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

This is an appeal by a builder as against the appellant.  Consumer complaint no.379/2007 was filed for the deficiency in the service as alleged in the complaint.  Said complaint was decided on 31/3/2009.  First copy of the said order was delivered by post on 15/7/2009 and there is no dispute over the same.  District Consumer Disputes Redressal Forum has allowed the complaint and directed the appellant to hand over within a period of six months from the date of receipt of the copy of the judgement the possession of the flat to the respondent. He is further directed to pay cost of `3,000/- and by way of damages `20,000/-.  This order is under challenge by filing this appeal.

Admittedly, in filing this appeal there is delay of one year and 50 days and therefore, along with the appeal delay condonation application has been filed.  In para 1 of the delay condonation application, facts in respect of filing of appeal, order passed and filing of affidavit, etc. have been stated and it is stated that the order was passed on 31/3/2009 with the above referred facts.

In para 2 of the application, it is stated that the appellant was and is now negotiating with the tenants for settling the matter.  All the tenants including respondents herein had initially displayed willingness to amicably settle the matter and also agreed to wait for the possession of their respective flats.  Therefore, appellant did not file any appeal against the judgement and order dated 31/3/2009. Even otherwise appellant is suffering from heavy diabetes and has already undergone operation for Gangrene and he is not keeping good health. 

So far as grounds contained in para 2 are concerned, they are not sustainable in law.  Firstly, there is no evidence on record to show that the appellant is suffering from diabetes and merely person is suffering from diabetes is not a ground for condonation of delay.  Diabetes must be of such a nature that it shall incapacitate the appellant to discharge day to day working and shall make him bed ridden so that it is not possible for him to file and prosecute the legal proceedings.  Such type of illness has not been alleged in the application and above all, there is no supporting evidence to that effect namely doctors certificate, etc.  Vaguely it has been stated that Gangrene operation has been carried out but Gangrene of what part has not been disclosed.  Operation of Gangrene necessarily does not incapacitate man to discharge his day to day activity.  He being a builder it was necessary for him to allege in the application that because of illness, his business activity has come to a standstill.  Such allegations are not there.  On the contrary, it appears that regular building activity was being carried out by him.  Not only that, but he was negotiating with some persons and if he is negotiating with some persons, there is no agreement on record to show that negotiation was materialized as stated in the application, especially respondent herein is concerned.  There is no material to show that any time appellant agreed to deliver possession of the flat and respondent agreed to accept the same. This bare and bald allegation without any material on record cannot be a ground for the purpose of condonation of delay.  Therefore, ground stated in para no.2 is not sustainable in law and hereby rejected.

In para 3 it has been stated that the complainant has suddenly upon instigation of one Laxman Parab or others filed execution proceedings against the appellant.  Without prejudice to the contention that the claim of the complainant and other tenants for compensation was false and frivolous, the appellant offered to pay the compensation awarded by the District Consumer Disputes Redressal Forum with a view to buy peace.   However, the complainant refused to accept the amount and insisted upon receipt of possession of the new flat. The appellant sates that the possession of new flat can be and will be handed over only upon commencement and completion of construction.  Since vacant possession of the property is not received by the appellant, building construction cannot begin.  The District Forum has therefore granted some time for enabling the appellant to file this appeal and obtain suitable orders from the Hon’ble State Commission as this Hon’ble Forum may deem fit and proper.

Bare look at this contention shows that these are not grounds for condonation of delay.  On the contrary, complainant has approached the consumer forum for getting possession of the property as per agreement and blatantly case has been made out that appellant is not in a position to deliver possession of the property.  Therefore, it is only because execution has been filed thereafter wisdom has been prevailed upon him to file an appeal with condonation of delay.  This is only an attempt to protract the claim of complainant and to dodge the complainant’s execution petition pending before the District Consumer Disputes Redressal Forum.  Therefore, looking to these circumstances and the application on record, we find that there is no sufficient ground to condone the delay.  Delay condonation application stands rejected.  Hence the following order:-

                                      ORDER

Misc.application for condonation of delay is rejected.

Consequently, appeal stands rejected. 

Copies of the order be furnished to the parties.