State Consumer Disputes Redressal Commission
Ganesha Ram vs U. K. Sinah on 2 August, 2013
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
STATE CONSUMER DISPUTES
REDRESSAL COMMISSION,
U.T.,
CHANDIGARH
First
Appeal No.
:
376 of 2012
Date of Institution
:
16.11.2012
Date of Decision
:
02.08.2013
Sh. Ganesha Ram Rakheja R/o
H.No.1422-A, Sector 61, Chandigarh.
.Applicant/Appellant/Complainant.
Versus
Shri U.
K. Sinah, Chairman/Managing Director, The Securities and Exchange Board of
India,
Plot No.C-4-A, G Block, Bandra Kurla Complex, Bandra (East), Mumbai 400051.
Unit Syndicate Bank
Folio No.17837391
The Assistant General Manager, Syndicate Bank, SCO 66-67 Bank Square,
Sector-17, Chandigarh.
The General Manager, Syndicate Bank, Regional
Office, SCO 76-77, Bank
Square, Sector-17, Chandigarh.
..Respondents/Opposite Parties.
Appeal under Section 15 of the Consumer
Protection Act, 1986.
BEFORE: JUSTICE
SHAM SUNDER (RETD.), PRESIDENT.
SH.
DEV RAJ, MEMBER.
Argued by:Sh.Gaurav Bhardwaj, Advocate for the appellant.
Sh. Aman Singla, Advocate for respondent No.1.
Sh. I. P. Singh, Advocate for respondents No.2&3.
PER DEV RAJ, MEMBER.
This appeal is directed against the orders dated 15.02.2012 vide which the Consumer Complaint No.524 of 2011, was dismissed in default for non-prosecution and the order dated 17.10.2012, rendered by the District Consumer Disputes Redressal Forum-II, U.T., Chandigarh (hereinafter to be called as the District Forum only), vide which the Miscellaneous Application No.81 of 2012, moved by the applicant/appellant for setting aside the order dated 15.02.2012 was dismissed.
2. Since the handwritten complaint, received through Post, by the District Forum, was totally illegible and unreadable, the facts, in brief, are culled out from the affidavit, filed by the complainant, before the District Forum, which were to the effect, that the complainant was a share holder of the Syndicate Bank and was holding Folio No.In 301330/17837391 for 100 shares, as would be clear from the photocopy of the final dividend warrant 2005-2006 dated 20.07.2006. It was stated that the complainant approached the Registrar, Karvy Computer Share Private Limited, Plot No.17-24, Vittal Rao Nagar Madhapur, Hyderabad 500081, for payment of dividend, declared @30%, for the year ending 31.03.2010. It was further stated that the Registrar, Karvy Computer Share Private Limited duly acknowledged the receipt of letter dated 10.05.2010, vide which, the complainant put-forth his grievance regarding non-receipt of the dividend. It was further stated that after perusing the entire record, it was informed to the complainant, that he was not holding shares, in the Company (Syndicate Bank) under the subject folio/client ID/DPID, as, on the record date/book closure was announced by the company. It was further stated that despite numerous requests made to the Registrar of the Bank (Company), to show the requisite record, nothing was provided to the complainant. It was further stated that a reminder dated 02.11.2011, was also sent to the Registrar, to expedite the matter, but to no avail. It was further stated that the Opposite Parties, failed to give the declared dividend @30% for the year ending 31.03.2010, which, amounted to deficiency, in rendering service, and indulgence into unfair trade practice, on their part. When the grievance of the complainant, was not redressed, left with no alternative, a complaint under Section 12 of the Consumer Protection Act, 1986 (hereinafter to be called as the Act only), directing the Opposite Parties to pay declared dividend @30% for the year ending 31.03.2010 alongwith interest @18% per annum, was filed through post.
