State Consumer Disputes Redressal Commission
Olx India Private Limited vs Rajiv Sharma on 16 May, 2024
ADDITIONAL BENCH
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB, DAKSHIN MARG, SECTOR-37 A,CHANDIGARH
Misc. Application No.114 of 2024
In/and
First Appeal No.62 of 2024
Date of institution : 23.01.2024
Reserved on : 24.04.2024
Date of decision : 16.05.2024
OLX India Private Limited, ground floor, Tower No.-A, DLF Corporate
Park, DLF City Phase-III, M.G. Road, Gurugram, Haryana (Old
Address) through its Authorized Representative Office at 12th Floor,
Tower B, DLF Cuber Park Phase-5, Udyog Vihar Phase-II, Sector-20,
Gurgaon, Haryana.
.....Appellant/OP
Versus
1. Rajiv Sharma S/o Sh. Maan Chand Sharma, R/o House No.180,
Parvati Enclave, Baltana, Zirakpur, District SAS Nagar, Mohali.
2. Ananya Sharma D/o Sh. Rajiv Sharma, R/o House No.180,
Parvati Enclave, Baltana, Zirakpur, District SAS Nagar, Mohali.
....Respondents/complainants
First Appeal under Section 41 of the
Consumer Protection Act, 2019 against the
order dated 17.10.2022 passed by the
District Consumer Disputes Redressal
Commission, SAS Nagar, Mohali in
CC/161/2022
Quorum:-
Mr. Harinder Pal Singh Mahal, Presiding Judicial Member
Mrs. Kiran Sibal, Member Present:-
For the appellant : Sh. Varun Dhawan, Advocate
For the respondent : Sh. Sandeep Bhardwaj, Advocate
KIRAN SIBAL, MEMBER
FA No.62 of 2024 2
Misc. Application No.114 of 2024 (Delay)
The applicant/appellant has filed this application alongwith the appeal for condoning the delay of 402 days in filing the appeal on the grounds that the applicant was not aware of the proceedings before the District Commission as the matter was decided Ex-parte. The applicant got the information for the first time, when the applicant received the summons dated 14.11.2023 in the Execution Petition bearing No.EA/75/2023 filed by the respondents/complainants. Thereafter, the applicant had applied for the certified copy of the complaint and the same was received by it on 20.12.2023. Thereafter, the counsel for the applicant approached this Commission on 23.01.2024 for filing the appeal. However, the registry of this commission refused to accept the appeal in the absence of 50% of the awarded amount. Thereafter after preparing the Demand draft of the said amount, the present appeal has been filed. The appellant has submitted that in this entire process, the delay of 402 days in filing the appeal has occurred, which is neither intentional nor deliberate, and prayed for acceptance of the present application.
2. This application has been contested by the respondents/complainants by filing written reply, wherein, they raised preliminary objection with regard to its maintainability as the appeal along with the application has been filed without proper authorization/resolution and without mentioning the actual days of delay i.e. more than 430 days. It has been further stated that the grounds taken for condonation of delay are totally false and no specific dates and evidence has been filed in order to prove the same. The FA No.62 of 2024 3 applicant/OP was proceeded against exparte vide order dated 01.06.2022 and the applicant has nowhere pleaded that the address being mentioned in the complaint is incorrect, rather the same has been mentioned in the memo of parties in the present appeal. In support of his contentions, the learned counsel has relied upon the judgments of Hon'ble Supreme Court in the case of "D.D.A. Vs. Krishan Lal Nandrayog' IV (2010) CPJ-7 (SC) and 'State Bank of India Vs. B.S. Agriculture Industries (I) 2009 CTJ-481 (SC)(CP), and prayed for dismissal of the present application.
3. We have heard the learned counsel for the parties and have carefully gone through the record.
4. At the outset, we would like to deal with the preliminary objection raised by learned counsel for respondents/complainants with regard to maintainability of the application as well as the appeal because of the fact that 'Sh. Vikramjeet Singh', has mentioned himself to be authorized representative of 'OLX India Private Limited', whereas the resolution has been issued by 'Sobek Auto India Pvt. Ltd.' in favour of said 'Vikramjeet Singh' to represent it and not the applicant/appellant. We have perused the contents of the application as well as appeal. It has been specifically stated in the appeal that the appellant/OP entered into a Business Transfer Agreement dated 30.06.2023 with the company namely 'M/s Sobek Auto India Private Limited' and therefore as per the agreement all the business of the 'OLX India Pvt. Ltd.' was transferred to Sobek Auto India Pvt. Ltd. Accordingly, Sh. Vikaramjeet Singh was duly authorized, vide board FA No.62 of 2024 4 resolution annexure A-2, to represent the appellant/OP to defend the cases filed against it. Hence, we do not find any force in the contention raised by learned counsel for respondents/complainants regarding maintainability of the present application as well as appeal.
