ANIL RAMCHANDRA CHANDAK Vs. VIAJYANAND REVANA SIDDHAYYA ARALELIMATH AND ORS.

JUDGEMENT

(1.) Applicant/appellant, Anil Ramchandra Chandak has filed present application for condonation of delay of 81 days in filing first appeal against the judgment and order dated 23/11/2013 in Consumer Complaint No. 138/2011 passed by the District Consumer Disputes Redressal Forum, Solapur. Consumer complaint No. 138/2011 was disposed off in view of settlement between the parties in Lok Adalat. On the basis of said settlement, the consumer complaint was disposed off. According to the applicant, consumer complaint bearing No. 138/2011 was filed by the respondent No. 1 -Vijayanand Revana Siddhayya Aralelimath against the present applicant/appellant and respondent No. 2 and 3 for seeking specific performance of an illegal agreement dated 30/03/2008. Applicant/appellant appeared in the proceedings and resisted the claim of the complainant. The main defence of the applicant was that there was no relationship of consumer and service provider between the appellant and the respondent No. 1. The consumer complaint was filed with collusion between the complainant and the respondent No. 2. Respondent No. 2/opponent No. 2 for himself and on behalf of the respondent No. 3 i.e. M/s. Sanket Developers admitted liability. It is submitted that the respondent No. 2 had no authority to admit the liability on behalf of respondent No. 3. The appellant had engaged an experienced advocate to defend his case before the Ld. Forum and provided him all necessary instructions. Respondent No. 1 and 2 in collusion with each other got the matter fixed in the Lok Adalat dated 23/11/2013 without any intimation to the appellant. In fact, the appellant is the main contestant. Respondent No. 1 and 2 have filed compromise pursis and settled the matter. Said pursis does not bear signature of the appellant or his advocate. On the basis of pursis, learned District Forum was pleased to dismiss the matter. Impugned order was passed on 23/11/2013. Regular date fixed for hearing of the matter was on 26/11/2013. On 26/11/2013, matter was on regular board. However, file could not be traced by the clerk. Hence, no adjourned date was given. The advocate was advised to check the date later on. After 15 days, when the advocate again went to the Forum for another matter, he checked the date. He found that no date was given and the matter was found as disposed off. On enquiry, he learnt about the compromise order. Then, appellant met Adv. Geeta Mulekar at Mumbai on advice of advocate at Solapur. Necessary documents and instructions were provided to Adv. Geeta Mulekar for filing appeal. However, in second week of January 2014, Adv. Geeta Mulekar had to rush out of India due to her some personal problems. Due to her personal difficulty, she was not able to file the appeal. Therefore, another advocate was engaged. Therefore, delay of 81 days was caused in filing appeal which is not intentional. If delay is not condoned, the appellant will suffer irreparable loss. Hence, delay may be condoned.

(2.) Respondent No. 1 and 2 opposed the application by filing written say. It is submitted that the applicant is a court -bird and is fully aware of court proceedings. The reason for not filing appeal in time is false and deliberately made false in order to prolong the litigation. Respondent No. 1 has paid Rs. 3,11,000/ - as consideration by several cheques to the firm out of Rs. 4,43,850/ - as agreed price. As per the procedure of District Forum, intimation of judgment was sent to the every party by post. Respondent No. 2 has already executed registered sale deed of the said property in favour of the respondent No. 1. Delay is deliberately done by the appellant. If the appellant has received the copy of judgment on 13/02/2014 then how it is accepted that in last week of January 2014 Adv. Geeta Mulekar informed the appellant that due to her personal difficulty she cannot work on the appeal. Appellant is solely responsible for the delay caused which is inordinate, deliberate and intentional. Applicant/appellant has not come with clean hands before this Commission. Hence, applicant may be rejected with costs.

(3.) Heard learned counsels for both the parties and perused documents on record. The consumer complaint filed by the respondent No. 1/complainant against the present applicant/appellant and respondent No. 2 and 3 was disposed off by compromise before the Lok Adalat dated 23/11/2013. Terms of the settlement were signed by respondent No. 1, respondent No. 2 -Avinash Shriram Bachuwar. Respondent No. 2 had signed on behalf of himself and on behalf of the partners and as power of attorney holder of M/s. Sanket Developers. Respondents have filed on record copy of power of attorney dated 16/01/2001. Power of Attorney executed by the present applicant/appellant is in favour of M/s. Sanket Developers. Said Power of Attorney was executed in favour of respondent No. 2 -Avinash Shriram Bachuwar as a partner. By the said power of attorney, respondent No. 2 was permitted and authorized to develop the plot, enter into sale transaction, to execute sale deed, to file appeal and to take all necessary steps in connection with court proceedings. Said power of attorney was never cancelled by the applicant/appellant. The respondent No. 2 entered into compromise with the complainant and respondent No. 1 before the Lok Adalat. In view of the compromise, the consumer complaint was disposed off. It is pertinent to note here that as per terms of settlement, sale deed of the property in question is executed in favour of the complainant/respondent No. 1 by M/s. Sanket Developers their partner -Avinash Bachwar [respondent No. 2]. Order is fully complied with by the respondent No. 2 and 3. Documents on record show that respondent No. 2 had authority to enter into settlement with the complainant/respondent No. 1. Otherwise also, every partner can act on behalf of partnership firm. Reason mentioned by the applicant/appellant to condone the delay does not appear to be satisfactory. Application deserves to be dismissed. Hence, following order.