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2015 SCC OnLine NCDRC 58

National Consumer Disputes Redressal Commission

(Against the Order dated 10/04/2012 in Complaint No. 38/2009 of the State
Commission Maharastra)
1. Cordcon Builders Pvt. Ltd. & Anr. Registered Office at Sagar City
Complex, V.P. Road, Andheri (W), Mumbai-400058
2. Mr. Tajdin M. Maredia, Director of Cordcon Builders Pvt. Ltd.,
Mumbai-400058 … Appellant(s);
Versus
1. Valerian Anthony Diago Both Residing at 51/52, ‘A’ Mahim
Mansion, M.M.C. Road, Mahim (W), Mumbai-400016
2. Mrs. Leena Valerian Diago, 51/52, ‘A’ Mahim Mansion, M.M.C.
Road, Mahim (W) Mumbai-400016 … Respondent(s).
First Appeal No. 123 of 2013
Decided on April 16, 2015
For the Appellant: Mr. Anand Patwardhan, Advocate
For the Respondent: Mr. D.J. Kakalia, Mr. Hasan Murtaza & Mr. Shikhar Bhardwaj,
Advocates
ORDER
K.S. CHAUDHARI, PRESIDING MEMBER:— This appeal has been filed by the appellant
against the order dated 10.04.2012 passed by the Maharashtra State Consumer
Disputes Redressal Commission, Mumbai (in short, ‘the State Commission’) in
Consumer Complaint No. CC/09/38 - Mr. Valerian Anthony Diago v. Cordcon Builders
Pvt. Ltd. by which, complaint was allowed.
2. Brief facts of the case are that complainant/respondent agreed to purchase flat
No. 1404 measuring 626 sq. ft. from OP/appellant for a sum of Rs. 36,28,075/- vide
agreement dated 2.3.2006. Complainant paid Rs. 34,46,674/- and remaining Rs.
1,81,404/- were to be paid at the time of receiving possession. It was further
submitted that OP has not handed over possession of flat along with occupancy
certificate. Alleging deficiency on the part of OP, complainant filed complaint with a
prayer for possession and compensation at the rate of Rs. 25,000/- per month from
1.3.2007 till handing over possession. OP resisted complaint and submitted that on
account of Public Interest Litigation filed before High Court of Bombay construction
was stayed from 20.4.2005 to 20.2.2008 as the Municipal Corporation, Slum
Rehabilitation Authority issued orders for stopping work and withheld permission for
construction. It was further submitted that there was no delay in the project on the
part of OP and prayed for dismissal of complaint. Learned State Commission after
hearing both the parties allowed complaint and directed OP to handover vacant
possession of flat along with occupancy certificate within 4 months, after obtaining
balance of Rs. 1,81,404/-. OP was further directed to pay interest @ 18% p.a. on
deposited amount from 16.10.2009 till handing over possession and further awarded
cost of Rs. 25,000/- against which this appeal along with application for condonation
of delay was filed.
3. Heard learned Counsel for the parties on application for condonation of delay.
4. Learned Counsel for the appellant submitted that strictly speaking there is no
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delay from receipt of copy of impugned order on 4.1.2013 and there is delay of 124
days if it is computed from 13.8.2012 for which necessary explanation has been given;
hence, delay may be condoned. On the other hand, learned Counsel for the respondent
submitted that as appellant was aware about the impugned order on the date of
pronouncement and as he did not apply for certified copy till 3.1.2013 there is delay of
about 270 days without any explanation; hence, application for delay be dismissed.
5. As per office report, there is delay of 151 days in filing appeal which has been
computed on the basis that copy of order was received by appellant on 14.8.2012 and
appeal was filed on 11.2.2013.
6. Appellant in application for condonation of delay admitted that on 10.4.2013,
operative part of the order was pronounced by State Commission, but as full judgment
had not been dictated certified copy was not given to the appellant till it was received
on 4.1.2013 by hand. Learned Counsel for the appellant admitted before this
Commission on 26.8.2013 that State Commission pronounced judgment on 10.4.2012
in the presence of Counsel for the appellant, but also mentioned that only operative
portion of the order was pronounced and detailed order was issued subsequently. It
was further observed in order sheet dated 26.8.2013 that certified copy of the order
was issued on 14.8.2012, but according to the Counsel for the appellant, it was
despatched much later.
7. In application for condonation of delay, it was mentioned that it is incorrect and
doubtful that certified copy of order was sent by learned State Commission on
14.8.2012, but it has been admitted in the application that appellant came to know
about impugned order when complainant sent copy of the order through his Advocate
on 28.12.2012 by post at the registered address of the appellant. It was further
submitted that appellant applied for certified copy which was received on 4.1.2013.
