3Ben's Constructions & 2 Ors vs Bency Raghavan

Avm J. Rajendra, Avsm, Vsm (Retd.), Member

This is a case filed by the Complainant alleging deficiency in service, negligence and unfair trade practice by Appellants/ Opposite Parties, as the Appellants failed to construct the house of the Respondent/Complainant in 42.5 cents of their land in Survey No.62/4-2 in Block No.1 in Ayroor Village, Ranni Taluk, Pathanamthitta District, Kerala.

On 25.01.2013 an Agreement was entered into between the Appellant No.2/OP No.2 and the Respondent/Complainant for construction of 3400 Sq Ft house for the Complainant, at the total consideration of Rs.48,50,000/-. The said construction was to be completed by April 2014. The Complainant paid Rs.21,12,500/- from the date of agreement over a period of time till 17.05.2013. However, the Appellants unilaterally terminated the contract vide letter dated 19.05.2013 stating that they cannot continue the work. After terminating the work, the Appellants on their own estimated the work undertaken by them as Rs.14,40,300/- and, as they had already received Rs.21,12,000 from the Complainant, they issued a cheque for the balance Rs.6,72,200/-. The cheque was returned unpaid for insufficient funds.

After the Appellant unilaterally terminated the contract, the Complainant/Respondent handed over the construction of the said residential building to “M/s Shilpa Constructions”, another construction agency. This agency was instructed to make an estimate of the work already undertaken by the Appellants/OP. M/s Shilpa Constructions estimated the cost of work already done by the Appellants as Rs.8,90,000/-. Thus, the claim of the Appellants for Rs.14,40,300/- towards the work already done is false. As the Complainant has already paid Rs.21,12,500/- to the Appellants, after deducting Rs.8,90,000/-, the Appellants are liable to refund Rs.12,22,500/- to the Complainant.

Thereafter, in the absence of the Appellants refunding the due, the Complainant has filed a Consumer Complaint No. 94/2014 before the learned State Commission, Kerala on 07.08.2014 seeking the refund due as well as associated reliefs. Appellants/ OPs, however, chose not to appear before the State Commission. The learned State Commission, Kerala partly allowed the Complaint. The relevant portion of the impugned Order dated 30.09.2015 is reproduced as below: -

“In the result, the complaint is partly allowed directing the opposite parties to refund of Rs.12,22,500/- with 12% interest from 19.05.2013 till realization with a cost of Rs.10,000/- within thirty days from the receipt of this order.”

Being aggrieved, the Appellants/Opposite Parties filed the instant Appeal along with IA/8176/2022, an Application for condonation for delay of 2391 days, as per the report of the Registry, in filing the instant First Appeal.

The Hon’ble Supreme Court in Suo Motu Writ Petition (Civil) No. 3 of 2020 in re: Cognizance for Extension of Limitation has suspended the period of limitation for filing petitions/applications/ suits/appeals/all other quasi proceedings before any Courts/ Tribunals or any Authority due to Covid-19 Pandemic with effect from 15.03.2020 till 28.02.2022.

In the present Appeal, the learned State Commission passed the Impugned Order on 30.09.2015. The limitation for filing of the First Appeal before this Commission is 30 days. Therefore, the period of limitation for filing the FA in the case lapsed on 29.10.2015. However, the free copy of the Impugned Order was issued to the Appellant on 22.12.2015. Accordingly, the limitation for filing the First Appeal lapsed on 20.01.2016, which was well before the onset of the Covid-19 Pandemic and the lockdown. Thereafter, the present Appeal has been filed on 08.08.2022 along with Application seeking condonation of Delay. There is thus delay of 2391 days in filing the present Appeal.

In the Application seeking condonation of delay, the Appellant contended that the State Commission partly allowed the complaint vide the ex-parte order dated 30.09.2015 and directed the OPs to refund of Rs. 12,22,500/- with 12% interest from 19.05.2013 till realization with a cost of Rs. 10,000/- within 30 days from the receipt of the order. The Appellants were not made aware of any proceedings before the State Commission, which can easily be inferred from the ex-parte order. The Appellants could not appear due to lack of knowledge and intimation. During the pendency of the case before the State Commission, the Complainant had also filed a case before the Chief Judicial Magistrate, Pathanamthita under Section 138 of the Negotiable Instruments Act, 1881 for Cheque Dishonor vide ST No. 12/2016. The Appellant genuinely believed that this was the only case initiated by the Respondent and focused diligently on the same. They were kept in the dark about the case before the State Commission. Thereafter, on 25.05.2016, the Respondent filed EP No. 15 of 2016 in C.C. No. 94 of 2014, on which the State Commission passed an order dated 22.2.2019 against the Appellant. Later, the CJM, Pathanamthita passed a judgment dated 27.03.2019 in ST. No. 12/2016 finding the Appellants not guilty of the offence under section 138 of the Negotiable Instruments Act, 1881 and acquitted them.