3. Notice was sent to Opposite Party No.1, by the District Forum, which was received back undelivered, and, as such, the complainant was directed to file fresh correct addresses of the Opposite Parties. However, on 15.02.2012, since, neither the complainant appeared in person, nor any authorized representative appeared on his behalf, the District Forum, dismissed the complaint for non-prosecution.
4. Aggrieved against the order dated 15.02.2012, the complainant filed an application for restoration of the complaint, which was also dismissed vide order dated 17.10.2012, as referred to, in the opening para of the instant order.
5. Feeling aggrieved, the instant appeal, was filed by the appellant/complainant, which was received through post in the office of this Commission on 16.11.2012.
6. After receipt of the appeal, notice was sent to the appellant/complainant, to put in appearance, but being an old person, he could not come present, as a result whereof, Sh. Gaurav Bhardwaj, Advocate was appointed as Legal Aid Counsel, on behalf of the appellant, to pursue the appeal.
7. Alongwith the appeal, an application for condonation of delay of 231 days, in filing the same (appeal), has been moved. The grounds, set up, in the application, by the applicant/appellant, are to the effect, that the certified copy of the order dated 15.02.2012, was sent by the District Forum, at the residence of the applicant/appellant through Process Server, on 29.02.2012. It was stated that the applicant/appellant, appended a note, on the said order, that the same (order) was illegal and he had been exempted from appearing in any Court, which was at more than 1 K.M distance from his residence. It was further stated that the applicant/appellant then sent a miscellaneous application, through Post, for restoration of the complaint case, which was received, in the office of the District Forum on 27.08.2012. It was further stated that the notice of the said application was sent to the applicant/appellant, by the District Forum, for 15.10.2012. It was further stated that the applicant/appellant, showed his inability to appear, before the District Forum, being an old aged person, vide a letter, which was received by it (District Forum) on 11.10.2012 and, as such, the case was adjourned to 17.10.2012, on which date, the application for restoration, was dismissed by the District Forum, in view of the judgment of the Honble Apex Court. It was further stated that after receipt of the certified copies of impugned orders dated 15.02.2012 and 17.10.2012, the applicant/appellant immediately filed the instant appeal and, in this manner, the delay of 231 days occurred. Accordingly, the applicant/appellant prayed that the delay, in filing the appeal, be condoned.
8. In reply, filed by respondent No.1, it was stated that, no explanation of delay of 231 days, in filing the appeal, had been furnished by the applicant/appellant. It was further stated that complete paper book was not supplied to respondent No.1, and only a copy of the application for condonation of delay was supplied. It was further stated that as per the settled law, the applicant/appellant, was required to show and establish, sufficient cause, for not filing the appeal, within the stipulated time. It was further stated that the application for condonation of delay is neither verified, nor supported by an affidavit, and, as such, the same is liable to be dismissed on this ground alone. Accordingly, a prayer for dismissal of the appeal, on the ground of delay itself, was made.
9. In reply, filed by respondents No.2 and 3, it was stated that complete paper-book was not supplied to them, and only a copy of the application for condonation of delay was supplied. It was further stated that even the Counsel appointed on behalf of the applicant/appellant, showed his inability, to supply the complete paper book. It was further stated that the application for condonation of delay is neither verified nor supported by an affidavit and as such, the same is liable to be dismissed, on this sole ground. It was further stated that no explanation of delay of 231 days, in filing the appeal, has been furnished, by the applicant/appellant. It was further stated that since, the delay is unexplained, and no ground is made out, to condone the same, the appeal be dismissed being barred by limitation.
10. We have heard the Counsel for the parties, on the application, for condonation of delay, as also, in the main appeal, and have gone through the evidence, and record of the case, carefully.
