going through the record, we are of the considered opinion, that the appeal is liable to be dismissed, on merits also, with a minor clarification, for the reasons, to be recorded, hereinafter. Admittedly, the complainant, applied for the allotment of plot, referred to above, with the Opposite Parties. Provisional letter of allotment A2, was issued, in favour of the complainant, vide which, the plot was allotted to him, in Augusta Park,Sector-109, SAS Nagar, Mohali @ Rs.11500/- per sq.yard. Plot buyer agreement A3, was also executed between the parties, which was duly signed by the complainant, and the authorized signatory of the OPs. The parties are bound by the terms and conditions of the agreement, which was duly signed by them. Vide this document, the complainant consented to the payment of the allotted plot @ Rs.11500/- per square yard. It was, on the basis of the price, quoted in the provisional allotment letter annexure A2, and the plot buyer agreement annexure A3, that the complainant made payment of Rs.28,44,522/-, towards the price of the plot, by way of instalments, till 16.9.2008. Receipts A5 to A11 clearly evidence the payment of instalments of price, from time to time, as per the payment schedule, by the complainant. Under these circumstances, the complainant could not say that the OPs charged higher price, from him, for the plot. The District Forum was also right, in holding that the actual price, which was agreed to, between the parties, was Rs.11500/- per square yard, and not Rs.10,000/- per square yard. 13. According to Clause-8 of the agreement A3, dated 18.6.2007, possession of the plot, to the allottee, was to be given, within a period of two years, from the execution of the same, but not later than three years, on account of force majeure circumstances. The possession was, thus, required to be delivered after the development of project, on or before 18.6.2009, or at the most on 18.6.2010, on account of the circumstances, beyond the control of the Opposite Parties. No credible evidence, was produced by the Opposite Parties, to the effect, that the development of the project, could not be completed, on account of the circumstances, beyond their control. Since, no development was being undertaken, at the spot, even after expiry of the stipulated period, for handing over the possession, the complainant could legally stop further payment. The possession of the plot, was not handed over to the complainant on or before 18.6.2009, the date stipulated in the agreement. The opposite parties, retained the amount, deposited by the complainant, right from the date of deposit, but did not hand over the possession of the plot to him, within the stipulated period. Under these circumstances, for illegal and improper retention of the amount, deposited by the complainant, he was entitled to interest, as had he deposited this amount, in some bank, he would have certainly earned handsome returns thereon. The District Forum was, thus, right in holding that the complainant was entitled to interest @ 12% p.a. on the amount of Rs.28,44,552/- deposited by him, with the Opposite Parties, till the handing over of possession of the plot, in question. 14. No doubt, the District Forum, did not mention, in the operative part of the order, referred to above, that the possession of the plot shall be handed over to the complainant, on payment of the balance price. Certainly the complainant would only be entitled to the possession of plot, on payment of the balance price of the plot, due against him. Such clarification can certainly be made by this Commission. 15. No other point, was urged, by the Counsel for the appellants. 16. The order, rendered by the District Forum, with the clarification, referred to above, does not suffer from any illegality or perversity, warranting the interference of this Commission . 17. For the reasons recorded above, the application for condonation of delay is dismissed, and consequently, the appeal, being barred by time, as also on merits, with the clarification that the possession of the plot shall be handed over to the complainant, on payment of the balance price of the same, as per annexure I, attached with the agreement annexure A3, is also dismissed, at the preliminary stage, with no order as to costs. 18. Certified Copies of this order be sent to the parties, free of charge. 19. The file be consigned to the Record Room.
| | HON'BLE MR. JAGROOP SINGH MAHAL, MEMBER | HON'BLE MR. JUSTICE SHAM SUNDER, PRESIDENT | , | |
