PER MR SUBHASH CHANDRA

1.     This revision petition filed under section 21 of the Consumer Protection Act, 1986 (in short, the ‘Act’) assails the order of the State Consumer Dispute Redressal Commission, Uttar Pradesh, Lucknow (in short, ‘State Commission’) in Appeal No. 1547 of 2011 dated 18.12.2014 emerging from order in consumer complaint no. 100 of 1995 of the District Consumer Disputes Redressal Commission, Ghaziabad (in short, ‘District Forum’) dated 01.09.2010.

2.     The brief facts of the case as stated by the petitioner are that he  had registered with the respondent for a flat in the Vasundhara Scheme in 1990 by depositing an amount of Rs 5,000/- followed by another installment of Rs 5,000/-, totaling Rs 10,000/-. The respondents allotted him flat no. 16/422, Vasundhara, Ghaziabad at a price of Rs 1,62,523/-. As per the allotment letter, Rs 40,000/- was payable and the balance Rs 1,08,900/- was to be paid in 120 installments of Rs 1724/- per month. At the time of booking the flat, the petitioner was employed with Mahanagar Telecom Nagar Ltd. (MTNL). As the petitioner wished to obtain a loan from MTNL, the petitioner requested for an NOC for a loan in favour of the Gm, Telephone Department. Respondent issued permission to mortgage the flat to Chief General Manager, MTNL. However, as per the Rules of MTNL, the mortgage had to be done in the name of the President of India. The petitioner submits that he requested the respondent to issue permission for mortgage in the name of the President of India on 30.04.1990 which was accorded on 27.07.1993 and that during this period he had deposited Rs 79,323/- towards the flat. In the meanwhile, he requested the respondent for some time to make the payment as the loan was being processed. The respondents cancelled the allotment vide their letter dated 18.06.1990. The cancellation was revoked by the respondent subject to payment of Rs 54,089.55 due as on 16.08.1990. As the loan was not sanctioned, petitioner sought a further 3-4 weeks on 04.09.1990 to pay the installment which was granted by the respondent till 30.09.1990 vide letter dated 19.09.1990. As the loan was still not approved by then, a further extension of time was sought. The petitioner sought time till June 1993 which was denied by the respondent; however, time was granted till 31.03.1993. The petitioner filed a writ petition before the Hon’ble High Court, New Delhi against MTNL and the Department of Telecom. The respondent gave another extension till 31.08.1993. A notice was issued to the respondent by the petitioner on 17.01.94 and since there was no response, a consumer complaint filed before the District Forum seeking possession of the flat or refund of the amount deposited with 18% interest. The District Forum allowed the complaint and directed refund of the amount deposited with 6% interest from the date of filing of the complaint. The petitioner challenged this order before the State Commission which came to be dismissed on 25.02.2015 on the ground of delay of 248 days. This order is impugned before this Commission in the present Revision Petition.

3.      The case of the petitioner is that the delay in filing the appeal was not intentional and that the necessary medical prescriptions and documents had been misplaced by the counsel.      He has relied on the judgments of the Hon’ble Supreme Court in Taipan Traders Pvt. Ltd. Vs. Bhawani Cold Storage & Ors. in CA No. 5071 of 2014 where delay of 218 days was condoned and in Jeevanti Devi Vs. Commercial Motors & Anr. in CA No. 10120-21 of 2014 which condoned a delay of 135 days and remanded the matters to the National Commission. He has contended that despite paying Rs 79,323/- his allotment had been cancelled due to the delay in the sanction of the loan by his Department which was not in his control. He has therefore prayed for setting aside the order of the State Commission dated 18.12.2014 in Appeal No. 1547 of 2011.

4.      I have heard the learned counsels for both the parties and perused the material on record carefully.

5.     It is apparent from the record that the petitioner had proposed to purchase the flat from the respondent through a loan from his department and that there were several procedural issues requiring the completion of necessary formalities in the sanction of this loan. It is evident from the time taken and the writ petition filed by the petitioner before the Hon’ble High Court that he had made several efforts to get the loan sanctioned. Despite all his efforts for the loan not fructifying, it is also an admitted fact that he deposited Rs 79,323/- towards the Rs 1,62,523/- which was the price fixed by the respondent for flat no 16/422 allotted to him.

6.     The respondent has submitted that the cancellation of the flat in question was done after several opportunities were provided to the petitioner to deposit the required installments. He was treated as a defaulter as per Rules and the cancellation was justifiable. The  petitioner has admitted that there was delay on his part in depositing the installments. However, it has been submitted that it was not due to any intentional delay but on account of the delay in his being sanctioned a loan by his department to which he had applied. It is evident that there was delay in the sanction of the loan by the MTNL on the ground that the mortgage was to be in the name of the President of India. The petitioner’s submission that he had deposited Rs 79,323/- has not been disputed by the respondent. The District Forum has ordered refund of the money deposited by the petitioner with interest but has not considered his request for allotment of the flat. The impugned order of the State Commission has dismissed the appeal against the District Forum’s order on the ground of delay of 248 days. The petitioner in this revision petition has sought the reconsideration of this order on grounds that the delay was justifiable as he is a senior citizen who was unwell in that period of time and that his counsel had lost the medical certificates to justify the delay in filing the appeal. 

7.    The provision under the Act with regard to limitation is that:

        24A. Limitation period —

(1) The District Forum, the State Commission or the National Commission shall not admit a complaint unless it is filed within two years from the date on which the cause of action has arisen.

(2) Notwithstanding anything contained in sub-section (1), a complaint may be entertained after the period specified in sub-section (1), if the complainant satisfies the District Forum, the State Commission or the National Commission, as the case may be, that he had sufficient cause for not filing the complaint within such period:

Provided that no such complaint shall be entertained unless the National Commission, the State Commission or the District Forum, as the case may be, records its reasons for condoning such delay.]

The State Commission has noted that an affidavit was filed to justify the delay under section 15 of the Act on the ground of the age and ill health of the petitioner. It has then proceeded to hold that the delay has not been substantiated and justified for it to be condoned under the provisions of the Act. The order also finds that there is no legal or factual error in the order of the District Forum warranting any interference in the same.

8.        The Hon’ble Supreme Court in State Bank of India Vs. BS Agricultural Industries, (2009) 5 SCC 121 has laid down that 

“If the complaint is barred by time and yet the consumer forum decides the complaint on merits, the forum would be committing an illegality and, therefore, the aggrieved party would be entitled to have such an order set aside.”

In the instant case the State Commission has found that the appeal against the order of the District Forum was filed beyond the prescribed period of 30 days and that the reasons for this delay were not explained to the satisfaction of the State Commission. However, it has also proceeded to dismiss the appeal on merits by finding no illegality in the order of the District Forum. The Hon’ble Supreme Court in M/s Singal Udyog vs National Insurance Company Ltd., in Civil Appeal no. 9161 of 2019 decided on 02.12.2019 has held that “when the matter is barred by time, the National Commission could not have dealt with the merits of the matter”. In view of the same and the judgment of the Hon’ble Supreme Court in State Bank of India Vs. BS Agricultural Industries (supra), the State Commission’s order is liable to be set aside.

9.      In view of the foregoing, I am of the view that the State Commission has erred in dismissing the appeal. The revision petition is, therefore, allowed and the impugned order is set aside.