Usha Ramesh Bhose and Another Vs. Dr. C. Ashokan, Managing Partner - Court Judgment

SooperKanoon Citationsooperkanoon.com/1108925
CourtKerala State Consumer Disputes Redressal Commission SCDRC Thiruvananthapuram
Decided OnOct-17-2011
Case NumberFirst Appeal No. A/11/233 (Arisen out of Order Dated 25/02/2011 in Case No. CC/10/246 of District Kannur)
JudgeTHE HONOURABLE MR. M.V. VISWANATHAN JUDICIAL MEMBER & THE HONOURABLE MR. M.K. ABDULLA SONA MEMBER
AppellantUsha Ramesh Bhose and Another
RespondentDr. C. Ashokan, Managing Partner
Excerpt:
shri. m.v. viswanatan : judicial member the appellants are the complainants and respondent is the opposite party in c.c. no. 246/10. the aforesaid complaint was filed alleging deficiency in service on the part of the opposite party. but the complaint was filed with a delay petition for condoning the delay of 62 days in preferring the complaint in c.c. 246/10. the opposite party disputed the correctness of the averments in the delay condonation petition. the forum below considered the aforesaid delay condonation petition and found that there was no sufficient reason or cause for condoning the said delay of 62 days. hence the delay condonation petition was dismissed and thereby the complaint was also dismissed on the ground that the complaint is barred by limitation. it is against the said order dated 25.2.2011 passed by cdrf, kannur, the present appeal is preferred by the complainants therein. 2. we heard both sides. 3. the learned counsel for the appellants/complainants submitted his arguments based on the grounds urged in the memorandum of the present appeal. he challenged the correctness of the impugned order passed by the forum below. it is submitted that the forum below failed to consider the averments in the delay condonation petition and without providing sufficient opportunities, the forum below passed the impugned order dismissing the complaint in c.c. 246/10. on the other hand, the learned counsel for the respondent/opposite party supported the impugned order passed by the forum below. he argued for the position that there was no sufficient reason to condone the delay and that the forum below is to be justified in dismissing the delay condonation petition and the consequent dismissal of the complaint in c.c. 246/10. 4. there is no dispute that the complainants and the opposite party entered in to a saledeed dated 16.7.2008 with respect to purchase of a residential apartment. it is the case of the complainants that the assessed amenities were not available in the said apartment and thereby alleged deficiency in service on the part of the opposite party. it is for the said deficiency, the complaint in c.c. 246/10 was filed. 5. admittedly the aforesaid complaint was filed with a delay of 62 days. the reason stated for the delay is that the opposite party had taken time to settle the dispute and that settlement talk was going on. thus, the complainant prayed for condonation of the said delay of 62 days. the opposite party totally denied the alleged settlement talk. it was contended that the opposite party never sought for time to settle the dispute. thus, the opposite party prayed for dismissal of the petition filed for condonation of 62 days. 6. there is no dispute that there was 62 days delay in preferring the complaint in c.c. 246/10. the forum below was expected to consider the reason stated for condonation of the said delay of 62 days. the forum below dismissed the said petition for condonation of the delay by relying on a lawyer notice issued by the complainant. it is stated that there was no whisper in the said lawyer notice regarding the settlement talk and so the forum below came to the conclusion that there was no such settlement talk. thereby the petition filed for condonation of delay was dismissed as the same was filed without sufficient cause.7. the case of the appellant/complainant is that the forum below did not give the appellant/complainant an opportunity to substantiate his case that there was settlement talk and that is why the delay in preferring the complaint in c.c. 246/10. the material aspect for consideration is as to whether there was any such settlement talk as alleged by the appellant/complainant. but the forum below negatived the case of the complainant on the sole ground that there was no mention about such a settlement talk in the lawyer notice issued by the complainant to the opposite party. it may be correct to say, to some extent, that the failure to mention about the alleged settlement talk in the lawyer notice can be taken as one reason to disbelieve the case of the complainant. but the said reason or ground can not be taken as the sole ground for dismissing the petition filed for condonation of delay. moreover, the forum below was bound to give the complainant an opportunity to substantiate his case regarding the delay of 62 days. a perusal of the impugned order and the available materials would make it clear that the forum below failed to give sufficient opportunity to the appellant/complainant to substantiate his case alleged in the delay condonation petition. so, the impugned order passed by the forum below can not be treated as a speaking order. it can not be considered as one passed after giving opportunity to the complainant in c.c. 246/10. it can also be noted that the forum below failed to consider the delay condonation petition in its correct perspective. so, the impugned order passed by the forum below is liable to be quashed and the matter is to be remanded back to the forum below for fresh consideration of the matter after giving sufficient opportunity to the parties to the complaint in c.c. 246/10. in the result, the appeal is allowed. the impugned order dated 25.2.2011 passed by cdrf, kannur in c.c. 246/10 is set aside and the matter remanded to the forum below for fresh consideration and disposal of the delay condonation petition by giving sufficient opportunity to both parties to the complainant in c.c. 246/2010. the parties are directed to appear before the forum below on 25.11.2011. as far as the appeal is concerned, the parties are directed to suffer their respective costs.
Judgment:

