Chandigarh

StateCommission

A/122/2015

Poonam Gupta - Complainant(s)

Versus

BCL Homes Ltd. - Opp.Party(s)

Rajesh Sharma, Adv.

02 Jun 2015

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

                                                                 

First Appeal No.	:	122 of 2015
Date of Institution	:	29.05.2015
Date of Decision	:	02.06.2015

 

Poonam Gupta W/o Vikram Gupta, r/o 2228, Pepsu Society, Sector 50-C, Chandigarh through SPA Vikram Gupta R/o 2228, Pepsu Society, Sector 50-C, Chandigarh.

……Appellant/Complainant

Versus

1. BCL Homes Ltd., through its Director, Regd. Office : Shop No.140, Village Darua, UT, Chandigarh 160002.
2. Baldev Chand Bansal, Director, BCL Homes Ltd., r/o H.NO.253, Sector 7, Panchkula 134109.
3. Gopal Bansal s/o Baldev Chand Bansal, BCL Homes Ltd., Krihanpura Adjoining Sector 20, NAC Zirakpur, District Mohali (Pb.).
4. Rajeev Kumar r/o Flat No.2218, Pepsu Society, Sector 50-C, Chandigarh.
5. Bombay Goyal r/o Flat No.107 Chinar Hieghts, Peer Muchhalla, NAC Zirakpur, Distt. Mohali (Pb.).

                    ....Respondents/Opposite Parties.

 

BEFORE:   SH. DEV RAJ, PRESIDING MEMBER.

                SMT. PADMA PANDEY, MEMBER.

               

Argued by: Sh. G.L.Aggarwal, Advocate for the applicant/appellant.

                  

 

PER PADMA PANDEY, MEMBER

            This appeal is directed against the order dated 28.01.2014 rendered by District Consumer Disputes Redressal Forum-I, UT, Chandigarh (hereinafter to be called as the District Forum only), vide which, it dismissed the complaint in default filed by the complainant (now appellant).

2.         The facts, in brief, are that Opposite Party No.1 – Company by launching a new project proposed to build the Studio Apartments at Village Chhat, Patiala Road, Zirakpur, Distt. Mohali. It was stated that the total cost of the Studio Apartment was fixed as Rs.12,50,000/- and possession was to be delivered within a period of 1 ½ years from the date of deposit. The complainant agreed to purchase proposed Studio Apartment situated at Village Chhat, Patiala Road, Zirakpur, Distt. Mohali for an amount of Rs.12,50,000/-, out of which, she paid an amount of Rs.2,50,000/- (Rs.50,000/- vide receipt dated 20.07.2011, Rs.1,00,000/- vide receipt dated 25.08.2011, Rs.50,000/- vide receipt dated 20.07.2011 and Rs.50,000/- vide receipt dated 20.07.2011), Exhibits C-2 to C-5. It was further stated that the Opposite Party assured the complainant that remaining amount was to be paid by her after the handing over possession of the Studio Apartment but it (Opposite Party) started demanding the remaining amount of Rs.10 lacs from her, prior to the issuance of allotment letter and handing over of possession, which was protested by her. Thereafter, the complainant visited the Opposite Party a number of times and asked for the allotment letter alongwith possession letter but to no effect. Ultimately, the complainant got served a legal notice dated 13.08.2013 (Exhibit C-6) to the Opposite Party but to no effect. It was further stated that the Opposite Party was deficient, in rendering service, as also indulged into unfair trade practice.  When the grievance of the complainant was not redressed, left with no alternative, a complaint under Section 12 of the Consumer Protection Act, 1986 (hereinafter to be called as the “Act” only), was filed.

3.         Notice was issued to the Opposite Parties but Opposite Party No.5 refused to accept the same. Refusal was, thus, deemed to be good service and, as such, it was proceeded against exparte vide order dated 12.11.2013. Thereafter, Opposite Party No.4 was also served through publication in the newspaper, but it did not appear. Hence, Opposite Party No.4 was also proceeded against exparte vide order dated 13.01.2014.

