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Judgment
This revision petition has been filed by the petitioner Balasaheb Sopanrao Pokale against the order dated 27.01.2014 of the State Consumer Disputes Redressal Commission, Maharashtra, (in short 'the State Commission') passed in First Appeal No.A/06/1079.
Brief facts of the case as per the revision petition are that on 28.04.2000, the petitioner and the respondent executed a notarized transfer deed and thereby petitioner agreed to hand over the possession of flat No.16 to respondent (original complainant). On 07.02.2002, the petitioner and respondent executed a notarized cancellation deed there by the transfer deed dated 28.4.2000 was cancelled and revoked. On 19.09.2005, the respondent (original complainant) filed a complaint before the District Forum, Nashik against the petitioner on the basis of transfer deed dated 28.4.2000. On 06.05.2006, the District Consumer Disputes Redressal Forum, Nashik, (in short 'the District Forum') allowed the complaint as per the following order.
ORDER
The application of the Applicant is allowed with costs against the opponent.
The Opponent will complete the construction of flat No.16 in "Rushikesh Apartment" and hand over possession to the applicant within one month's time from the date of order and the sale deed be registered with own costs in favour of the applicant.Also, all other documents be fulfilled.
Otherwise, to pay the amount of Rs.3,00,000/- (Rupees Three Lakhs only) and penal simple interest at the rate of 18% thereon from 23/12/2004 till full & final payment to the Applicant, if it is not possible to hand over possession and registration of Sale deed.
The opponent will pay the costs of Rs.1,000/- (Rupees One Thousand only) to the Applicant.
The copy of order be given to both the parties free of cost."
On 05.06.2006, the petitioner preferred an appeal before the State Commission. On 27.01.2014, the State Commission dismissed the appeal.
Hence the present revision petition.
Heard the learned counsel for both the parties and perused the record. Learned counsel for the petitioner argued that respondent/complainant has concealed notarized cancellation deed dated 07.02.2002. Both the fora below have not considered this aspect and have passed the orders against the petitioner. Leaned counsel further stated that there is a delay of 205 days in filing the present revision petition. Leaned counsel reiterated the same reasons as mentioned in the application for condonation of delay. The following is mentioned in the application for condonation of delay:-
"The applicant has got the knowledge of the impugned order passed in First Appeal No.A/06/1079 on 14/07/2014 when he has received the summons of District Forum, issued in Recovery Application No.20/2014.
The applicant state and submits that he has not received the first copy or he has not got any intimation from his lawyer. It is pertinent to note that the appeal is filed in the year 2006 and disposed in the year 2014. The date of final argument and decision of appeal was not communicated by the lawyers of the applicant.
It is pertinent to note that the execution application is filed in April, 2014. The first summons was issued, by which applicant was directed to appear before District Forum on 14/07/2014 (Exhibit-E). The applicant has got the knowledge about the dismissal of appeal order dated 27/01/2014 on 14/07/2014. Then he has tried to obtain the requisite documents from the Forum. The requisite document according to the applicant was cancellation deed dated 07.02.2002 (Exhibit-D), the said document was available to the applicant when the respondent (Original Applicant) has filed on demand in cross examination on 16/01/2015.
It is pertinent to note that the applicant was trying to make amicable settlement with the respondent (Original Complainant) for avoiding the litigation. When all efforts done by the applicants was become infructuous, he was constrained to filed the revision petition before this Hon'ble Forum. So he has made an application of duplicate certified copy on 08.04.2015."
On the basis of the above reasons, it was prayed that the delay in filing the present revision petition may be condoned. Learned counsel further mentioned that the District Forum has not considered counter claim filed by the petitioner on the ground that the same was not supported by the affidavit. Learned counsel argued that the affidavit is only a formality and the averments made in the pleadings cannot be thrown away in the absence of the affidavit. In fact, the petitioner has to recover certain amount from the complainant and the same was filed in the counter claim in response to the complaint case filed by the complainant. The District Forum has taken the transfer deed dated 28.4.2000 into consideration as the registered deed which is not correct. It was only notarized on stamp paper of Rs.20/-, therefore, clearly this was not a registered deed. It was further stated by the learned counsel that the money was refunded when the transfer deed was cancelled by executing cancellation deed on 07.02.2002. In these circumstances, both the fora below have erred in ordering the petitioner to complete the construction of the flat or refund the amount.
On the other hand, learned counsel for the respondent/complainant stated that both the fora below have given concurrent finding. Accordingly, the scope under the revision petition is quite limited in such cases. This Commission cannot reassess the facts in the revision petition against the concurrent finding of facts given by both the fora below. It was further argued by the leaned counsel neither the flat was given nor the money has been refunded. Apart from arguing on merits, the learned counsel for the complainant stated that there is a delay of about 10 months in filing the present revision petition and no proper justification has been given by the petitioner for such a huge delay, therefore, the revision petition deserves dismissal on the ground of delay alone.
