M/S. Sterling Constructions & 2 Ors. vs Gladys D'souza & Anr

V.K.Jain, Presiding Member

These appeals are directed against the orders of the State Commission dated 17.03.2017 whereby the Consumer Complaints instituted by the respondents were allowed in terms of the directions given in the said order. The complainants/respondents booked residential apartments with the appellant in a project namely 'Sterling Apartments' which the appellant was to construct in Village Kurla of Mumbai Suburban District. The agreements between the parties were executed and the possession of the flats was to be delivered to the complainants within two years of the execution of the agreements. The possession having not been delivered to them, the complainants approached the concerned State Commission by way of separate Consumer Complaints seeking possession of the allotted flat alongwith interest @ 21% per annum in addition to compensation for the mental agony and harassment.

The complaints were resisted by the appellant which admitted the allotment made to the complainants. It was interalia stated in the written version that the complainants had defaulted in making payments but despite such defaults, no interest was charged from them. It was also stated that the construction was delayed on account of reasons beyond the control of the appellant.

Since there is a delay of more than one year in institution of these appeals, applications seeking condonation of the said delay have been filed by the appellant. The said applications, to the extent they are relevant, read as under:

The applicants state that after receipt of the order on 12/4/2017, the respondents i.e. the org Complainant had approached the Appellant for discussing the settlement of the issue. The Applicants had agreed to complete the construction work as soon as possible and will provide all the amenities such as water, light and lift etc.

The applicants submits that since, there was/is bonafide intention to give possession of flat to respondent and therefore, a meeting was fixed with respondent. In the meeting of exploring settlement, the respondent with malafide intention, agreed that they will not ask for monetary claims if the possession is handed over to respondents by the applicants.

The applicants failed to understand that this was just and trick played by the respondents so that the time period to file appeal should passed over. The respondents all the time agreed for settlement of case and insisted that respondents will not ask for monetary claims in view of the settlement.

The applicants states that long period of time was wasted by the respondents under the name of settlement and sole intention of the respondents to mislead applicants and avoid filing of the appeal.

Thereafter, applicants mother was suffering from brain hemorrhage and was admitted in hospital for treatment and therefore, applicant could not file the appeal before this Hon'ble Commission. The copy of discharge card enclosed herewith.

The applicants submit that the settlement was just a trick to waste time of applicants. Hence there is delay in filing the present appeal which is not deliberate or intentional and hence this application seeking condonation of delay in filing the present appeal.

It would thus be seen that two grounds have been taken by the appellant while seeking condonation of delay in institution of these appeals. The first ground taken by the appellant is that the parties were negotiating for quite some time and therefore, they wanted to resolve the matter instead of challenging the order passed by the State Commission. However, there is absolutely no document evidencing the alleged negotiations between the parties after the order of the State Commission. No particulars of the alleged meetings and negotiations have been given in the application. It is not directed on which date the negotiations were held, where they were held and who were present in the meetings. The learned counsel for the complainants denies any such meetings or negotiations between the parties. In the absence of any document in this regard and particulars of the alleged meetings, the plea taken by the appellant cannot be accepted. In any case, the appellant ought to have approached this Commission, instead of spending time on negotiations and allowing the appeals to become time barred in the meanwhile, since the negotiations could have been held even after instituting the appeal within the prescribed period of limitation.

The second ground given by the appellant is that the mother of the partners of appellant no. 1 was hospitalized and therefore, they were unable to file the appeal, both the brothers being busy in the treatment of their mother. During the course of hearing, the learned counsel for the appellant stated that the mother of the partners of the firm was hospitalized on 15.02.2017 and was discharged from there on 10.07.2017. Though it is rather difficult to accept that throughout this period of almost five months, both the partners were held up in the hospital where their mother was admitted, even if the benefit of the aforesaid period, between 15.02.2017 to 10.07.2017, is given. These appeals having been instituted on 18.05.2018, more than ten months after the mother of the partners of the firm was discharged from the hospital, there is no explanation for the aforesaid delay of more than ten months in approaching this Commission after discharge of the mother from the hospital. Therefore, from whatever angle I may look at it, I find no justification in condoning the delay of more than one year in institution of these appeals.

This is also the submission of the learned counsel for the complainants that the impugned order has already been accepted by the appellant, who had undertaken, before the State Commission, to pay 50% of the compensation amount, within a particular period.

It is pointed out by the learned counsel for the appellant and rightly so that the interest awarded by the State Commission is very much on the higher side, the same being as much as 21% per annum, however, since the appeals are barred by limitation and the complainants are not ready to accept lesser interest, no justified ground for condonation of delay has been shown, it is not permissible for this Commission to examine the order of the State Commission on merits.

For the reasons stated hereinabove, the appeals are dismissed as barred by limitation, with no order as to costs.