4.         During the pendency of the complaint, Counsel for Opposite Parties No.1 to 3 filed an application for rejection of the complaint and the case was fixed for filing reply to the application and consideration for 28.01.2014 but on that date neither the complainant nor her Counsel had appeared to file reply to that application and, as such, the case was dismissed in default by the District Forum, vide order dated 28.01.2014.  

5.         The complainant led evidence, in support of her case.

6.         Feeling aggrieved, the instant appeal, has been filed by the appellant/complainant.

7.         Alongwith the appeal, an application for condonation of delay of 450 days as per the applicant/appellant (as per the office report 441 days) was filed by the applicant/appellant, stating therein, that on the date of passing the impugned order dated 28.01.2014, the Counsel for the appellant was free from the hospital at 12.45 PM on that date and rushed to the District Forum at around 12.55 PM and made a request to the Reader of the Forum that as he (Counsel) was busy in the hospital for his medical treatment and to get the permission from the President of the Forum to entertain the request of the Counsel for the complainant. It was further stated that Counsel for the complainant was facing the serious health problems and was under the advice of his brother Dr.Anoop Aggarwal, who is practicing at lowa City, Chicago (USA), to undergo the test of color dopler vide report (Annexure A-1). Thereafter, the Counsel was further advised for the investigation of CT Scan. It was further stated that after receipt of the report of the Diagnostic Centre, Prime Diagnostics, Sector 24, Chandigarh as well as from Spinal, Sector 44, Chandigarh, the Counsel for the complainant was admitted at Fortis Hospital at Mohali from 04.02.2014 to 07.02.2014 vide discharge slip (Annexure A-2). It was further stated that the Counsel for the complainant was readmitted at Department of Cardiology at PGI, Chandigarh vide discharge summary (Annexure A-3). It was further stated that after discharge from the PGI, Chandigarh, the Counsel for the complainant again visited the Department of Surgery, PGI, Chandigarh (Annexure A-4) and during the intervening period, the condition of his left foot further worsened. It was further stated that the Counsel for the complainant was admitted on 30.03.2014 in GMCH, Sector 32, Chandigarh and on 31.03.2014 he had to undergo a major surgery of left foot (Annexure A-5). It was further stated that since the date of discharge, the Counsel for the complainant was still undergoing the treatment till 30.12.2014. It was further stated that on 31.12.2014 the Counsel for the complainant again revisited at Department of Plastic Surgery at PGI, Chandigarh and is still undergoing the treatment for the same vide treatment card (Annexure A-6). It was further stated that the said delay in filing the appeal was neither intentional nor willful but due to the circumstances, referred to above.

8.         We have heard the Counsel for the applicant/appellant/complainant, on the application for condonation of delay, as also in the main appeal, at the preliminary stage, and have gone through the record of the case, carefully. 

9.         The first question, that falls for consideration, is, as to whether, there is sufficient cause for condonation of delay of 450 days, as per the applicant/appellant (as per the office report 441 days), in filing the appeal, under Section 15 of the Act or not. It was held in Smt. Tara Wanti Vs State of Haryana through the Collector, Kurukshetra AIR 1995 Punjab & Haryana 32, a case decided by a Full Bench of the  Punjab and  Haryana High Court,  that sufficient cause, within the meaning of Section 5 of the Limitation Act, must be a cause, which is beyond the control of the party, invoking the aid of the Section, and the test to be applied, would be to see, as to whether, it was a bona-fide cause, in as much as, nothing could be considered to be bonafide, which is not done, with due care and attention. In  New Bank of India Vs. M/s Marvels (India): 93 (2001) DLT 558, Delhi High Court,  it was held as under:-

“No doubt the words “sufficient cause” should receive liberal construction so as to advance substantial justice. However, when it is found that the applicants were most negligent in defending the case and their non-action and want of bonafides are clearly imputable, the Court would not help such a party. After all “sufficient cause” is an elastic expression for which no hard and fast guide-lines can be given and Court has to decide on the facts of each case as to whether, the defendant who has suffered ex-parte decree has been able to satisfactorily show sufficient cause for non- appearance and in examining this aspect, cumulative effect of all the relevant factors is to be seen.”

