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Judgment
Rekha Gupta, J.
The present first appeal has been filed against the judgment dated 02.06.2014 of the U T State Consumer Disputes Redressal Commission, Chandigarh ('the State Commission') in CC no. 23 of 2014.
The brief facts of the complaint as per the respondent/ complainant are that the respondent wanted to have a residential house in her own name. She applied for a residential flat to the appellant/ Opposite Party, vide application dated 12.12.2009. The price of the flat was Rs.27 lakh. The respondent paid an amount of Rs.1.00 lakh, through cheque bearing No.647503 dated 12.12.2009. The appellant, received an undertaking, from the respondent, wherein, it was specifically mentioned that the provisional allotment letter, would be issued, only after signing the Buyer-Developer Agreement. It was stated that the respondent agreed to pay the amount of Rs.26 lakh, on or before 01.01.2010. The respondent paid a sum of Rs.26 lakh, vide cheque no.647514 dated 31.12.2009. The respondent paid the entire sale consideration, to the tune of Rs.27 lakh. Flat No.701, Tower 1 was allotted to the respondent, vide provisional allotment letter dated 01.01.2010. Buyer-Developer Agreement dated 01.01.2010, was executed between the parties. According to Clause 14 of the Buyer-Developer Agreement dated 01.01.2010, the agreed date of completion of the project/flat was 31.03.2011. It was also mentioned, in this Agreement that, in case, the Developer failed to hand over the possession of the flat by the due date, it would be liable to pay to the buyer, a sum of Rs.1000/- per day, for the period of delay. It was stipulated, in the Agreement, that this condition was not applicable, in case of natural disaster/Government or Court ruling, strikes and any other reasons, beyond the control of the Developer, under force majeure conditions.
Since the appellant/Opposite Party, without any reason beyond its control, failed to complete the construction of flat by the stipulated date, it was liable to pay a sum of Rs.1000/- per day, to the respondent, for the period of delay. It was further stated that the letters dated 16.03.2011 and 09.06.2011, were also written to the appellant, in which they were asked to complete the construction of flat and handover the possession thereof, to the respondent, as also pay Rs.1000/- per day, as per Clause 14 of the Buyer-Developer Agreement dated 01.01.2010, but it failed to do so. The aforesaid acts of the appellant amounted to deficiency, in rendering service, as also unfair trade practice. When the grievance of the respondent was not redressed, left with no alternative, a complaint under Section 17 of the Consumer Protection Act, 1986 was filed, seeking direction to the appellant to handover the physical possession of the flat in question; immediately pay interest @18% P.A., on the amount of Rs.27 lakh, from the respective dates of deposits, till realization; Rs.1000/- per day with effect from 30.03.2011, till handing over the possession of the flat, in question; compensation, to the tune of Rs.1.00 lakh, for mental agony and physical harassment; and cost of litigation, to the tune of Rs.51,000/-.
Notice sent through ordinary post for the service of the appellant at the correct address, furnished by the complainant, was received back with the report 'refused'. Refusal was considered a good service. No authorized agent/ representative, on behalf of the appellant, put in appearance, as a result whereof, it was proceeded against ex-parte, vide order dated 23.05.2014.
The State Commission vide order dated 02.06.2014 directed as below:
For the reasons recorded above, the complaint is partly accepted, with costs, in the following manner:-
"(i). The Opposite Party is directed to hand-over the legal physical possession of flat No. 701, Tower 1, complete in all respects, to the complainant, within a period of 60 days, from the date of receipt of a certified copy of this order.
(ii). The Opposite Party is further directed to pay @ Rs.1000/- per day, to the complainant, as provided in Clause 14 of the Buyer-Developer Agreement dated 01.01.2010, Annexure C-5, from 01.04.2011 [the stipulated date for completion and handing over the possession being 31.03.2011].
(iii). The Opposite Party is further directed to pay, to the complainant, cost of litigation, to the tune of Rs.20,000/-.
(iv). The amount @ Rs.1000/- per day, as stated in Clause (ii) above, which has already fallen due, to the complainant, from 01.04.2011 to 31.05.2014, shall be paid by the Opposite Party, to her, within a period of 45 days, from the date of receipt of a certified copy of this order, failing which, it shall carry interest @7% P.A., from the date of default till the delivery of possession.
(v). The amount accruing due, to the complainant @ Rs.1000/- per day, w.e.f. 01.06.2014, onwards, shall be paid by the 10th of the following month, failing which, the same shall also carry interest @7% P.A., from the date of default, till the delivery of possession, besides payment of costs."
The complainant then filed an execution application no. 71 of 2014 under section 27 of the Consumer Protection Act, 1986 against the OP on 15.12.2014. The following orders were passed by the executing court on 30.01.2015:
"As per the office report, no stay order has been received from the National Consumer Disputes Redressal Commission, New Delhi or any other Court.
Counsel for the JDs/ OPs has submitted that the JDs/ OPs are ready to pay the amount due up-to the date of payment including interest within a week to the DH/ complainant, subject to the condition that he provides permanent account number (PAN) card.
Counsel for the DH/ complainant has submitted that he has heard the statement of the Counsel for the JDs/ OPs, referred to above, and admits the same to be correct. He has further submitted that PAN shall be supplied to the counsel for the JDs/ OPs todays itself. He has further submitted that he does not press this Execution Application at this stage.
In view of the above, the Execution Application is dismissed as withdrawn as partly satisfied, at this stage, with liberty to file a fresh one, if the undertaking given by the counsel for the JD/s OPs is not honoured".