5. Now, to proceed further, it is pertinent to mention here that as per Section 41 of the Consumer Protection Act, 2019, 45 days period has been granted for filing the appeal, provided, if any, sufficient cause is given for not filing the appeal within the prescribed period. Although the sufficient cause has not been defined in the Act because it would vary from the facts and circumstances of each and every case. This time limit has been prescribed in the Act itself just to expedite the matter in granting the relief to the aggrieved consumers and this cannot be taken as a matter of right and the courts can exercise its powers with discretion to condone the delay with proper explanation.
6. In the present case, the main ground raised by the applicant for condonation of delay is that the applicant was not aware about the proceedings before the District Commission as the matter was decided exparte and it got the information of filing a consumer complaint against it, when it received the summons dated 14.11.2023 in the Execution Petition. But the perusal of Zimini order dated 01.06.2022, reveals that the District Commission proceeded the applicant/OP against exparte as the notice along with AD issued to the OP to effect its service was not received back either served or unserved. Further, the applicant/OP had failed to appear despite FA No.62 of 2024 5 presumption of service as the statutory period of 30 days had been elapsed. The applicant in the present application for condonation of delay, has merely stated that it was not aware about the proceedings, but it has nowhere pleaded that it has not received any summon/notice in the consumer Complaint filed before the District Commission due to mentioning of wrong or incorrect address in the complaint. Even from the perusal of certified copy of impugned order, attached with the present appeal, it shows that the free certified copy of order was sent to applicant/OP by post on 02.11.2022 and there is nothing on record to show that the said free certified copy has not been received by the applicant/OP. Even the applicant has not specifically pleaded, in the present application for condonation of delay, that it has not received the free certified copy of the impugned order at the relevant time. Accordingly, we do not find any force in the contention raised by the applicant that he was not aware about the proceedings before the District Commission qua filing of consumer complaint against it. The applicant has intentionally not contested the complaint before the District Commission and now at this belated stage approached this Commission and took an inordinate long delay in filing the appeal despite the fact that it was very much aware of the proceedings and the same were in its complete knowledge. The law is very clear that in the condonation of delay application, the party who is seeking relief has to explain the delay of each and every day with plausible reasons with proof and also to prove that the delay is not caused just to frustrate the claim of the respondents/complainants. But the applicant has failed to explain the delay of each and every day. In such a FA No.62 of 2024 6 scenario, we are of the opinion that the applicant is having a casual approach and has not dealt with the matter seriously. The explanation for the said delay is also not sufficient for condoning the delay. The very purpose of the Act would be defeated in case the delay is condoned without any sufficient ground.
7. Reliance is placed on the judgment of Hon'ble Supreme Court passed in "Anshul Aggarwal Vs. New Okhla Industrial Development Authority", 2011(14) SCC 578 whereby it has been held that while deciding an application for condonation of delay in the cases under the Consumer Protection Act, 1986, the Court has to keep in mind that special period of limitation has been prescribed under the Act for filing the appeal and revision in consumer matters and the object of expeditious adjudication of the consumer disputes will get defeated, if the highly belated petitions are to be entertained.
8. Moreover, the Hon'ble Supreme Court in another case "Lanka Venkateshwarlu (D) By LRs. Vs. State of A.P. & Others", 2011 (2) RCR Civil -880 (SC), after considering the entire case law on the point of delay, in Para -26 observed as under:-
"Once a valuable right has accrued in favour of one party as a result of the failure of the other party to explain the delay by showing sufficient cause and its own conduct, it will be unreasonable to take away that right on the mere asking of the applicant, particularly when the delay is directly a result of negligence, default or inaction of that party. Justice must be done to both parties equally. Then alone the ends of justice can be achieved. If a party has been thoroughly negligent in implementing its rights and remedies, it will be equally unfair to deprive the other party of a valuable right that has accrued to it in law as a result of his acting vigilantly".
9. In view of above discussion and ratio of above cited case law, we do not find any ground to condone the inordinate delay of 402 days FA No.62 of 2024 7 in filing the present appeal. Accordingly, there is no merit in the application for condonation of delay and the same is hereby dismissed.
Main Appeal
10. Since, the application for condonation of delay has been dismissed, hence the appeal is barred by time and is ordered to be dismissed in-limine as time barred.
11. The appellants had deposited a sum of Rs.43,367/- at the time of filing of the appeal. This amount alongwith interest, which has accrued thereon, if any, shall be remitted by the registry to the District Commission forthwith. The respondents/complainants may approach the District Commission for the release of the above amount and the District Commission may pass the appropriate order in this regard after the expiry of limitation period in accordance with law.
(H.P.S.MAHAL) PRESIDING JUDICIAL MEMBER (KIRAN SIBAL) MEMBER May 16, 2024 dv