Haryana

StateCommission

A/202/2018

TDI INFRASTRUCTURE PVT.LTD. - Complainant(s)

Versus

RAM RATI - Opp.Party(s)

MUNISH GUPTA

15 Jun 2022

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

HARYANA PANCHKULA

                  

                                                First appeal No.202 of 2018

Date of the Institution:15.02.2018

Date of Decision: 15.06.2022

 

 

1. TDI Infrastructure Ltd.  Corporate office at UG floor, Vandana Building, 11 Tolstoy Marg, Cannaught  Place, New Delhi 110001 through its Chief Managing Director
2. TDI Infrastructure Ltd, 10 Shaheed Bhagat Singh Marg, New Delhi 110001 through its MD.
3. TDI Espania Heights, Kamaspur, Main NH-1, Kundli, Distt. Sonepat through its Manager.

All Through their authorized representative Sh.Tejinder Rathee S/o Sh.DP Rathee R/o H.No.3280, Sector 15, Sonepat.

                                                                             .….Appellants

Versus

 

Ram Rati W/o Ram Phal, R/o H.No.236/30, Ashok Vihar, Sonepat at present R/o H.No.1987, Sector 23, Distt. Sonepat.

…..Respondent

 

CORAM:    S.P.Sood, Judicial  Member

                    Suresh Chander Kaushik, Member

                   

Present:-    Mr. Manjinder Kumar proxy counsel for Mr.Munish Gupta, Advocate for the appellants.

                   Mr. Ramesh Kumar Bamal, Advocate for the respondent.

                                                 ORDER

S P SOOD, JUDICIAL MEMBER:

The present appeal No.202 of 2018 has been filed against the order dated 19.07.2017 of the District Consumer Disputes Redressal Forum, Sonepat (In short Now  “District Commission”) in complaint case No.91 of 2016, which was allowed.

2.      There is a delay of 176 days in filing the appeal.  Appellants have filed an application under section 5 of the Limitation Act (in short “Act”)  for condonation of delay of  176 days wherein,  it is alleged  that delay occurred due to the counsel having not communicated the development and providing copy of the impugned order timely, he conveyed the copy of order to the appellants company only in the first week of December 2017.  It is also alleged that upon getting the copy of impugned order, the appellant company contacted complainant to resolve the matter, but, she delayed the matter on one pretext or the other. The delay occurred is neither willful nor intentional but is on account of above said reasons which were beyond the control of appellant company. Thus, delay of 176 days in filing of the present appeal be condoned.

3.         Arguments Heard. File perused.

4.         Learned counsel for the appellants vehemently argued that counsel presented for the company has communicated the development and providing copy of order timely, he conveyed the copy of order to the appellants company only in the first week of December 2017.  It is also argued that upon getting the copy of impugned order, the appellant company contacted complainant to resolve the matter, but, she delayed the matter on one pretext or the other. As per facts mentioned above, it is clear that delay in filing appeal is not intentional, so the delay may be condoned. 

5.         This argument is not available.  A period of 30 days 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 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 176 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 apepllants 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 176 days in filing of the appeal. Hence application filed for condonation of delay  in appeal No.202 of 2018 is dismissed.   

8.      It was alleged by complainant that she booked a residential built up 3 BHK floor measuring 1390 sq. feet in the project Espania Heights in Kamaspur, Distt. Sonepat vide customer ID No.KEH/00012/11-12.  She has deposited about Rs.19,75,753/- with the OPs from time to time, but, opposite parties (O.Ps.) did not issue allotment or possession letter to her.  The site has not been constructed even after the lapse of five years. The OPs have failed to adhere to the terms and conditions of the agreement and threatened to cancel the allotment of the unit No.EH-03/604 vide letter dated 19.04.2014, and  forced her to pay the demanded amount.  She deposited the demanded amount vide cheque No.011448 dated 30.07.2014 and cheque No.011449 dated 30.05.2014 under protest. The OPs did not even issue any receipt against the said payment and assured allotment and possession within one month thereafter, but she was shocked to receive the cancellation letter dated 13.05.2014.  She requested the OPs to issue allotment letter and offer of possession, but of no use. She ultimately filed the civil suit No.9220 of 2014 against the OPs, but, said suit was later on withdrawn by her due to some technical reasons and thereafter filed the present complaint before District Commission as there was gross deficiency in service on the part of the O.Ps.