The Appellant filed OP (Civil) No. 1004/ 2019 before Hon'ble High Court of Kerala seeking stay on the operation of the order of the State Commission in EA No. 15/2016 in CC. No. 94/2014. The stay was duly granted and was extended from time to time by the Hon'ble High Court until the case was withdrawn by the Appellant. Certain permission sought by the Petitioners and the Hon'ble High Court, Kerala granted the same. The delay on the part of the Appellants was not due to intentional nor deliberate omission but due to the fact the Appellants had been appearing before the Court of Law in the proceedings initiated by the Respondent herein. The Appellants were not intimated of any proceedings before the State Commission nor informed about the Ex-parte order thereof which is dated 30.09.2015. They came to know about the Ex-parte order of the State Commission and Execution Proceedings only on the date of the arrest of the Appellant No.1 i.e. 30.1.2018. The Appellants ever since actively pursued the matter before High Court of Kerala after passing of the order in E.P. 15/2016 dated 22.02.2019 till the date of withdrawal from High Court i.e., 25.05.2022. In the year 2018, there were massive floods in Kerala which caused major damage. The Appellant was also affected and could not proceed with the remedies available to him in time.

The delay of 1663 days was due to no intimation or knowledge provided about the proceedings before the State Commission. In any case, the Appellant was diligently appearing before the Chief Judicial Magistrate believing it to be the only proceeding and thereafter the Petitioners mistakenly submitted themselves to jurisdiction of High Court of Kerala seeking remedy. Thus, if the delay is not condoned, irreparable loss shall be caused to the Appellants.

On the other hand, the Respondent contended that due notices were issued to the Appellants/ OPs and they chose not to appear before the State Commission. Thus, they were proceeded ex-parte as is evident from Para 5 of the State Commission Order dated 30.09.2015. The proceedings U/s 138 are independent in law and have nothing to do with the complaint filed before the State Commission. The Appellants were aware of these proceedings and deliberately chose not to contest. They were proceeded ex-parte. CC. No. 94/2014 was decided on 30.09.2015 and Execution Petition No. 15/2016 was filed on 25.05. 2016. The Appellant was arrested and released on the same day, pursuant to the order of the State Commission after remitting Rs. 50,000 and Rs.30,000 as surety for bail, which was granted with the understanding that the Appellant would comply with the judgment of the State Commission within 30 days. The Appellant filed an undertaking to pay a sum of Rs.2,00,000/- within one month and pay the balance due within a further period of the next 6 months. It was further ordered that, in default of payment as undertaken, proceedings will be initiated against the 2nd Petitioner who is the 2nd Judgment Debtor for violating the undertaking and also for his arrest and production before the Commission. The following was the Order dated 22.02.2019 passed by the State Commission:

“2nd Judgment Debtor who was remanded to judicial custody produced from jail. Producing 2 DD's totaling to a sum of Rs.50,000/- he seeks release, undertaking to pay sum of Rs.2,00,000/- within a period of one month from today and to pay the balance amount within a further period of next six months. 2nd Judgment Debtor is ordered to be released on executing an undertaking that he would pay the sum due to the Decree Holder as stated before this Commission within the period stated by him. In default of payment as undertaken, proceedings will be initiated against the 2nd Judgment Debtor for violating the undertaking"

The learned counsel for Appellant asserted that the Appellant was unable to file the FA within time due to the impact of the Covid-19 pandemic. He argued that the Hon’ble Supreme Court extended the limitation period during the pandemic. As such, the Appeal was filed in accordance with the guidelines of the Hon’ble Supreme Court regarding limitation. As the Appellant’s Counsel before the State Commission did not communicate the order they came to know on the date of the arrest of the Appellant on 30.01.2018.

The learned Counsel for the Respondent contended that a statement given by a person or Counsel before any Court, Tribunal or Authority, which has been recorded, cannot be questioned/ resiled before the Higher Court, Tribunal or Authority and the Person who had given the statement cannot go beyond it. The NCDRC vide order dated 01.03.2023 dismissed the Appeal Execution No. 130/2022 filed by the Appellant against the order of the State Commission dated 22.02.2019 in Complaint No. 15/2016. The Appellant had approached the High Court of Kerala by filing OP(C) No. 1004/2019 against the Execution Petition but the same was dismissed as withdrawn on 25.05.2022 in view of the FA filed before NCDRC. The reason stated for not filing the First Appeal before the NCDRC was because of the floods in the year 2018 and due to Covid-19 pandemic are not plausible and justifiable reasons for condoning the delay.  The Respondent relied on the order of the Hon'ble Supreme Court in Popat Bahiru Goverdhane v. Land Acquisition Officer, reported in (2013) 10 SCC 765 and Maniben Devraj Shah v. Municipal Corporation of Brihan Mumbai, (2012) 5 SCC 157. The Respondent asserted that the Appellant has not accorded justifiable and plausible reasons in the Application for Condonation of Delay and sought it to be dismissed.

