VIP BUILDERS & DEVELOPERS Vs. AMOL C. NAIK

JUDGEMENT

(1.) HEARD Adv. S.B. Prabhavalkar on behalf of the Applicants/Appellants and Adv. Digamber Thakre on behalf of the Non -Applicant/Respondent in MA/12/232 in A/12/760 and Adv. Smt. Panchashila Narawade on behalf of the Non -Applicants/Respondents in MA/12/239 in A/12/770 to MA/12/242 in A/12/773. This is an application seeking condonation of delay in filing an appeal. Surprisingly, in the prayer clause of the delay condonation application though there is a prayer for condonation of delay, the period of which the delay is being sought to be condoned is not stated. In prayer clause of the delay condonation application reference is made to paragraph (08) of the said application. Paragraph (08) of the said application points out that there is a delay of two years and ten months in filing the appeal. Delay is calculated from the date of order. It is further stated that if the delay is to be calculated from the date of knowledge, there is a delay of approximately sixty days and if, the delay is calculated from the date of issuance of certified copy of the impugned order then there is no delay in filing the appeal. Such type of delay condonation is not expected in law. This is an argumentative process which is placed in paragraph (08) of the delay condonation application. When a prayer is being made, the period must be certain in respect of delay to be condoned and the sufficient reasons for condonation of delay must be stated in the application. For the simple proposition there may be several arguments possible. However, that does not mean that the arguments are the facts and those are required to be considered to condone the delay because period must be certain while making a prayer in an application for condonation of delay. Without much commenting upon it we propose to proceed in this order.

(2.) CONSUMER Complaint bearing Nos. 117 of 2008, 118 of 2008, 119 of 2008, 122 of 2008 and 139 of 2008 were respectively filed by five Complainants. In all these consumer complaints, the Opponents were the same, namely the Opponent No. 1 M/s. VIP Builders & Developers, Having address at - -Joshi -Kunj, M.V. Road, Andheri (East), Mumbai - 400069 and the Opponent No. 2 Mr. Pankaj Bhupatlal Bhayani, Resident of -Joshi -Kunj, M.V. Road, Andheri (East), Mumbai - 400069. All these Complainants are the flat -purchasers and the Opponents in these complaints referred to above are the Builders & Developers. Since the complaints were as against the present Applicants/Appellants all those complaints appear to have been heard together by the Additional District Forum, Thane and a common order by one judgment was passed by the Additional District Forum, Thane on 31/7/2009. Appeals as against this order have been filed on 13/6/2012 and, therefore, respective delay condonation applications have been filed. In these delay condonation applications notices were issued to the Non -Applicants/Respondents and the Non -Applicants/Respondents have filed their respective replies opposing the application for condonation of delay.

(3.) IN short, the ground for delay condonation is that while the application for appointment of a Court Commissioner was pending and the complaint was to be heard on 31/7/2009, it was decided after hearing the parties and the Applicant/Appellant came to know about the impugned order when he received non -bailable warrant of arrest on 13/3/2012.