It is seen that the order of the State Commission was passed on 27.1.2014. From the copy of the order filed before this Commission, it is clear that the date of supply of free copy is mentioned 21.02.2014, however, the duplicate copy supplied on 08.04.2015 and the revision petition has been filed on 07.05.2015. If the delay is counted from the date of supply of free copy, the delay is of about 12 months. A perusal of the application for condonation of delay shows that the delay has been attributed to the time taken by the petitioner in having negotiations for settlement with the respondent/complainant. First of all, when the petitioner was appellant before the State Commission, he should have pursued his appeal properly and should have been in contact with the counsel or the State Commission to know the decision in the appeal. Even if that was not done and the petitioner got information on 14.07.2014, still he did not make any effort to get the copy of the State Commission's order. He has admitted that he applied on 08.04.2015 as he has denied receipt of free copy. It has been stated that the delay has occurred due to the fact that the petitioner tried to get the copy of the cancellation deed. If the petitioner was relying on the cancellation deed, he should be having the same and therefore, reason that it took time to get the copy of the cancellation deed cannot be accepted. Moreover, it has been stated in the application for condonation of delay that the petitioner tried to settle the matter amicably with the respondent/complainant and when the matter could not be settled, he applied for duplicate copy of the impugned order of the State Commission on 08.04.2015.
From the admissions made by the petitioner in the application for condonation of delay, it is clear that he got the information of dismissal of his appeal by the State Commission when he received the summons from executing court on 14.07.2014, however, he did not make any effort to challenge the State Commission's order, rather, he wasted time in pursuing the settlement with the complainant. Even if the delay is counted from the date of knowledge of the impugned order i.e. from 14.7.2014, there is a delay of 7 months in filing the present revision petition. Clearly, the reasons in the application for condonation of delay are not convincing as the petitioner has not tried to get the copy of the impugned order before 08.4.2015. Thus, I am of the view that the delay in filing the present revision petition has not been properly explained by the petitioner. Special periods of limitation have been prescribed in the Consumer Protection Act 1986, its Rules and Regulations for speedy disposal of consumer disputes. Hon'ble Supreme Court in Anshul Aggarwal vs. New Okhla Industrial Development Authority, IV (2011) CPJ 63 (SC) has laid down that;
"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."
Decision of Anshul Aggarwal (Supra) has been reiterated in CicilyKallarackal Vs. Vehicle Factory, IV (2012) CPJ 1(SC) 1, wherein Hon'ble Supreme Court observed;
"4. This Court in Anshul Aggarwal v. NOIDA, (2011) CPJ 63 (SC) has explained the scope of condonation of delay in a matter where the special Courts/ Tribunals have been constituted in order to provide expeditious remedies to the person aggrieved and Consumer Protection Act, 1986 is one of them. Therefore, this Court held that while dealing with the application for condonation of delay in such cases the Court must keep in mind the special period of limitation prescribed under the statute (s).
In the instant case, condoning such an inordinate delay without any sufficient cause would amount to substituting the period of limitation by this Court in place of the period prescribed by the Legislature for filing the special leave petition. Therefore, we do not see any cogent reason to condone the delay.
Hence, in the facts and circumstance of the case as explained hereinabove, we are not inclined to entertain these petitions. The same are dismissed on the ground of delay."
In R.B. Ramlingam Vs. R.B. Bhavaneshwari, 2009 (2) Scale 108, Supreme Court 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".
The above quoted authoritative judgments of the Hon'ble Supreme Court are fully applicable in the facts and circumstances of the present case. Negligence and deliberate inaction are attributed to the petitioner in filing the present revision petition. The petitioner has not acted with reasonable diligence in the prosecution of his revision petition. No convincing reason is mentioned in the application for condonation of delay for condoning the delay of about 12 or even 7 months. Consequently, application for condonation of delay is dismissed.
Even coming to the merits of the case, it is seen that both the fora below have given concurrent finding of fact and have not accepted version of the petitioner in respect of the cancellation deed dated 07.2.2002. The scope of the revision petition is quite limited and the facts cannot be reassessed in the revision petition if there is a concurrent finding of the fora below on facts. In this regard, the reliance is placed on the judgment of the Hon'ble Supreme Court in Lourdes Society Snehanjali Girls Hostel and Ors. Vs. H&R Johnson (India) Ltd. and others, (2016) 8 Supreme Court Cases 286, wherein, the following has been held:-
"23. The National Commission has to exercise the jurisdiction vested in it only if the State Commission or the District Forum has either failed to exercise their jurisdiction or exercised when the same was not vested in them or exceeded their jurisdiction by acting illegally or with material irregularity. In the instant case, the National Commission has certainly exceeded its jurisdiction by setting aside the concurrent finding of fact recorded in the order passed by the State Commission which is based upon valid and cogent reasons."
Apart from challenging the concurrent finding of facts by the fora below, no legal point has been raised in the revision petition, for making any indulgence by this Commission to interfere with the order passed by the State Commission. Consequently, even on merits, I do not find any ground to interfere with the orders passed by the fora below.
Based on the above discussion, the revision petition No. 1264 of 2015 is dismissed on the ground of limitation as well as on merits.