Bombay High Court
Samarth Constructions And Anr vs Pushpa Chandrakant Mate on 4 April, 2025
Author: G. S. Kulkarni
Bench: G. S. Kulkarni
2025:BHC-AS:15723-DB
28-WP-18556-2024.AS.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 18556 OF 2024
1. Samarth Constructions
through its Partner
Anita Balasaheb Pokle
Age-43 years, Having address at
: Kamatwada Shivar, S. No. 9,
Rajkamal Building, Siddhivinayak
Appt., Near Saykhedkar Hospital, Nashik.
2. Vrushali Pramod Amrutkar
Age-46 years, Parnter of M/s Samarth
Constructions Having address at: 1-B,
Samriddhi Bunglow, Kamatwada, Shivar,
Nashik. ...Petitioners
Versus
1. Pushpa Chandrakant Mate.
Age-49 years, Having her place of Residence at:
Mayur Colony No. 2, Chakrapani Vasahat, Alandi
Road, Shastri Chowk, Bhosari, Pune, 411039 ....Respondent
_______________________
Mr. Pranav Nair a/w Ms. Akshata Katara i/b Asahi Legal, for the
Petitioners.
_______________________
CORAM: G. S. KULKARNI &
ADVAIT M. SETHNA, JJ.
JUDGMENT RESERVED ON : 10 MARCH 2025
JUDGMENT PRONOUNCED ON : 04 APRIL 2025
JUDGMENT (Per Advait M. Sethna, J.) :
1. This writ petition is filed under Article 226 of the Constitution of
India, prays for the following substantive relief :-
"(iii) To pass orders setting aside and quashing the impugned order dated
19/08/2024 (at Exhibit-A) passed by the NCDRC in First Appeal No.
771 of 2021; and further pass order that the main Complaint No. 516
of 2016 be remanded back to SCDRC, Maharashtra, Circuit Bench at
Nashik for reconsideration while allowing the Appellants to file its
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written statement before the SCDRC in the said complaint and the
said complaint be re-heard on merits."
2. The petitioners have preferred this petition assailing the order
passed by the National Consumer Dispute Resolution Commission, New
Delhi ('National Commission' for short) dated 19 August 2024
('Impugned Judgment' for short) which dismissed the appeal of the
petitioners. The dispute in these proceedings relates to alleged deficiency
of service under the provisions of Consumer Protection Act, 1986 ('The
Act' for short), arising out of delay by the petitioner in handing over the
respondent's flat within the agreed time frame as claimed by the
respondent, a flat purchaser.
Factual Matrix
3. The relevant facts for adjudicating the present petition are noted as
under :-
4. The petitioners are engaged in the real estate construction business
acting as builders and developers of various projects. The petitioners
launched the project under the names and style of Sainandan for
construction of a multi-storeyed building on the land admeasuring
1084.80 sq. mtr. in survey No. 9/3 situated within the jurisdiction of
Nashik Municipal Corporation. The respondent as an investor approached
the petitioners in or around the year 2010 with a proposal to invest into
the said project launched by the petitioners.
5. The respondent under such investment scheme of the petitioners
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invested an amount of Rs. 5,00,000/- on 20 September 2010 followed by
an amount equivalent to Rs. 1,50,000/- on 25 September 2011 with the
petitioners. However, as the commencement certificate was not issued, the
agreement with the respondent could not be registered. Accordingly, the
petitioners tentatively entered into Agreement to Sale/Visar Pavati dated
23 July 2010.
6. Pursuant to the above an estimated time frame of 24 months was set
by the petitioners to complete the said project, which did not happen. In
view thereof, the respondent file a complaint Case No. 516 of 2016 under
the provisions of section 12 of the Consumer Protection Act, 1986 ('The
Act' for short) before the State Consumer Dispute Resolution Commission
('State Commission' for short).
7. The State Commission by an order dated 27 July 2018 on the
complaint filed by the respondent (complainant) partly allowed the
complaint by directing the petitioners (opponents) to refund an amount of
Rs. 11,00,000/- to the complainant with interest at 9% per annum from
the date of deposit of such amount by the respondent with the petitioners
until realization of the amount by the respondent. Additionally, the
petitioners were directed to pay compensation of Rs. 1,00,000/- to the
respondent towards mental agony an amount of Rs. 20,000/- towards
litigation charges. The petitioner being aggrieved by the said order of the
State Commission, preferred an appeal dated 27 July 2018 before the
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National Commission.
