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Judgment
V.K. Jain, Presiding Member
The complainants / respondents in these matters booked residential apartments with the petitioners in a project namely "Bay View" at Skyline Blue Berry Hills, Phase 3, Yeyyadi, Mangaluru. They made some payment to the petitioners, while executing agreements with them. The petitioners however, did not even start the construction work. The consumer complaints were therefore, instituted by the respondents / complainants, seeking refund of the amount, which they had paid to the petitioners, along with compensation.
The Skyline Constructions and Housing Pvt. Ltd., did not appear before the District Forum, despite service and therefore, was proceeded ex-parte. Eternity Developers Pvt. Ltd., filed its written version except in the complaint, subject matter of RP/2540/2019. The District Forum directed refund of the amount, which the complainants had paid to the petitioners, along with interest. A nominal compensation was also awarded in the complaint, subject matter of RP/2540/2019.
Being aggrieved from the order passed by the District Forum, the petitioners approached the concerned State Commission by way of separate appeals. Since there was delay of 580 days i.e. more than one year and six months in institution of the appeals, applications were filed by the petitioners, seeking condonation of the said delay. Vide impugned order dated 08.7.2019, the State Commission declined to condone the delay, holding that no sufficient cause for condonation of the delay had been shown and consequently, dismissed the appeals. Being aggrieved, the petitioners are before this Commission.
The applications, which had been filed before the State Commission, seeking condonation of delay in institution of the appeals were short applications, supported by an affidavit of Mr. Avinash Prabhu, Director of Skyline Constructions & Housing Pvt. Ltd., which to the extent the delay was sought to be explained reads as under:
"It is humbly submit that after service of notice due to communication gap between the Directors of the company and the also with the law officer of the firm who abruptly left the job and misplaced the original file and the appellants did not having knowledge of the proceedings before the lower Forum. Moreover, as there are so many other litigations arising out of the project and it becomes hurdles to complete the project and the appellants miserably deeply sinked in their problems and facing the economical crises and thereby infighting the situations the appellants did not meet each other to discuss the issues relating to the project and it become cause for not having the knowledge of the stages of the consumer complaint filed against us. Hence only for above pathetic situation appellants were put into dark for not having the knowledge of the proceedings. Therefore we the appellants failed to appear before the lower Forum in order to contest the case on merits. On the other hand the complainant / respondent by taking the advantage of the situation hurriedly filed the complaint by suppression of true facts and finally succeeded in obtaining the favourable orders."
The above referred affidavit does not explain why the petitioners had not put in appearance before the District Forum in the uncontested matters and had allowed the consumer complaints to proceed ex-parte. The affidavit does not explain as to when the copy of the order of the District Forum was received by the petitioners and what steps they had taken to challenge the same before the State Commission. The petitioners are not very large companies they being private limited companies, functioning from the same premises. Though, it is claimed that the law officer had left the job, it has not been disclosed when he had left the job. Unless it is explained when the law officer of the petitioners allegedly left the job it cannot be ascertained how much time was available to the petitioners before the law officer had left the job and how much time was available to them after he had left the job. Though, it is vaguely alleged that the files had been misplaced, it has not been explained as to who was having the custody of the files and how the same had got misplaced. Pendency of several litigations by itself cannot be a ground for condonation of delay in institution of the appeals. It is therefore, difficult to accept that the petitioners were unable to engage a Lawyer and approach the State Commission for as much as more than 1 ½ years. Therefore, I am in agreement with the State Commission that the petitioners had miserably failed to explain the delay of more than 1 ½ years in approaching the said Commission by way of appeals.
It was noted by the State Commission that in execution the petitioners had appeared before the District Forum and had submitted undertaking to make part payments. This would show that the petitioners had accepted the order passed by the District Forum. This is yet another reason why the delay of more than 1 ½ in institution of the appeals should not be condoned.
Even on merits, the petitioners seem to have no case they having not even started the construction work, despite having collected advance payment from the complainant. The District Forum has directed refund of the amount paid by the complainant to the petitioners with interest. Only in one case Rs.25,000/- was awarded as compensation in addition to the interest.
The learned counsel for the petitioners submits that the petitioners had made part payment to the complainants and they are willing to make the balance payment if the time is given to them for this purpose. They are permitted to make such a request before the District Forum in the execution application.
No other submission is made by the learned counsel.
For the reasons stated hereinabove, I find no merit in the revision petitions, which are accordingly dismissed, with no order as to costs.
It is however, made clear that since a petition under Section 9 of the IBC is stated to have been admitted against the Skyline Construction Housing Private Limited and moratorium in terms of Section 14 of the Code is stated to have been declared, the execution shall not proceed against the said company, till the proceedings under IBC are pending against the said company, though the execution shall proceed against the other company namely Eternity Developers Pvt. Ltd. as well as against the persons incharge of and responsible to the companies namely Skyline Constructions & Housing Pvt. Ltd. and Eternity Developers Pvt. Ltd. for the conduct of their respective business.