10.                    In  Oriental Insurance Co. Ltd. vs. Kailash Devi & Ors. AIR 1994 Punjab and Haryana 45, it was held as under:-

 

“There is no denying the fact that the expression sufficient cause should normally be construed liberally so as to advance substantial justice, but that would be in a case where no negligence or inaction or want of bonafides is imputable to the applicant. The discretion to condone the delay is to be exercised judicially i.e. one is not to be swayed by sympathy or benevolence.

 

11.               In R.B. Ramalingam Vs. R.B. Bhuvaneswari, 2009 (2) Scale 566, the Supreme Court observed as under:-

 

“We hold that in each and every case the Court has to examine whether delay in filing the Special Leave Petitions stands properly explained. This is the basic test which needs to be applied. The true guide is whether the petitioner has acted with reasonable diligence in the prosecution of his appeal/petition”.

 

12.              In Balwant Singh Vs. Jagdish Singh and Ors, V (2010) SLT 790=III (2010) CLT 201 (SC), it was held as under:-

“The party should show that besides acting bona fide, it had taken all possible steps within its  power and control and had approached the Court without any unnecessary delay. The test is whether or not a cause is sufficient to see whether it could have been avoided by the party by the exercise of due care and attention. [Advanced Law Lexicon, P. Ramanatha Aiyar, 3rd Edition, 2005]”

 

13.         In Mahant Bikram Dass Chela Vs. Financial Commissioner and others, AIR 1977, S.C. 2221, it was held as under:-

 “Section 5 of the Limitation Act is a hard task-master and judicial interpretation has encased it within a narrow compass. A large measure of case-law has grown around Section 5, its highlights being that one ought not easily to take away a right which has accrued to a party by lapse of time and that therefore a litigation who is not vigilant about his rights must explain every days delay”

 

14.              In Ansul Aggarwal Vs. New Okhla Industrial Development Authority, 2012 (2) CPC 3 (SC) it was held as under:-

“It is also apposite to observe that while deciding an application filed in such cases for condonation of delay, the Court has to keep in mind that the special period of limitation has been prescribed under the Consumer Protection Act, 1986, for filing appeals and revisions in Consumer matters and the object of expeditious adjudication of the Consumer disputes will get defeated, if this Court was to entertain highly belated petitions filed against the orders of the Consumer Foras”

 

15.         Recently, the National Consumer Disputes Redressal Commission, New Delhi in Regional Provident Commissioner, Guntur Vs. S. Siva Sankar Rao, Revision Petition No.1617 of 2014, decided on 01.05.2014, whereby five other similar Revision Petitions bearing No.1618, 1619, 1620, 1645 and 1796 all of 2014, were decided, while dealing with the issue as regards condonation of delay of 61, 62 and 78 days in filing the said Revision Petitions, placed reliance on Office of Chief Post Master General & Ors. Vs. Living Media India Ltd. & Anr., 2012 STPL (Web) 132 (SC), wherein the Hon’ble Apex Court held as under:-

“13. In our view, it is the right time to inform all the government bodies, their agencies and instrumentalities that unless they have reasonable and acceptable explanation for the delay and there was bonafide effort, there is no need to accept the usual explanation that the file was kept pending for several months/years due to considerable degree of procedural red-tape in the process. The government departments are under a special obligation to ensure that they perform their duties with diligence and commitment. Condonation of delay is an exception and should not be used as an anticipated benefit for government departments. The law shelters everyone under the same light and should not be swirled for the benefit of a few. Considering the fact that there was no proper explanation offered by the Department for the delay except mentioning of various dates, according to us, the Department has miserably failed to give any acceptable and cogent reasons sufficient to condone such a huge delay.