8. The petitioners also filed an application for condonation of delay of
1132 days in filing such appeal before the National Commission dated 16
October 2021. As stated in the said application such delay was mainly
attributable to the Covid-19 pandemic. The National Commission passed
the impugned judgment dated 19 August 2024 in First Appeal No. 771 of
2021 preferred by the petitioner.
Submissions
9. In the above backdrop, we have heard Shri. Nair, learned counsel
for the petitioner who has circulated the petition stating urgency. At his
request, we have heard him on the present proceedings as a limited issue
arises for consideration.
10. Mr. Nair, at the outset would submit that the impugned judgment
of the National Commission is perverse, as it lacks application of mind.
According to him the National Commission has failed to consider that he
is a consumer within the scope of the act. Also that the National
Commission has overlooked the petitioner's case that the respondent
fabricated receipts, playing fraud and thus abused the legal process.
11. Mr. Nair would then submit that it is true that there is a delay in
filing the appeal by the petitioners before the National Commission
against the order of the State Commission, however he would submit that
such delay of about 1132 days was mainly attributable to then prevalent
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Covid-19 pandemic. His submission is that such delay was sufficiently
explained in the application of the petitioners for condonation of delay
filed before the National Commission. In this regard he would also place
due reliance on Paragraph 4 of such application to state that there was a
change in the affairs of the partnership firm of the petitioners, pursuant to
which its partner M/s Anita Balasaheb Pokle was discharged from the said
partnership firm by executing a deed of dissolution dated 4 February
2016. It was pursuant to such change that the entire project was taken over
by one Vrushali Amritkar. For such reason of change in the constitution of
the partnership firm, there was an inevitable delay in taking steps to file
the proceedings within time.
12. Mr. Nair, would further rely on para 5 of the above application to
submit that the health of petitioner nos. 2 and 3 i.e. erstwhile partners had
suffered a major set back including the surgery of husband of petitioner
no. 2, due to which the petitioners were not in position to file an appeal
before the National Commission, within the statutory time frame of 30
days as mandated under the said Act. According to him the petitioner was
not at fault as the delay was caused obtaining permission from statutory
authority like the municipal corporation. He would urge that immediately
on receiving the impugned judgment of the State Commission, the
petitioners took all reasonable steps as necessary to expedite filing its
appeal before the National Commission. However due to reasons beyond
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control of the petitioners as stated above, the appeal could not be filed
within time. Nonetheless, Mr. Nair, would submit that petitioners were
always ready and willing to handover the flat to the respondent, in regard
to which settlement talks were ongoing between the petitioners and
respondent as set out in Paragraph 7 of the application for condonation of
delay, before the National Commission, which led to the delay in filing
proceedings before the National Commission.
13. Mr. Nair would then submit that the respondent had filed execution
proceedings before the State Commission for execution of the order of the
State Commission dated 27 July 2018. It was in such circumstances that
the petitioners have approached this Court under Article 226 of the
Constitution of India seeking reliefs as noted by us. He would urge that
the impugned judgment is not legally sustainable and should be set aside.
Analysis
14. In the above backdrop, we have carefully perused the impugned
judgment dated 19 August 2024 passed by the National Commission
assailed by the petitioners before us. The National Commission has
rendered a reasoned judgment recounting the facts, under the canopy of
submissions of parties, duly, supported by law. It was after examining the
petitioners case in detail that the impugned judgment was passed by the
National Commission, which is analyzed below.
15. It is true that the National Commission has dismissed the appeal of
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the petitioners on the ground of failure of the petitioners to make out a
case for condonation of delay of 1132 days in filing its appeal before
National Commission. However, the National Commission has
meticulously recorded reasons and rendered its findings in support of its
decision, in the given facts and circumstances, which therefore warrants no
interference.
