Counsel for the  Appellant: M/s.Ch.R.Vasantha Kumar.

Counsel for the Respondents: M/s Laxminarayana Associates

QUORUM: HON’BLE SRI JUSTICE GOPALA KRISHNA TAMADA, PRESIDENT.

                                      AND

SRI T.ASHOK KUMAR, HON’BLE MEMBER.

                                                                  FRIDAY, THE THIRTEENTH DAY OF FEBRUARY,

TWO THOUSAND FIFTEEN

Oral Order ( Per Hon’ble Sri Justice GopalakrishnaTamada, President.)

                                                                                                       ***

        This appeal is directed against the order dated 14-3-2014 passed by the District Forum in I.A.No.262/2012 whereby the petition to condone the delay of 130 days was dismissed.

        The brief facts as per the complaint are that the petitioner/complainant participated in the auction after paying EMD amount of Rs.1,00,000/- to opposite party No.2 who conducted auction at LIC Housing Finance Limited and the  petitioner was declared as successful bidder on 23-7-2007.  The opposite party No.2 gave declaration letter and asked him to pay Rs.1,65,000/- towards balance of 25% of sale price as deposit as per the terms and conditions of the auction and the petitioner/complainant paid the said amount which was acknowledged by opposite party No.2.  As per the terms and conditions, the petitioner/complainant has to pay the balance amount within 15 days and the petitioner/complainant accordingly paid the entire balance sale consideration of Rs.7,94,000/- to opposite party No.2 and the same was acknowledged.  Thereafter the petitioner/complainant requested the respondents to issue sale certificate and execute the sale deed as he paid the entire amount and expressed his willingness to get the property registered but the opposite parties were postponing the issue.  Therefore, the petitioner/complainant got issued a notice on 06-7-2020 but there was no reply and thereafter the opposite party No.2 addressed a letter dated 21-7-2010 to the petitioner/complainant stating that they are ready to register the property in favour of the petitioner/complainant and the petitioner/complainant also addressed a letter to opposite party No.2 and expressed his readiness to get the sale deed but as there was no response, he got issued another letter dated 22-6-2013 to the opposite parties and the opposite parties failed to execute the sale deed.  As no sale deed was registered, the complainant approached the District Forum and filed the complaint and in this process, it is the case of the complainant that there was a delay of 130 days in filing the complaint.

        The opposite parties filed counter denying the allegations made in the complaint and admitted the fact of the petitioner/complainant participating in the auction and paying Rs.1,00,000/- towards EMD on 23-7-2007 and that he was also declared as the highest bidder and also admitted payment of Rs.1,65,000/- and further payment of Rs.7,94,000/- by the petitioner/complainant.  The opposite parties pleaded that thereafter there was no correspondence and stated that they are ready to register the sale deed but the petitioner/complainant insisted for link documents which are usually kept in the warehouse at the head office and prayed to dismiss the petition.

        Having considered the entire material on record, the District Forum relying on the decision reported in IV 2012 CPJ 404 NC in SURESH KUMAR v. HARYANA URBAN DEVELOPMENT AUTHORITY held that the petitioner/complainant purchased the plot in open auction and therefore the petitioner/complainant is not a ‘consumer’ as defined under the provisions of Consumer Protection Act, 1986 and dismissed the petition to condone the delay.

        Aggrieved by the said order, the petitioner/complainant preferred this appeal contending that the District Forum erred in going in to the merits of the complaint instead of passing an order on merits in the condone delay petition.

        Heard. 

        As there was a delay of about 130 days in the process of filing of the complaint, an application was filed U/s.24 A of the Consumer Protection Act, 1986 to condone the said delay.  As stated supra, the same has been dismissed.  In our considered view, the District Forum ought not to have gone into the merits of the case i.e. maintainability of the complaint.  This is a simple petition to condone the delay and the courts including the Fora like the District Forum at Visakhapatnam shall restrict itself to the merits of the said petition and thereafter when the complaint is numbered and a preliminary objection is taken, the District Forum can go into the merits i.e. with regard to the maintainability/jurisdiction etc.,  In petitions of this nature, in our considered view, the District Forum cannot go into the merits of the case.  Accordingly we are of the view that the said order passed by the District Forum is totally unwarranted and accordingly the same is set aside.

        As this is a petition to condone the delay of 130 days, the said delay of 130 days can be condoned on payment of costs of Rs.500/- to be paid to the opposite parties.

        Accordingly this appeal is allowed and the order of the District Forum is set aside and the District Forum after ascertaining the fact that costs are paid is directed to restore the CC to its file and proceed with the case in accordance with law.  There shall be no order as to costs. 

                                                                sd/-PRESIDENT.

                                                                sd/-MEMBER.

JM                                                             Dt.13-2-2015.