Per Shri B.A.Shaikh, Hon’ble Presiding Member.
1. This is an appeal filed by original opposite party (for short O.P.) feeling aggrieved by an order dated 06/03/2010 passed by District Consumer Forum, Nagpur, by which the consumer complaint bearing No.710/2009 has been partly allowed.
2. The case of the original complainant/respondent in this appeal as set out in its consumer complaint in brief is as under.
a) The appellants floated a scheme about construction of residential bungalows and to sell the same to prospective purchasers. He gave advertisement to that effect. The respondent was interested in purchasing of one of the bungalow under the scheme. Hence he contacted the appellant to purchase from it a bungalow No.167 admeasuring 880 Sq.Ft. for the price of Rs.12,76,000/-. Moreover the price of the open land was fixed @ Rs.350/- per Sq.Ft. The respondent paid an amount of Rs.1,00,000/- to the appellant on 10/02/2006 towards booking of the said bungalow and the appellant issued a receipt No.175 dated 10/02/2006 to the respondent in which it is stated that bungalow No.167 is allotted to the respondent. The appellant had assured that it will provide very soon a separate allotment letter about the same. However it did not provide that allotment letter till the October 2006.
b) In the month of November 2006 the respondent got information that the bungalow No.167 booked by him has been agreed to be sold by the appellant to one person by name Dantale. Hence the respondent made contact with the appellant and made enquiry from it about the same. The appellant did not give satisfactory explanation. The respondent was therefore not willing to take the disputed bungalow. Hence he informed the O.P. vide letter dated 04/11/2006 as the bungalow No.167 is disputed, he be provided another bungalow admeasuring 1145 Sq.Ft. from the phase No.2 of the scheme. He requested the appellant to give him allotment letter about another bungalow under phase No.2. The appellant received that letter on 04/11/2006. Accordingly the appellant gave a letter of allotment on 27/11/2006 to the respondent stating therein that instead of bungalow No.167 another bungalow bearing No.RH193 is allotted to the respondent.
c) The respondent vide letter dated 22/01/2007 requested the appellant to complete the construction of bungalow No.193 within a year and assist the respondent to obtain loan from the bank. However, even though after passing of about one year from the date of that letter, the appellant did not provide him an agreement to sell.
d) Thereafter the appellant vide letter dated 22/03/2007 in order to suppress its own short comings, informed the respondent for the first time that the government has not granted him permission for construction of bungalow No.193 in view of the margin and FSI reason and that the appellant is unable to make construction of bungalow No.193. It is also stated in that letter by the appellant that it is not possible to give the time frame during which the permission can be obtained and construction will be completed. The appellant asked the respondent under that letter to inform it as to whether he wants to continue with the allotment of bungalow No.193 or want to cancel the said allotment.
e) The respondent had already sold his own flat in order to pay the aforesaid price of bungalow No.193 to the appellant as he was willing to have his own bungalow. Hence he did not want to cancel the allotment of bungalow No.193. He personally made the appellant and informed it that he wants to continue the allotment of bungalow No.193. The respondent vide letter dated 30/03/2007 had requested the appellant to make construction of that bungalow. However it was not constructed.
f) The respondent had also requested the appellant from time to time to execute the registered agreement to sell of that bungalow in his favour, but it avoided to do so. On 16/08/2009 the respondent sent a letter by Registered Post A.D. to the appellant and thereby requested it to complete the construction and to give possession of the bungalow till December 2007. The said letter was received by the appellant on 16/08/2007. But it did not give any response to that letter. Thereafter also the appellant by assigning false reasons avoided to make the construction and to give possession of the bungalow. The appellant also did not provide the agreement to sell for obtaining housing loan. Thereafter also the respondent wrote a letter dated 18/06/2008 to the appellant for above purpose. In the month of September 2009 on inspection, the respondent found that the construction of bungalow No.193 was partly completed till plinth level and columns were erected thereon. Then again by writing a registered letter to the appellant, it was requested by the respondent to execute the agreement to sell for obtaining the housing loan. The said letter was received by the appellant on 10/09/2009. But no action was taken up by the appellant there on. Hence the appellant adopted unfair trade practice and rendered deficient service to the respondent. The respondent therefore filed the aforesaid consumer complaint seeking following directions.
i) The appellant shall make construction of the bungalow No.193 and shall give its possession to the respondent and shall also execute registered sale deed of that bungalow in his favour by accepting the balance amount from him as per the prayer clause No.2 made in the complaint.
ii) Also to pay him compensation of Rs.2,00,000/- for physical and mental harassment and litigation cost of Rs.25,000/-.