16. From the factual matrix as noted above, we may observe that the
petitioner had received a copy of the order dated 27 July 2018 passed by
the State Commission in complaint No. 517 of 2016 on 1 September
2018. The prescribed statutory period of 30 days in filing appeal before
the National Commission under Section 51 of the Act against the order of
the State Commission expired on 13 September 2018. However, such
appeal before the National Commission was filed by the petitioner on 16
September 2021 i.e. after 1132 days, as against the prescribed period of 30
days as provided under section 51 of the Act. The petitioner had filed an
application for condonation of delay dated 16 October 2021 before the
National Commission. The case of the petitioner to justify such delay was
attributed to reasons like change in the constitution of the petitioner's
erstwhile partnership firm which came to be dissolved on 4 February
2015; the deteriorating health condition of the husband of petitioner no. 2
since the year 2014 and other health related issue including surgery which
lead to the delay in filing the proceedings; the petitioner attributed such
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delay also to the Covid -19 pandemic prevalent at the relevant time as a
reason to justify such delay; as also the settlement talks which were
ongoing before the parties as a result of which the petitioner could not
approach the National Commission within the stipulated time period. In
this context, we have noted the observations in this regard made in the
impugned order of the National Commission. The National Commission
has meticulously examined all the aspects including that of delay on part
of the petitioners in approaching the said Commission and recorded its
findings more particularly in paragraphs 5 and 6 of the impugned order
which reads thus :-
"5. The reasons advanced by the Appellant to justify the delay caused have
been considered. The Appellant has contended that the delay in filing
of the Appeal occurred due to lack of correct guidance from their
Advocate, period of COVID-19 Pandemic, discharge of Appellant No.
1 from the project, takeover of the project by Appellant No. 2 who
could not pursue the case before the State Commission in view of
deteriorating health of her husband and failure of settlement talks.
6. The law of limitation requires delay for each day of delay to be
explained after expiry of the period of limitation. It is necessary that
this explanation is rational, reasonable and realistic and to be
acceptable. A perusal of the application for the condonation of delay
establishes beyond doubt that the delay was caused because the
Appellant dealt with the case in a rather routine and casual manner."
We find that there is no explanation, much less justification by the
petitioner to overcome the delay in filing the appeal before the National
Commission within the time period of 30 days as stipulated under section
51 of the Act, as rightly observed by the National Commission in the
impugned judgment. The petitioner has alleged that the respondent is not
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a consumer in the grounds of the present petition. The buck does not stop
here. The petitioner would further allege that the respondent had
fabricated payment receipts and abused the legal process as also the delay
is not attributable to the petitioner, who could not obtain permission from
statutory authorities in time. In our view, such grounds are baseless, and an
afterthought on the part of the petitioner. Section 2(7) of the Act defines
"consumer". A bare perusal of such provision would bring to fore that the
respondent who availed the services for a consideration from the
petitioner in terms of buying a flat would fall within the ambit of such
definition. Further, except for the bald allegation that the delay is not at all
attributable to the petitioner and that the respondent has abused the
process of law, is bereft of any material placed on record to even remotely
make good such serious accusations which need to be sufficiently proved.
17. We may refer to the provisions of Section 51 of the Act providing
for which reads thus:-
"51. Appeal to National Commission -
(1) Any person aggrieved by an order made by the State
Commission in exercise of its powers conferred by sub-clause (i)
or (ii) of clause (a) of sub-section (1) of section 47 may prefer an
appeal against such order to the National Commission within a
period of thirty days from the date of the order in such form and
manner as may be prescribed:
Provided that the National Commission shall not
entertain the appeal after the expiry of the said period of thirty
days unless it is satisfied that there was sufficient cause for not
filing it within that period:
Provided further that no appeal by a person, who is
required to pay any amount in terms of an order of the State
Commission, shall be entertained by the National Commission
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unless the appellant has deposited fifty per cent. of that amount
in the manner as may be prescribed.
(2) Save as otherwise expressly provided under this Act or by any
other law for the time being in force, an appeal shall lie to the
National Commission from any order passed in appeal by any
State Commission, if the National Commission is satisfied that
the case involves a substantial question of law.
(3) In an appeal involving a question of law, the memorandum of
appeal shall precisely state the substantial question of law
involved in the appeal.
(4) Where the National Commission is satisfied that a substantial
question of law is involved in any case, it shall formulate that
question and hear the appeal on that question:
Provided that nothing in this sub-section shall be deemed to take
away or abridge the power of the National Commission to hear,
for reasons to be recorded in writing, the appeal on any other
substantial question of law, if it is satisfied that the case involves
such question of law.
(5) An appeal may lie to the National Commission under this
section from an order passed ex parte by the State Commission."
