Per:- Hon’ble Mr. S. R. Khanzode, Judicial Member
There is a delay of 350 days in filing the Appeal No.424 of 2011 and hence, this application for condonation of delay.
[2] Alleging deficiency in service on the part of the Applicant/ Appellant, namely – Municipal Corporation of Greater Mumbai (hereinafter referred to as the ‘MCGM’ for the sake of brevity), for not executing tripartite agreement consequent to nomination of the flat from 10% quota assigned to the MCGM even though the possession was handed over on receiving consideration; a consumer complaint bearing No.49 of 2007 was filed before the South Mumbai District Consumer Disputes Redressal Forum (‘the Forum’ in short) by the original Complainant, who is the Non-Applicant/Respondent herein. The same stood decided in his favour by an order dated 20/3/2010. The consumer complaint was partly allowed and the original Opponent, namely – MCGM, and its Commissioner, who are the Applicant/Appellants herein, were directed to execute a registered tripartite agreement of sale after completing necessary formalities to execute the same and were further directed to bear expenses of stamp-duty and registration. They were also directed to pay `10,000/- as compensation and `1,000/- as costs and further, if the above order was not complied within a period of one month from the date of receipt of copy of said order, a penalty of `100/- per day was also saddled. Feeling aggrieved thereby, this appeal is preferred alongwith an application for condonation of delay by the MCGM and its Commissioner.
[3] The reason for delay is incorporated in paragraphs (05) to (09) of the delay condonation application. It is submitted that after having received copy of the impugned order on 5/4/2010, matter was immediately referred to the Legal Department of the MCGM which also took immediate steps referring the matter to Mr. N. S. Vaidya, a Junior Law Officer, who was connected with the matter before the Forum. However, the papers were wrongly sent to another person, by name – ‘Vaidya’ and the papers were received back by the legal department on 13/4/2010 and were again marked to Mr. N. S. Vaidya. After receiving the papers, Mr. N. S. Vaidya, after having discussed the matter with his superiors, by his letter dated 28/4/2010, forwarded a copy of the order to the Assistant Commissioner, Estate Department and requested them to communicate as to whether the department is willing to file an appeal or not, since the department was actually concerned with the subject matter. Unfortunately, the said letter was dumped by the said department and only after receiving the notice of the execution application filed by the Non-Applicant/Respondent, who is the original Complainant, in the month of Nov-2010, the matter was further moved. Estate Department was again contacted, which ultimately decided to recommend filing an appeal. Legal Department thereafter took further steps and the appeal was ultimately filed on 28/4/2011. The application is supported by an affidavit of Administrative Officer of the Estate Department, namely – Mr. M. R. Chauhan.
[4] Non-Applicant/Respondent opposed the application stating that no sufficient grounds are shown to condone the delay. It is further submitted on his behalf that lack of seriousness, intentional negligence and disrespect to the orders and authority of the Consumer Forum is reflected from the statement of reason mentioned by the Applicant/Appellant to condone the delay.
[5] We heard both the parties at length.
[6] In the instant case, certain substantial issues which go to the root of the matter and the propriety of the order passed are involved viz. whether in absence of the Builder, who is known to the Non-Applicant/Respondent and who has to execute the agreement, any directions to the Applicant/Appellant MCGM and its Municipal Commissioner could be given to execute the conveyance and for its registration. Other question that may arise is as to whether ignoring the statutory or contractual obligations in respect of payment of stamp-duty on the conveyance and its registration charges, whether the Applicant/Appellant MCGM could be asked to bear such expenses. It may be pointed out that the MCGM only figured in a limited sense to nominate its employee allotting the flat from 10% quota reserved for that purpose in the building scheme in question and said allottee could be accepted as one of the flat-purchasers in the scheme and it is the Builder/Developer who has to execute the conveyance though the MCGM would be a party to the conveyance in the above-referred circumstances endorsing the nomination or allotment of the flat from the 10% quota. Consequent to the directions sought from the Court, possession of the flat was received from the MCGM and the consideration for the flat was also deposited in the MCGM (which would go to the developer/builder). All these questions need to be addressed while settling the dispute in the consumer complaint. Therefore, we find substantial questions of law based upon undisputed and/or established facts also arise in this appeal.
[7] In this background, when we look to the explanation offered to condone the delay, supra, we find in order to do substantial justice it would be just & proper to condone this delay. A useful reference on this point can be made to decision in the matter of Baburao Deorao Wankhede Vs. Seva Sahakari Sanstha & Ors. ~ 1989-Mah.L.R.-1144 and the decision of the Apex Court in M. K. Prasad Vs. P. Arumugan ~ (2001)-6-SCC-176. Of course, circumstances will justify saddling the costs as per the final order to condone the delay. We may further observe that, at its own discretion, in the light of the observations of the Apex Court in the matter of Lucknow Development Authority Vs. M. K. Gupta ~ 1994-(1)-SCC-243, the Applicant/Appellant may fix the liability on the erring officer/officers who are responsible for the delay and may recover the costs saddled from them.
For the reasons stated above, we hold accordingly and pass the following order:-
ORDER
Miscellaneous Application No.247 of 2011, seeking condonation of delay in filing Appeal No.424 of 2011 is hereby allowed. Delay in filing appeal stands condoned subject to Applicant/Appellant paying costs of `5,000/- to the Non-Applicant/ Respondent within a period of 45 days from the date of this order. Miscellaneous application stands disposed of accordingly.
Pronounced on 27th September, 2011
