- Challenge in these Revision Petitions is to the Order dated 18.07.2016 passed by the Jharkhand State Consumer Disputes Redressal Commission at Ranchi (hereinafter referred to as ‘the State Commission’) in First Appeals bearing FA No. 66 of 2015 and FA No. 67 of 2015, whereby the State Commission partly allowing the Appeal filed by Md. Zakir Hussain and Tanwar Ahmad & Tauqeer Ahmad Khan (hereinafter referred to as the Complainants), merged the Order dated 06.02.2014 passed by the District Consumer Disputes Redressal Forum, Ranchi (hereinafter referred to as ‘the District Forum’) by directing M/s. Sharp Construction/Enterprises (hereinafter referred to as the OP Developer) to deliver the possession of the Flats booked by the Complainants after receiving the outstanding amount as per Agreement from the Complainants; pay simple interest @12% p.a. to the Complainants w.e.f. two years from the date of the agreement till the date of Possession or the date of execution of sale deed, whichever is later, failing which the OP Developer was directed to refund the entire amount alongwith interest @18% p.a. from the respective date of deposit till realisation along with lump sum compensation of ₹10 lakh within four weeks from the date of passing of the Order failing which ₹10 lakh would also carry interest @18% p.a. till the date of payment/realisation.
- Since the facts and question of law involved in these Revision Petitions are similar, these Revision Petitions are being disposed off by this common Order. However, for the sake of convenience, RP No. 2409 of 2016 is treated as the lead case and the facts enumerated hereinafter are taken from Complaint No. 50 of 2012.
- Concisely narrated, the facts leading to the filing of the Complaint are that the Complainant entered into an Agreement with the OP Developer on 14.08.2010 for purchase of Flat at Gulshan Apartment to be built by the OP Developer. It is averred by the Complainant that despite having received substantial amount of ₹17,50,000/- out of total sale consideration of ₹18,96,000/- between 15.09.2008 till 28.02.2011, the OP Developer failed to deliver the possession of the Flat. Thus, alleging deficiency in service and unfair trade practice on the part of the OP Developer, the Complainant filed Complaint before the District Forum.
- The OP Developer did not choose to appear before the District Forum and were proceeded ex-parte. Vide its order dated 06.02.2014, the District Forum directed the OP Developer to complete the flats in question, hand over their possession and get the flats registered within 60days. The OP Developer was also directed to pay the difference of registration charges on account of the delay caused by them. It was further directed that in case of failure of the OP Developer to comply with the said directions, the Complainants would be entitled to recover the advance amount paid by them alongwith interest @ 18%per annum from the date of filing of the Complaint till the date of realization. A sum of ₹20,000/- each was awarded as compensation to the Complainants alongwith ₹ 5000/- each as cost of litigation.
- Feeling aggrieved, the OP Developer filed First Appeals bearing FA Nos. 191/2014 and 192/2014 before the State Commission with a delay of 10 months. The State Commission vide Order dated 02.03.2015 dismissed the Appeals on the ground of delay as well as on merits.
- The Complainants filed Execution Case for execution of the Order dated 06.02.2014 before the District Forum. As the OP Developer could not deliver the possession of the Flats, in alternative the OP Developer deposited four drafts of ₹25,90,000/- towards the advance amount paid by the Complainants alongwith the penal interest with the District Forum. It was objected by the Complainants that the OP Developer is not deliberately handing over the possession as it wants to earn more profit by selling it in open market and the interest calculated by the OP Developer is not correct as the actual interest and principle amount would total upto ₹30,29,694/- and not ₹25,90,000/- as deposited by the OP Developer. The District Forum disposed off the objection vide Order dated 22.07.2015 holding that the OP Developer had come up before the Forum to pay the advance amount as per direction of District Forum and payment of the advance amount appears to be in accordance with the final order passed 06.02.2014. However, regarding calculation of interest, both the parties were directed to suggest name of the qualified Accountant so that the actual amount due to the Complainants can be calculated.
