Per Shri P.N. Kashalkar – Hon’ble Presiding Judicial Member:

(1)                This is an appeal filed by the original Opponent Nos1 & 2 against the jdugement and award passed by the District Consumer Disputes Redressal Forum, Thane in Consumer Complaint No.265/2002 decided on 31.03.2003.  By allowing the complaint partly the Opponents have been directed to handover the possession of the flat with full amenities as per agreement in the Building ‘Rashmi Enclave’ C- Wing at Mira Road, District Thane.  Opponents have been further directed to pay interest @2% per month on the amount of `4,60,000/- from 11<sup>th</sup> August, 2001 till the handing over of the possession by the Opponent and further have been directed to pay `3,000/- towards costs of litigation.  Against this order Rahsmi Griha Nirman Ltd., Opponent No.1 and Ashwin T. Shah, Managing Director of Opponent No.1 have filed this appeal.  However, Opponent No.3 who was Director of Rashmi Griha Nirman Ltd., preferred not to file appeal.  He has been made Respondent No.2 in this appeal. 

(2)                This appeal was pending since 2004.  It was taken out from sine-die list and placed before us for final hearing.  After giving due notice on the notice board and after publishing the same on the internet board this matter was placed before us on 3^rd August, 2011.  On that day on seeing that both the parties were absent, we had directed office to issue notice to all the parties which was made returnable today.  Accordingly today both Respondents are present but Appellants are absent. Since both Respondents have received notice, we have to presume that Appellants too have received notice but they preferred to remain absent.  What is pertinent to note is the fact that Respondent No.2 is the Director of Appellant No.1. So even otherwise Appellant is having knowledge of the fact that today Appeal is fixed for hearing, however, they preferred to remain absent. 

(3)                In filing appeal there is delay of 50 days as per calculation made by the Appellant. However, delay is much more.  The order was passed on 31.03.2003 and appeal came to be filed on 20.07.2004.  The contention of the Appellant in condonation of delay application is that they had never received the copy of the order passed by the District Forum.  But when copy was received by the Complainant, we have to presume that it was also received by the Appellant.  Moreover even, if it is held that there is delay admittedly of 50 days, as per Appellant, 50 days delay is not properly explained.  Appellant No.1 is Managing Director of Appellant No.2 and Company can be run and can file appeal on behalf of Company through any other person and not necessarily by the Managing Director of the Company.  Moreover, there is no medical certificate attached or enclosed along with the condonation of delay application.  Therefore, delay must be held not satisfactorily explained and therefore, we are not inclined to condone the delay.  As such Misc.Application No.1668/2004 filed for condonation of delay stands rejected. 

(4)                Even otherwise on merit, we went through the order and the complaint was filed for seeking possession of the flat.  Complainant had paid consideration to the Opponent and Opponent had agreed to deliver possession of the flat booked by the Complainant on 11^th August, 2001 and still the possession was not given and therefore, in 2002 she filed consumer complaint.  It was not contested by filing written version and it was decided without written version.  As per paragraph no.2 of the order it was clearly mentioned that time was given to file written version but written version was not filed. Then complaint was fixed for arguments on 31.03.2003.  In the morning session on that day the District Forum passed separate order on the application dated 20.02.2003 and rejected the same and then the District Forum proceeded to pass order to handover possession of the flat to the Complainant.   Since matter was not contested the appeal preferred against that order is also appearing to be devoid of any merit.  The order passed by the District Forum in the circumstances is appearing to be just, proper and it is sustainable in law.  Be that it may be, we are inclined to hold that the appeal does not survive for consideration for the simple reason that we are not inclined to condone the delay by allowing the condonation of delay application.  Hence, we pass the following order:

O  R  D  E  R

         (i)              Misc.Application No.1668/2004 filed for condonation of delay stands rejected.

       (ii)              Consequently, Appeal No.1270/2004  does not survive for consideration.

     (iii)              Even on merit, Appellant has no case.

     (iv)              Inform the parties accordingly.

Pronounced on 27^th September, 2011.