Thereafter, the complainant filed an execution application no. 382 of 2016 on 06.10.2017 on the following grounds:
"3. In the intervening period the opposite parties paid a sum of Rs.14,85,000/- on 16th March 2016 and since then no payment has been made by the opposite parties to the complainant till date. Thus it is respectfully submitted that the opposite parties have not complied with the order passed by the Hon'ble Commission after the dated of 25.04.2016 till date since 16th March 2016.
The opposite parties have not deliberately complied with the order dated 02.06.2004 passed by this Hon'ble Commission till date and have as such became liable to be punished for an offence under section 27 of the Consumer Protection Act.
As per the directions of this Hon'ble Commission, the amount accruing due to be paid to the complainant @ Rs.1000/- per day, with effect from 01.06.2014 onwards, had to be paid by the 10th of the following month, failing which, the same shall also carry interest @ 7% per annum, from the date of default, till the delivery of possession.
In terms of the aforesaid directions since the possession has not been offered or handed over to the complainant, the opposite party is liable to make a monthly payment as per clause (V) in the directions passed by the Hon'ble State Commission vide order dated 02.06.2014 on or before every 10th of each month but the opposite party has failed to make the payment till date. That on account of wilful default of the opposite parties the complainant is being compelled to initiate fresh execution applications and thus the opposite party is liable to punished in accordance with the provision under section 27 and 25 of the Consumer Protection Act as well as liable to pay exemplary costs to the complainants for the unnecessary harassment of the complainant.
That on account of the default committed by the opposite party, they are liable to pay a sum of Rs.12,25,803/- till 31st October 2017."
The present first appeal has been filed against the impugned order dated 02.06.2014 of the State Commission in the main complaint on 25.05.2018. The first appeal has been filed with an application for condonation of delay of 1375 days. However, as per the report of the Registry there is a delay of 1415 days. The reasons given for the delay are as under:
The execution petition was dismissed as withdrawn by the respondent on 30.01.2015 and the appellant was under a bonafide impression that the case has been settled and the respondent will not file any other petition and the appellant will hand over the possession but because of stay orders granted by the Hon'ble Punjab and Haryana High Court against the land on which the construction was to be continued, the construction of flats could not be finished.
The respondent again filed an execution application no. 382 of 2017 against the appellant and others. After coming to know about the present execution application, the appellant company approached another advocate for the legal recourse against the attachment order in execution petition no. 382 of 2017 filed by the respondent. The advocate advised appellant to file an appeal for setting aside the ex parte judgement dated 02.06.2014, hence, this appeal along with present application for condonation of delay.
Appellant had no intention for not to file an appeal for setting aside the ex parte judgement before this Hon'ble Commission but the same could not filed because when the Execution Petition was dismissed as withdrawn because of settlement between appellant and respondent on 31.01.2015, setting aside of ex parte judgment dated 02.06.2014 was not even thought of. However, under those circumstances, the advocate engaged by the appellant also did not advise to file an appeal for setting aside the ex parte judgment before this Hon'ble Court.
We have heard the learned counsel for the appellant Mr Uchit Bhandari, who admitted that no appeal has been filed against the order of the State Commission before the execution application was filed. He contended that the order of the State Commission should be set aside because, notice by the State Commission was sent by ordinary post and it should have been sent by Registered Post. Further, the delay occurred because when the execution application no. 71 of 2014 was dismissed as withdrawn by the respondent, they took it as if the matter had been settled. Further, the project could not be completed as there was a stay from the court including High Court of Punjab and Haryana on the land on which the project was to be constructed.
On-going through the impugned order it is seen that the State Commission had noted in their order that notice was sent through ordinary post for the service of the opposite party at the correct address, furnished by the complainant but was received back with the report 'refused' and hence, it was taken as good service. No authorised agent/ representative on behalf of the opposite party put in appearance, hence, they were proceeded ex parte vide order dated 23.05.2014.
Further, the execution application was filed on 15.12.2014 even then no appeal was filed against the order of the State Commission. On the contrary the appellant had given assurances that they were ready to pay the amount due as per the order of the State Commission and on the said assurances the respondent/ complainant had withdrawn the execution application no. 71 of 2014 stating that he was not pressing the same at this stage and with liberty to file a fresh one if the undertaking given by the counsel for the appellant was not honoured.
This order was passed on 30.01.2015 when the appellant failed to pay the due amount, the respondent/ complainant was forced to file a fresh execution application no. 382 of 2017. Counsel for the appellant admitted that they have only paid an amount of Rs.14 lakh on 16th March 2016, since then no payment has been made as also possession of the flat no. 701, Tower no. 1 has not been given. The stay given by the Punjab and Haryana High Court was given on 26.04.2011 which was much before the State Commission passed their order on 02.06.2014 and much before the Execution application filed on 05.04.2014. Even at this stage the appellant chose not to file any appeal against the main order, in view of the stay given by the courts.
In the application for condonation of delay no cogent reason has been given to explain the day to day delay of 1415 days in filing the present first appeal except that the present counsel Mr Uchit Bhandari after filing of the execution application no. 382 of 2017 had advised the appellant to file an appeal for setting aside the ex parte judgment dated 02.06.2014. The only reasons given for filing the first appeal appears to be to harass the complainant and deny her the fruits of the award as per the order passed on 02.06.2014 by the State Commission.
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.
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".
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]".
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."
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."
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."
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 1415 days.
Accordingly, we find that there is no 'sufficient cause' to condone the inordinate delay of 1415 days in filing the present appeal. The application for condonation of delay is without any merit as well as having no legal basis and is not maintainable. Consequently, the present appeal is dismissed on limitation.