TRULY CREATIVE DEVELOPER PVT. LTD. vs MADHAVEJI M. MANGE

All these appeals arise out of single order of State Commission in different complaints; hence, decided by single order.

All these appeals arise out of order dated 5.3.2015 passed by State Commission in Complaint No. 13/573 to 13/597 - Madhaveji M. Mange Vs Truly Creative Developers Pvt. Ltd., Mr. D.T. Bhosale Vs. Truly Creative Developers Pvt. Ltd., Chandrakant Ramji More Vs Truly Creative Developers Pvt. Ltd., Usha Pradeep Menon Vs.Truly Creative Developers Pvt. Ltd., Chiman D. Patel Vs. Truly Creative Developers Pvt. Ltd., Kishor Moreshwar Zare Vs. Truly Creative Developers Pvt. Ltd., Monica Rodrigues Vs.Truly Creative Developers Pvt. Ltd., Rajendra Ranganath Pendhaje Vs. Truly Creative Developers Pvt. Ltd., Prabhu Nath Vs. Truly Creative Developers Pvt. Ltd., Mr. Shriprakash R. Dwivedi Vs.Truly Creative Developers Pvt. Ltd., Ishwarlal L. Kawa Vs. Truly Creative Developers Pvt. Ltd., V. Gopalkrishnan Vs. Truly Creative Developers Pvt. Ltd., Bharatkumar Gokaldas Ved Vs.Truly Creative Developers Pvt. Ltd., Nipa Dilip Patel Vs. Truly Creative Developers Pvt. Ltd., Shankar Balkrishna Parab Vs.Truly Creative Developers Pvt. Ltd., Gunawanta Shivram Gidhankar Vs. Truly Creative Developers Pvt. Ltd., Mr. Subhash Ramji More Vs. Truly Creative Developers Pvt. Ltd., Mr. Mohan Anandrao Patil Vs.Truly Creative Developers Pvt. Ltd., V.S. Vijaya Vs.Truly Creative Developers Pvt. Ltd., Vishwanath Tukaram Hirlekar Vs Truly Creative Developers Pvt. Ltd., Mr. Sakharam Appaji Jagtap Vs.Truly Creative Developers Pvt. Ltd., Mr. Harichandra Ganpat Mahadik Vs.Truly Creative Developers Pvt. Ltd., Rajesh K. Panda Vs. Truly Creative Developers Pvt. Ltd., Sadashiv Appaji Jagtap Vs.Truly Creative Developers Pvt. Ltd. and Rajshri A. Pavale Vs. Truly Creative Developers Pvt. Ltd. respectively by which evidence of OP was closed.

Brief facts of the case are that complainant/respondent filed complaint before learned State Commission against OP/appellant for directing OP to handover possession of flat along with compensation. During pendency of complaints by order dated 5.3.2015, evidence of OP was closed against which, these appeals have been filed along with application for condonation of delay.

Heard learned Counsel for the parties finally at admission stage and perused record.

Learned Counsel for the appellant submitted that First Appeal No. 27/2016 was filed in time after receiving copy of impugned order and time was consumed in preparing other appeals; so, delay in filing other appeals be condoned whereas learned Counsel for respondent submitted that as there is no reasonable explanation for condonation of delay, application for condonation of delay be dismissed. Perusal of files reveals that F.A. No. 27/2016 has been filed with delay of 273 days, Appeal No. 173/2016 to 189 of 2016 have been filed with delay of 320 days and Appeal No. 217 of 2016 to 222 of 2016 have been filed with delay of 332 days. In application for condonation of delay it was mentioned that Counsel for OP could not appear before learned State Commission on 5.3.2015; so, he was not aware about order and on 14.12.2015, OP took services of other Advocate who asked for copy of cross-examination of witnesses and on an inquiry it was found that no opportunity was given by learned State Commission for cross-examining the witnesses; so, copy of impugned order was applied on 14.12.2015 copy of which was received on 22.12.2015 and after that appeal was prepared and filed.

