Onkar Singh Sandhu vs B.S. Prasad & 2 Ors

The dispute relates to 2009, we are in 2019.

Learned counsels for the revision petitioner - complainant and the respondent no. 3 - HDFC bank were heard. The material on record was perused. Specifically, the impugned Order dated 14.10.2016 of the State Commission and the application for condonation of delay were perused.

To begin with, the application for condonation of delay was taken up.

This revision has been filed against the Order dated 14.10.2016 of the State Commission with self-admitted delay of 557 days.

The District Forum vide its Order dated 18.03.2010 had partly allowed the complaint:

On the basis of the above discussion, the complaint of the complainant filed under Section 12 of the Consumer Protection Act, 1986 is partly allowed, and it is ordered that within one month from the date of order:

"A. The non-applicants No.1 and 2 will construct the flat No. F-2 on the second floor within 6 months and will hand over the physical possession by receiving the balance amount under the terms mentioned in the Agreement.

B. Non-applicant Nos. 1 and 2 will pay Rs.10,000/- (rupees ten thousand only) to the complainant for the mental agony suffered due to above act.

C. The Non-applicant Nos. 1 and 2 will pay Rs.1,000/- (Rupees one thousand only) to the complainant as cost of the case.

(para 34 of the District Forum's Order)

(as per the translated copy furnished by the revision petitioner)

In execution proceedings the District Forum vide its Order dated 29.03.2016 had dismissed the execution application:

Thus the order has been passed of the possession of the above flat under the SARFAESI Act in the favour of the bank. Thereafter the bank has published the notice of sale declaration with possession of the above flat of the complainant, copy of which is enclosed. The bank under the powers conferred under the Provision of SARFAESI Act has sold the above flat through registered sale deed to Sh. Santosh Kumar Sen on 16.12.2013, in which acknowledgement of possession has also been enclosed.

Thus, in fact as per the provision given under SARFAESI Act, the District Magistrate has passed the order in respect of possession of above flat on 18 Jan. 2010. Under the provision of the above act the bank has issued the notice under the SARFAESI Act to the complainant / judgement debtor and initiated other proceedings, finally sold the above flat through registered sale deed and as such the transfer of the above flat is being shown as per law. The order which has been passed by the District Forum regarding giving the physical possession to the complainant after getting the balance amount of above, flat by Non-Applicants No. 1 and 2, and for its Execution Application has been filed by the complainant Under Section 27, keeping in view the above factual position, as the above flat had been purchased by the complainant under the loan taken from the bank by the complainant, which has been transferred by making the sale of the above flat by taking the possession in respect of the balance loan by the bank under the SARFAESI Act.

The judgments-Civil Appeal No. 224-225/2015, Kamlesh Aggarwal versus Narain Singh Dabbas and others (Supreme Court) and 2014 (1) CPR 391 (NC) , Rajasthan Housing Board through Chairman Versus Vimal Chand Jain (NC) cited by the complainant, the facts and circumstances being deferent, no benefit will be received by him.

In such circumstances, in fact, in the perspective of balance loan regarding the above flat of the complainant, after the proceeding initiated for possession by the bank as above of his said flat, keeping in view the above provisions and factual position, transferring the flat in recovery of the above home loan of the complainant, now no situation arises for taking any further proceedings on the Execution Application filed for getting the possession of the flat to him. Thus, now in fact, there is no need of execution, accordingly, the Execution Application is hereby dismissed.

(paras 7, 8, 9 and 10 of the District Forum's Order in execution proceedings)

(as per the translated copy furnished by the revision petitioner)

The State Commission vide its Order dated 14.10.2016 had dismissed the appeal (execution):

One notice has been sent by the bank to the appellant / complainant on 17.09.2010, from its perusal it is clear that notice has been sent for initiate proceeding under Section 13 (4) of The Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (SRFAESI Act). Perused the order dated 18.01.2010 passed by the Court of Collector and District Magistrate, Raipur in Case No. 31/B-121 / Year 2008-09 Authorized Officer HDFC Ltd. Versus Onkar Singh Sandhu, in its para 5 it has been ordered that:-

"5. The documents in enclosed in the application, case of the applicant Authorized Officer HDFC Ltd. (Housing Development Finance Corporation) District Raipur and the provisions given in the Act. As has been stated by the Authorized Officer HDFC Ltd. (Housing Development Finance Corporation) District Raipur, the Non-Applicant has taken the loan of Rs. 4,87,496/- (Rs. Four Lacs Eighty Seven Thousand Four Hundred Ninety Six Only), not paying the loan in time issued notice Under Section 13 (2) of the Act for payment and asked to hand over the possession of the property in mortgage, filed the application Under Section 14 of The Securitization and Re-Construction of Financial Assets and Enforcement of Security Interest Act, 2002 and has prayed to hand over the property in mortgage in favour of the bank. On the other hand the Non-Applicant even after notice remained absent in Court without any intimation, Ex-Parte proceedings have been made against him. From the absence of the Non-Applicant in Court, it appears that he does not want to make the payment of the loan and hand over the possession of the property in mortgage. As a result of the same, the applicant Authorized Officer HDFC Ltd. (Housing Development Finance Corporation) District Raipur has sent the notice under Section 13 (2) of the Act and had asked for the loan payment but neither the non-applicant has paid the amount of loan nor has handed over the possession of the property in mortgage in favour of the Authorized Officer HDFC Ltd. (Housing Development Finance Corporation) District Raipur. Thus inspite of giving sufficient time to the Non-Applicant Onkar Singh Sandhu for loan payment due to not depositing the loan amount by him, there are sufficient grounds for initiating proceedings Under Section 14 of The Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 against him. Therefore order is passed Under Section 14 (a) (b) and 14 (2) of the above Act that the concerned Tehsildar hand over the physical possession of the immovable property situated in village Daldal Siwani Ph. No. 109, Tehsil and District Raipur constructed on Khasra No. 673/6, 383/1, Sai Vihar, Flat No. F-2, Second Floor, Mortgaged in favour of Applicant Authorized Officer HDFC Ltd.(Housing Development Finance Corporation) District Raipur and intimate this Court. The proceedings regarding handing over the possession peacefully and no obstruction of any kind be created, for this get necessary police force at his own level from the Superintendent of Police Raipur."

