M/S. VXL Realtors Pvt. Ltd vs Ashish Thapliyal & 2 Ors

This appeal has been filed by the appellant M/s. VXL Realtors Pvt. Ltd. against the order dated 02.05.2018 of the State Consumer Disputes Redressal Commission, Delhi, (in short 'the State Commission') passed in Complaint No.297 of 2009.

Brief facts of the case are that the respondent Nos.1 & 2/complainants booked a residential unit in the project "Eastern Heights" of opposite party/appellant in the year 2007. As per the appellant, letter dated 30.05.2009 was issued as offer letter for possession and the demand letter for the payments that were required to be made by the complainants. The complainants did not pay the outstanding demands and therefore, the possession could not be given to the complainants. Instead of interacting with the opposite party/appellant, the complainants filed a consumer complaint before the State Commission being complaint No.297 of 2009. The complaint was resisted by the opposite party/appellant and opposite party No.2/respondent No.3 herein by filing their respective written statement. However, the State Commission has allowed the complaint vide its order dated 02.05.2018 and has passed the following order:-

"Recently legislature has intervened to provide penalty for delayed possession @8% per annum by way of enactment of Real Estate Regulatory Authority Act. The same was taken note of by National Commission Jivitesh Nayal Vs. Maar MGF Land Limited IV (2017) CPJ 493.

To sum up the complaint is allowed and OP-1 is directed to hand over the possession of the flat alongwith interest @8% per annum from the promised date of delivery of possession to the actual date of handing over possession."

Hence the present appeal.

Heard the learned counsel for the appellant at the admission stage. Learned counsel for the appellant stated that after getting the demand letter dated 30.05.2009, the complainants filed the consumer complaint before the State Commission, rather than paying the charges for taking the possession. The complainants never tried to pay the outstanding charges against them to the appellant and therefore, the possession could not be handed over to the complainants so far. The appellant was ever ready to hand over the possession to the complainants right from 2009 and there was no delay in completion of the project or in handing over the possession. The delay has occurred only due to the facts that complainants did not come forward to pay the dues against them.

The learned counsel further stated that there is a delay of 339 days in filing the present appeal. An application for condonation of delay has been filed for condoning the delay. Learned counsel stated that though the order was received on 02.05.2018 and the work of filing the appeal was entrusted to one counsel Mr. P.K.Jha, who took all the documents and prepared the appeal, which was signed and handed over to the said counsel for filing before this Commission. Learned counsel on enquiry conveyed every time that the appeal has been filed and a long date has been given. Only, recently on 02.04.2019 the appellant approached another counsel i.e. present counsel to pursue the said appeal before this Commission and it was found that the said previous counsel had failed to file the appeal against the impugned order. Thus, the delay is due to the fault of the counsel and for the fault of the counsels clients should not suffer.

I have carefully considered the arguments advanced by the learned counsel for the appellant and have examined the record.

The first question to be considered in the present appeal is the delay in filing the present appeal. The appellant has filed an application for condonation of delay of 339 days though the Registry has reported the delay of only 285 days. Be that as it may, the delay is huge and the reasons given in the application for condonation of delay do not seem convincing to condone the delay. The following has been mentioned in the application for condonation of delay:-

"3. That the appellant company has received a copy of order/judgment/award dt. 02.05.2018/02.5.2018 on 1.5.2018 and immediately approached Sh. P.K.Jha Advocate for filing of the present appeal and appeal was duly prepared and signed to be filed and handed over to the said counsel for filing before the Hon'ble Commission and he kept on assuring that appeal has been filed and long date has been given by the Hon'ble Commission. It is respectfully submitted that recently on 2, April 2019 the appellant approached another counsel i.e. present counsel to pursue the said appeal before the Hon'ble Commission and it is found that the said previous counsel has failed to file the appeal against the impugned award/judgment and finding no help from the previous counsel present appeal has been filed with a delay of 338 days before the Hon'ble Commission.

That the accompanied appeal could not be filed due to the said act of the previous counsel and despite due diligence of the appellant company therefore, it is respectfully prayed that the delay in filing of the present appeal of 339 days may be condoned and the appellant may be allowed to be filed as the delay in non filing of the appeal has been caused by the previous counsel and it is a settled law that client should not suffered due to the mistake on the part of the previous counsel."

In the above application, no dates are given as to when the appeal was prepared and signed by the earlier counsel. Moreover, the appellant is a company and company generally deputes one authorised representative or legal representative to pursue such cases. If the case was so important the Company's management should have taken care to pursue the date by date proceedings in the matter. In an answer to query by the complainant, the learned counsel mentioned that no action has been taken by the company against the counsel, who was previously engaged and no complaint has been filed against him. Even no affidavit has been filed by the said counsel Mr. P.K.Jha, who has been named for not filing the appeal.