11. First coming to the application for condonation of delay, it may be stated here, that the same is liable to be dismissed, for the reasons to be recorded hereinafter. The question, that arises for consideration is, as to whether, there is sufficient cause for condonation of delay of 231 days (as per the applicant/appellant) in filing the appeal under Section 15 of the Act. It was held in Smt. Tara Wanti Vs State of Haryana through the Collector, Kurukshetra AIR 1995 Punjab & Haryana 32, a case decided by a Full Bench of the Punjab & Haryana High Court, that sufficient cause, within the meaning of Section 5 of the Limitation Act, must be a cause, which is beyond the control of the party, invoking the aid of the Section, and the test to be applied, would be to see, as to whether, it was a bona-fide cause, in as much as, nothing could be considered to be bonafide, which is not done, with due care and attention. In New Bank of India Vs. M/s Marvels ( India): 93 (2001) DLT 558, Delhi High Court, it was held as under:-
No doubt the words sufficient cause should receive liberal construction so as to advance substantial justice. However, when it is found that the applicants were most negligent in defending the case and their non-action and want of bonafides are clearly imputable, the Court would not help such a party. After all sufficient cause is an elastic expression for which no hard and fast guide-lines can be given and Court has to decide on the facts of each case as to whether, the defendant who has suffered ex-parte decree has been able to satisfactorily show sufficient cause for non- appearance and in examining this aspect, cumulative effect of all the relevant factors is to be seen.
12. In Oriental Insurance Co. Ltd.
vs. Kailash Devi & Ors. AIR 19107 Punjab and Haryana 45, it was held as under:-
There is no denying the fact that the expression sufficient cause should normally be construed liberally so as to advance substantial justice, but that would be in a case where no negligence or inaction or want of bonafides is imputable to the applicant. The discretion to condone the delay is to be exercised judicially i.e. one is not to be swayed by sympathy or benevolence.
13. In R.B. Ramalingam Vs. R.B. Bhuvaneswari, 2009 (2) Scale 108, the Supreme Court observed as under:-
We hold that in each and every case the Court has to examine whether delay in filing the Special Leave Petitions stands properly explained. This is the basic test which needs to be applied. The true guide is whether the petitioner has acted with reasonable diligence in the prosecution of his appeal/petition.
14. In Balwant Singh Vs. Jagdish Singh and Ors, V (2010) SLT 790=III (2010) CLT 201 (SC), it was held as under:-
The party should show that besides acting bona fide, it had taken all possible steps within its power and control and had approached the Court without any unnecessary delay. The test is whether or not a cause is sufficient to see whether it could have been avoided by the party by the exercise of due care and attention. [Advanced Law Lexicon, P. Ramanatha Aiyar, 3rd Edition, 2005]
15. In Mahant Bikram Dass Chela Vs. Financial Commissioner and others, AIR 1977, S.C. 2221, it was held as under:-
Section 5 of the Limitation Act is a hard task-master and judicial interpretation has encased it within a narrow compass. A large measure of case-law has grown around Section 5, its highlights being that one ought not easily to take away a right which has accrued to a party by lapse of time and that therefore a litigation who is not vigilant about his rights must explain every days delay
16. In Ansul Aggarwal Vs. New Okhla Industrial Development Authority, 2012 (2) CPC 3 (SC) it was held as under:-
It is also apposite to observe that while deciding an application filed in such cases for condonation of delay, the Court has to keep in mind that the special period of limitation has been prescribed under the Consumer Protection Act, 1986, for filing appeals and revisions in Consumer matters and the object of expeditious adjudication of the Consumer disputes will get defeated, if this Court was to entertain highly belated petitions filed against the orders of the Consumer Foras
17. Keeping in view the principle of law, laid down, in the aforesaid cases, it is to be seen, as to whether, the applicant/appellant, has been able to establish that it was on account of the circumstances, beyond his control, that he could not file the appeal, in time. The appeal could be filed, within 30 days, from the date of receipt of a copy of the order dated 15.02.2012. The applicant/appellant himself admitted that the certified copy of order dated 15.02.2012 was received by him through Process Server on 29.02.2012, which he returned by putting a note that he was exempted from appearing in any Court, which was at more than 1 K.M distance, from his residence. However, there is nothing, on record, by way of any documentary evidence, to prove that the appellant/complainant was given exemption from appearing in any Court, which was at more than 1 K.M distance, from his residence. The applicant/appellant, very well knew that the District Forum had no power to review its own order dated 15.02.2012, under the Act. The complainant, instead of challenging the order dated 15.02.2012, within 30 days, from the date of receipt of a certified copy thereof, by way of filing an appeal, slept over the