08/10/15

HON’BLE JUSTICE MR. KALIDAS MUKHERJEE, PRESIDENT

             These are the two Appeals A 1024 of 2015 u/s 27A and A 1006 of 2015 u/s 15 of the C. P. Act, 1986 filed by the Appellants/Developers. 

                   This order relates to the hearing on the petitions for condonation of delay in both the Appeals.  In the Appeal A 1006 of 2015 u/s 15 of the C. P. Act, 1986 there is delay of 941 days and in the other Appeal A 1024 of 2015 u/s 27A there is delay of 23 days.  Both the applications are taken up together. 

                It is the contention of the Learned Counsel for the Appellants that the judgment was passed by the Learned District Forum in CC 298 of 2012 on 31/12/12.  It is contended that the Complainant filed Appeal bearing no.FA 161 of 2013 for enhancement of compensation.  It is submitted that there was second agreement between the parties and suppressing that fact the Complainant obtained a decree from the Learned District Forum.  It is contended that the Complainant has not come with clean hands and it amounts to practising fraud upon the Court.  The Learned Counsel for the Appellants has referred to the decisions reported in 1997 (2) CPR (SC) 187 [Indian Bank vs. Satyam Fibres (India) Pvt. Ltd.]; 2013 (4) CPR 272 (NC) [Tata Motors Ltd. & Anr. vs. Hazoor Maharaj Baba & Anr.]; 2010 (3) CPR 45 (NC) [Regional Provident Fund Commissioner vs. Sri Mallikarjun Devendrappa Verapur].

            The Learned Counsel for the Respondent, on the other hand, has submitted that in the earlier Appeal bearing no.FA 161 of 2013 the present Appellant appeared as Respondent and contested the Appeal.  It is submitted that in the said Appeal after hearing both parties the impugned judgment was modified.  It is submitted that upto that stage the present Appellants/Developers did not prefer any Appeal against the judgment of the Learned District Forum passed in CC 298 of 2012.  It is also submitted that against the judgment of this Commission in FA 161 of 2013 no Revision Petition was filed before the Hon'ble National Commission.  The Learned Counsel for the Respondent has referred to the decisions reported in IV (2012) CPJ 575 (NC) [Shanti Ranjan Chatterjee vs. Dr. Anuj Kumar Ray & Ors.]; I (2012) CPJ 466 (NC) [Dwarka Dheesh Investment vs. N. K. Bhatia & Anr.]; IV (2012) CPJ 213 (NC) [A. Asaithambi vs. Satyam Computer Services Ltd. & Ors.]; IV (2012) CPJ 466 (NC) [Shanmugam Srinivasan vs. National Insurance Co. Ltd.].

            We have heard the submission made by both sides and perused the papers on record.  It appears from the materials on record that the judgment of the Learned District Forum was passed on 31/12/12 in CC 298 of 2012.  The said judgment was passed ex parte, but the OP did not prefer any Appeal against the said judgment.  On the contrary, the Complainant preferred Appeal bearing no.FA 161 of 2013 against the said judgment praying for more reliefs and the OP of the complaint appeared as Respondent and contested the Appeal.  In the said Appeal the impugned judgment passed by the Learned District Forum was modified.  Thereafter the execution case proceeded in the Learned District Forum and at that stage the Appellants/Developers being aggrieved by the judgment of the original complaint case preferred Appeal bearing no.A 1006 of 2015 u/s 15 of the C. P. Act with 941 days delay.  But the facts remain that the present Appellant contested the earlier Appeal bearing no.FA 161 of 2013 and did not prefer any Revision before the Hon'ble National Commission.  The matter, therefore, attained finality and at this stage when the execution case was going on before the Learned District Forum the OP/Developer preferred the instant Appeals.  The Learned Counsel for the Respondents has submitted that the alleged second agreement was not acted upon and after considering the submissions of both sides the earlier Appeal No.161 of 2013 was disposed of.  We are of the view that the issue once decided cannot be reopened. Having regard to the aforesaid circumstances, we are of the considered view that the delay in filing these Appeals has not been sufficiently explained.  The decisions cited by the Learned Counsel for the Appellants are not applicable in the facts and circumstances of the instant case. 

              Both the applications for condonation of delay are rejected.  Consequently, both the Appeals bearing nos. A 1024 of 2015 and A 1006 of 2015 are dismissed being time barred.  This order will govern both the Appeals as stated above.  The interim order stands vacated.