Judgment:
Oral Order:
Per Justice Mr. S.B. Mhase, Honble President
1. Heard Mr. R.P. Bafna-Advocate for the applicant. Mr. R.A. Thakurdesai- Advocate for the respondent.
2. This delay condonation application is filed to condone the delay of 1982 days. The undisputed facts are that the consumer complaint was decided on 31/3/2004 by the District Consumer Forum. Intimation was sent on 5/4/2004 and it was received along with the intimation sent by the District Consumer Forum. Copy of the order was also sent by the District Consumer Forum and it has been received by the appellant. Thus, the applicant had knowledge of the decision of the District Consumer Forum on 5/4/2004, when he received intimation along with the order. Thereafter, it appears that the appeal has been filed on 29/10/2009 and there is delay of 1982 days. For condonation of this delay, misc. application for condonation has been filed. The condonation of delay application, does not mention any ground for condoning the delay. From the para no.5 of the application, it is tried to be submitted that it is the Advocates wrong advice because of which the matter could not be filed.
3. It is very interesting to note that after the applicant has received copy of the order of the District Consumer Forum, respondent had filed execution petition under section 27 being no.E-27/2004. Applicant was served in the matter. He appeared before the District Forum and he handed over the cheque of Rs.1,50,544/- and, thereafter, it appears that the instructions were given by him to the bank for stopping the payment. Therefore, cheque was not encashed. Therefore, District Consumer Forum issued warrant against the respondent. Challenging the order of warrant issued by the District Consumer Forum, appellant filed appeal before the State Commission bearing no.492/2008. That appeal was dismissed with cost of Rs.1000/-.
4. After disposal of appeal by the State Commission, fresh warrant was issued by the District Consumer Forum. As against that, appellant filed Civil Suit no.629/2009 before the Civil Judge, Senior division, Pune and in the said suit, application under Section 39 Rule 1 of Civil Procedure Code was filed and ultimately, application was dismissed by the Civil Judge, Senior division on 6/5/2009. Thereafter, he preferred misc. appeal no.175/2009 before the District Judge, Pune and it is stated that misc. application is also dismissed on 7/10/2009. Thereafter, present appeal along with application for condonation of delay has been filed.
5. It is well settled law that the Advocates wrong advice cannot be a ground for condoning the delay. Neither the name of the advocate is disclosed nor affidavit of advocate, who has given that advice has been placed on record. Everything is in vague and, therefore, validity of such ground cannot be considered. Let the fact as it is. The wrong advice of an advocate cannot be a ground is well settled law. It is well settled that against the order of the District Consumer Forum, appeal is provided under section 15 of Consumer Protection Act, 1986 and the appellant has challenged the warrant issued by the District Consumer Forum by filing such an appeal to the State Commission. That shows that applicant and his advocate were well aware of the procedure of Consumer Protection Act, 1986 and remedy of appeal under section 15 of said Act. Therefore, the ground that there is wrong advice by an advocate is not sustainable in law. Said ground is raised without putting on record the wrong advice, without disclosing name of advocate and without filing affidavit of said advocate. That it is aa ground raised without basis and material facts to that effect. It is reflected from the above facts that the applicant is only interested in protraction of the matter, in the harassment of the respondent lady and not to comply with the orders of the District Consumer Forum. He is interested in seeing that by this harassment the lady respondent shall give up the claim and shall vacate the premises so that the premises can be sold at higher market price and, therefore, such litigation has been initiated by the applicant.
6. It is further to be noted that even though possession of flat has been given by the respondent that was of the incomplete flat and thereafter said work has been completed by respondent lady. Now, instead of giving the documents in respect of completion work, possession certificate, etc. as directed by the District Consumer Forum, applicant is interested in saying that the matter be admitted so that again she is harassed in the legal proceedings. Whole approach of the applicant and attempt to protract litigation is required to be deprecated. Applicant is not entitled for any sympathy as submitted by Learned Counsel. It is to be noted that, persons who are desirous of getting their homes, invest their amount with the builders and sometimes it is a life time saving of the person purchasing a flat. Therefore, if the person purchasing a flat like respondent is not protected by this court, he will suffer at the hands of such builder developer like applicant. Therefore, ultimate result is that there is no merit in the application of condonation of delay. No sufficient ground to condone delay is made out. Application for condonation of delay is hereby rejected with cost of Rs.10,000/- for the reasons which we have stated above. Hence the following order:-
Order
1. Misc. application no.1657/2009 for condonation of delay stands rejected.
2. Since the delay is not condoned, appeal stands rejected.
3. Since the amount of Rs.25,000/- has already been deposited by the appellant in this State Commission, Registry is directed to pay Rs.10,000/- out of that amount to the respondent/original complainant and rest of the amount be returned to the appellant.
4. Misc. application no.1658/2009 for stay stands disposed of.
5. Dictated in the presence of Advocates for both sides and in the presence of respective parties.
6. Copies of the order be furnished to the parties.