8. In the application it has nowhere been mentioned that when appellant applied
for certified copy which was received on 4.1.2013 and in such circumstances, it can be
presumed that appellant applied on 4.1.2013 and he was provided certified copy of
impugned order on the same day.
9. The core question to be decided is from which date limitation for filing appeal
should run.
10. Admittedly, order was pronounced in presence of appellant by the learned State
Commission on 10.4.2012 and appellant was having knowledge about the impugned
order. Appellant has not mentioned in the application that he applied for certified copy
in time before 4.1.2013 and has not placed any document depicting that he applied
for certified copy before 4.1.2013. Thus, it becomes clear that almost after about 9
months he applied for certified copy of the impugned order inspite of having
knowledge of the impugned order. Section 12(2) of Limitation Act runs as under:
“(2) In computing the period of limitation for an appeal or an application for
leave to appeal or for revision or for review of a judgement, the day on which
judgement complained of was pronounced and the time requisite for obtaining a
copy of the decree, sentence or order appealed from or sought to be revised or
reviewed shall be excluded.
Thus, limitation runs from the date of pronouncement/knowledge and in such
circumstances limitation for filing appeal started from 10.4.2012 and period taken in
obtaining certified copy is to be excluded for the purpose of calculation of condonation
of delay. Apparently, appellant applied for certified copy on 4.1.2013 and he received
copy on the same day; hence, only one day for getting certified copy of the impugned
order is to be excluded for computation of limitation for filing appeal.
11. Learned Counsel for the appellant submitted that period of limitation is to be
calculated from the date of receiving free copy as provided under Regulation 21 of the
C.P. Regulations, 2005. This argument is devoid of force because this provision only
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directs to the Consumer Fora to give parties free of cost copy of the order, but it
nowhere specifies that limitation will run from the date of receipt of free copy. If a
party does not receive free copy at all, it cannot be held that limitation will not run
against him till he receives certified copy. Limitation will run from the date he obtains
knowledge of the order passed by Consumer Fora and only period taken in obtaining
certified copy will be excluded. Appellant should have applied for certified copy of
order on 10.4.2012, when judgment was pronounced in his presence and as he did not
apply for certified copy uptill 4.1.2013, period from 11.4.2012 to 3.1.2013 cannot be
excluded from period of limitation provided for filing appeal.
12. Learned Counsel for the appellant further submitted that appeal was sent
through courier on 11.1.2013 to National Commission, but on account of mistake on
the part of courier it was delivered to this office on 11.2.2013. In support of this
contention affidavits of Mr. Tajdin M. Maredia, Appellant No. 2 and letter of courier
agency have been filed in which it has been mentioned that by mistake this courier
was misrouted to unknown destination and after great search it was found and
delivered to National Commission on 11.2.2013. Merely because Counsel for the
appellant provided memo of appeal to the courier on 11.1.2013 which was delivered
by courier to this office on 11.2.2013, this period of 30 days can also not be condoned.
13. Learned Counsel for the appellant submitted that as correction in the name of
complainants was carried out by State Commission on 21.6.2013 as per RTI
information, there was no question of delay as appeal had already been filed on
11.2.2013. This argument is devoid of force because by correction dated 21.6.2013
only name of the Complainant No. 2 has been inserted in the order because earlier
name of Complainant No. 1 and others was mentioned in the order. Not only this,
when appeal had already been filed on 11.2.2013, no question arises for claiming
limitation from 21.6.2013.
14. Apparently, there is delay of 270 days in filing appeal. As there is inordinate
delay of 270 days, this delay cannot be condoned in the light of the following
judgment passed by the Hon'ble Apex Court.
15. In R.B. Ramlingam v. 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.”
16. In Ram Lal v. 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.”
17. Hon'ble Supreme Court after exhaustively considering the case law on the
aspect of condonation of delay observed in Oriental Aroma Chemical Industries Ltd. v.
Gujarat Industrial Development Corporation reported in (2010) 5 SCC 459 as under;
“We have considered the respective submissions. The law of limitation is founded
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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.”
18. Hon'ble Apex Court in (2012) 3 SCC 563 — Post Master General v. Living Media
India Ltd. 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.
19. Hon'ble Apex Court in 2012 (2) CPC 3 (SC) — Anshul Aggarwal v. 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”.
Thus, it becomes clear that there is no reasonable explanation at all for condonation
of inordinate delay of 270 days. In such circumstances, application for condonation of
delay is dismissed. As application for condonation of delay has been dismissed,
revision petition being barred by limitation is also liable to be dismissed.
20. Consequently, the revision petition filed by the petitioner is dismissed as barred
by limitation at admission stage with no order as to costs.
———
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