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Judgment
This revision petition has been filed by the petitioner Mayank Chabra against the order dated 05.11.2018 of the State Consumer Disputes Redressal Commission, Chhattisgarh, (in short 'the State Commission') passed in FA/18/405.
Brief facts of the case are that the petitioner herein is the opposite party in the original complaint case.The respondents/ complainants gave advance of Rs.2.96 lakhs as part consideration for the plot being purchased from opposite party.The complainants filed the complaint stating that the opposite party neither delivered the physical possession of the plot nor any registration was made nor the advance money has been refunded to the complainants.The District Consumer Disputes Redressal Forum, Raipur, ( in short 'the District Forum') proceeded with the complaint ex-parte against the opposite party and it has been recorded by the District Forum that the notice was refused by the opposite party, therefore, he was proceeded ex-parte.The District Forum vide its order dated 27.12.2017 allowed the complaint and ordered opposite party/petitioner herein to refund the amount of Rs.2.96 lakhs along with 12% p.a. interest from 06.04.2009.A compensation of Rs.50,000/- and Rs.3,000/- for litigation was also ordered.
The opposite party/petitioner herein preferred an appeal bearing No.405/2018 before the State Commission along with application for condonation of delay.However, the State Commission rejected the application for condonation of delay.Consequently, the appeal was dismissed vide order dated 05.11.2018.
Hence the present revision petition.
Heard the learned counsel for the petitioner at the admission stage.
Learned counsel stated that no notice was served by the District Forum and the petitioner never refused any notice from the District Forum.No proof has been filed by the complainant before the District Forum and it is not clear on what basis the District Forum has observed that the notice was refused by the petitioner.The petitioner could not put forward his version before the District Forum and therefore, the District Forum decided ex-parte against the petitioner and the prayers of the complainants have been accepted as they are.The petitioner is ready to hand over the plot to the complainant and the complainant should be directed to pay the remaining amount of the consideration.
The learned counsel further argued that the petitioner came to know the ex-parte order passed by the District Forum when he received the notice in the execution case filed by the complainants.The State Commission has however not accepted this contention and has dismissed the appeal as barred by limitation.The fact is that the petitioner has not been heard on merit either before the District Forum or before the State Commission and hence, it was prayed that the order of the State Commission be set aside and delay in filing the appeal before the State Commission be condoned so that the matter can be decided on merit.
I have given a thoughtful consideration to the arguments advanced by the learned counsel for the petitioner and have examined the material on record.
From the order of the State Commission, it is seen that there was delay of 87 days in filing the appeal before the State Commission.First of all, the District Forum clearly observed in its order that the petitioner refused to take notice and therefore was proceeded ex-parte. Even the State Commission has corroborated this fact by making the following observations:-
"Perused the order sheet of the concerned District Forum dated 23.08.2016. As per the said order sheet, the appellant "refused to accept the notice". Thereafter, the concerned District Forum proceeded and ultimately passed the impugned order dated 27.12.2017, in absence of the appellant.
As perused the dispatch register of the concerned District Forum.
As per the said dispatch register, copy of the impugned order was sent to the appellant on 15.01.2018.The said envelope not returned with the concerned District Forum.On consideration of two above facts, it appears that prima facie, the appellant was knowing regarding the issuance of notice, which he voluntarily refused by not accepting it and thereafter the copy of the impugned order was sent to the appellant by post.
Looking to the above facts, prima facie, it appears that the appellant waived his opportunity to contest the matter as per order sheet dated 23.08.2016 and thereafter also after dispatch of copy of the impugned order, he had not preferred the appeal within its limitation."
From the above, it is clear that the petitioner has not taken due care to defend the case against him before the District Forum and even to take steps for filing appeal when he must have received the free copy of the order of the District Forum. From the above observation of the State Commission, it is also borne out that the State Commission has thoroughly examined the record of the District Forum to verify the fact of refusal of notice by the petitioner.In a sense, both the fora below have given concurrent finding of fact so far as it relates to the refusal of notice by the petitioner.Against concurrent finding of fact by the fora below, the facts cannot be reassessed by this Commission at the stage of revision as held by 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."
Special periods of limitation have been prescribed under the Consumer Protection Act 1986, its Rules 1987 and its Regulations 2005 so that the consumer disputes are decided within a reasonable time as held by the Supreme Court in Anshul Aggarwal vs. New Okhla Industrial Development Authority, IV (2011) CPJ 63 (SC) 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."
Decision of Anshul Aggarwal (Supra) has been reiterated in CicilyKallarackalVs. 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, Hon'ble 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.Therefore, the State Commission has rightly dismissed the application for condonation of delay in filing the appeal before the State Commission.
Moreover, in considering the present revision petition, it is to be seen whether any injustice has been done to the petitioner.The fact is that the petitioner has taken advance money of Rs.2.96 lakhs from the complainants and he has neither delivered the possession of the plot in stipulated time nor refunded the amount.If the District Forum has ordered refund along with interest, prima-facie I do not see any injustice that has been done to the petitioner.
From the prayer made in the complaint, it is seen that the complaint was filed for refund of the advance amount paid to the petitioner.As the amount received by the petitioner has been only asked for refund and as there has been delay in getting the plot, I do not see any ground on merits that the matter be remanded to the State Commission after condoning the delay in filing the appeal.As the amount remained with the petitioner, he has to refund this amount along with interest as held by the Hon'ble Supreme Court in Alok Shanker Pandey Vs. Union of India &Ors., II (2007) CPJ 3 (SC) as under:-
"9. It may be mentioned that there is misconception about interest.Interest is not a penalty or punishment at all, but it is the normal accretion on capital.For example if A had to pay B a certain amount, say 10 years ago, but he offers that amount to him today, then he has pocketed the interest on the principal amount. Had A paid that amount to B 10 years ago, B would have invested that amount somewhere and earned interest thereon, but instead of that A has kept that amount with himself and earned interest on it for this period.Hence equity demands that A should not only pay back the principal amount but also the interest thereon to B."
In my view, the interest @12% p.a. seems to be reasonable in the current interest scenario and also in the light of the following observations of the Hon'ble Supreme Court in Ghaziabad Development Authority Vs. Balbir Singh (2004) 5 SCC 65:-
"That compensation cannot be uniform and can best be illustrated by considering cases where possession is being directed to be delivered and cases where only monies are directed to be returned. In cases where possession is being directed to be delivered the compensation for harassment will necessarily have to be less because in a way that party is being compensated by increase in the value of the property he is getting. But in cases where monies are being simply returned then the party is suffering a loss inasmuch as he had deposited the money in the hope of getting a flat/plot. He is being deprived of that flat/plot. He has been deprived of the benefit of escalation of the price of that flat/plot. Therefore the compensation in such cases would necessarily have to be higher..."
Thus, even on merits, I am of the view that no purpose will be served if the matter is remanded to the State Commission or District Forum for deciding the appeal/complaint afresh.
Based on the above discussion, I do not find any illegality, material irregularity or jurisdictional error in the order dated 05.11.2018 of the State Commission which calls for any interference from this Commission.Accordingly, the revision petition No.3297 of 2018 is dismissed at the admission stage.