REKHA GUPTA, PRESIDING MEMBER The present revision petition has been filed against the judgment dated 10th February 2017 of the Karnataka State Consumer Disputes Redressal Commission, Bangalore (‘the State Commission’) in First Appeal no. 601 of 2015. 2. The brief facts of the case as per the petitioner/ complainant are that the respondent/ opposite party in their notification dated 05/04/2006 had published and informed that, they had been able to procure additional lands at Ramgiri, Next to Gokula Vidya Kendra within 05 kilometer from the International Airport NH 17 and nearer to Sir. M. Vishweshwaraiah Institute of Technology and ITC Factory and 28 Kilometers from Vidhana Soudha, Bangalore. They also assured that, they would complete the infrastructure with wide tar road, water, underground drainage with sewerage treatment plant, electricity, borewell and landscape for park, garden, avenue trees and compound wall with gate. The respondent had also assured about clear marketable title and that the layout would be got approved by BIAPPA after conversion of the land use within two years and undertook to provide the site at Rs.350/- per sq. ft. The initial site deposit @ Rs.200/- per sq. ft, according to the dimension of the site offered was to be paid along with membership fee of Rs.1,020/-. Another instalment of the site deposit of Rs.100/- per sq. ft was to be paid after the approval of the plan. The remaining amount was to be paid on allotment and at the time of registration of sites. The petitioner submitted that he on different dates paid a total of Rs.7,22,020/- but the respondent/ opposite party had failed to provide any documents relating to the layout or its approval. Therefore, the petitioner and her husband had repeatedly visited the office of the respondent No.1 and made personal requests with the respondent Nos. 2 to 4 to issue specific allotment letter along with possession certificate and sale deed. For which, the respondent expressed their difficulty to provide the site with allotment letter due to several problems faced by the society and requested the petitioner not to take any legal action as they would resolve the pending issues and start the allotment of sites to the members on priority on first come first basis. Thereafter, the petitioner got issued a Legal Notice on 23/11/2013 for registration of site or in the alternative refund of the advance amount paid by the petitioner but the respondent failed to reply or comply with the same. Hence, the petitioner filed the present complaint with the following prayer: Direct the respondent nos. 1 to 4 jointly and severally allot and register a site measuring 40x60 feet in the name of the petitioner in the layout – Green Field Gardens – Phase III belonging to the respondent no. 1 and put the petitioner in physical possession along with possession certificate and other related copy of documents regarding marketable title within 30 days of collecting the balance site value if any from the petitioner. To aware compensation to the petitioner to the extent of Rs.10,00,000/- payable by the respondent nos. 1 to 4 jointly as the respondents have intentionally with malafide intention not allotted a site and mental agony and loss to the petitioner even though substantial site value already paid by the petitioner and she was ready to pay the balance, if any;
Alternatively direct the opposite party nos. 1 to 4 jointly and severally to refund the entire amount remitted by the petitioner with interest @ 18% from the date of respective payments till the date of realisation along with the above amount of compensation and costs, if the sites are not available with the respondent for allotment; and
To grant any other relief as deem fit to this Forum under the circumstances of the case with costs of the proceedings and pass such other order in the interest of justice and equity. 3. On issuance of the notice, advocate for the respondents appeared and filed their version. The respondents admitted that, the petitioner had applied for allotment of site measuring 40 X 60 feet at Green Field Garden Phase III through Mr Pitambarswamy and had deposited Rs.4,80,000/- being the initial deposit towards allotment of site measuring 40 X 60 fee and paid share amount of Rs.2,000/- and on further instruction given by the respondents the petitioner had paid further amount of Rs.100/- per sq. ft totalling to a sum of Rs.2,40,000/-. Further the respondents submitted that, the progress of housing projects of the respondents were briefed to all the members who had attended the Annual General Body Meeting which was held in the month of September of every year and informed that the respondents had appointed a developer for acquiring suitable land, obtain all approvals, since there was a prohibition under the Karnataka Land Revenue Act against purchasing of agricultural land by any Society. The approvals and conversions of layout were under progress and sites were released by the BIAPPA for registration. Hence, there was no malafide intention and there was no deficiency in service on the part of the respondents. If however the petitioner was unwilling to accept the allotment of site, she was at liberty to receive back the amount paid by her along with a reasonable rate of interest as decided by the District Forum. 4. The 1st Additioinal District Consumer Disputes Redressal Forum, Seshadripuram, Bangalore – 20, vide its order dated 20th March 2016 while partly allowing the compliant gave the following order: “The complaint is allowed-in-part. The OPs are directed to refund Rs.7,22,020/- to the complainant along with interest @ 15% per annum from the date of its respective deposits until realization. The OPs are directed to pay Rs.2,000/- towards costs of the proceedings. The OPs are also directed to comply the above said order at serial Nos.2 & 3 within 30 days from the date of receipt of this order and also to submit the compliance report to this Forum within 45 days from the date of receipt of this order”. 4. Aggrieved by the order of the District Forum, the respondents/ OPs filed an appeal before the State Commission. The State Commission while partly allowing the complaint observed as under: 8. At the time of admission it was fairly submitted by the advocate for the appellant that the appellants were ready to pay entire principal amount, but they are only aggrieved in respect of grant of interest at 15% per annum from the date of respective deposits even though there was no any wilful default on their behalf. Accordingly, the appellants have also deposited Rs.7,22,020/- before this Commission. 