Perusal of earlier order sheet of learned State Commission reveals that on 8.12.2014, last opportunity was given to OP to file evidence by way of affidavit on payment of cost and on 21.1.2015, OP filed evidence by way of affidavit and matter was adjourned for filing counter affidavit or additional affidavit by the parties to 5.3.2015. On 5.3.2015, no one was present on behalf of OP and evidence was closed and case was adjourned for final hearing to 9.10.2015. On 9.10.2015, Mr. Vijay Patil, Accountant of OP was present and matter was adjourned to 24.11.2015. Order sheet of 24.11.2015 has not been placed before me. On 11.12.2015, Counsel for both parties were present and arguments were heard for some time and matter was adjourned to 14.12.2015. Perusal of aforesaid order sheets clearly reveal that OP must have come to know about impugned order on or before 9.10.2015 and again on 11.12.2015 that their evidence has been closed. No explanation has been given by appellant in application for condonation of delay from 9.10.2015 to 14.12.2015. Merely because Counsel for OP was not present before State Commission on 5.3.2015, OP cannot claim benefit of his own absence without any cause for condonation of delay and in such circumstances, appellant is not entitled to condonation of delay. It further transpired that only one appeal was filed on 11.1.2016 whereas other appeals were filed on 26.2.2016 and 9.3.2016. No explanation has been given for filing other appeals after almost 1 1/2 month to 2 months and in such circumstances, application for condonation of delay in all appeals are liable to be dismissed in the light of following judgments of Hon''ble Apex Court:

In R.B. Ramlingam Vs. R.B. Bhavaneshwari 2009 (2) Scale 108 , it has been 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."

In Ram Lal and Ors . Vs. Rewa Coalfields Ltd ., AIR 1962 Supreme Court 361, it has been observed; "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."

Hon''ble Supreme Court after exhaustively considering the case law on the aspect of condonation of delay observed in Oriental Aroma Chemical Industries Ltd . Vs. Gujarat Industrial Development Corporation reported in (2010) 5 SCC 459 as under; "We have considered the respective submissions. The law of limitation is founded on public policy. The legislature does not prescribe limitation with the object of destroying the rights of the parties but to ensure that they do not resort to dilatory tactics and seek remedy without delay. The idea is that every legal remedy must be kept alive for a period fixed by the legislature. To put it differently, the law of limitation prescribes a period within which legal remedy can be availed for redress of the legal injury. At the same time, the courts are bestowed with the power to condone the delay, if sufficient cause is shown for not availing the remedy within the stipulated time."

Hon''ble Apex Court in (2012) 3 SCC 563 - Post Master General & Ors. Vs. Living Media India Ltd. and Anr . has not condoned delay in filing appeal even by Government department and further observed that condonation of delay is an exception and should not be used as an anticipated benefit for the Government departments.

Hon''ble Apex Court in 2012 (2) CPC 3 (SC) - Anshul Aggarwal Vs. New Okhla Industrial Development Authority observed 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".

As far merits of the case are concerned, learned Counsel for appellant submitted that it was obligatory on the part of learned State Commission to give opportunity to cross examine the witnesses, but as no opportunity was given, impugned order is liable to set aside and appeals be allowed and learned State Commission be directed to give opportunity to appellant to cross-examine witnesses of respondent. On the other hand, learned Counsel for the respondent submitted that as no prayer was made for cross-examination, learned State Commission was not required to give opportunity for cross-examination and order passed by learned State Commission is in accordance with law; hence, appeals be dismissed.

Perusal of order sheet dated 8.12.2014 reveals that complainant filed affidavit evidence but on that date last opportunity was given to OP to file affidavit evidence subject to cost and order sheet dated 21.1.2015 reveals that OP filed affidavit evidence and matter was adjourned for filing counter affidavit or additional affidavit. On 21.1.2015, no prayer was made by OP for cross-examination of complainant''s witness. On 5.3.2015, as OP was not present, his right to file counter affidavit was closed. Strictly speaking, counter affidavit was to be filed by the complainant and not by the OP and on 5.3.2015 matter was adjourned to 9.10.2015 for final hearing. Order sheet dated 9.10.2015 further reveals that Accountant of OP was present and no request was made for cross-examination of complainant''s witness. Perusal of order sheet dated 11.12.2015 reveals that arguments were heard in presence of Counsel for both the parties for some time and matter was adjourned to 14.12.2015 for rest of the arguments. On that date also, no request was made for cross-examination meaning thereby, OP never intended to cross-examine complainant or his witness and never made any such prayer. Learned State Commission was not required to provide opportunity suo moto to OP to cross-examine witness of complainant. Merely because another Counsel asked for copy of cross-examination of complainant''s witness, OP does not get right to cross examine witness of complainant and I do not find any infirmity in the impugned order closing evidence of parties by which, strictly speaking evidence of complainant for filing counter affidavit was closed.

In the light of aforesaid discussion, as application for condonation of delay has been dismissed, appeals are liable to be dismissed as barred by limitation as well on merits.

Consequently, all appeals arising out of order dated 5.3.2015 passed by State Commission in Complaint No. 13/573 to 13/597 are dismissed at admission stage with no order as to costs.