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NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION, NEW DELHI
C. Viswanath, Presiding Member and Ram Surat Ram Maurya, Member
M/s. Gigeo Real Estate, Through Its Prop. Chhaganlal Kunwarjbhai Patel – Petitioner
versus
Smt. Shakuntalala Prakash Choudhari – Respondent
Revision Petition No.585 of 2021
(Against the Order dated 07/01/2021 in Appeal No.178/2015 of the State Commission Maharashtra)
Decided on 7.10.2021
Counsel for the Parties:
For the Petitioner:Mr. Chaitanya G. Barapatre, Advocate
IMPORTANT POINT
In absence of any explanation, application for condonation of delay in filing the application for setting aside abatement rightly dismissed.
Headnote:
Consumer Protection Act, 1986 – Section 13(7) : Consumer Protection Act, 2019 – Section 38 – Code of Civil Procedure, 1908 – Order 22, Rules 4 and 9 – Limitation Act, 1963 – Articles 120 and 121 – Consumer Complaint – Death respondent – Substitution of respondent – Scope – State Commission has rejected the application for condonation of delay in filing the application for settling aside abetment and substituting the heirs of sole respondent – Appeal dismissed as abated – Hence this revision petition – As per materials on record petitioner had knowledge of the return of the Notice issued to the respondent with endorsement that the respondent was dead in the appeal – Under Article 120 of Act of 1963, 90 days limitation from date of death, has been provided for filing substitution application – Under Article 121, there is 60 days limitation has been provided from the date of abatement, for filing application for setting aside abatement – Appeal was abated on 8.1.2016 and limitation for filing the application for setting aside abatement was upto 8.3.2016 – Application for setting aside abatement was filed on 10.4.2019 – No reason brought on record for not filing the substitution application or application for setting aside abatement in time nor any cause has been shown for condonation of delay – In absence of any explanation, delay cannot be condoned.
Held: We have considered the arguments of the counsel for the petitioner and examined the record. A perusal of delay condonation application and application for setting aside abatement dated 10.04.2019, shows that the petitioner had knowledge of the return of the notice issued to the respondent with endorsement that the respondent was dead, in the appeal, from very beginning. Smt. Shakuntala Prakash Choudhari (sole respondent) died on 09.10.2015. Her death came to the knowledge of the petitioner at least through endorsement in the notice, in January/February 2016.
By virtue of Section 13 (7) of the Consumer Protection Act, 1986, the provisions of Order 22 of Civil Procedure Code, 1908 has been applied to the proceedings before the consumer forum. Order 22 Rule 4 C.P.C. requires for substituting the heirs of the deceased opposite party/respondent within 90 days of the death. If no application for substitution of deceased opposite party is filed within 90 days of the death, the appeal is abated against him after expiry of 90 days under Order 22 Rule 4 (3) C.P.C. Order 22 Rule 9 C.P.C. provides for filing of application for setting aside abatement. Under Article 120 of Limitation Act, 1963, 90 days limitation from the date of death, has been provided for filing substitution application. Under Article 121 of Limitation Act, 1963, 60 days limitation has been provided from the date of abatement, for filing application for setting aside abatement. Accordingly substitution application ought to have been filed till 07.01.2016. The appeal was abated on 08.01.2016 and limitation for filing the application for setting aside abatement was up to 08.03.2016. The application for setting aside abatement was filed on 10.04.2019. Neither in the application for condonation of delay nor in the application for setting aside abatement, any reason has been given for not filing the substitution application or application for setting aside abatement in time nor any cause has been shown for condonation of delay.
Supreme Court in Esha Bhattacharjee Vs. Raghunathpur Nafar Academy, (2013) 12 SCC 649 has laid down.
