NCDRC

NCDRC

RP/3072/2012

ANJALI BAJAJ - Complainant(s)

Versus

THE SARSWATI KUNJ COOPERATIVE HOUSE BUILDING SOCIETY LTD& OTHERS. - Opp.Party(s)

MR. ASEEM MEHROTRA

30 Apr 2013

ORDER

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION
NEW DELHI
 
REVISION PETITION NO. 3072 OF 2012
 
(Against the Order dated 03/07/2012 in Appeal No. 739/2012 of the State Commission Haryana)
1. ANJALI BAJAJ
D/o Shridhar Bajaj A-118 Ground Floor New Friends Colony
New Delhi
Delhi
...........Petitioner(s)
Versus 
1. THE SARSWATI KUNJ COOPERATIVE HOUSE BUILDING SOCIETY LTD& OTHERS.
Through its Chairman Village Wazirabad
Gurgaon
Haryana
2. THE SECRETARY,THE SARSWATI KUNJ COOPERATIVE HOUSE BUILDING SOCIETY LTD
Village Wazirabad,tehsil
Gurgaon
Haryana
3. THE INSPECTOR OF CO0OPERATIVE SOCIETIES,
Officer Near John Hall,Civil Lines,Gurgaon Working In Adminstrator, The Saraswati Kunj Cooperative House Building Society Ltd,Village Wazirabad
Gurgaon
Haryana
...........Respondent(s)

