Per Mr B A Shaikh, Hon’ble Presiding Member
1. Advocate Mr C G Barapatre is present for the appellant. Advocate Mr R P Ambarwele is present for the respondent.
2. We have heard both the advocates on the application made for condonation of delay that occurred in filing of appeal. We have also heard them on the point of admission of appeal and perused the entire record & proceedings of the appeal. The Commission had directed on 10.07.2018 to call the original record & proceedings of the consumer complaint No.417/2007 from the Forum below as the appellant has not filed the documents alongwith appeals, which were filed before the Forum below. The appellant filed copy of the impugned order passed in consumer complaint bearing No.417/2007 and copy of the another order dtd.17.10.2008 passed in execution application No.74/2008. Moreover, the appellant also filed copy of the complaint filed before the Forum below under Section 12 of Consumer Protection Act, 1986.
3. The Forum below wrote a letter dtd.13.07.2018, informing this Commission that the record & proceedings of the aforesaid complaint No.417/2007 has been destroyed and only the original copy of the judgement is preserved as per circular of the State Commission dtd.07.05.2018 and hence it is unable to
forward the original record & proceedings of that complaint.
4. The appellant has explained the delay of nine months in the application in brief as under.
a. The notice / summons issued by the Forum below in the original complaint was not served to the appellant. Moreover, the notice of the execution application No.74/2008 was not served to the appellant at any time. Hence, the complaint as well as the said execution proceedings were proceeded exparte against the appellant. The official of the appellant, while attending other matter before Forum below, noticed that one of the execution application filed by the respondent against the appellant is pending. Therefore, the appellant took immediate steps and made application for certified copy on 20.11.2008, which was received on 10.12.2008. The appellant received copy of the order dtd.17.10.2008 on 10.01.2009.
b. Thereafter, the appellant contacted the respondent, but the respondent did not give proper response to the appellant. Therefore, the appellant obtained copies of the proceedings for filing of the appeal. The record was not traceable at the office of the appellant as the transaction, in question, was of the year 2003. Thereafter, there was raid of Income Tax Department on the premises of the appellant on 13.01.2009 and all the official documents and bank accounts were seized in that raid. Therefore, the appellant was not in a position to comply with the order or to negotiate with the respondent. The Income Tax department released the bank account of the appellant in the month of April, 2009 and then the appellant contacted his counsel, who advised the appellant to collect other necessary documents and also obtain few documents from Income Tax department. Therefore, time was consumer for collecting the same. Then this appeal was drafted and then it was filed on 15.09.2009.
The learned advocate of the appellant, thus, submitted that as the delay is properly explained, it may be condoned.
5. The learned advocate of the appellant also argued on the point of admission of the appeal and submitted that the respondent himself cancelled the booking and therefore as per terms of the booking form, 10% of the total amount paid, will have to be deducted and remaining amount will be paid within three months. Further he submitted that the appellant, besides service of notice, never turned up to collect the amount from the appellant as per said condition of the booking form, though the appellant was ready to refund the same after deducting 10% amount. He, further submitted that the respondent kept silence for a period of three years from 05.06.2004 when last payment was made by him and therefore his intention was to cancel the contract and therefore he is not entitled to refund of the entire amount of Rs.1,31,600/- with such exorbitant rate of interest, awarded by the Forum below and further compensation of Rs.40,000/-.
6. The learned advocate of the appellant also submitted that even the appellant is ready to pay Rs.2.31 Lakhs towards the refund and the interest to the respondent if he agrees to settle the dispute by way of compromise.
7. The learned advocate of the respondent opposed the aforesaid application made for condonation of delay and he is not ready to accept Rs.2.31 Lakhs by way of compromise. He submitted that the delay of 9 months is not satisfactorily explained. According to him, the Forum below in the impugned order itself has observed that the notice of the complaint was duly served and acknowledgement was received by the Forum below about the same. Therefore, it is clear that the appellant had received notice of the Forum and it cannot be said that the notice of the complaint was not served to the appellant. He also submitted that the appellant deliberately remained absent and therefore, the Forum below has rightly proceeded exparte against the appellant and passed the appropriate impugned order.
