1. THIS appeal has been filed under section 19 of the Consumer Protection Act, 1986 against the impugned order dated 22.07.2011, passed by the West Bengal State Consumer Disputes Redressal Commission (for short ''the State Commission '') in Consumer Complaint No. CC/08/72, ''''Sumona Bagachi (Bhattacharya) & ors. versus M/s Ratnakar Properties Pvt. Ltd. & ors., '''' vide which the complaint filed by the present respondents 1 & 2 was allowed.
2. BRIEF facts of the case are that the complainants / respondents 1&2 filed the consumer complaint in question, alleging deficiency in service on the part of the OPs in respect of non -execution of registration of conveyance deed in respect of three flats in question. The OP 1 and present respondent 3, M/s Ratnakar Properties Pvt. Ltd., is the builder / developer. The OP 2, Smt. Nirmala Banik was the sole owner of municipal premises - 26 A, Hindustan Park, Police Station Gariahat, Kolkata, comprising land and building. After the death of the said Nirmala Banik, OP 2, the present petitioner, Chandan Banik and respondents 4 & 5, Ashim Banik and Ashis Banik were impleaded as legal representatives of Smt. Nirmala Banik. The petition has been filed by Mr. Chandan Banik only and his other two siblings have been made respondents 4 & 5.
The said Nirmala Banik, OP 2 entered into some arrangement with OP 1/respondent 3 for developing her property. The complainants booked three flats in the new building complex, being built and erected in the name of ''''Orchid Towers ''''. They entered into agreement with the OPs and made payments for the flats. It has been alleged in the complaint, however, that the OPs failed to execute and register the conveyance deeds in their favour despite the request made to them. They sought directions from the State Commission to the OPs for execution of these deeds, to hand over all relevant documents and to pay compensation of Rs. 3 lakhs for mental harassment and Rs. 60,000/ - as cost of litigation and 24% interest on the awarded amount. The State Commission vide impugned order allowed the complaint and directed the OPs to execute and register conveyance deed in favour of the complainants. They also directed them to pay a compensation of Rs. 1,50,000/ - to all the complainants saying that the cost of registration had been increased in the meantime. They were also allowed a sum of Rs. 30,000/ - as litigation cost. It is against this order that the present appeal has been filed.
3. AN examination of the papers on record reveals that the present appeal has been filed on 22.01.2014, whereas the impugned order is dated 22.07.2011. It has been stated that there is a delay of 732 days in filing the appeal. An application for condonation of delay has been filed. At the time of admission hearing before us, the learned counsel for the appellant was asked to explain the inordinate delay in filing the appeal before the merits could be gone into. The learned counsel stated that the impugned order dated 22.07.2011 is an exparte order, passed at their back. The complainant had provided wrong address of the appellant, as a result of which summons could not be served upon him. The learned counsel has drawn our attention to the application for condonation of delay, in which it has been stated that the appellant received a sealed envelope under registered cover on 22.12.2011 from the complainants. The appellant was in Thailand at that time. The notice of execution case no. 10/2011, a copy of the petition of the execution case and copy of order dated 22.07.2011 of the State Commission were placed in that envelope. The petitioner engaged an Advocate and gathered the relevant documents through him. The petitioner came to India on 17.02.2012 and filed Miscellaneous Application No. 53/2012 which was dismissed by order dated 12.03.2012 of the State Commission. A copy of the order was made available to them on 26.04.2012. Thereafter the petitioner filed C.O. No. 2086/2012 under Article 227 of the Constitution before the Hon ''ble High Court at Kolkata. The Hon ''ble High Court dismissed the same by order dated 21.08.2013, but gave them liberty to challenge the order of the State Commission under Article 19 of the Act. A certified copy of the order of the High Court was obtained on 18.09.2013 thereafter, after making contact with the Advocate and after obtaining copies of orders / documents etc., the present petition was filed on 22.01.2014.
4. THE above narration of events made in the application for condonation of delay and the arguments led by the learned counsel for the appellant bring out that sufficient reasons have not been given to explain the delay in filing the present appeal. Even if the version of the appellants that they were unaware of the order dated 22.07.2011 and they received an envelope containing the copy of order on 22.12.2011 is believed, still there is no explanation as to why the appeal was not filed as per the provisions of the Consumer Protection Act, 1986, under which a time of 30 days is permissible for filing the said appeal. The appellants have themselves stated that they first filed the miscellaneous application before the State Commission and then challenged the impugned order in the Hon ''ble High Court. The Hon ''ble High Court gave them the liberty to challenge the impugned order before this Commission and this order was made on 21.08.2013 and according to the appellant, a copy was received on 18.09.2013. It is not clear even then, why the appellants took four more months to file the present appeal. They have not been able to give any explanation for the delay made after the receipt of the copy of the High Court ''s order on 18.09.2013.
As recorded by the State Commission in their impugned order, OPs were properly served and the acknowledgement due (A.D.) card in respect of OP 2 was also received back, showing completion of service on OP 2. The appellant is one of the LRs of OP2 only as stated in the earlier part of this order. It is made out, therefore, that the State Commission ensured proper service on the predecessor -in -interest of the appellant.
5. IT has been held in a number of recent judgements made by the Hon ''ble Supreme Court that unless there is cogent and convincing explanation for the delay in filing a case before the Courts, the same should not be condoned. Hon ''ble Apex Court in the case, R.B. Ramlingam Vs. R.B. Bhavaneshwari, 2009 (2) Scale 108, 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. ''''
6. 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. ''''
Further, the 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.
7. HON ''ble Apex Courtin 2012 (2) CPC 3 (SC) - Ansul Aggarwal Vs. New Okhla Industrial Development Authority also 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 ''''.
8. FROM the above judgements, it has been made abundantly clear that the delay in filing the case cannot be condoned unless there are sufficient, convincing and cogent reasons for the same. In the present case, the facts stated by the appellant do not provide such an explanation and hence there is no valid ground for condonation of delay in the present case.
Based on the discussion above, this appeal is ordered to be dismissed on grounds of limitation and the order of the State Commission is confirmed with no order as to costs.