3. The District Forum below issued notice of that complaint to original O.P./appellant. It appears that the said notice was served to the appellant but it failed to appear. Therefore District Forum below proceeded ex-parte against the appellant by passing an order on 17/02/2010.
4. The learned District Consumer Forum, Nagpur after hearing the complainant and considering evidence brought on record accepted the aforesaid case of the respondent herein and partly allowed the complaint by directing the original O.P./appellant as follows.
- The appellant shall make full construction of bungalow No.193 and after accepting balance consideration of the said bungalow from the respondent, it shall execute the sale deed of the same in favour of the respondent. If the appellant is unable to execute to comply with the said direction then it shall provide another bungalow of same specification under the same scheme and then give possession of the same to the respondent and execute sale deed of the same in his favour. The respondent shall bear the expenses for registration of that sale deed.
- The appellant shall also pay to the respondent compensation of Rs.10,000/- for physical and mental harassment and litigation cost of Rs.3,000/-.
5. Thus feeling aggrieved by the said order, the original O.P. has filed this appeal. It is seen that this appeal was dismissed in default as per order dated 03/03/2017. The appellant feeling aggrieved by dismissing in default of the appeal had filed Revision Petition bearing No.1146/2017 before Hon’ble National Commission. An order was passed in that Revision Petition on 06/11/2017 and thereby the order dated 03/03/2017 passed by this Commission was set aside subject to payment of cost of Rs.25,000/- by the appellant to respondent and Hon’ble National Commission under that order directed that the application made for condonation of delay that occurred in filing of theappeal be heard and decided alongwith the complaint. Accordingly the said cost was paid by the appellant to the respondent and the appeal was restored to the file of this Commission. We heard advocate Mr.C.G.Barapatre appearing for the appellant and advocate Mr.Vora appearing for respondent on the application made for condonation of delay. We also heard them on merits of appeal. We have also perused the entire record and proceedings of the appeal. Thus we have proceeded to decide the application made for condonation of delay as well as the appeal on merits simultaneously.
6. The learned advocate of the appellant explained the delay in short that the complaint No.712/2009 was proceeded ex-parte against the appellant but no notice of complaint was received by the appellant on the address mentioned in the title clause/complaint. The appellant had already shifted its office in the year 2007 and therefore appellant could not attend the proceeding of the said complaint. Moreover the respondent filed an execution application bearing No.180/2010 before the District Forum below on the ground that the appellant has not complied with the order passed in the complaint. The appellant did not receive the summons of that application also. However when the appellant attended the case No.59/2009 on 15/12/2010, it learnt that the complaint was ex-parte allowed against it. It was also learnt by the appellant that non-bailable warrant was issued in execution proceeding filed under section 27 of the Consumer Protection Act, 1986. Therefore the appellant appeared before the Forum and filed an application for cancellation of said Non-bailable warrant, which was granted. Thereafter the appellant obtained certified copy of the impugned order on 30/12/2010 and then contacted its advocate and then appeal was filed on 24/12/2010. The Income Tax authority had affected the red on the premises of the appellant on 13/01/2009 and therefore entire record of the firm was seized and hence day to day business of the appellant was hampered and proceeding remained unattended. The learned advocate of the appellant thus submitted that as the delay is satisfactorily explained, it may be condoned to meet the ends of justice.
7. On the merits of the appeal the learned advocate of the appellant also submitted that the Forum below has over looked the letter dated 22/03/2007 issued by the appellant to the respondent informing him that the map pertains to bungalow No.RH193, but it is not yet sanctioned and if he wants to continue with the booking then it would be at his risk and the appellant is unable to assure as to when work would be commenced and possession would b given. He further submitted that no request was made by the respondent in consumer complaint to handover him another bungalow. But the Forum has not considered the said aspect. He also submitted that the notice of the consumer complaint was also not served to appellant as his office was shifted from his previous address. Hence he requested that as the impugned order is illegal, it may be set aside.
