Per Mr.Justice S.B.Mhase, Hon’ble President

1.       This matter is for admission. None present for the appellant.  This appeal has been filed challenging the order passed by the District Consumer Disputes Redressal Forum, Nasik on 31/10/2009 in consumer complaint no.204/2008.  By this order, original opponent no.1 has been directed to pay an amount of `1,76,000/- within a period of one month.  By way of damages `10,000/- are directed to be paid within one month.  Complaint has been dismissed as against original opponent nos.2 to 7. Original opponent no.1 has been directed to pay cost of `2000/-. As against this order original opponent no.1 has filed an appeal on 09/04/2010.  Said appeal is accompanied with application for condonation of delay for condoning delay of 60 days.  Appeal was fixed for hearing on admission on 13/4/2010 and, accordingly, order sheet has been signed by one Mr.Yogesh Lakaria, who is an advocate along with Jaydeep Pawar.  Accordingly, appeal appeared on board on 13/4/2010 and this Commission by order dated 13/4/2010 issued notice before admission against respondent no.1 r/o.22/6/2010.  Therefore, appellant was under obligation to submit the necessary compilation to the State Commission so that the notices can be issued to the respondent.  However, in spite of such order, appellant has not submitted the compilation and papers so as to effect service on respondent no.1.  Accordingly, there is an office report. 

2.       Thereafter, twice the matter was adjourned since the State Commission was busy in other matters. Even though these dates were available to the appellant to comply with the order, he has not complied with the order, in effect respondent no.1/original complainant could not be served. It is to be noted that even on the date when order to issue notice was passed i.e. on 13/4/2010, advocate for the appellant was absent.  The order sheet dated 09/4/2010 shows that appellants have acknowledged the date 13/4/2010 fixed for admission. Thus, the record shows that after filing of the appeal and even after acknowledging of the date fixed for admission, advocate of the appellant and the appellant both have not bothered to attend the State Commission and since then this matter is pending unnecessarily without any compliance. Therefore, this is a fit case for dismissal for non prosecution.  However, under these circumstances we are constrained to consider the main matter on merits.  So far as delay of 60 days is concerned, the ground stated in para 2 is as follows:-

“The applicant submits that the said complaint was filed on the basis of bogus and fabricated documents.  The applicant appeared in the matter and filed his say. The lower court without considering the say and arguments passed the impugned judgement and order dated 31/10/2009 directing the applicant to pay 1,76,000/- with interest.  The said judgement and order has neither received by him nor he was aware of the same.  First time when he received the notice of this Hon’ble Court he came to know about the same.  The applicant immediately approached his advocate at that time he came to know that his advocate met with an accident and his leg has been fractured.  Thereafter he came to Mumbai and appointed the advocate who advise him to file present appeal.”

3.       And under these circumstances according to him delay has taken place.  In fact the case has been decided by the District Consumer Disputes Redressal Forum on 31/10/2009 and the copies have been taken on 03/11/2009 i.e. within three days after the decision. Therefore, appeal could have been filed immediately.  What is to be noted is that that the free copy is immediately given to the appellant.  Therefore, his statement in the delay condonation application that the judgement and order has not been received by him nor he was aware of the same and for the first time when he received notice of the Hon’ble Commission he came to know about the same is not true.  Within three days there was no question of issuing notice by the District Consumer Disputes Redressal Forum.  It is possible that the man may remain absent on the date of judgement and, thereafter, he may get notice in execution and may become aware but we do not find within three days execution was filed and the notice was issued.  Even if assuming that within three days execution is filed and notice is issued, however, copy of the order was received by the appellant within 3 days and, therefore, appeal could have been filed within 30 days. 

4.       His second ground is that he came to know that advocate met with an accident.  There is nothing on record to demonstrate that advocate met with an accident.  No medical certificate has been produced along with delay condonation application and/or any copy of the discharge card and/or affidavit of the concerned advocate that he met with an accident and, therefore, he could not file the appeal.  No such material has been brought on record.  Therefore, non receipt of first copy and the advocate’s accident is a cock and bull story developed by the complainant.  He does not disclose as to when he came to Bombay and met to which advocate, etc. The grounds which have been made out for condonation of delay are not sufficient grounds for condoning the delay and, therefore, delay condonation application deserves to be rejected.

5.       Let the fact as it is.  We do not want to non suit the appellant on a technical ground of delay and, therefore, we scrutinized main matter on merits.

6.       From the factual matrix we find that respondent/complainant has filed this complaint.  The original complainant/respondent is an owner of the land survey no.197/1/B admeasuring 3969 sq.metres situated at Nasik.  As per proposed developed plan, plot no.16, admeasuring 251.93 sq.metres, the complainant/ respondent desired to develop.  Therefore, there was an Agreement to sale and as per the said Agreement to sale, it was the responsibility of the appellant to get the said land converted into non agricultural use, prepare a layout and execute conveyance deed of the developed property in favour of the respondent.  In order to carry out these services, he has claimed the amount which is reflected in the Agreement to sale i.e.`1,76,000/- and damages of `6 lakhs, totally amounting to `7,76,000/- be paid to the complainant with interest @ 18% p.a.  This aspect has been considered by the District Consumer Disputes Redressal Forum and it is to be noted that the amounts which were paid by the complainants are `1,76,000/- and the District Consumer Disputes Redressal Forum has granted order for return of the said consideration since the service as contemplated under the Agreement to sale was not given.  Even though complainant has asked for damages of `6 lakhs, District Consumer Disputes Redressal Forum has not directed payment of the same.  It is further to be noted that even interest has not been directed.  Therefore, District Consumer Disputes Redressal Forum has only directed to return principal amount of `1,76,000/- and damages of `10,000/- instead of claim of complainant/respondent no.1 for `6 lakhs.  What we find that the services as agreed were not given and, therefore, there is deficiency of service.  At least the consideration which have been received for rendering service shall be returned and to that effect powers have been exercised by the District Consumer Disputes Redressal Forum.  Therefore, on merit also no interference is called for from this Commission.  It appears that the appellants are only interested in keeping the matter filed before the State Commission because it is observed by the State Commission also that if simply matter is pending before State Commission and even if there is no stay order granted to the order of District Consumer Disputes Redressal Forum, many of the District Consumer Disputes Redressal Forums are withholding their powers to execute the orders treating it that filing of appeal is a stay granted by this Commission.  This concept is wrong in law. Practically, such advantage is taken by the person against whom such orders are passed by the District Consumer Disputes Redressal Forum.  To take such advantage, appeal has been kept pending and, therefore, even though by order dated 13/4/2010 notice was directed to be issued to the respondent yet the steps to serve notice and rendering compilation to respondent were not taken by the appellant.  Even though twice matter was adjourned, there were no steps taken and advocates are consistently absent in this proceeding after filing of appeal.  No proper reasons are disclosed by the advocates and/or parties for their non appearance.  Thus, ultimately, what we find that there is ulterior motive in keeping this appeal pending.  We have scrutinized case fully.  There is neither case for condonation of delay nor case for admitting appeal.  Hence the following order:-

                                      ORDER

Misc.application for condonation of delay & appeal stands rejected.

Copies of the order be furnished to the parties.