matter, and, ultimately, woke up from his deep slumber, after 231 days, and filed the appeal, challenging the order dated 15.02.2012 and the subsequent order dated 17.10.2012 vide which his application for restoration was dismissed by the District Forum. As such, the applicant/appellant, acted in a highly irresponsible and negligent manner. The applicant/appellant did not act, with due diligence, resulting into delay of 231 days, in filing the appeal. He even miserably failed to explain the delay of 231 days, which is more than seven times, beyond the normal period of filing an appeal, under Section 15 of the Act. Complete in-action and lack of bonafides, of the applicant/appellant is writ large, on the face of record, and attributable to him, in filing the appeal, after a delay of 231 days. Since, no sufficient cause is constituted, from the averments, contained in the application, the delay of 231 days, cannot be condoned. The principle, of law, laid down, in the aforesaid cases, is fully applicable, to the facts of the instant case. The application is, thus, liable to be dismissed.
18. The next question, that falls for consideration, is, as to whether, the applicant/appellant, was prosecuting the application, for setting aside the order dated 15.02.2012, vide which the complaint was dismissed, for non-prosecution, by the District Forum, before it, in good faith and under bonafide belief. The answer to this question, is in the negative. Once, the order dated 15.02.2012, dismissing the complaint for non-prosecution, by the District Forum, was passed, no application for restoration of the complaint, according to the provisions of law, lay before the District Forum. In view of the law laid down by a three Judges Bench of the Honble Supreme Court in Rajeev Hitendra Pathak and others Vs. Achyut Kashinath Karekar and Anr, IV (2011) CPJ 35 (S.C.) The District Forum, had no jurisdiction, as per the provisions of the Act, to review its own order dated 15.02.2012, and restore the complaint. Even otherwise, the application moved by the complainant, for the restoration of complaint, before the District Forum, was dismissed on 17.10.2012, by it. It is evident, from the order dated 17.10.2012, that even on this date, the applicant/appellant failed to appear before the District Forum. So far as, the question, with regard to condonation of delay, in filing the appeal is concerned, had the complainant been prosecuting the application, in good faith, and under bonafide belief, before the District Forum, the matter would have been different. In the instant case, as stated above, such an application for restoration, referred to above, did not lie, before the District Forum, as it had no Jurisdiction to review its own order, and, as such, the applicant/appellant, could not claim any benefit of the same. In M.I. Plywood Industries Vs Canara Bank I (2013) CPJ 17 (NC) , the Revision Petitioner(Complainant) filed Revision Petition, before the National Consumer Disputes Redressal Commission, after a delay of 145 days. In the application, for condonation of delay, a plea was taken by the Revision Petitioner, that it had earlier challenged the order impugned, by way of filing Writ Petition bearing No. 29255 of 2010 before the Honble Karnataka High Court, on the legal advice, so tendered by its Counsel. It was further stated that the Honble High Court vide order 10.02.2011, was pleased to dispose of the Writ Petition, holding therein, that the Petitioner had an efficacious, alternative remedy, under the provisions of the Consumer Protection Act, 1986.It was further stated that the Petitioner bona-fidely trusted the legal advice, given to it, by the Counsel and pursued the Writ Petition, and that was why delay, in filing the Revision Petition, took place. The National Commission, in the aforesaid case, held that such a plea, taken by the Revision-Petitioner, for condonation of delay, was not tenable, in view of the decision of the Honble Supreme Court in M/s Advance Scientific Equipment Ltd. & anr. Vs West Bengal Pharma & Photochemical Development Corporation Ltd., 2011(DLT soft)1(SC), Appeal (Civil) Nos.17068-17069/2010 , decided on 9.7.2010, wherein it was observed as under ;
We are further of the view that the petitioners venture of filing petition under Article 227 of the Constitution was clearly an abuse of the process of the Court and the High Court ought not to have entertained the petition even for a single day because an effective alternative remedy was available to the petitioner under Section 23 of the Act and the orders passed by the State Commission did not suffer from lack of jurisdiction
19. In view of the principle of law, laid down in M/s Advance Scientific Equipment Ltd.s case(supra), which is equally applicable to the instant appeal also, it can be held that prosecution of the application, for setting aside/recall of the order dated 17.10.2012, by the applicant/appellant, before the District Forum, knowing fully well that it had no power to review its own order, was not in good faith and under bonafide belief. The period, so spent by the complainant in prosecuting the application for restoration of the complaint dismissed for non-prosecution, thus, could not be excluded for computing the period of limitation for filing an appeal under Section 15 of the Act. The submission of applicant/appellant, being devoid of merit, must fail and the same stands rejected.