The word "shall" as it appears in the proviso casts an obligation on
the National Commission to not entertain an appeal after an expiry of
period of 30 days. Such is the rule, the exception to which is the existence
of sufficient cause to be shown to the satisfaction of the court/tribunal.
18. Apropos the above, contextually, we find it apposite to refer to
paragraph 13 of the judgment of the National Commission, which reads
thus:-
"13. The purpose of Section 69 of the Consumer Protection Act, 2019
(corresponding to Section 24A the Consumer Protection Act,
1986) is to ensure that the provisions of the Consumer Protection
Act as a beneficial legislation are not diluted through challenges
which cause cases to be prolonged through litigation even in
Consumer Fora. The justification for the condonation of delay in
the instant case is only an attempt to delay the implementation of
an order of the State Commission as there is no evidence brought
on record to substantiate the application for consideration. The
Appellant has not been able to provide adequate and sufficient
reasons which prevented them to approach this Commission
within the limitation. Admittedly, the Appellant was in settlement
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talks with the Respondent and when that did not fructify and the
Respondent filed execution proceedings, the Appellant chose to
file this Appeal. This alone cannot be considered as sufficient
cause to seek condonation of delay in the filing of the Appeal.
Condonation of delay is not a matter of right and the applicant
has to set out the case showing sufficient reasons which prevented
them to come to the Court/Commission within the stipulated
period of limitation. Cause shown is, therefore, not found to be
sufficient."
Thus, the National Commission has rightly appreciated that an
application for condonation of delay ought to be considered in the context
of the object, purpose, and purport of the Consumer Protection Act,
which is correctly described as a beneficial legislation. In this context, we
refer to a recent decision of the Supreme Court in the Alpha G 184
Owners Association vs. Magnum International Trading Company Pvt
Ltd1, the relevant paragraph which reads thus :-
"15. .......The 2019 Act facilitates the consumers to approach the
forums by providing a very flexible procedure. It is meant to
encourage age consumerism in the country. Any technical
approach in construing the provisions against the consumer
would go against the very objective behind the enactment."
Thus, the National Commission being conscious of the settled legal
position proceeded on the footing that the delay in every case cannot be
mechanically condoned at the drop of the hat, unless a sufficient cause to
the satisfaction of the Court is made out, as the law would mandate.
19. We may observe that in proceedings under the Act where delay is
inordinate the court has to satisfy itself that the same have been prosecuted
in good faith and with due diligence. The expression " good faith" as found
1. (2023) 16 SCC 294
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in section 2(h) of the Limitation Act would indicate that nothing shall be
deem to be in good faith which is not done with due care and attention.
The impugned order of the National Commission has correctly observed
that the law of limitation does not require the delay of each day to be
explained after expiry of the period of limitation. Juxtaposing this to the
given facts, it is discernible that the petitioner did not act diligently, as also
with proper care and caution as the law would require. In view thereof, we
do not find any fault with the impugned order of the National
Commission.
20. We find that another significant aspect of this case is that the
National Commission could not have been oblivious to the vital fact that
admittedly the petitioners and respondents were in settlement talks. It is
the failure of such talks, that prompted the petitioners to file an
application, inter alia, for stay on execution of the order of State
Commission. It is at such belated stage that the petitioners chose to file the
appeal before the National Commission with an obvious reason to defeat
the rights of the respondent - a flat purchaser arising from the order of the
State Commission which directed recovery of the amounts decreed in
favour of the respondent. The petitioners took a calculated risk adopting
wait and watch approach. The appeal before National Commission was
filed by the petitioner when there was no alternative upon failure of
settlement talks, with a clear intent to thwart the execution proceedings
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initiated by the respondent, as also reflected in Paragraph 13 of the
impugned judgment (supra). In this context, we may refer to a judgment
of the Supreme Court in The State of Bombay vs. Morarji Cooverji2 which
reads thus:
"41. .......In order to get that relief from the Court on a writ
petition, not only must he come with clean hands, not only must
he not suppress any material facts, not only must he show the
utmost good faith, but he must also satisfy the Court that the
making of the order will do justice and that justice lies on his
side......"
As discussed by us above the petitioner falls short of fulfilling the
requirements as laid down by the Supreme Court in the said decision,
constituting the sine qua non for the writ court to grant relief, which
would be incumbent on where justice would lie.
21. We gainfully refer to a few decisions of the Supreme Court below,
some of which are also referred to in the impugnment judgment, laying
down the cardinal principles on limitation and delay condonation.