 

Accordingly, the appeals are liable to be dismissed on the  ground of delay.”

 

16.         The National Commission, in Para 8 of the order, held that “…in these cases, day to day delay was not explained. The cases are barred by limitation”.

17.         Further, in Paras 9 to 13, the National Commission held as under:-

9.  This view neatly dovetails with the following authorities. In Anshul Aggarwal v. New Okhla Industrial Development Authority, IV (2011) CPJ 63 (SC), R. B. Ramlingam v. R. B. Bhavaneshwari, I (2009) CLT 188 (SC)= I (2009) SLT 701=2009 (2) Scale 108, Ram Lal and Others v. Rewa Coalfields Ltd., AIR 1962 Supreme Court 361, and Bikram Dass vs. Financial Commissioner and Ors. AIR 1977 SC 1221.

10.    The latest view taken by the Supreme Court is in Civil Appeal No. 19896 of 2013 in the case “M/s Ambadi Enterprise Ltd. Vs. Smt. Rajalakshmi Subramanian”, decided on 12th July 2013 wherein SLP was dismissed upholding the judgment of this Commission, where the delay of 78 days was not condoned.

11.    Again the Apex Court while dismissing the Special Leave to Appeal (Civil) No. 33792 of 2013 in Chief Officer, Nagpur Housing & Area Development Board &Anr. V. Gopinath Kawadu Bhagat, decided on 19.11.2013, upholding the order of this Commission where 77 days delay was not condoned.

12.    Above all, in Sanjay Sidgonda Patl Vs. National Insurance Co. Ltd. & Ors., decided by the Apex Court while dismissing the Special Leave to Appeal  (Civil) No. 37183 of 2013, decided on 17.12.2013, upholding the order of this Commission wherein delay of 13 days was not condoned. 

13.    Consequently, we find that the case is barred by time.  However, we refrain from giving the view on the merits of this case.”

18.          Keeping in view the principle of law, laid down, in the aforesaid cases, it is to be seen, as to whether, the applicant/appellant, has been able to establish that it was, on account of the circumstances, beyond her control, that she could not file the appeal, in time. The appeal could be filed within 30 days, from the date of receipt of a certified copy of the order. It is true that during the pendency of the complaint, before the District Forum, the Counsel for Opposite Parties No.1 to 3 filed an application for rejection of the complaint on 13.01.2014 and the case was fixed for filing reply to the application by the complainant for 28.01.2014 but on that date, the Counsel for the complainant did not appear to file reply to the application, filed by Opposite Parties No.1 to 3 and the District Forum waited sufficiently till 12.54 PM and, as such, the case was dismissed, in default, vide order dated 28.01.2014 by the District Forum. The Counsel for the appellant/complainant, filed an appeal before this Commission on 29.05.2015 i.e. after about 1 year and 4 months of passing the order by the District Forum, with the plea that he was facing the serious health problems during that period, for which, the said delay occurred and in this regard, he has also filed Annexure A-1 to A-8. No doubt, a bare perusal of Annexure A-1 to A-8, shows that he (Counsel) was having health problems. If the Counsel of the complainant was having serious health problems, the complainant could engage another Counsel or herself file an appeal but she did not do so and waited for a long time i.e. about 450 days. The plea of the Counsel for the complainant that on 28.01.2014 when the case was dismissed in default, he was free from the hospital at 12.45 PM and rushed to the District Forum at around 12.55 PM and requested the Reader of the Forum that he was busy in the hospital for his medical treatment and to get the permission from the President of the Forum to entertain his request, has no force, at all because if the Counsel for the complainant was aware that he was to go to the hospital for his treatment on that date, he could request another Counsel or the complainant to appear before the District Forum during his absence and even he could file the adjournment slip on that date but he did not do so.  It is not the case of the applicant/appellant that copy of the order impugned was not supplied to her, whereas, as per the report of Clerk of District Forum that certified copy of the impugned order of the complainant was sent through Regd. Post on 04.02.2014. However, despite receiving the same, the complainant did not approach this Commission, to file an appeal, within the prescribed period of 30 days. Thus, simple averment that the Counsel for the complainant was busy in the hospital on 28.01.2014, when the case was dismissed in default by the District Forum and further, averment that the Counsel for the complainant was facing serious health problems, is not a sufficient ground, for condonation of delay of 450 days, as per the applicant/appellant (as per the office report 441 days). Therefore, it could be said that the applicant/appellant was not diligent enough to file the appeal within the stipulated period. The prescribed period of limitation, as envisaged by Section 15 of the Act, for filing an appeal is 30 days, from the date of receipt of a certified copy of the order.  The applicant/appellant did not act, with due diligence, resulting into delay of 450 days, (as per the office report 441 days), in filing the appeal, which is about more than 1 Year 4 Months beyond the prescribed period of limitation. The cause, set up by the applicant/appellant, in the application, for condonation of delay, could not be said to be plausible. The delay, in filing the appeal was, thus, intentional, willful and deliberate. Since, no sufficient cause is constituted, from the averments, contained in the application, coupled with the facts available on record, the delay of 450 days, as per the applicant/appellant (as per the office report 441 days), cannot be condoned. The principle of law, laid down, in the aforesaid cases, is fully applicable to the facts of the instant case. The application is, thus, liable to be dismissed.