- Against the Order dated 06.02.2014 passed by the District Forum in Consumer Complaints, with a delay of 14 months, the Complainants filed First Appeals bearing FA No. 66/2015 and FA No. 67/2015 before the State Commission praying for enhancement of Compensation and allowing interest @18% p.a. from the date of the Agreement, i.e., 14.08.2010 till the date of realisation and cost of ₹50,000/- was also prayed towards litigation costs.
- The State Commission allowed the Appeals in above mentioned terms by condoning the delay as under:-
“3. Learned counsel for the Builder submitted as follows. These, appeals are barred by limitation and there is no prayer/petition for condoning the delay of about 14 months in filing these appeals. Therefore these appeals should be dismissed on this ground alone. On the other hand, learned counsel appearing for the Complainants Appellants-Purchasers in Cases A&B, made oral prayer to condone the delay saying that for his mistake, the Appellants may not suffer. He further similar orders passed by the Hon’ble National Commission on 08.01.2016, in the similar cases of the two other purchasers in cases C&D. 4. It is true that these appeals have been filed after a delay of about 14 months and that too without any prayer/petition for condoning the delay but it also appears that they were taken up on several dates and then were fixed for final disposal. The parties were heard on merits at length. The Purchasers in cases A & B are praying for passing similar orders dated 08.01.2016 which have been passed by the Hon’ble National Commission in the similar cases of the purchasers in cases C & D from the same builders. Moreover, for the mistake of counsel, the Appellants should not suffer. In the circumstances in our opinion, it will not be proper to dismiss these appeals on the ground of limitation after keeping them pending for about a year. In the circumstances and in the interest of justice the delay in filing these appeals is condoned. ..................” - Being aggrieved by the Order dated 18.07.2016 passed by the State Commission, the Petitioners/Opposite Party Developer have filed the present Revision Petition before us.
- Mr. Abhishek, learned Counsel appearing on behalf of the Petitioners/OP Developer submitted that the State Commission had set up dual standard for deciding the limitation for filing an Appeal as the Appeals filed by them with a delay of 10 months were dismissed as barred by limitation whereas the Appeals filed by the Complainants with a delay of 14 months were treated within time and that too without application of condonation of delay.
- It was prayed that the Order passed by the State Commission be set aside and the Revision Petitions be allowed in terms of prayer clause.
- Per contra, Ms. Sunieta Ojha, learned Counsel appearing on behalf of the Respondents/Complainants, supported the Order passed by the State Commission as according to her the State Commission had passed a well-reasoned and justified order, which is based on a correct and rightful appreciation of evidence and material available on record and does not call for any interference.
- We have heard Mr. Abhishek, learned Counsel for the Petitioners/OP Developer and Ms. Sunieta Ojha, learned Counsel appearing on behalf of the Respondents/Complainant, perused the Impugned Orders passed by the State Commission, all the documents available on Record and have given a thoughtful consideration to the various pleas raised by the Parties.
- It is settled principle of law that only on the basis of the oral submissions, the Delay in filing the Appeals cannot be condoned without proper Application of Condonation of delay alongwith Affidavit. We are of the considered opinion that the State Commission erred in condoning the delay of 14 months in filing the Appeals only on the basis of oral submissions made on behalf of the Complainants and that too without proper Application of condonation of delay.
- Consequently, the Impugned Order dated 18.07.2016 passed by the State Commission in FA No. 66 of 2015 and FA No. 67 of 2015, is set aside. The cases are remanded back to the State Commission. The Respondents/Complainants are directed to file proper Applications of Condonation of Delay in filing the Appeals, alongwith proper Affidavits, before the State Commission with advance copy to the Petitioners/OP Developer within four weeks from today. The State Commission is requested to decide the matter afresh after giving proper opportunity to both the Parties in accordance with law.
- The Revision Petitions stands allowed in above terms. Keeping in view the facts and circumstances of the present case, there shall be no order as to costs.
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