Leaving India And Unable To Receive Notice Is Not The Commission’s Responsibility, Kerala State Commission Refuses To Condone 2,279-Day Delay In Filing Appeal

Brief Facts:

The delay originated from a complaint where the District Consumer Disputes Redressal Commission, Thrissur (“District Commission”) found that Unidesign Builders & Developers Private Ltd. along with persons responsible for construction (“Developers”) had provided deficient service by not handing over an apartment as per the terms of the agreement. The District Commission then directed the Developers to complete the construction and hand over possession within one month of receiving the order. Additionally, they were ordered to pay Rs. 50,000 as compensation for the deficient service to the Mr Jayagopal K. (“Complainant”).

Aggrieved by the District Commission's order, one of the developers filed an appeal before the Kerala State Consumer Disputes Redressal Commission (“State Commission”) seeking condonation for delay of 2,279 days in filling of appeal before the State Commission.

Regarding the delay in filing the appeal, the developer argued that it was not intentional. He said that the appeal should have been submitted by 28th August 2016, but the delay occurred because the he was residing abroad. According to him, he only found out about the case when the police informed him about a warrant related to it. He also claimed that he did not receive the notice for the complaint and that the envelope with the notice was returned with a note saying 'Left India.' The developer firmly asserted that the delay was not due to any wilful negligence on his part and requested the State Commission to excuse the delay.

Decision of the Commission:

After hearing the arguments of the develop and thoroughly examining the affidavit and other records, the State Commission found that the developer had indeed been served with notice in the complaint. The notice issued by the District Commission to the developer was returned with an endorsement stating that the addressee had left India. Since the developer’s correct address was used for sending the registered postal envelope, it was considered as deemed service. It was rather obligatory on the part of the developer to give instructions to the postal authorities to deal with the communications received at his address. Thus, the developer’s claim of not being aware of the District Commission's order did not appear to be correct, and the State Commission could not find that there was no delay in filing the appeal.

Furthermore, the State Commission emphasized that condonation of delay could not be claimed as a matter of right. The burden lays on the party who seeks such condonation to provide sufficient reasons for the delay. In this case, the developer had not acted diligently and had remained inactive for an extended period. The reasons submitted by the developer to justify the delay did not convince the State Commission that the circumstances were beyond his control which led to the delay.

Additionally, despite being served notice, the developer did not appear before the District Commission or file a written version. As a result, he was set ex-parte, and the complaint was decided based on the complainant's evidence, the State Commission noted. Thus, it was held that the District Commission could not be faulted for proceeding ex-parte, and providing the developer with further opportunities to plead and prove his case was not permissible, the State Commission held.

Given the foregoing reasons, the State Commission found no grounds to condone the significant delay of 2,279 days. Consequently, the petition for condonation of delay was dismissed. As a result, the appeal was also dismissed as barred by limitation. The statutory deposit of Rs. 25,000/- made at the time of filing the appeal was ordered to be refunded to the developer upon proper application.

Case: Jayagopal K Vs Pradeep Cholayil

Case No.: First Appeal No. A/597/2022

Advocate for the Appellant: Adv. Unnikrishnan V

Advocate for the Respondent: Absent

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