Veera Shekar & 2 Ors vs Hemalatha & Anr

Anup K. Thakur, J

This First Appeal No.1612 of 2018 has been filed with a delay of 238 days against the impugned order of the Tamilnadu State Consumer Disputes Redressal Commission, Chennai (for short, 'State Commission') dated 20.10.2017. Vide this order, the State Commission, in C.C. No.73 of 2011 had allowed the complaint partly and directed the appellants no.1 to 3 /OPs (hereinafter 'OPs'), jointly and severally, as below:

"a) to refund a sum of Rs.2500000/- together with interest at the rate of 18% per annum from the date of payment till the date of realization and

b) to pay a sum of Rs.500000/- as compensation for mental agony and hardship undergone by the complainants within one month from the date of this order failing which the same shall carry interest at the rate of 12% per annum from the date of default till the date of realization and

c) to pay Rs.5000/- as costs to the complainants.

Time for compliance one month."

Instead of complying with the order of the State Commission, which by any standard was very reasonable, in the facts of the case, the OPs have chosen to file this appeal, with a delay of 238 days as per the Registry and 229 as per their application for condonation of delay.

This appeal was filed on 10.09.2018. The reasons to explain the delay as in the application for delay are:

(i) certified copy of the impugned order dated 20.10.2017 was ready on 21.11.2017 and was dispatched to the appellants' counsel on 12.12.2017 and the same was received by the counsel on 16.12.2017.

(ii) counsel for the appellants immediately sought to meet the appellants, and appellant no.1 instructed his office to do the needful.

(iii) all legal and court matters including the subject matter are looked after by one M. Palaniappan.

(iv) On 29.06.2018, the appellants received notice of the State Commission in EA No.6 of 2018; immediately, appellant no.1 enquired from his office ie. Mr. Palaniappan, about the case. It is then that he realized that the appeal had not been filed. The reason was that Mr. Palaniappan had gone to his home town for some personal reasons: Pongal festival has been mentioned. Also, while leaving for his home town, he had instructed his colleague to process the matter but they failed to do so.

(v) Mr. Palaniappan resumed office (date not mentioned). However, since he was certain that in his office, his colleague would have done the needful, he did not enquire about the case. It is also mentioned here that the company was facing a severe financial crisis and defending three dozen cases in different fora. So this was also a reason why Mr. Palaniappan was suffering from various diseases and was often under treatment and therefore did not enquire about the appeal in the instant case.

(vi) Upon receipt of summon dated 26.06.2018, the appellants contacted the present counsel; he prepared the appeal in second week of July and forwarded the same to the company for approval, signatures etc.. The appellant confirmed and signed on 11.08.2018. On 5.9.2018, counsel received the papers and on 6.9.2018, he filed the appeal.

This rather inexplicable and incomprehensible explanation described in para above has been described as an explanation for delay which neither wilful nor wanting. Some other arguments like "sufficient cause" receiving a liberal construction etc., on the basis of some citations, have been also parroted.

At this stage, it seems useful to also look at the salient facts of this consumer complaint. The respondents/complainants (hereinafter complainants) had paid Rs.25 Lakh to the OPs against booking of a flat, bearing no.3-F, on the third floor of A-Block of the project "Marvel City" at 1/10 Cross Street, Washermenpet, Chennai. Vide agreement signed between the parties dated 27.07.2007, the flat was to be completed and delivered to the complainants within 18 months. On 17.07.2009, the complainants, realizing that the project was not progressing well at all and that completion within time would be impossible, sought refund of the money paid by them. Many reminders went unheeded. Ultimately, a legal notice was issued on 28.07.2011. Even this failed to elicit a response. Finally, the complainants filed C.C. No.73 of 2011 before the State Commission.

A bare reading of the facts of the case as outlined in para above, the order of the State Commission reproduced in para 1 above, and the manner in which the appeal has been filed with an inordinate delay, sought to be explained in a rather perfunctory, casual and careless manner, leaves no doubt that there is no merit whatsoever in either the explanation for delay, or in the appeal itself.

It is clear that the appellants woke up in this matter only after the execution notice was received by them. Till then, by their own admission, they were quite happy to leave matters to their office, particularly to one Mr. Palaniappan, who let them down completely. Such a frivolous explanation masquerading as a genuine mistake on the part of the OPs is simply unacceptable. Such a puerile explanation was certainly not the intention or the ratio of the citations the appellants have sought to rely upon in their application for condonation of delay. Giving a liberal construction to the words "Sufficient Cause" is to advance the cause of substantive justice when no negligence or inaction is imputable to the appellants: This is not the case in the instant matter where all that can be seen in the complaint and the order of the State Commission and the application for condonation of delay, is negligence and inaction at all times on the part of the OPs.

On merit, it is seen from the order of the State Commission that it took it some time to decipher the arguments made in the written version filed by the OPs, such was the manner in which the written version had been drafted. A sample of this, just to drive the point , is reproduced below:

"There is no such post of Manager in the office of the said company and the company being a private limited company can only be represented by its Managing Director or Director and not by the Manager and on this ground alone the complaint deserves dismissal;"

Other pleas taken in their written version are even more telling!!. Thus, one plea taken was that the complaint was barred by limitation. The argument on behalf of the OPs was since the date of cause of action viz. 27.07.2007, the date of agreement, or at best, the date of letter of the complainant requesting cancellation of booking and refund, more than two years have passed; therefore, there was no consumer dispute that could be adjudicated in the consumer courts and the only remedy lay with the civil court. The second plea taken was even more interesting: that there was no delay in commencement of construction as per agreement. Why? Because, as the construction was to be completed within 18 months from date of approval by CMDA, and since such approval could not be obtained till July, 2009, it was obviously not possible to expect the OP to commence or complete construction within or before July 2009!!

Clearly, the appellants were quite happy to mislead and get the complainants to pay Rs.25 Lakh and sign the agreement, promising delivery between within two years, even before they had the approval necessary to carry out the construction. This was an extreme variety of unfair trade practice, bordering on a fraud. The pleas taken above are obviously completely frivolous and can only be rejected outright.

In view of discussion above, this first appeal is dismissed at the admission stage, both on the ground of having been filed with an inordinate delay of 238/229 days without any reasonable explanation as well as on the ground that it has no merit either. The order of the State Commission is upheld.