9.      The complaint was resisted by the O.Ps. by filing a separate written version before the District Commission, in which O.Ps. stated that as per terms and conditions of the flat buyer agreement, she did not make payment within stipulated time, which resulted into cancellation of allotment of flat vide letter dated13.05.2014. Prior thereto pre-cancellation intimation letter dated 19.04.2014 was issued after providing her due opportunity to pay and ultimately, the booking of flat in favour of the complainant was cancelled vide final letter dated 13.05.2014. She has paid only Rs.1640353/- and not Rs.1975753/-with the OPs. The possession letter could not be issued as she has failed to make the payment of dues. The construction of relevant tower in which the flat allotted to her is situated, has already been completed. Vide letter dated 19.04.2014, she was asked to clear the outstanding dues, but of no use. As per the terms and conditions of the buyer agreement, the cancellation letter was issued. Thus there was no deficiency in service on the part of the OPs.

10.    After hearing counsel for the parties, the learned District Consumer Disputes Redressal Forum, Sonepat  (In short “District Forum”) allowed complaint vide impugned order dated 19.07.2017 and directed the O.Ps. to refund Rs.16,40,353/- to the complainant alongwith interest at the rate of 09% per annum from the date of filing of the present complaint till its realization.  With these observations, findings and directions, the present complaint was allowed.

11.  Feeling aggrieved therefreom, O.Ps.-appellants have preferred this appeal for setting aside the impugned order.

12.    The arguments have been advanced by Sh.Manjinder Kumar proxy counsel for Mr. Munish Gupta, learned counsel for the appellants  as well as Mr.Ramesh Kumar Bamal, learned counsel for the respondent.  All the documents with the appeal alongwith record of the District Commission have also been properly perused and examined.

13.    While raising the contention before this Commission, the issue which has been raised on behalf of the present appellants is that complainant has paid only Rs.16,40,353/- and not Rs.19,75,753/- with the OPs.  Another issue is that they have legally cancelled the unit vide letter dated 13.05.2014, so with all these things acting in the background, impugned order is not sustainable.

14.    Perusal of Ex.C-7 and C-8 shows that after cancellation of the unit vide letter dated 13.05.2014, she has tendered the cheque of Rs.2,00,000/-  dated 30.07.2014 and Rs.1,35,000/- dated 30.05.2014 respectively , which was received by one Ashwani (staff of OPs) on 01.05.2014.  Pre-cancellation letter dated 10.04.2014 Ex. C-9 was also duly replied vide Ex. C-10 through her advocate. Annexure R-6 statement of account of complainant issued by TDI vide dated 16.10.2014 shows that she has paid total amount of Rs.16,40,353/- and balance of  Rs.7,12,414.54/-. The complainant has not placed on record any evidence to show that above said cheques have been cleared or not.  No other evidence has been placed on record  by the complainant to show that she deposited an amount of Rs.19,75,753/-.  Learned District Forum rightly allowed the complaint of the complainant for refund of Rs.16,40,353/- only for want of above-stated material.

15.    Resultantly, the contentions raised on behalf of the present appellants stands rejected as rendered no assistance and found to be untenable and the order passed by the learned District Commission does not suffer from any illegality or perversity and is well reasoned and accordingly stands maintained for all intents and purposes.  Hence,  the appeal  stands dismissed on both counts delay as well as on merits.

15th  June, 2022     Suresh Chander Kaushik                        S. P. Sood                                                    Member                                                         Judicial Member                            

 

S.K

(Pvt. Secy.)