SHRI. M.V. VISWANATAN : JUDICIAL MEMBER

The appellants are the complainants and respondent is the opposite party in C.C. No. 246/10. The aforesaid complaint was filed alleging deficiency in service on the part of the opposite party. But the complaint was filed with a delay petition for condoning the delay of 62 days in preferring the complaint in C.C. 246/10. The opposite party disputed the correctness of the averments in the Delay Condonation Petition. The Forum below considered the aforesaid Delay Condonation Petition and found that there was no sufficient reason or cause for condoning the said delay of 62 days. Hence the Delay Condonation Petition was dismissed and thereby the complaint was also dismissed on the ground that the complaint is barred by limitation. It is against the said order dated 25.2.2011 passed by CDRF, Kannur, the present appeal is preferred by the complainants therein.

2. We heard both sides.

3. The learned counsel for the appellants/complainants submitted his arguments based on the grounds urged in the memorandum of the present appeal. He challenged the correctness of the impugned order passed by the Forum below. It is submitted that the Forum below failed to consider the averments in the Delay Condonation Petition and without providing sufficient opportunities, the Forum below passed the impugned order dismissing the complaint in C.C. 246/10. On the other hand, the learned counsel for the respondent/opposite party supported the impugned order passed by the Forum below. He argued for the position that there was no sufficient reason to condone the delay and that the Forum below is to be justified in dismissing the Delay Condonation Petition and the consequent dismissal of the complaint in C.C. 246/10.

4. There is no dispute that the complainants and the opposite party entered in to a Saledeed dated 16.7.2008 with respect to purchase of a Residential apartment. It is the case of the complainants that the assessed amenities were not available in the said apartment and thereby alleged deficiency in service on the part of the opposite party. It is for the said deficiency, the complaint in C.C. 246/10 was filed.

5. Admittedly the aforesaid complaint was filed with a delay of 62 days. The reason stated for the delay is that the opposite party had taken time to settle the dispute and that settlement talk was going on. Thus, the complainant prayed for condonation of the said delay of 62 days. The opposite party totally denied the alleged settlement talk. It was contended that the opposite party never sought for time to settle the dispute. Thus, the opposite party prayed for dismissal of the petition filed for condonation of 62 days.

6. There is no dispute that there was 62 days delay in preferring the complaint in C.C. 246/10. The Forum below was expected to consider the reason stated for condonation of the said delay of 62 days. The Forum below dismissed the said petition for condonation of the delay by relying on a lawyer notice issued by the complainant. It is stated that there was no whisper in the said lawyer notice regarding the settlement talk and so the Forum below came to the conclusion that there was no such settlement talk. Thereby the petition filed for condonation of delay was dismissed as the same was filed without sufficient cause.7. The case of the appellant/complainant is that the Forum below did not give the appellant/complainant an opportunity to substantiate his case that there was settlement talk and that is why the delay in preferring the complaint in C.C. 246/10. The material aspect for consideration is as to whether there was any such settlement talk as alleged by the appellant/complainant. But the Forum below negatived the case of the complainant on the sole ground that there was no mention about such a settlement talk in the lawyer notice issued by the complainant to the opposite party. It may be correct to say, to some extent, that the failure to mention about the alleged settlement talk in the lawyer notice can be taken as one reason to disbelieve the case of the complainant. But the said reason or ground can not be taken as the sole ground for dismissing the petition filed for condonation of delay. Moreover, the Forum below was bound to give the complainant an opportunity to substantiate his case regarding the delay of 62 days. A perusal of the impugned order and the available materials would make it clear that the Forum below failed to give sufficient opportunity to the appellant/complainant to substantiate his case alleged in the Delay Condonation Petition. So, the impugned order passed by the Forum below can not be treated as a speaking order. It can not be considered as one passed after giving opportunity to the complainant in C.C. 246/10. It can also be noted that the Forum below failed to consider the Delay Condonation Petition in its correct perspective. So, the impugned order passed by the Forum below is liable to be quashed and the matter is to be remanded back to the Forum below for fresh consideration of the matter after giving sufficient opportunity to the parties to the complaint in C.C. 246/10.

In the result, the appeal is allowed. The impugned order dated 25.2.2011 passed by CDRF, Kannur in C.C. 246/10 is set aside and the matter remanded to the Forum below for fresh consideration and disposal of the Delay Condonation Petition by giving sufficient opportunity to both parties to the complainant in C.C. 246/2010. The parties are directed to appear before the Forum below on 25.11.2011. As far as the appeal is concerned, the parties are directed to suffer their respective costs.