Special periods of limitation have been prescribed in the Consumer Protection Act, 1986 for speedy disposal of consumer disputes though the power has been given to the State Commission to condone the delay in filing appeal. A litigating party is also supposed to monitor the progress of the litigation in its own interest and should not depend solely on the counsel, who has been engaged by the party. Hon'ble Supreme Court of India in Salil Dutta Vs. T.M. and M.C. Private Ltd. 1993 SCR (1) 794 has held the following:-

"The advocate is the agent of the party. His acts and statements, made within the limits of authority given to him, are the acts and statements of the principal i.e. the party who engaged him. It is true that in certain situations, the Court may, in the interest of justice, set a side a dismissal order or an ex-parte decree notwithstanding the negligence and/or misdemeanour of the advocate where it finds that the client was an innocent litigant but there is not such abso lute rule that a party can disown its advocate at any time and seek relief. No such absolute immunity can be recognised. Such an absolute rule would make the working of the system extremely difficult. The observations made in Rafiq must be understood in the facts and circumstances of that case and cannot be understood as an absolute proposition. As we have mentioned hereinabove, this was an on-going suit posted for final hearing after a lapse of seven years of its institution. It was not a second appeal filed by a villager residing away from the city, where the Court is located. The defendant is also not a rustic ignorant villager but a private limited company with its head-office at Calcutta itself and managed by educated businessmen who know where their interest lies. It is evident that when their applications were not disposed of before taking up the suit for final hewing they felt piqued and refused to appear before the court. May be, it was part of their delaying tactics as alleged by the plaintiff. May be not. But one thing is clear they 'chose to non-cooperate with the court. Having adopted such a stand towards the Court, the defendant has no right to ask its indulgence. Putting the entire blame upon the advocate and trying to make it out as if they were totally unaware of the nature or significance of the proceedings is a theory which cannot be accepted and ought not to have been accepted."

Similarly, Hon'ble High Court of Delhi at New Delhi, in Moddus Media Pvt. Ltd. Vs. M/s. Scone Exhibition Pvt. Ltd. RFA No.497 of 2017, decided on 18.5.2017, has held that:-

"11. The litigant owes a duty to be vigilant of his rights and is also expected to be equally vigilant about the judicial proceedings pending in the court of law against him or initiated at his instance. The litigant cannot be permitted to cast the entire blame on the Advocate. It appears that the blame is being attributed on the Advocate with a view to get the delay condoned and avoid the decree. After filing the civil suit or written statement, the litigant cannot go off to sleep and wake up from a deep slumber after passing a long time as if the court is storage of the suits filed by such negligent litigants. Putting the entire blame upon the advocate and trying to make it out as if they were totally unaware of the nature or significance of the proceedings is a theory put forth by the appellant/applicant/defendant company, which cannot be accepted and ought not to have been accepted. The appellant is not a simple or rustic illiterate person but a Private Limited Company managed by educated businessmen, who know very well where their interest lies. The litigant is to be vigilant and pursue his case diligently on all the hearings. If the litigant does not appear in the court and leaves the case at the mercy of his counsel without caring as to what different frivolous pleas/defences being taken by his counsel for adjournments is bound to suffer. If the litigant does not turn up to obtain the copies of judgment and orders of the court so as to find out what orders are passed by the court is liable to bear the consequences."

Moreover, Hon'ble Supreme Court in R.B. Ramlingam Vs. R.B. Bhavaneshwari, 2009 (2) Scale 108, has 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".

On the basis of the fact mentioned in the application for condonation of delay, it is seen that the applicant Company has not acted with reasonable diligence in prosecution of their case. Clearly, negligence, deliberate inaction and lack of bona fides are imputable to the appellant in filing the appeal. Reasons given in the application for condonation of delay are not justifiable for condoning the huge delay of 338 days. Accordingly, the application for condonation of delay is dismissed. Consequently, First Appeal no.846 of 2019 is also liable to be dismissed.

Now coming to merits of the appeal, though counsel has argued that the letter dated 30.5.2009 was sent as offer letter to the complainants, subject to the payment demand made in that letter, but in the written statement, the appellant has not mentioned that any such offer was sent to the complainants rather following is mentioned:-

"5. That there is no deficiency in service of the O.P. as all the flats are likely to be completed and the O.P. is ready to hand over its possession of their allottee. However, it the complainant who has not made the payment as per demand notice. The complainant is defaulter in making the payment of instalments and therefore, they are not entitled for the relief as prayed in their complaint and therefore the complaint of the complainant is liable to be dismissed with cost."

From the above, it is clear that the flat was not ready at that time and therefore, there was no question of offering any possession. It is very surprising that during the pendency of the complaint case no offer of possession was given or no efforts were made by the appellant to give the possession to the complainants. Clearly, this gives an impression that the flat was not ready even during the proceedings before the State Commission. Learned counsel during the arguments stated in reply to the question put by the bench that the occupation certificate has not yet been received by the appellant/opposite party No.1 in respect of the flats. However, he stated that most of the allottees have taken possession and are residing there. This also speaks of the fact that the project may not be completely ready and that is why the occupation certificate not given. The State Commission vide impugned order has only directed to the appellant to give possession along with compensation of delayed possession in the form of interest on the paid amount. It is clear that the possession has not been given even after the due date of possession, therefore, the appellant is bound to pay the compensation to the complainants for such delay in possession. The State Commission has allowed 8% per annum on the basis of Real Estate Regulatory Authority Act and on the basis of judgment of this Commission passed in Jivitesh Nayal Vs. Maar MGF Land Limited IV (2017) CPJ 493. There seems to be no illegality in the order dated 2.05.2018 of the State Commission.

Based on the above, discussion, the First Appeal No.846 of 2019 is dismissed on the ground of limitation as well as on merits.