19.         The next question, that arises for consideration, is, as to whether, this Commission can decide the appeal, on merits, especially, when it has come to the conclusion, that there is no sufficient cause, for condonation of delay of 450 days, as per the applicant/appellant (as per the office report 441 days), in filing the same (appeal).  The answer to this question, is in the negative, as provided by the Apex Court in State Bank of India Vs B.S. Agricultural Industries (I) II (2009) CPJ 29 (SC). The question before the Apex Court, was with regard to the condonation of delay, in filing the complaint, in the first instance, beyond the period of two years, as envisaged by Section 24A of the Act. The Apex Court was pleased to observe as under;

 

“Section 24A of the Act, 1986 prescribes limitation period for admission of a complaint by the Consumer Fora thus:

 

“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.”

It would be seen from the aforesaid provision that it is peremptory in nature and requires Consumer Forum to see before it admits the complaint that it has been filed within two years from the date of accrual of cause of action. The Consumer Forum, however, for the reasons to be recorded in writing may condone the delay in filing the complaint if sufficient cause is shown. The expression, ‘shall not admit a complaint’ occurring in Section 24A is sort of a legislative command to the Consumer Forum to examine on its own whether the complaint has been filed within limitation period prescribed thereunder. As a matter of law, the Consumer Forum must deal with the complaint on merits only if the complaint has been filed within two years from the date of accrual of cause of action and if beyond the said period, the sufficient cause has been shown and delay condoned for the reasons recorded in writing. In other words, it is the duty of the Consumer Forum to take notice of Section 24A and give effect to it. 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 order set aside.”

20.                   The principle of law, laid down, by the Apex Court in State Bank of India’s case (supra), is equally applicable to the filing of an appeal, under Section 15 of the Act. In case, this Commission, decides the appeal, on merits, after coming to the conclusion, that it is barred by time, it would amount to committing an illegality, in view of the principle of law, laid down in  State Bank of India’s case (supra).

21.                  For the reasons, recorded above, the application for condonation of delay of 450 days, as per the applicant/appellant (as per the office report 441 days), being devoid of merit, must fail, and the same is dismissed. Consequently, the appeal, under Section 15 of the Act, is also dismissed, being barred by time, at the preliminary stage, with no order as to costs.

22.          Certified copies of this order, be sent to the parties, free of charge.

23.          The file be consigned to Record Room, after completion.

Pronounced.

02.06.2015

Sd/-

(DEV RAJ)

PRESIDING MEMBER 

 

 

Sd/-

(PADMA PANDEY)

      MEMBER