Supreme Court in Anshul Aggarwal Vs. New Okhla Industrial Development Authority, (2011) 14 SCC 578 has held that Consumer Protection Act, 1986 provides special limitation for expeditious adjudication. If the Consumer Forum/Commission condones inordinate delay without assigning any reason then the object of the would be defeated. In H. Dohil Construction Company Pvt. Ltd. Vs. Nahar Export Ltd. (2015) 1 SCC 680 has held that law of limitation is based upon sound public policy. In the absence of bonafide reasons, delay should be construed strictly. In Shanti Devi Vs. Kaushalya Devi, (2016) 16 SCC 565, has held that in the absence of any explanation, the delay cannot be condoned. (Paras 6 to 9)
Result: Revision Dismissed.
ORDER
1. Heard Mr. Chaitanya G Barapatre, Advocate, for the petitioner.
2. This revision has been filed against the order of State Consumer Disputes Redressal Commission, Maharashtra, Circuit Bench at Nagpur dated 20.12.2019 and 07.01.2021 passed in First Appeal No. A/15/178 of 2015 (arising out of the order of District Consumer Disputes Redressal Forum, Nagpur dated 25.02.2014, passed in Consumer Complaint No.633 of 2012) whereby State Commission has rejected the application for condonation of delay in filing the application for setting aside abatement and substituting the heirs of Smt. Shakuntala Prakash Choudhari (sole respondent) and dismissed the appeal as abated.
3. Smt. Shakuntala Prakash Choudhari (the respondent) filed Consumer Complaint No. 633/2012, for directing the petitioner to deliver possession of (i) flat No. 33 (admeasuring 550 Sq.ft.), at third floor of the building E-6 (ii) flat No. T-52 (admeasuring 825 sq.ft.), at 5th floor, in the building named as Tower over plot No. 198 and 309, at Vyankatesh Nagar, Nagpur to her and execute sale deeds in respect of aforementioned flats, in alternative to pay present market price of these flats or give other flats of the same area in same locality and execute sale deeds of those flats in her favour, to pay Rs.50000/- as compensation for mental pain and agony, Rs.5000/- as cost of the litigation and any other relief which may deem fit and proper. It was stated that the petitioner advertised for construction of residential flats at Vyankatesh Nagar, Nagpur, in 2005. The respondent paid Rs.4,25,000/- and Rs.6,40,000/- respectively on 17.01.2005 for the aforesaid flats and agreements in her favour were executed by the petitioner (the developer) and the owner of the land. The complainant also paid Rs.23000/- for electricity connection and meter. Under the agreement, possession over the flats had to be delivered in 18 months. However, due to some dispute with the land owners, the construction could not be started at the time of agreement. The dispute with land owners was settled on 14.10.2006. Then the constructed was started in 2007 and completed in 2011. The complainant requested to execute sale deeds of the flats in her favour and hand over possession of the flats to her but the petitioner was avoiding her requests. The complainant gave legal notice on 04.07.2012 but in spite of service of the notice neither any reply was given nor sale deeds were executed. On these allegations, the complaint was filed on 10.09.2012.
4. In spite of service of the notice, the petitioner did not appear before District Forum. Therefore, the case was proceeded exparte against him. After recording evidence of the complainant, the complaint was partly allowed by order dated 25.02.2014. The petitioner filed First Appeal No. A/15/178 of 2015 from the aforesaid order. State Commission issued notice to the respondent on 02.12.2015, which was returned back with endorsement that the respondent was dead. State Commission, thereafter, granted time to the petitioner for substituting the heirs of the respondent on various dates. But the petitioner did not file any substitution application and after some times, started committing default in appearing before State Commission as such the appeal was dismissed in default by order dated 25.01.2017. The petitioner filed Revision Petition No. 3702 of 2017, against the order dated 25.01.2017. This Commission allowed the revision by order dated 26.03.2018 and remanded the matter for deciding the appeal on merit.
5. The petitioner filed an application for substituting the heirs of the respondent on 28.06.2018. Notice of this substitution application was issued to the proposed heirs. The proposed heirs of the respondent filed an objection that substitution application was long barred by limitation and neither an application for setting aside abatement nor an application for delay condonation was filed. Then the petitioner filed an application for condonation of dela
