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Judgment
This revision petition has been filed by the petitioners Sant Sagar Builders and Developers Pvt. Ltd. and others against the order dated 19.10.2015 of the State Consumer Disputes Redressal Commission, Maharashtra, (in short 'the State Commission') passed in Appeal No.A/15/898.
Brief facts of the case are that the respondent Society filed a consumer complaint before the Addl.
Consumer Disputes Redressal Forum, Mumbai Suburban District, (in short 'the District Forum) for removing the deficiencies in the constructed building and for handing over the occupation certificate and completion certificate in respect of the building as well as for conveying the land on which the project has been built. The complaint was resisted by the petitioners/opposite parties by filing the written statement. The District Forum, however, allowed the complaint and directed the opposite parties/petitioners herein to execute the conveyance deed in favour of the complainant.
Aggrieved with the above order of the District Forum, the opposite parties preferred appeal bearing No.A/15/898 before the State Commission, which vide its order dated 19.10.2015 passed the following order:-
"Mr. Prashant Raut-Advocate for appellant with authority letter. Mr. Bhaskar Yogi- Advocate for respondent undertakes to file his vakalatnam.
Heard learned counsel for the parties. Order is only about statutory obligations to execute conveyance under the provisions of MOFA. We find that there is nothing on record even to admit the appeal. Hence, appeal is not admitted and stands disposed of."
Hence the present revision petition.
Heard the learned counsel for the petitioners at the admission stage. Learned counsel for the petitioners stated that the petitioners are in difficulty to execute the conveyance deed in favour of the complainant society because there are other societies formed by the residents and the petitioners have to execute conveyance deed in favour of those societies as well. Learned counsel stated that when the order of the District Forum was passed there was already another society for the same project which was not made party by the complainant society in the complaint and inspite of raising this issue before the District Forum, the District Forum has passed the order for conveying the property in favour of the complainant society. The State Commission has also not considered this aspect raised by the petitioners. He further stated that two of the other societies have already gone to some other forum for seeking conveyance in their favour. In this regard, learned counsel has produced before this Commission a hearing notice dated 20.08.2019 issued by Competent Authority and District Sub-Registrar, Co-operative Societies (2), Eastern Suburbs, Mumbai.
It was further stated by the learned counsel that there is a delay of 43 months (1258 days has been mentioned by the Registry) in filing the present revision petition. Learned counsel mentioned that after the order of the State Commission, the petitioners were trying to settle the matter amongst societies and a meeting was also called inviting all the societies. However, the matter could not be settled, then the revision petition has been preferred. This has caused the delay in filing the present revision petition. It was requested that the delay may be condoned and the revision petition may be admitted.
I have carefully considered the arguments advanced by the learned counsel for the petitioners and have examined the record. It is seen that the order of the State Commission has been passed on 19.10.2015. Admittedly there is a delay of about 1258 days. The following has been mentioned in the application for condonation of delay:-
"6. I state and submit that the petitioners had in fact decided to accept the order passed by the District forum and the State Commission and were negotiating to resolve the so-called dispute with the Respondent herein viz. Sagar Heritage Co-operative Housing Society Ltd., Sagar Pallazio Premises Co-operative Society Ltd., Sagar Tech Plaza- A Premises Co-operative Society Ltd., Sagar Tech Plaza B Premises Co-operative Society Ltd., in as much as, as per the clauses of the agreement, all the aforementioned societies and/or its buildings were constructed by the petitioners on the larger layout, and as per clause (20) and (30) of the Flat Purchasers Agreement, the petitioners were duty bound to execute the composite conveyance in favour of the aforementioned 5 societies including the respondent herein.
The petitioners state that in the meantime the respondent herein filed Execution Application No.117 of 2017 for non-compliance of Order dated 14th May 2015 passed by the District Forum in Complaint No.31 of 2012, confirmed by the Hon'ble State Commission vide Order dated 19th October 2015 in First Appeal No.898 of 2015. During the pendency of the said Execution
Application the petitioners prepared a draft conveyance and forwarded the same to the respondents and the aforementioned 3 other societies.
In fact, the petitioners herein had arranged the meeting of aforementioned 5 societies including the respondent herein on 28th September 2018. The said meeting was attended by the representatives of Sagar Pallazio premises CHS Ltd., Sagar Tech Plaza A Premises Co-op. Soc Ltd., Sagar Tech Plaza B Premises Co-op. Soc Ltd. However, the respondents society and or its representatives AND representative of Sagar Heritage Co-operative Housing Society Ltd. remained absent in the said meeting and therefore no decision was arrived at in the meeting dated 28th September 2018. The petitioners, through their advocate's letter dated 23rd April 2019 recorded the said facts and requested the other 4 societies to remain present before the District Forum on 26th April 2019 in the said Execution application to resolve the said dispute. However, the aforementioned 4 societies remained absent and now the said execution application is scheduled for hearing on 6th August, 2019.
In the meantime, Sagar Tech Plaza 'A' Premises Co-op. Society Ltd. and Sagar Tech Plaza 'B' Premises Co-op. society Ltd. has approached the competent authorities for seeking deemed conveyance in respect of the land wedded to the building of the said society. As for the procedure followed under provisions of MOFA, 1963, the competent authority is likely to grant said reliefs to Sagar Tech Plaza 'A' Premises Co-op. society Ltd. and Sagar Tech Plaza 'B' Premises Co-op. Society Ltd. In such scenario it will not be possible for the petitioners to execute the conveyance in respect of development undertaken by them as per Sanctioned Layout Plan thereby executing one composite conveyance in favour of the aforementioned 5 societies including the respondent herein. In any event the relief in the nature of deemed conveyance will be in conflict of the order passed by the District Forum in favour of the Respondent and as such there has to be a solution to the aforementioned problem for the simple reason that the petitioners are facing action under Section 27 of the Consumer Protection Act for non-compliance of Order dated 14.5.2015 passed by the District Forum and confirmed by the Hon'ble State Commission vide its Order dated 19.10.2015.