20. For the reasons, recorded above, the application for condonation of delay of 231 days, in filing the appeal, being devoid of merit, must fail, and the same is dismissed. Consequently, the appeal, under Section 15 of the Act, is also dismissed, being barred by time, with no order as to costs.
21. Certified copies of this order, be sent to the parties, free of charge.
22. The file be consigned to Record Room, after completion Pronounced.
2nd August, 2013.
Sd/-
[JUSTICE SHAM SUNDER (RETD.)] PRESIDENT Sd/-
[DEV RAJ] MEMBER Ad STATE COMMISSION (First Appeal No.376 of 2012) Argued by:Sh.Gaurav Bhardwaj, Advocate for the applicant/ appellant.
Sh. Aman Singla, Advocate for respondent No.1.
Sh. I. P. Singh, Advocate for respondents No.2 & 3.
Dated the 2nd day of August, 2013.
ORDER During the pendency of appeal, the Counsel for the appellant moved an application seeking amendment of the memorandum of appeal. In the application, it was stated that inadvertently, the applicant/appellant could not challenge the order dated 15.2.2010 vide which the complaint was dismissed for non-prosecution. It was further stated that no prejudice was going to occasion to the respondents, in case the applicant/appellant was permitted to amend the memorandum of appeal by challenging the order dated 15.02.2012.
2. The respondents filed their respective replies, to the above application, wherein, it was stated that the application for amendment, was not maintainable. It was further stated that if the amendment was permitted, and the order dated 15.02.2013 was allowed to be challenged in this appeal, then, there would be a delay of 231 days in filing the appeal, which could not be condoned at all.
3. After hearing the Counsel for the parties, on the application for the amendment of memorandum of appeal and having gone through the record, we are of the considered opinion that no prejudice shall occasion to the respondents, in case, permission is granted to the appellant to amend the memorandum of appeal to challenge the order dated 15.02.2012, vide which the Consumer Complaint No.524 of 2011, was dismissed for want of prosecution In the absence of challenge to the main order dated 15.2.2012 vide which the complaint was dismissed for non-prosecution, appeal against the subsequent order dated 17.10.2012 was not maintainable. The amendment of the memorandum of appeal, is, thus, essential for the just decision of the case. Even otherwise, hyper technicalities, cannot be allowed to stay in the way of substantial justice. Therefore, the application is allowed. The amended memorandum of appeal has already been filed.
4. Vide our detailed order of the even date, recorded separately, the application for condonation of delay of 231 days, being devoid of merit, is dismissed. Consequently, the appeal under Section 15 of Consumer Protection Act, 1986, is also dismissed, being barred by time, with no order as to costs.
5. Copies of this order be sent to the parties free of charge.
Sd/-
sd/-
(DEV RAJ) MEMBER (JUSTICE SHAM SUNDER (RETD.)) PRESIDENT Ad