Mario Joseph vs MARY FERNANDES

IN this revision petition there is challenge to order dated 4.4.2013 passed by Consumer Disputes Redressal Commission, Panaji-Goa (for short, ''State Commission '').

RESPONDENT /complainant had filed a complaint under Section 17 of the Consumer Protection Act, 1986(for short, ''Act '') against Petitioner/O.P. on the ground that respondent has executed a registered sale deed dated 15.09.2008 in favour of the Petitioner in respect of property in question for a consideration of Rs.48 lacs. Since, respondent had incurred certain expenses for the improvement and development of the property for which petitioner has agreed to pay to the respondent a sum of Rs.27 lacs by way of reimbursement. As respondent failed to pay the same, a consumer complaint was filed before the State Commission. Petitioner contested the complaint and filed its written statement. During the proceedings pending before the State Commission, petitioner also filed an application dated 9.11.2012 for cross examination of the respondent stating that at the time of preparing affidavit-in-evidence, petitioner noticed that there were certain facts which have not been stated by the respondent in its complaint. These facts are necessary to be brought on record by way of cross examination to prove the case of the petitioner.

THAT application was dismissed by the State Commission, vide order dated 08.01.2013 observing that "in case the complainant has not brought certain facts on record through his affidavit-in-evidence, the O.P. is always free to do so through their affidavit or their witnesses ".

THEREAFTER , petitioner filed an application dated 20.3.2013, for amendment of the written statement. The plea taken by the petitioner with regard to the amendment of the written statement is that, in view of the order dated 8.1.2013 passed by the State Commission, petitioner wants to bring certain facts on record as per the draft amendment. The State Commission vide impugned order, dismissed the application for amendment.

IT has been contended by learned counsel for the petitioner that since respondent has not brought on record certain facts, as such petitioner wants to bring those facts on record by way of amendment. It is also contended that amendment of written statement should be liberally allowed in view of the decision of Hon ''ble Supreme Court in case Baldev Singh and others Vs. Manohar Singh and another (2006) 6 Supreme Court Cases 498, wherein the Court observed; "In the case of amendment of written statement, the courts are inclined to be more liberal in allowing amendment of the written statement than of plaint and question of prejudice is less likely to operate with same rigour in the former than in the latter case ".

RELEVANT portion of Impugned order passed by State Commission states; " On perusal of the record and after hearing of the Ld. advocates on behalf of both the parties, we find that the O.P. had filed his written version wayback on 18.5.2012 and thereafter sought adjournments to file affidavit in evidence on 07/09/12, 12/10/2012, 09/11/12, 23/11/12, 14/12/12. The affidavit in evidence was filed on 20/12/12. In between an application for cross examination of the complainant filed on 23.11.2012 was disposed off by order dated 08/01/13. By proposed amendment to the written statement the O.P. seeks to explain as to how the sale deed dated 15.09.2008 between the parties came to be executed. Any explanation whether as regards the initial agreement dated 25.10.06 between the parties or the succession deed dated 29.07.08 or the sale deed dated 15.09.08 could have been given either in the written version filed by the O.P. on 18.5.2012 or the affidavit in evidence filed on 20.12.2012. In fact, even on 07.02.13 a statement was made on behalf of the O.P. that there were no additional documents to be filed. In case it is contended that the explanation sought to be given by virtue of the amendment application now filed has come about with the change of legal advice, it may be noted that there was also change in the advocate on 12.10.12. We find that we are already lagging behind the mandate of Section 13(3A) of C.P. Act. Written submissions have already been filed and the complaint is awaiting the final hearing of oral submissions on behalf of the respective parties. Allowing the amendment application at this stage will simply put the clock back. The application is filed at a very belated stage and will delay the complaint further. In the circumstances, we proceed to dismiss the application for amendment, and fix the complaint for final hearing of arguments on 22.4.2013. There is no dispute about the principle of law laid down by the Apex Court in Baldev Singh (Supra). However, in the present case, petitioner has filed its written statement as far as back as on 18.5.2012 and thereafter its sought adjournments on five occasions to file its affidavit-in-evidence. The amendments which are being sought at this stage pertains to the initial agreement dated 25.10.2006 executed between the parties and sale deed dated 15.09.2008. All these documents were in existence at the time of filing of the written version and were in the knowledge of the petitioner. Petitioner could have easily mentioned about these documents in its written statement which filed in the year 2012. However, there is no explanation in the entire application for amendment as to why petitioner did not mention about these documents in the written statement. As apparent from the record, petitioner itself has been delaying the matter pending before the State Commission. Moreover, the application for amendment has been filed at a very belated stage, that is, when the matter is fixed for hearing of final arguments before the State Commission.

UNDER these circumstances, the State Commission was fully justified in not allowing the application for amendment of written statement at this very belated stage. Accordingly, we do not find any infirmity or illegality in the impugned order passed by the State Commission. There is no merit in the present revision petition and the same is hereby dismissed.

NO order as to cost.