M/s Parkwood Developers Private Limited vs Raman Bakshi

Repeatedly called out, intermittently.

No one appears for the appellant (the ‘builder co.’).

Mr. Akul Mehandru, learned counsel is present for the respondent (the ‘complainant’).

It is seen that on the previous occasion, i.e. on 13.01.2023, also, when the case was taken up, no one had appeared for the builder co. On that date, too, learned counsel was present for the complainant.

A perusal of the record shows that this matter relates to a builder-buyer dispute. The State Commission has conclusively determined deficiency in service as well as adoption of unfair trade practice on the part of the builder co.  It has ordered the builder co. to refund the amount of Rs.28,32,024/- deposited with it by the complainant with interest at the rate of 12% per annum along with Rs.50,000/- as lumpsum compensation for mental agony and harassment inclusive of litigation expenses, with the first charge being of the bank from which the complainant had taken loan.

The State Commission appears to have passed a well appraised and reasoned order, aptly dealing with the various issues germane in the matter. The award made by it also appears to be just and equitable, in the specific facts and circumstances of the case. The builder co. has been ordered to refund the deposited amount to the complainant with fair compensatory interest for unduly, unjustly and inequitable retaining the same. Reasonable lumpsum amount has been provided as compensation for mental agony & harassment and cost of litigation. The interests of the bank from which the complainant had taken loan have been duly taken care of.  As such, on the face of it, we do not find any palpable error on the part of the State Commission, though we have not gone deeper into the matter since learned counsel for the builder co. or any representative on its behalf is not available to assist.

Here it is relevant to note that the ideal normative period to decide an appeal is 90 days of its admission, as laid down in section 52 of the Act 2019. The present appeal was filed on 22.09.2020 with self-admitted delay of 173 days. Notice was ordered to be issued on 14.10.2020. It is now pending for over 02 years and 04 months. The appellant builder co. has stopped appearing.

In the light of the obtaining facts and situation, as briefly encapsulated above, we have no hesitation in dismissing the instant appeal in default for lack of prosecution.

The Registry is requested to send a copy each of this Order to the parties in the appeal and to their learned counsel immediately. The stenographer is requested to upload this Order on the website of this Commission

Submission of learned counsel for the applicant / appellant is that the Order in question was passed in default for lack of prosecution and, therefore, the same deserves to be recalled.  Learned counsel has also tried to submit that the impugned Order passed by the State Commission has been substantially complied with and the principal amount along with 9% interest has already been paid back to the respondent.  The appellant wants to contest the matter on the rate of interest of 12% which has been awarded by the State Commission and, therefore, the appeal ought to be restored to be heard afresh.

Learned Counsel appearing for the respondent opposes the submission made by learned counsel for appellant / applicant.  Submission is that the appeal was dismissed vide Order dated 21.02.2023 while the present miscellaneous application seeking restoration has been filed on 12.09.2023 which is far beyond the period of limitation prescribed for such applications.  It has also been submitted that there is no delay condonation application moved to seek condonation of delay in filing the restoration application so belatedly and there is no other explanation furnished in the miscellaneous application which may go to justify the delayed filing.  Submission is that, therefore, on this ground alone miscellaneous application deserves to be dismissed outright.  It has been further submitted that even though the appeal was dismissed in non-prosecution but the perusal of the order shows that the Bench has considered the merits of the case also and has found that there was no palpable error in the impugned Order passed by the State Commission and a fair compensatory interest for unduly, unjustifiably and inequitably retaining the amount and for committing deficiency of service was awarded.

Perused the record in the light of the submissions made at bar.  It appears that the submission made by the counsel for respondent are not wholly without substance. It is true that though the appeal was dismissed in non-prosecution but the Bench had satisfied itself about the prima facie correctness of the impugned Order and had made its observations in that regard in the Order.  But the Bench could have still considered to restore the appeal and could have heard it afresh providing opportunity to the counsel for the appellant had the miscellaneous application been moved within prescribed time limit or if there was some justifiable explanation furnishing sufficient cause to explain the delay would have been there.  Obviously, no such explanation has been furnished either in the miscellaneous application seeking restoration or in the form of any delay condonation application. Not only this even if one ignores the delay for the sake of argument, the perusal of the miscellaneous application would show that it does not contain any kind of explanation good, bad or indifferent which may go to explain the non-appearance of the appellant or his legal representative on the date fixed. The restoration application is conspicuously reticent about any such explanation which may be considered or accepted as a reason for non-appearance of the counsel or his legal representative or which may accepted as an explanation for not pursuing the matter with due diligence in right earnest.  Thus the delayed filing of miscellaneous application and the non-appearance on the date fixed both have been left unexplained.

In view of the above discussion the miscellaneous application stands dismissed.

The Registry is requested to send a copy each of this Order to all parties in this misc. application and to their learned counsel. The stenographer is requested to upload this Order on the website of this Commission immediately.