In view of the aforementioned development the petitioners are constrained to file the present revision application at the belated stage. There is thus a delay of 43 months in filing the present revision. As explained above the said delay is not an intentional one. The petitioners have been constrained to approach this Hon'ble Commission due to reasons beyond their control and due to the impossibility of execution of the District Forum Order.
I state and submit that the said delay is unintentional one and deserves to be condoned on such terms this Hon'ble Commission may deem fit and proper. ............."
The order of the State Commission was passed on 19.10.2015. However, the application for condonation of delay is silent on the initial period of 2015-2016 when the order should have been complied by the petitioners. The provision in Maharashtra Ownership Flats Act, 1963 (MOFA) is clear that the developer is duty bound to get a society of residents registered within a period of four months and to convey the property in favour of the society. Though it is mentioned in the application for condonation of delay that the petitioners were thinking of complying with the order of the District Forum, however, it is not clear why the conveyance was not executed as per the provisions of MOFA and why a society was required to file a consumer complaint at the first place. Then, it was always open to the opposite parties/petitioners herein that they should have moved an application before the District Forum to make the other society/societies a party in the consumer complaint. However, same was not done. It seems that when the execution has been filed by the respondent/complainant society in the year 2017, then the petitioners started some activity and they tried to organise the meeting of all the societies etc. in the year 2018. Clearly, no action was taken in the initial two years after passing of the order by the State Commission. 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".
It is seen from the application for condonation of delay that the petitioners have not acted with reasonable diligence in prosecution of their revision petition as no action was taken for initial two years and even afterwards no action has been taken by the petitioners for either compliance of the order of the District Forum or for filing the revision petition until in August, 2019 when the present revision petition has been filed. Moreover, special limitation periods have been prescribed under the Consumer Protection Act, 1986, its Rules 1987 and its Regulations 2005 for speedy disposal of the consumer disputes as observed by the Hon'ble 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."
A larger bench of this Commission in "PNB Metlife India Insurance Company Ltd. Vs. Asha Agarwal, II(2015) CPJ 666(NC)" in case of delay, has observed;
"6. It is trite that discretion to condone delay has to be exercised judiciously, based on facts and circumstances of each case. 'Sufficient cause' cannot be construed liberally if negligence, inaction or lack of bonafides are attributable to the party, praying for exercise of such discretion in its favour. It is equally well settled that when a statute provides for a particular period of limitation, it has to be applied with all its rigor. An unlimited limitation leads to a sense of uncertainty and, therefore, limitation prevents deprivation of what one may have acquired. In P. Ramachandra Rao Vs. State of Karnataka, (2002) 4 SCC 578, the Hon'ble Supreme Court has observed that judicially engrafted principles of limitation amounts to legislating and would fly in the face of law laid down by the Constitution Bench in Abdul Rehman Antulay and Ors. Vs. R.S. Nayak and Anr., (1992) 1 SCC 225. Bearing in mind these broad principles, we are of the opinion that the State Commission has not committed any jurisdictional error in arriving at the conclusion that no sufficient cause had been made out for condonation of the delay. Admittedly, the Petitioner had received the free certified copy of the order dated 27.05.2014 passed by the District Forum, allowing the Complaint, on the very said date and the Law Firm, to which the present case had been assigned, had furnished its opinion on 17.06.2014. It is evident that after forwarding the order to the Law Firm, the Petitioner went into deep slumber and it was only on 10.10.2014, when they received notice in the Execution Application, preferred by the Respondent/Complainant for enforcement of the order passed by the District Forum, they woke up to instruct their Advocate at Delhi for taking necessary action in the matter. The said Advocate prepared the draft Appeal in due course of time, which was approved by the Petitioner on 15.10.2014. Yet, as indicated in the impugned order, the Appeal before the State Commission was filed on 12.11.2014, i.e. almost after one month of receipt of draft Appeal. The cumulative effect of lax processing of the matter by the Petitioner was that the Appeal was barred by limitation, as there was delay of over 4 months in filing the same, beyond the statutory period of 30 days provided under Section 15 of the Act for filing the same, for which no explanation is forthcoming from the Petitioner."
The above judgments are fully applicable in the facts and circumstances of the present case. If the petitioners were not in a position to comply with the order of the District Forum and State Commission, they should have approached this Commission by filing the revision petition in time which has not been done. The learned counsel was asked to show the provision of MOFA where a builder/developer is required to convey the property/land to more than one society. Learned counsel has stated that this is provided in the Flat Purchasers Agreement. In a way, this agreement is not in consonance with the MOFA. As the draft of the agreement is prepared by the builder, the petitioners should have taken care to prepare flat purchaser agreement in accordance with the provisions of MOFA. Thus, this ground can also not be accepted for condoning the delay in filing the present revision petition. Clearly, the negligence, deliberate inaction and lack of bonafides are imputable to the petitioners in filing the present revision petition. Accordingly, I do not find any sufficient cause to condone the huge delay of 43 months in filing the present revision petition. Accordingly, the application for condonation of delay is dismissed. Consequently, revision petition No.1833 of 2019 is also stands dismissed at the admission stage.