BEFORE: 
 HON'BLE MR. JUSTICE AJIT BHARIHOKE, PRESIDING MEMBER
 HON'BLE MR. SURESH CHANDRA, MEMBER

For the Petitioner :
Mr. Aseem Mehrotra, Advocate
For the Respondent :NEMO

Dated : 30 Apr 2013
ORDER

PER SURESH CHANDRA, MEMBER Petitioner herein is the original complainant. He was a member of the respondent cooperative society/OP No.1 which was to allot developed plot to its members on no profit no loss basis. The respondent society allotted a residential plot bearing No.237 of 250 sq.yds. in Phase-1 of the respondent society to the petitioner @ Rs.775/- per sq.yd. which, as per the allegation in the complaint, was inclusive of external development charges, apart from the cost of share certificate/share amount and initial cost of land. A passbook was issued by the respondent / OP cooperative society to the petitioner for maintaining record of payments made by him to the society. Allegedly, the entire cost of the plot was paid by the petitioner. Though the possession of the plot was to be delivered within two years but it was not handed over and also no sale deed etc. was executed. Subsequently, on account of financial irregularities, the administration of the society was put under the control of respondent No.3/OP No.3 by the State Government. As per a press note issued by respondent No.3, the petitioner submitted his claim before respondent No.3 in January, 2005 but the respondent No.3 failed to resolve the dispute/grievance of the complainant. Accordingly, a complaint was filed by the petitioner against the respondents/opposite parties before the District Consumer Disputes Redressal Commission, Gurgaon vide C.C. No.742 of 2006. 2. The District Forum vide its order dated 9.1.2012 allowed the complaint and held that the complainant was entitled to physical possession of the plot in question. The District Forum, therefore, directed the OP-1 society through its management/the then administrators to intimate the balance cost, if any, of the plot in dispute within 30 days and the same was required to be paid by the complainant within 30 days and thereafter the respondent society was directed to deliver the physical possession after completing all formalities within 3 months. The complainant was also held entitled to get the conveyance deed of the plot in dispute executed and registered on payment of the requisite stamp duty and registration fee. The District Forum further held that in case the opposite party was unable to deliver the physical possession of the plot in dispute, then in the alternative, the complainant would be entitled to a plot of same size at same price in the same area or adjoining to it. However, in case due to some unavoidable circumstances beyond its control, the OP society was unable to allot a plot to the complainant then the complainant would be entitled to refund of his amount of Rs.1,93,750/- with interest @ 12% p.a. from the date of each deposit till actual realization. In case, however, the physical possession was handed over by the society to the complainant in that case, the complainant would be entitled to interest @ 9% p.a. after two years from initial deposit till the physical possession of the plot. The District Forum also held that since the opposite party had caused mental agony to the complainant since 1996, the complainant was entitled to a compensation of Rs.20,000/- besides litigation charges of Rs.5,000/-. 3. Feeling aggrieved by the aforesaid order of the District Forum, the complainant filed an appeal before the State Commission wherein appellant sought direction against the opposite party to hand over the physical possession of the original allotted plot or some alternative plot, besides compensation, litigation expenses etc. There was, however, delay of 166 days beyond the prescribed period in filing the appeal by the complainant before the State Commission for which he filed an application for condonation of delay. Not feeling satisfied with the explanation given in the application for condonaton of delay of 166 days in filing the appeal, the State Commission vide its impugned order dated 3.7.2012 rejected the application of the complainant for condonation of delay in filing the appeal. Consequently, the State Commission vide its impugned order passed in FA No.739 of 2012 dismissed the appeal as time-barred in limine. It is against this order of the State Commission that the complainant has filed the present revision petition. 4. We have heard Shri Aseem Malhotra, Advocate, learned counsel for the petitioner and perused the record. Learned counsel has submitted that the impugned order of the State Commission is not sustainable for the reason that the State Commission has failed to appreciate that there was a genuine cause which prevented the appellant from filing the appeal against the order of the State Commission within the period of limitation. Expanding on the argument, learned counsel submitted that in April, 2012, there was marriage of the sister of petitioner and as the petitioner was busy in arrangements of marriage, she could not contact her counsel to instruct him to prepare and file the appeal. It is further contented that even on merits, the order of State Commission is flawed because the State Commission has failed to appreciate that by maintaining the order of the District Forum giving alternative to the respondent to return the money with interest instead of handing over possession of the plot it has actually negated the alternative relief of delivery of possession of the plot. Thus learned counsel has urged us to accept the revision petition and set aside the impugned order. 5. We are not convinced with the above submissions. On perusal of record, we find that State Commission has dismissed the appeal in liminie because it was barred by limitation. While rejecting the application of petitioner for condonation of delay in filing the appeal, the State Commission has recording the following observations: s regards the ground taken in the first application it would transpire that totally vague and ambiguous assertion has been made. In the application, condonation has been sought by the appellant on the ground that in the month of April, 2012 there was marriage of her sister and for that reason, she could not contact her counsel for filing the present appeal. The plea taken by the appellant is not acceptable. Admittedly, the appellant came to know about the disposal of the complaint on 9.1.2012, whereas marriage of her sister was in the month of April, 2012. Therefore, there was sufficient time for the appellant to have file the present appeal before this Commission with the prescribed period of 30 days. But no effort was made by the appellant in this regard. Hence, there was inaction and negligence on the part of the appellant. No sufficient reason is made out in favour of the appellant for the condonation of huge delay in filing the appeal. The Honle Apex Court has also observed in case titled tate of Nagaland Vs. Lipokao and Others reported in 2005(2) RCR (Criminal) 414 that roof of sufficient cause is a condition precedent for exercise of discretion by the court in condoning the delay Further in case titled . Gopinathan Pillai Vs. State of Kerala and another, reported in (2007) 2 SCC, 322, it has been held by the Apex Court that hen mandatory provision is not complied and the delay is not properly, satisfactorily and convincingly explained, the court cannot condone the delay on sympathetic ground only Under the circumstances, the reasons given in the application were taken as inadequate and insufficient to condone the delay. The ratio of the above mentioned case fully applies to the facts and circumstances of the present case. Therefore, the ground stated in the application cannot constitute sufficient cause so as to condone the delay in filing the appeal as prayed for in the application from the side of the appellants. Therefore, the application for condonation of delay in filing the appeal is rejected. 6. On perusal of the record, we find that State Commission rejected the application for condonation of delay essentially for the reason that appellant came to know about order of the District Forum on 09.01.2012 whereas admittedly the marriage of her sister was scheduled in the month of April, 2012. From this, it is evident that limitation prescribed for filing of appeal actually expired almost two months prior to the scheduled marriage of the sister of petitioner. In view of this, we do not find any infirmity in the approach adopted by the State Commission which may call for interference by the National Commission in revisional jurisdiction. 7. Even on merits, we do not find force in the submission of learned counsel for the petitioner. The refund of money paid by the petitioner with interest is the last option. The District Forum concerned has directed that firstly the opposite party should deliver possession of plot actually booked by the petitioner and if it is not possible due to some reason, then opposite party should give him possession by an alternative plot of similar size in some other nearby locality and if that is also not possible, then as the last resort, District Forum has directed Opposite party to refund money with interest which approach adopted by District Forum cannot be faulted. 8. In view of the discussion above, we do not find any infirmity in the impugned order of the State Commission which may call for our interference in revisional jurisdiction. Revision petition is accordingly dismissed.

 
......................J
AJIT BHARIHOKE
PRESIDING MEMBER
......................
SURESH CHANDRA
MEMBER

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