8. On the other hand, the learned advocate of the respondent submitted that the delay is not satisfactorily explained and it is very long delay of 247 days and it can not be condoned for the reasons given in the application. He also submitted reply in detail to the delay condonation application and thereby strongly opposed it. He also submitted that notice of the complaint was duly served to the appellant and in execution proceeding also the appellant was served with the summons of which details are given in the said reply. He also submitted that special period of limitation is provided under Consumer Protection Act, 1986 and therefore no such inordinate delay of 247 days can be condoned that occurred in filing of appeal. Hence he requested that application made for said condonation of delay may be rejected.
9. The learned advocate of the respondent on the merits of the appeal submitted that the Forum below has rightly considered all material aspects of the case and passed correct order. He also argued that the appellant was duly served with the notice alongwith the compilation of original complaint. He invited our attention to the copy of the compilation of the complaint filed on record by the appellant alongwith the appeal memo and submitted that the said compilation is specifically shows an endorsement on list of the document as “for O.P.”. Thus according to learned advocate of the respondent when appellant/original O.P. had received the compilation sent alongwith the notice by the Forum then submission of the appellant/O.P. cannot believed that notice was not served to it on given address. The learned advocate of the respondent also argued that when reply to the complaint was not filed by the appellant then no defence can be raised by the appellant for the first time in appeal. The learned advocate of the appellant also submitted that the complaint and documents referred to in the complaint as filed before the Forum went unchallenged and the Forum below rightly relied on the same and passed the legal order. Hence he requested that the appeal may be also dismissed on merits.
10. So far as the application made for condonation of delay is concerned, we find that there is actual delay of 247 days that occurred in filing of the appeal. It is very clear from the endorsement made on the list of the documents as filed by the appellant alongwith the appeal memo that the said documents alongwith copy of the complaint were received by the appellant from the Forum alongwith the notice. Moreover the appellant has not produced any document to show as to on which date its office was shifted from one place to another place, during the pendency of the consumer complaint. Thus the vague and uncorroborated defence is raised by the appellant that the notice of the consumer complaint issued to it by the Forum was not received by it. Hence the same can not be accepted.
11. The copy of the impugned order also shows an endorsement of the Forum below that free copy of the impugned order was sent to appellant by post under UPC (under posting certificate) on 03/05/2010. The appellant has not denied the said fact. Moreover the appellant had appeared before the Forum in execution proceeding after receiving of the summons. The appellant after a long delay obtained certified copy of the impugned order on 23/12/2010. We are not inclined to accept that because the notice of the complaint was not received by the appellant, such a long delay of 247 days has been occurred in filing of appeal.
12. We are of the considered view that the appellant has raised after thought defence in this appeal about not receiving the notice of the Forum inrespect of the consumer complaint. We find that delay of 247 days has been occurred because of gross inaction on the part of the appellant. Special period is provided under Consumer Protection Act for disposal of appeal. Therefore if such an inordinate delay of 247 days is condoned without any satisfactory explanation, then very object of expeditious disposal of the appeal filed under Consumer Protection Act, 1986 would be defeated. Hence we are not inclined to condone the said delay.
13. We now proceed to consider the appeal on merits. The appellant has not disputed the allotment of bungalow No.193 to the respondent vide letter dated 27/11/2006 on acceptance of booking of the amount of Rs.1,00,000/- from him. Moreover the letters written by respondent to the appellant from time to time which are produced on record also support the aforesaid case of the respondent as set out in the complaint and reproduced above in brief. The said letter communication is also not disputed by the appellant.
14. It is a simple case of the appellant in the appeal that vide letter dated 22/03/2007 it had informed the respondent that it is unable to construct the bungalow No.193 as no sanction for the same is granted. However we find that it is not the case of the appellant that it had cancelled the booking of the said bungalow No.193 due to aforesaid reason. Therefore the oral contract entered in to both the parties regarding the bungalow No.193 is still in force. The respondent wanted to continue with the said booking of bungalow No.193. The appellant is therefore under obligation to complete the construction of bungalow No.193 after getting sanction from competent authority and to give its possession alongwith the sale deed to the respondent after getting the balance amount from him.
15 The appellant thus rendered deficient service and adopted unfair trade practice by not complying with its part of contract. Therefore under these circumstances the Forum below has rightly directed the appellant either to give possession alongwith sale deed of bungalow No.193 to the respondent after accepting the balance consideration or to provide him alternate bungalow of same specification. We thus find no merits in this appeal and it deserves to be dismissed.
// ORDER //
- The appeal is dismissed on both counts i.e. being barred by limitation and being devoid of merits.
- No order as to cost in appeal.
- Copy of the order be furnished to both parties free of cost..