9. On perusal of the records, placed before us, the respondent/ complainant has not placed any records to indicate that the appellants were liable to pay interest on the deposits from the date of respective deposits in case if they were unable to procure land for formation of layout. In the essence of it, it would be just and proper to modify the impugned order with regard to the date from which interest has to be paid by the appellants. 10. After hearing either side, the impugned order is liable to be modified regarding duration of the interest as ordered by the District Forum in the best interest of both the parties. Hence, the following order is passed: The above appeal is hereby allowed partly and the order passed by the District Forum is hereby modified accordingly. The OPs are directed to refund the sum of Rs.7,22,020/- to the complainant along with interest at the rate of 15% per annum from the date of complaint till the date of realisation with cost of Rs.2,000/- and to pay the interest amount within 30 days from the date of receipt of this order. Amount in deposit shall be transmitted to the District Forum for disbursement to the complainant forthwith.” 5. Hence, the present revision petition. 6. The revision petition has been filed with a delay of 126 days. The reasons given in the application for condonation of delay are as under: “That as the revision petitioner was appearing in person before the Hon’ble Fourm as well as the Hon’ble Commission, the revision petitioner was not aware of the further steps to be taken in the case. She was not aware of any advocates in Delhi and some time was lost contacting some in advocate in Delhi. Thereafter, the advocate in Delhi communicated to the revision petitioner as to all the documents that are required. It is only thereafter that the revision petitioner applied for an obtained the certified copies on 04.08.2017”. 7. The reasons given for the condonation of delay are vague and casual. The day to day reasons have also not been given by the petitioner to justify the condonation of delay of 126 days. The name of the counsel in Delhi and also the date on which he received the order and thereafter approached the counsel have not been mentioned.
8. At the same time, it is also well settled that “sufficient cause” with regard to condonation of delay in each case, is a question of fact. 9. In the matter of Anshul Aggarwal vs. New Okhla Industrial Development Authority, IV (2011) CPJ 63 (SC), the Apex Court has highlighted the object of Consumer Protection Act particularly expeditious and in expensive remedy to the consumers. “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”. 10. In Balwant Singh Vs. Jagdish Singh & Ors., (Civil Appeal no. 1166 of 2006), decided by the Apex Court on 08.07.2010 it was held: “The party should show that besides acting bonafide, 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]”. 11. In Ram Lal and Ors. Vs. Rewa Coalfields Ltd., AIR 1962 Supreme Court 361, it has been observed; “It is, however, necessary to emphasize that even after sufficient cause has been shown a party is not entitled to the condonation of delay in question as a matter of right. The proof of a sufficient cause is a discretionary jurisdiction vested in the Court by S.5. If sufficient cause is not proved nothing further has to be done; the application for condonation has to be dismissed on that ground alone. If sufficient cause is shown then the Court has to enquire whether in its discretion it should condone the delay. This aspect of the matter naturally introduces the consideration of all relevant facts and it is at this stage that diligence of the party or its bona fides may fall for consideration; but the scope of the enquiry while exercising the discretionary power after sufficient cause is shown would naturally be limited only to such facts as the Court may regard as relevant.” 12. Similarly in Oriental Insurance Co. Ltd., vs Kailash Devi and Ors. AIR 1994 Punjab and Haryana 45, it has been laid down that: “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 bona fide is imputable to the applicant. The discretion to condone the delay is to be exercised judicially i.e. one of is not to be swayed by sympathy or benevolence.”
. 13. In R.B. Ramlingam Vs. R.B. Bhavaneshwari, 2009 (2) Scale 108, it has been observed: “We hold that in each and every case the Court has to examine whether delay in filing the special appeal 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.” 14. We are of the view that the appellant has failed to give sufficient cause by giving cogent reasons and justification to condone the inordinate delay of 126 days. In view of the above discussion, the revision petition deserves to be dismissed on limitation alone. 15. Coming to the merits of the case it is an admitted fact that the petitioner was a member of the respondent society which is a registered cooperative society under the provisions of Karnataka Cooperative Society Registration Act. The petitioner had approached the respondent to become a member of the society and then sought allotment of the site. The petitioner being a member of the Society and also a part of the General Body which meet every September had to be aware of the status of the farming the sites and the problem being faced by the Society with regard to the acquisition of land and difficulties being faced by the Society in the acquisition, consolidation and change in land use of the land from agricultural to non-agricultural. In case she was not willing to wait she could have sought for refund at any stage. Though she became a Member of the Society in 2007 and deposited various amounts soon thereafter she filed the complaint before the District Forum only on 08.01.2014. Hence, we are of the view that having failed to claim the refund earlier she cannot now claim additional compensation. 16. In view of the foregoing discussion, we find no jurisdictional error or material irregularity in the impugned order which may call for interference in exercise of powers under section 21 (b) of the Consumer Protection Act, 1986. Revision petition is, therefore, dismissed with no order as to costs. |