From the perusal of the case it is clear that orders had been passed against the appellant in favour of the bank for getting the possession of the immovable property situated in village Daldal Siwani Ph. No. 109, Tehsil and District Raipur constructed on Khasra No. 673/6, 383/1, Sai Vihar, Flat No. F-2, Second Floor, Mortgaged in favour of Applicant Authorized Officer HDFC Ltd.(Housing Development Finance Corporation) District Raipur and thus initiating the proceedings under The Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 ( SRFAESI Act) against the appellant / complainant the flat has been sold to Santosh Kumar Sen and has executed the sale deed in favour of Santosh Kumar Sen and its possession has been handed over to Santosh Kumar Sent and in such circumstances it is not possible for the District Forum that it may hand over the possession of the disputed flat to the appellant / complainant in execution proceeding. Since the appellant / complainant had himself taken the loan and on not making the payment of loan, the bank has initiated proceedings. In such circumstances, it is not possible for the District Forum to hand over the possession of the above flat to the appellant / complainant in execution proceedings. For this the only option is left that he can file a suit for declaration of his ownership and possession before a court having competent jurisdiction. It is not possible to grant any relief in this execution proceeding and in such circumstances the order which has been passed by the District Forum, the same is absolutely proper and the judgment which has been cited by the appellant / complainant in Appeal No. F.A./ 14/ 157 Prandhar Agarwal and two others Versus Abbas Ya Gaus Body Builders and others (Supra), its facts are totally different from the facts of this case, therefore the appellant / complainant does not get any benefit of the same.

The impugned order passed by the District Forum, is passed absolutely as per law, there is no irregularity and invalidity of any kind in it ad nor needs any interference.

The appeal of the appellant / complainant is dismissed without merit. The impugned order dated 29.03.2016 passed by the District Forum is upheld. The parties will bear their own respective cost of the appeal.

(paras 10,11, 12 and 13 of the State Commission's Order) (as per the translated copy furnished by the revision petitioner)

The revision has been filed with self-admitted delay of 557 days against the said Order dated 14.10.2016 of the State Commission. The stated reasons for delay in filing the revision, as mentioned in paras 2 to 7 of the application for condonation of delay, are as below:

That the Ld. State Commission was pleased to dismiss the first appeal filed by the revisionist vide its order dated 14.10.2016.

That thereafter the revisionist received the certified copies of the aforesaid order dated 14.10.2016 on 14.10.2016 from the registry of the Ld. State Commission.

That as the revisionist is a permanent resident of Raipur, Chhattisgarh and as such it took considerable time for the revisionist for engaging a counsel at Delhi for filing the captioned matter but till than a considerable time had already elapsed.

It is further pertinent to mention that after the revisionist engaged the Counsel, the counsel of the revisionist was required to go out station i.e. Kolkata in the month of January as his grandfather had expired and thereafter again was in Nagpur, Maharashtra due to his engagement and marriage thereafter as such a delay was caused in filing the present appeal.

That the delay caused in filing the captioned matter is neither deliberate nor intentional but because of the aforesaid unavoidable reason.

It is therefore requested before this Hon'ble Commission that this Hon'ble Commission may kindly be pleased to condone the delay of 557 days in filing the present appeal; petition in the interest of justice.

(paras 2, 3, 4, 5, 6 and 7 of the application for condonation of delay)

The Act 1986 is to provide speedy and simple redressal to consumer disputes (Statement of Objects and Reasons). The period of limitation to file revision petition is 90 days (Regulation 14(1)(i) of the Regulations 2005). This revision petition has been filed with admitted delay of (further) 557 days.

It is noted that the stated reasons for delay, as enunciated in the application for condonation of delay, and as reproduced, verbatim, in toto, in para 7 above, (only) point towards a perfunctory and casual attitude to the law of limitation, and are illogical and absurd to explain convincingly and cogently the day-to-day delay in filing the revision.

No just or sufficient cause to explain the delay is visible.

This bench however wants to also satisfy itself that there would be no miscarriage of justice if the delay is not condoned. The bench notes in particular the respective appraisal made by the two fora, quoted (verbatim) in paras 5 and 6 above. The bench also notes that banks / financial institutions function as per their rules and norms, and the law, they provide loans in the normal wont of their functioning, and should not be unnecessarily and unjustifiedly put to trouble or difficulty in a consumer dispute that is substantively between the borrower and the builder / developer / etc. Without attempting to examine or adjudicate on the Orders of the State Commission or the District Forum on merit, this bench but does not find any reason visible to convince it that there would be any miscarriage of justice if the delay is not condoned. On the contrary, it finds the conduct of the complainant to have a bad air.

The application for condonation of delay, being unconvincing and devoid of merit, is dismissed. Resultantly the revision petition is dismissed on limitation.