Shazad Khan vs Samdeep Vijayvergiya & 2 Ors

This present appeal has been filed by the appellant Shazad Khan, who was opposite party No.3 before the State Consumer Disputes Redressal Commission, Rajasthan, (in short 'the State Commission') in the original complaint case. The appellant is aggrieved by the order dated 11.05.2012 passed by the State Commission in Consumer Complaint No.17 of 2011, wherein the State Commission has passed the following order:-

"5. Accordingly, this complaint is allowed. The opposite parties are directed to handover possession of the Plot A-27, as described hereinabove, to the complainant and execute its conveyance deed and get it registered. The opposite parties are also directed to pay compensation for mental agony and the physical suffering in the sum of Rs.25,000/- and cost of these proceedings Rs.5,000/-. On failure of the opposite parties to carry out the above within 30 days from the receipt of the copy of this order, they shall be liable to pay interest @9% per annum from the date of this order, till the execution of the sale deed and payment of compensation and cost as aforesaid.

In the event, on account of some legal impediment, if it is not possible for the opposite parties to execute the sale deed of the said plot in favour of the complainant, the opposite parties shall pay the present market value of the plot as per Collector's guidelines."

The appellant has preferred this appeal on the following main grounds:-

"(i). That no notice was served to applicant and the learned State Commission proceeded ex-party against the applicant and passed the impugned order therefore, on the ground of opportunity of hearing, the impugned order is against the settled law and also against the principle of natural justice.

(ii). That the applicant is retired class-I officer of Madhya Pradesh Government and retried from the post of Member, Public Service Commission, Govt. of M.P. on 14/06/2006 and joined M/s. Distinct Infrastructure Ltd. as Director in 2007 but was not involved in any activity of company and was sleeping Director. That applicant had not received any monitory benefit from respondent No.02 company and Resigned from Respondent Company on 12/08/2008 and there after had no involvement of any kind in the respondent company and so order passed by Hon'ble State Commission be set aside.

(iii). That complainant/respondent no-01had deliberately & purposely given wrong address of applicant in the complaint and address in summon received in the execution case no.76/12 is correct address of applicant. That applicant is reputed person of Bhopal city and his address can easily be traced in Bhopal from many sources like Telephone Directory, Retired government employees, etc. but complainant/respondent no.01 had dragged applicant name in the case but not shown correct address and so applicant had no knowledge of complainant no.17/11 but as soon as applicant received information of date of hearing on 27/12/2013, applicant contacted his Advocate and obtained certified copies of order dated 11/05/2012, copy of complainant and all other documents filed by complainant before M.P.State Consumer Disputes Redressal Commission at Bhopal and so order passed by Hon'ble State Commission be set-aside.

(iv). That the land which was developed by respondent no.02 is under dispute and Civil Suit is pending before XVI Additional District Judge at Bhopal and stay order were passed in the case on 09.05.13 against any type of transfer on the land and due to stay orders from Civil Court on the land learned State Commission order could not be complied and so order passed by Hon'ble State Commission be set aside."

Heard the learned counsel for the appellant and respondent No.1 in person. Respondents No.2-3 have been proceeded ex-parte vide order dated 25.05.2015. Learned counsel for the appellant reiterated the grounds mentioned in the appeal and particularly stated that there is a delay of 577 days in filing the present appeal because the appellant was ex-parte before the State Commission and had no knowledge of the complaint No.17/11, but as soon as appellant received information of date of hearing on 27.12.2013 in execution case, appellant contacted his Advocate and obtained certified copy of order dated 11.05.2012 and preferred the appeal. Accordingly, it was requested to condone the delay in filing the present appeal.

On merits, the learned counsel stated that appellant joined as Director with M/s. Distinct Infrastructure Ltd. in 2007 and resigned in August 2008. Moreover, he was only a sleeping Director and was not involved in any activity of the company. Therefore, the appellant cannot be held responsible for the act of the company in the present case.