8. The learned advocate of the respondent further submitted that the appellant did not make construction as per agreement within 18 months and therefore the respondent had served notice to the appellant calling upon appellant to refund the amount and that the appellant did not refund the same. Hence, the Forum below has rightly directed the appellant to refund the said amount with interest. He further submitted that there is no question of deduction of 10% amount when the appellant itself committed breach of contract by not making construction within 18 months. Hence, the respondent was required to cancel the contract to get the refund of the same. He also submitted that under the facts & circumstances brought on record, the Forum below rightly directed the appellant to refund Rs1,36,600/- with interest @ 18% p.a. and further to pay compensation of Rs.40,000/- and litigation cost of Rs.5,000/-. According to him the present price of the flat is increased up to Rs.21.00 Lakhs and considering escalation in the price of the flat, compensation and interest awarded by the Forum below is correct. Thus, according to him, there is no merits in this appeal and hence the appeal be dismissed at the stage of admission itself, if the delay is condoned.
9. We find that the Forum below on Page No.2 of the impugned order, has specifically observed that notice of the complaint issued to the opposite party, has been duly served as the acknowledgement of the same is received. There is no reason to disbelieve the said observation of the Forum below. We wanted to peruse the original record & proceedings of the complaint, but that has been already destroyed by the Forum. Hence, we accept the observation made in the impugned order that the notice issued by the Forum was duly served to the opposite party / appellant herein. Therefore, the plea raised by the appellant in the appeal that the notice was not served to the appellant, as issued by the Forum below, cannot be believed.
10. We also find that as the appellant, after service of notice, chose to remain absent, it cannot take advantage of the same for its own wrong for claiming condonation of delay for such a long period of nine months, that occurred in filing of appeal.
11. Even if it is accepted for the sake of argument that the notice of the complaint was not served to the appellant, then also it is seen that the application was made by the appellant to the Forum below on 20.11.2008 after getting knowledge of the impugned order. However, no satisfactory explanation is given by the appellant as to why such a long delay was occurred from 20.11.2008 till 19.09.2009 for filing of present appeal. No document is attached with the application to show that Income Tax Department had raided the premises of the appellant and seized all the documents and the bank accounts. Thus the plea, raised in the application about the same, cannot be accepted.
12. We are, therefore, of the considered view that such a long delay from 20.11.2008 to 19.09.2009 cannot occur simply for filing of appeal against the impugned order. In our view, had the appellant diligent in taking all the steps, it could have avoided such a long delay that occurred in filing of appeal. The said long delay has occurred only due to gross negligence on the part of appellant and hence said long delay cannot be condoned. Hence, the appeal deserves to be dismissed as time barred.
13. Even the appellant has got no good case on merits. Admittedly, the appellant had received from the respondent in instalments Rs.1,31,600/-. It is also not the case of the appellant that it made construction of the flat as per contract entered into both parties. Therefore, there was no alternative but to get refund of the amount from the appellant and accordingly the respondent had served notice to the appellant for refund. Even then the respondent did not receive that amount from appellant. No cogent reason is given for not refunding that amount for such a long period. In these facts & circumstances, the Forum below has committed no error in directing the appellant to refund Rs.1,31,600/- with interest @ 18% p.a. from 05.06.2004. Moreover, the compensation of Rs.40,000/- awarded is also just and proper, considering the loss suffered by the respondent due to commission of breach of contract.
- Therefore, we are of the considered view that on merits also the appeal deserves to be dismissed. Accordingly, we proceed to pass the following order.
ORDER
i. The application made for condonation of delay is rejected. The appeal is dismissed on both grounds i.e. it is time barred and it is devoid of merits.
ii. No order as to costs in this appeal.
iii. Copy of the order be furnished to both parties free of cost.
