Mrs. Fiona Francis James Through Her C.A. Mr. Francis James and Another Vs. M/S.Shalimar Builder a Partnership Firm and Others - Court Judgment

Excerpt:

Judgment:

Per Shri P.N. Kashalkar, Honble Presiding Judicial Member

1. Complainants filed complaint no.15/2008 and also filed Misc. application no.156/2008 seeking condonation of delay. In the complaint so many prayers are clubbed together and on bear perusal of the complaint, it would be seen that the causes of actions which accrued right from 1998 are bundled together to file this complaint. Since there is delay in filing the complaint, this condonation of delay application has been filed. The reasons for delay have been mentioned in nutshell in para 4 of the rejoinder, after seeing the reply filed by the O.P. We would like to reproduce para 4 of the rejoinder filed by the complainants to know what exactly complainants case is in respect of delay accrued in filing this complaint. Sub para 4 is reproduced as under:-

“With reference to para 1, the delay in respect of refund of amount in filing compliant on these cause of actions are 6 years and 122 days and delay in respect of money spent for electricity is 3 years and 4 months and sufficient cause for delay are as under:-

i) Due to assurance given by O.P. to settle the matter outside the court

ii) In between complainants school was closed

iii) The complainant no.1 mother was expired on 12/7/2000.

iv) The complainant no.1 was hospitalized so many times due to harassment, mental agony and depression resulted.

v) The civil suit was pending and the O.P. party Ex-5 for injunction was rejected by the Court and assurance settle outside the court.”

2. Heard Mr.K.Solanki-Advocate for the applicants and Mr.N.P.Gonsalves-Advocate for respondents.

3. On bear perusal of this para, it would be seen that even according to complainants, delay in respect of refund of amount in filing the complaint on this cause of action is 6 years and 122 days and delay in respect of money spent for electricity is three years and 4 months and grounds mentioned are virtually not believable at all. One ground mentioned is that O.P. had given assurance to settle the matter outside the court. It means that there was litigation pending in Civil Court and he had given assurance to settle the matter outside the court.

4. Second ground mentioned is school was closed. It appears that in the suit premises, the complainants are running a school and closure of school is stated to be a ground seeking condonation of delay.

5. Third ground mentioned is that mother of complainant no.1 expired on 12/7/2000, whereas this complaint came to be filed as late as on 18/1/2008.

6. Another ground mentioned to seek condonation of delay is that complainant no.1 was hospitalized so many times due to harassment, mental agony and depression.

7. Yet another ground mentioned is that civil suit was pending between the parties and Exhibit 5 of the application for injunction was rejected by the court. These are the grounds on which complainants are seeking condonation of delay in filing this complaint.

8. On hearing both the counsels, we are satisfied that the complaint is hopelessly time barred. In fact, dispute between the parties is of civil nature, because according to O.P./Builder the complainants herein have taken illegal and forcible possession of the premises involved in this complaint for which special civil suit has been filed by the builder against the complainants and it was pending since 2000. One police case was also pending since 2005 pertaining to subject matter of this complaint. When illegal possession has been taken, the complainants cannot be heard to say that builder has failed to give proper possession or that builder has left incomplete work. So whole the complaint is appearing to be a figment of imagination. It was filed just to put pressure on the builder to agree to the terms and conditions put forth by the complainants and it is for this reason, so many years delay has occurred in filing this complaint. We are not satisfied with the grounds mentioned in the condonation of delay application and rejoinder filed by the complainants in answer to the reply given by O.P. and therefore, we are not inclined to allow this misc. application for condonation of delay. Hence the following order:-

Order:

i) Misc.application no.156/2008 for condonation of delay in filing the complaint stands rejected.

ii) Complaint as such stands dismissed being barred by limitation.

iii) Copies of the order be furnished to the parties.