On the other hand, respondent No.1 stated that in total the complainant has paid Rs.11,47,000/- in the period January- March, 2007, however, the opposite parties have not given the possession of the plot. The opposite parties did not appear purposely before the State Commission and State Commission had to pass the ex-parte order. As the order of the State Commission is based on merit and the appellant herein has not raised any point which contradicts the observations of the State Commission or its findings, the appeal has no force and deserves to be dismissed. Moreover, there is a huge delay of more than 500 days in filing the present appeal. The reasons given in the application for condonation of delay are not justified and the appeal deserves to be dismissed on the ground of limitation only.

I have carefully considered the arguments advanced by both the sides and have examined the record. The main contention of the appellant has been that the appellant was proceeded ex-parte in the State Commission as the notice was sent to wrong address provided by the complainant. The reasons given in the application for condonation of delay read as under:-

"2. That the complainant/Respondent No.1 had deliberately & purposely given wrong address of applicant in the complaint and address in summon received in the execution case is correct address of applicant.

That applicant is repudiated person of Bhopal city and his address can easily be traced in Bhopal from many sources like Telephone Directory, Retired Government employees, etc. but complainant/Respondent No.01 had dragged applicant name in the case but not shown correct address and so applicant had no knowledge of complaint No.17/11 but as soon as applicant received information of date of hearing on 27/12/2013, applicant contacted his Advocate and obtained certified copies of order dated 11/05/2012, copy of complaint and all other documents filed by complainant before M.P.State Consumer Disputes Redressal Commission at Bhopal."

From the above, it is not clear as to when exactly the appellant came to know about the proceedings in the State Commission. Definitely, it would be before 27.12.2013. It is also not stated in the application for condonation of delay as to how the appellant got the information about the date 27.12.2013 before the State Commission. As all the opposite parties were not present before the State Commission to contest the complaint, the State Commission had no option but to pass an ex-parte order on the basis of the merits of the complaint.

Clearly day to day explanation has not been given in the application for condonation of delay. However, even if the assertion of the appellant is taken to be true and worth considering, the remand of the case to the State Commission for allowing filing of written statement by the appellant is not warranted because grant of relief to the complainant would be inordinately delayed. Further, the requirement of providing better protection to the consumer as per the preamble of the Consumer Protection Act, 1986 is to be weighed against the requirement of providing opportunity to file written statement and to reprocess the complaint keeping in view the impugned order which seems reasonable as the State Commission has ordered registration of conveyance deed to which the complainant is entitled to or if this is not possible, then refund of the market value of the plot as per Collector's Guidelines. In a given set of facts and circumstances, even if sufficient cause is shown, it is the judicial discretion of the court/forum to allow or not to allow condonation of delay in the overall interest of justice as held by the Hon'ble Supreme Court in Ram Lal and Ors. Vs. Rewa Coalfields Ltd., AIR 1962 Supreme Court 361, as under:-

"It is, however, necessary to emphasize that even after sufficient cause has been shown a party is not entitled to the condonation of delay in question as a matter of right. The proof of a sufficient cause is a discretionary jurisdiction vested in the Court by S.5. If sufficient cause is not proved nothing further has to be done; the application for condonation has to be dismissed on that ground alone. If sufficient cause is shown then the Court has to enquire whether in its discretion it should condone the delay. This aspect of the matter naturally introduces the consideration of all relevant facts and it is at this stage that diligence of the party or its bona fides may fall for consideration; but the scope of the enquiry while exercising the discretionary power after sufficient cause is shown would naturally be limited only to such facts as the Court may regard as relevant."

On the basis of the aforesaid factors, the delay in filing the present appeal is not condoned. Consequently, the appeal is liable to be dismissed.

The learned counsel for the appellant has not argued anything in respect of illegality or any material irregularity in the order of the State Commission and appeal has been filed only on the technical grounds. It has been stated that the order of the State Commission cannot be complied with as civil suit is going on in respect of the land in question and there is a stay order. The State Commission has given option to the opposite parties to either convey the deed or pay the market value of the plot in accordance with the Collector's guidelines. Thus, it is wrong to say that the State Commission order cannot be complied with because the alternate route of paying the market value of the plot is always available to the opposite parties.

On account of above reasons, the First Appeal no.58 of 2014 is dismissed.