22. The Supreme Court in the case of Basawaraj and Anr vs. The special
Land Acquisition Officer3. The Supreme Court while examining expression
"sufficient cause" held that, the meaning of the word " sufficient" is adequate
or enough as much as may be necessary to answer the purpose intended. It
would mean that a party should not have acted in a negligent manner or
there was a want of bonafide on its part, in view of the facts and
circumstances of the case, where the Court has to examine whether the
2 1958 SCC OnLine Bom 188
3. (2013 AIR SCW 6510)
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mistake is a bonafide or was a mere device to cover an ulterior purpose.
23. It is settled legal position that law of limitation may harshly affect a
particular party but it has to be applied with all its rigour when the statute to
prescribes and the courts have no power to extend the period of limitation
on equitable grounds as held by the Supreme Court in the decision of P.K.
Ramachandran vs. State of Kerala4 which was followed by the Supreme
Court in a later decision in Maniben Devraj Shah vs. Municipal
Corporation of Brihan Mumbai5.
24. The Supreme Court in the decision of Ram Lal and others vs. Rewa
Coalfields Limited6 held that, even after sufficient cause has been made out
the party is not, as a matter of right, entitled to condonation of delay.
25. The Supreme Court in Anshul Agarawal vs. New Okhla Industrial
Development Authority,7 held that the Court ought to keep in mind that
special period of limitation prescribed under the Consumer Protection Act
for filing appeal and revision in consumer matters and the object of
expeditious adjudication of consumer disputes will get defeated if the Court
was to entertain belated petitions filed against the orders of consumer fora.
26. The Supreme Court interpreting the expression " sufficient cause" in
a recent ruling in Shivraj Singh vs. Union of India8 emphasized that in an
application for condonation of delay the conduct should be bonafide based
4. (1997) 7 SCC 556
5. (2012) 5 SCC 157
6. (AIR 1962 SC 361)
7. (2011 14 SCC 578)
8. (2023 10 SCC 531)
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on true and plausible explanation and should reflect the normal conduct of a
common prudent person. The delay should be clearly understood in
contradistinction to inordinate delay and unexplained delay, for it to warrant
condonation.
27. The Supreme Court in another recent decision in the case of
Diamond Exports and Another vs. United India Insurance Company
Limited and Others9 has reiterated that the discretion for condonation of
delay under Consumer Protection Act, 1986 is specifically circumscribed by
the statute. Similar statutory provisions exist under the Arbitration and
Conciliation Act, 1996 and Insolvency and Bankruptcy Code, 2016 though
in a different statutory context facilitating the sanctity of the arbitral process
in the former and to ensure timely disposal, corporate rehabilitation in the
latter.
28. We are in complete agreement with the above decisions which
would squarely apply to the present case.
29. Before concluding we may observe that the matters falling under
the Consumer Protection Act deal with a range of consumers from
individuals to co-operative societies, home buyers, flat purchasers and such
others who approach the specialized fora created under the Act, to redress
their grievances with a hope of speedy resolution of long pending disputes.
The object and purpose of this statute, makes it evident that it is a social
9. (2022) 4 SCC 169
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welfare legislation where protection of consumer interest is paramount.
From the legislative scheme and framework of the Act, the intent is to
encourage consumerism in our Country as also echoed by the Supreme
Court. A situation cannot be countenanced where a technical plea espoused
would militate against the very purpose and object behind the enactment.
One needs to be mindful of the object behind the legislation that an
untrained, unwary consumer because of unequal bargaining power ought
not to be deprived of his legal rights. What is relevant to the facts of this case
was that the National Commission was circumspect when dealing with
parties like the petitioner who was in a dominating position being
developers/builders vis-a-vis the respondent who is a individual home buyer,
to ensure that the latter in the quest for shelter over his head was not driven
into unwarranted litigation, much less prolonged litigation, at the behest of
the former. The National Commission has correctly taken into account such
perspective in adjudicating the proceedings and in passing the impugned
order, which in our opinion surely, ought not to be disturbed.
30. On the foregoing discussions and taking a holistic view of the
proceedings, we are certainly not inclined to interfere with the impugned
judgment of the National Commission dated 19 August 2024.
31. The petition is misconceived and is dismissed. No order as to costs.
[ADVAIT M. SETHNA, J.] [G. S. KULKARNI, J.]