The learned counsel for the Respondent emphatically reiterated the specific contentions in the reply filed against the Application seeking Condonation of Delay. He contested that the copy of the impugned order dated 30.09.2015 passed by the learned State Commission was received on 22.12.2015. He asserted that, in the given circumstances, the delay is inordinate and the law as well as established catena of precedents by Hon’ble Supreme Court and this Commission do not permit condonation of such extremely long delay on such flimsy grounds and bypassing the liability to a counsel who defended the undefendable.

We have carefully examined the application for Condonation of Delay filed by the Appellants, reply thereto by the Complainant/ Respondent, associated documents and thoughtfully heard the detailed arguments by the learned Counsels for both the parties.

The Counsel for the Appellants painstakingly asserted the issues raised in the Application seeking condonation of delay and argued at length to explain the reasons and justify the delay in filing the Appeal. Notwithstanding the same, the impugned order on record and the acknowledgement by the Appellants that they were in receipt of its free copy on 22.12.2015 and the Appeal was filed after such delay, are evident from the records and admitted facts.

The Hon’ble Supreme Court in catena of judgments clarified the expression ‘sufficient cause’ and held that the burden is on the Applicant to show that there was sufficient cause for the delay. A party who has not acted diligently or remained inactive is not entitled for condonation of delay. In R.B. Ramlingam Vs. R.B. Bhavaneshwari, I (2009) CLT 188 (SC), it was held as under:-

"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.”

Condonation of delay is not a matter of right and an Applicant has to set out the case showing sufficient reasons which prevented them to come to the Court/Commission within the stipulated period of limitation. The Hon’ble Apex Court in Ram Lal & Ors Vs Rewa Coalfields Ltd, AIR 1962 Supreme Court 361, has held as under:

“It is, however, necessary to emphasise 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 condition precedent for the exercise of the discretionary jurisdiction vested in the Court by Section 5. If sufficient cause is not proved nothing further has to be done; the application for condoning delay 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.”

Also, in Anshul Aggarwal Vs. New Okhla Industrial Development Authority, (2011) 14 SCC 578, the Hon’ble Apex Court sensitized the Commissions to keep in mind while dealing with such Applications the special nature of the Consumer Protection Act. The Hon’ble Supreme Court has 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."

It has been held by the Hon'ble Supreme Court in the case of Basawaraj & Anr Vs The Special Land Acquisition Officer, (2013)14SCC811 has held that ‘where a case has been presented in the court beyond limitation, the applicant has to explain the court as to what was the “sufficient cause” which means an adequate and enough reason which prevented him to approach the court within limitation. In case a party is found to be negligent, or for want of bonafide on his part in the facts and circumstances of the case, or found to have not acted diligently or remained inactive, there cannot be a justified ground to condone the delay. No court could be justified in condoning such an inordinate delay by imposing any condition whatsoever. The application is to be decided only within the parameters laid down by this court in regard to the condonation of delay. In case there was no sufficient cause to prevent a litigant to approach the court on time condoning the delay without any justification, putting any condition whatsoever, amounts to passing an order in violation of the statutory provisions and it tantamounts to showing utter disregard to the legislature.’

If there is delay the question of deciding the matter on merit will not arise. In this context, we would like to rely upon the recent decision of Hon’ble Supreme Court in State of Uttar Pradesh & Ors. vs. M/s Satish Chand Shivhare & Brothers, SLP (Civil) No. 5301 OF 2022, it was held as below:

The questions of law purported to be raised in this Special Leave Petition are misconceived. The right of appeal is a statutory right, subject to the laws of limitation. The law of limitation is valid substantive law, which extinguishes the right to sue, and/or the right to appeal. Once an appeal is found to be barred by limitation, there can be no question of any obligation of the Court to consider the merits of the case of the Appellant.

When consideration of an appeal on merits is pitted against the rejection of a meritorious claim on the technical ground of the bar of limitation, the Courts lean towards consideration on merits by adopting a liberal approach towards ‘sufficient cause’ to condone the delay. The Court considering an application under Section 5 of the Limitation Act may also look into the prima facie merits of an appeal. However, in this case, the Petitioners failed to make out a strong prima facie case for appeal. Furthermore, a liberal approach, may adopted when some plausible cause for delay is shown. Liberal approach does not mean that an appeal should be allowed even if the cause for delay shown is flimsy. The Court should not waive limitation for all practical purposes by condoning inordinate delay caused by a tardy lackadaisical negligent manner of functioning.

Based on the discussion above, we do not find sufficient ground to condone such protracted delay in filing the Appeal. The Application seeking Condonation of Delay vide I.A. No.8176/2022 is accordingly disallowed. Consequently, the instant First Appeal being No.633/2022 is also dismissed being barred by limitation.

There shall be no order as to costs. All pending Applications, if any, are disposed of accordingly.

The Registry is directed to refund the statutory deposit, if any, to the Appellant after due compliance of the order passed by the learned State Commission.