CHHAGAN SINGH vs VEDPRAKASH SHYAMCHARAN MISHRA

MR. Divakar Dwivedi, Advocate for the respondent undertakes to file appearance within a week.

WE are proceeding to dispose of this appeal at the stage of its admission itself on hearing the learned Advocates of the parties and on perusal of the material available in the appeal paper book. The appellant herein is the Original O.P. No. 1 in the aforesaid complaint and has challenged the legality and validity of the order dated 30th September, 1999 passed as per Consent Terms being Exhibit-4 to the complaint of the District Forum settling the claim of the complainant being the subject-matter of that complaint. The order has been passed on 30th September, 1999 and this appeal has been filed on 7th September, 2002. Few Relevant Facts :

(Hereinafter for brevity''s sake the appellant herein referred to as ''Builder'' and respondent as ''Flat Purchaser''). It is to be stated that M/s. Azad Co-op. Housing Society has not been made party respondent who is O.P. No. 2 in the complaint. It is not necessary to have a detailed advertence to the factual aspects involved in the matter. Suffice is to say that the flat purchaser approached the Mumbai Suburban District Forum complaining so many defects in respect of flat which he had agreed to purchase from the builder and for which he had paid some consideration to the builder.

AS there was failure on the part of the builder to discharge his statutory as well as contractual obligations towards flat purchaser that this complaint has been filed. It is noticed on 30th September, 1999 the parties filed ''Consent Terms'' before the Mumbai Suburban District Forum, which are marked as Exhibit-4 by the Forum on its record and this is what the order District Forum has passed on that date- "Parties have filed Consent Terms (Ex.-4) and have come to the amicable settlement of the complaint. Hence, we dispose of the complaint with no order as to costs."

THERE are two points, which would strongly militate against the appellant in entertainment of the appeal at this stage. Firstly, appeal being filed beyond limitation. The period for filing appeal as provided in Section 15 of Consumer Protection Act, 1986 is for 30 days from the date of the order. Under the said section vide proviso thereof such delay can be condoned on party to the appeal showing ''sufficient cause'' for not filing appeal within stipulated period. Herein the appellant-applicant has filed application being No. 1515/2002. In the application which is not on affidavit in paragraph 2, the appellant has stated that Commission would refer to facts and circumstances stated in the accompanying memorandum of appeal. We, therefore, perused the memo of appeal and at the outset it needs to be stated that the same does not impress us at all. Further as stated application is not on affidavit and as such no significance can be attached thereto. It is further noticed when the Consent Terms were filed the present appellant who is O.P. No. 1 was himself present before the District Forum and he had also subscribed his signature and across it is stated that appellant-builder is an English knowing person.

THE delay in the matter which is indeed inordinate delay, which has not been properly and sufficiently explained cannot be condoned. THE plea taken by the appellant-builder that he received the certified copy only on 4th September, 2002 and as such he was unaware of filing of the Consent Terms, etc. cannot be accepted since record shows he was very much present before the District Forum when Consent Terms were filed and as such aware of the order passed by the District Forum and he being aware of the date of the order, as envisaged in Section 15 of Consumer Protection Act, 1986 the period of 30 days is to be counted "from the date of the order".

AS such delay has not been explained and that this appeal filed on 7th September, 2002 challenging the order dated 30th September, 1999 is thus hopelessly time-barred which delay has not been explained sufficiently. The reference is also made to the certain proceeding in the Civil Court. However, we do not want to enter into that aspect of the matter.

The second factor which would strongly militate entertainment of this appeal is that builder is alleging fraud perpetuated upon him by the Advocate of the other party. The so-called alleged fraud cannot be considered in the appeal much less by the Commission functioning under Consumer Protection Act, 1986 as the same would involved vexed and complicated question of facts and law requiring evidence.

FURTHERMORE, it is easy to allege fraud but difficult to prove and what we observe from the memo of appeal, the builder has only narrated the course of events. For all these reasons, this appeal being devoid of any merits stands dismissed with no order as to costs. Office shall furnish copies of the order to the parties. Appeal dismissed.