Zubair Ahmed Khan & Ors vs Nazma Bano & Ors.

Dr. B.C. Gupta, J.

This revision petition has been filed under section 21(b) of the Consumer Protection Act, 1986 against the impugned order dated 05.08.2016, passed by the West Bengal State Consumer Disputes Redressal Commission (hereinafter referred to as 'the State Commission') in First Appeal No. A/276/2016, "Zubair Ahmed Khan & Ors. vs Nazma Bano & Ors." vide which, while dismissing the said appeal as time barred, the order dated 11.02.2016, passed by the District Forum Kolkata Unit-II, in CC No. 287/2015, partly allowing the said complaint, was upheld.

Briefly stated, the facts of the case are that the present respondents/complainants filed the consumer complaint in question against the petitioners/OPs/developers, saying that the predecessor-in-interest of the complainants, Md. Kalimullah (since deceased), who was a tenant in the premises owned by the OPs, entered into an agreement for sale dated 01.01.2013 with the OPs, according to which, he agreed to vacate the tenanted portion on the assurance of the OPs that he, as tenant, would be relocated in the newly-constructed building by the OPs and shall be allotted one flat, having carpet area of 550 sq. ft. As per the terms and conditions, Md. Kalimullah made payment of Rs.7 lakh to the OPs out of a total consideration of Rs.15,15,500/-. The said Md. Kalimullah died on 13.03.2015 and after his death, the OPs refused to hand over the possession of the concerned premises to his legal heirs. The complainants filed the consumer complaint in question, seeking directions to the OPs to deliver the possession of the said flat to them in terms of the agreement dated 01.01.2013, or an alternative flat and to pay them compensation on various counts.

In their reply to the consumer complaint, the OPs admitted that Md. Kalimullah was tenant of the property since several years, and that they had signed the agreement with him on 01.01.2013 for a space on third floor at premises 113, Collin Street, Kolkata. The OPs had got the building plan sanctioned and started construction on the project. However, the OPs had no liability to shift the complainants anywhere, during the construction period. However, they had already offered alternative temporary accommodation to the complainants. The District Forum, vide their order dated 11.02.2016, directed the OPs to hand over the flats in question within two months of their order, failing which, they were asked to pay a sum of Rs.10,000/- per month as penal damages.

It was also directed that if the OPs failed to deliver the flat, they shall have to pay compensation of Rs.15 lakhs to the complainants. Being aggrieved against the said order of the District Forum, the OP Developer challenged the same by way of an appeal before the State Commission. There was a delay of 17 days in filing the appeal before the State Commission. The State Commission refused to condone the said delay on the ground that the petitioners/appellants could not produce any document before them in support of their contention that the OP-1 was suffering from certain illness etc. Being aggrieved against the order of the State Commission, the OPs are before this Commission by way of the present revision petition.

During hearing, it was argued by the learned counsel for the petitioners that there was a delay of only 17 days in filing the appeal before the State Commission and the said delay had occurred, as petitioner no. 1 was suffering from certain medical problems, for which he had to be hospitalized also. The petitioners had filed copies of documents on record, in order to prove that Zubair Ahmed Khan was suffering from ischemic heart disease and hypertension.

The learned counsel for the respondents, however, stated that the State Commission had clearly stated in their order that despite getting opportunities, the petitioners could not produce even a single document before them, which could justify the condonation of delay in filing the appeal before them. The learned counsel further stated that the documents produced on record, did not have the seal and authority of any Government department and hence, should not be relied upon.

I have examined the entire material on record and given a thoughtful consideration to the arguments advanced before me.

A perusal of the order passed by the State Commission indicates that the petitioners/complainants pleaded before them that the appeal could not be filed in time, because the appellant No. 1, Zubair Ahmed Khan was under medical supervision for a long period of time and hence, could not attend the court in time. In the proceedings before this Commission, the petitioners have placed on record a number of documents, which show that Zubair Ahmed Khan was under treatment for hypertension and heart problems etc. It is made out, therefore, that the ground for condonation of a delay of 17 days only, made by the petitioners was a valid ground and the State Commission should have been liberal enough to condone the said delay of 17 days, rather than forcing the parties to indulge into litigation at higher levels.

In the light of the facts and circumstances placed on record, the delay in filing the appeal before the State Commission is ordered to be condoned. Consequently, the impugned order passed by the State Commission is set aside and the appeal before them is restored to its original number. The State Commission is directed to hear the parties and dispose of the appeal on merits, after affording an opportunity to both the parties of proper hearing in accordance with law. There shall be no order as to costs.