National Consumer Disputes Redressal
Koganti Atchuta Rao & Anr. vs Putcha Purnachandra Rao on 9 April, 2013
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO.728 OF 2013 WITH INTERIM APPLICATION NO.1327 OF 2013 INTERIM APPLICATION NO. 1328 OF 2013 (STAY & EXEMPTION FROM FILING CERTIFIED COPY) (From the order dated 31.12.2012 in FAIA No.1922/2012 in FASR No.4381/2012 of the State Commission Andhra Pradesh) 1. Koganti Atchuta Rao S/o Late Gopala Krishnaiah Flat No.101, C-46, Pedaprolu Nest, Madhura Nagar, Hyderabad-500 038 Andhra Pradesh 2. Smt. Koganti Lakshmi Sridevi W/o Atchuta Rao Flat No.101, C-46, Pedaprolu Nest, Madhura Nagar, Hyderabad-500 038 Andhra Pradesh ... Petitioners Versus Putcha Purnachandra Rao S/o Late Gopala Krishna Murthy D.N.30-18-28A, II Floor, Inavolu Vari Street, Seetharampuram VIJAYAWADA-520 004 Krishna District Andhra Pradesh ..... Respondent BEFORE: HON'BLE MR.JUSTICE AJIT BHARIHOKE, PRESIDING MEMBER HONBLE MR.SURESH CHANDRA, MEMBER For the Petitioners : Mr. G.V.R. Choudary, Advocate For the Respondent : Mr. Parnam Prabhakar, Advocate (Caveator) PRONOUNCED ON 09th APRIL, 2013 ORDER
PER JUSTICE AJIT BHARIHOKE, PRESIDING MEMBER Being aggrieved of dismissal of their application for condonation of delay as well as appeal vide order dated 31.12.2012 of the State Commission the petitioners/opposite parties have preferred this revision petition.
Briefly stated facts relevant for the disposal of this revision petition are that the respondent/complainant filed consumer complaint under Section 12 of the Consumer Protection Act, 1986 against the petitioners alleging deficiency in service and claimed compensation to the tune of Rs.17,64,400/- with 24% interest p.a. besides the cost of litigation.
Notice of the complaint was sent to the petitioners but the petitioners failed to put in appearance before the District Forum-II, Krishna at Vijaywada. The District Forum therefore proceeded ex-parte against the petitioners/opposite parties and allowed the complaint. The petitioners were directed to pay sum of Rs.17,64,400/- to the complainant with interest @ 9% from the date of filing of the complaint till the date of realization besides cost amounting to Rs.2,000/-.
Aggrieved by the order of the District Consumer Forum, petitioners preferred an appeal after a delay of 1088 days. Alongwith the appeal an application for condonation of delay was filed. The cause shown by the petitioners for inordinate delay in filing of appeal as set out in the affidavit filed alongwith the application before the State Commission is that on coming to know of the ex-parte order, the petitioners moved an application, being I.A. No.1481/2009, under Order 9 Rule 13 C.P.C. for setting aside the ex-parte order. The District Forum however dismissed the application on 18.7.2009.
Aggrieved by the order of dismissal of application under Order 9 Rule 13 C.P.C. the petitioners filed Civil Writ Petition No.3938/2009 before Honble High Court of Andhra Pradesh. The writ petition was dismissed by the Honble High Court on 12.8.2011 observing that it was not maintainable since alternative remedy is available to the petitioners under Section 17 (1) (b) of Consumer Protection Act, 1986. Thereafter the petitioners filed revision petition No.4950/2011 before the State Commission on 5.9.2011 which was withdrawn by the petitioners on 18.11.2011 in order to prefer a regular appeal. It is further alleged that in the meanwhile the petitioners were negotiating an amicable settlement with the complainant but he dragged on the settlement on one pretext or other. When the settlement did not come through, the petitioners filed the appeal in the State Commission.
The State Commission being not satisfied with the explanation given for delay in filing of the appeal, declined to condone the delay. Accordingly the application for condonation of delay was dismissed. Consequently the appeal was also dismissed being barred by limitation.
Learned counsel Shri G.V.R. Choudary, Advocate appearing on behalf of the petitioners has contended that the impugned order of the State Commission declining to condone the delay in filing of the appeal has been passed in utter disregard of Section 14 of the Limitation Act, 1963 which provides that if a litigant due to bona-fide mistake pursues his right before a wrong forum the period consumed before that forum ought to be excluded while computing the period of limitation. Expanding on the arguments counsel for the petitioners submitted that the State Commission has failed to appreciate that under mistaken belief the petitioners preferred a writ petition against the order of District Forum before the High Court of Andhra Pradesh instead of filing the appeal before the State Commission and that period ought to have been excluded while computing the period of limitation. In support of this contention learned counsel has relied upon the judgment of the Supreme Court in the matter of Rameshwarlal vs. Municipal Council, Tonk (1996) 6 SCC 100 as also Union of India vs. West Coast Paper Mills Ltd. (2004) 3 SCC 458 and Consolidated Engineering Enterprises vs. Principal Secretary Irrigation Department (2008) 7 SCC 169.
Learned Shri Parnam Prabhakar, Advocate for the respondent (Caveator) on the contrary has argued in support of the impugned order of the State Commission. Learned counsel for the respondent contended that the State Commission has rightly dismissed the application for condonation of delay in the light of the judgment of the Supreme Court in the matter of M/s Advance Scientific Equipment Ltd. & Another vs. West Bengal Pharma & Photochemical Development Corporation Ltd. (Appeal (Civil) Nos.170-17069/2010 decided on 9th July, 2010.
We have considered the rival contentions and perused the matter on record. In the matter of Rameshwarlal vs. Municipal Council, Tonk (supra) Honble Supreme Court held as follows: -
Normally for application of Section 14, the Court dealing with the matter in the first instance, which is the subject of the issue in the latter case, must be found to have lack of jurisdiction or other cause of like nature to entertain the matter. However, since the High Court expressly declined to grant relief relegating the petitioner to a suit in civil Court, the petitioner cannot be left remedyless. Accordingly, the time taken in prosecuting the proceedings before the High Court and this Court obviously pursued diligently and bona fide, needs to be excluded.
In the matter of Union of India vs. West Coast Paper Mills Ltd. (supra) the Supreme Court while dealing with Section 14 of the Limitation Act observed thus: -
In the submission of the learned senior counsel, filing of civil writ petition claiming money relief cannot be said to be a proceeding instituted in good faith and secondly, dismissal of writ petition on the ground that it was not an appropriate remedy for seeking money relief cannot be said to be "defect of jurisdiction or other cause of a like nature' within the meaning of Section 14 of the Limitation Act. It is true that the writ petition was not dismissed by the High Court on the ground of defect of jurisdiction. However, Section 14 of the Limitation Act is wide in its application, inasmuch it is not confined in its applicability only to cases of defect of jurisdiction but it is applicable also to cases where the prior proceedings have failed on account of other causes of like nature. The expression "Other cause of like nature" came up for the consideration of this Court in Roshanlal Kuthalia and Ors. v. R.B. Mohan Singh Oberai. AIR (1975) SC 824 = (1975) 4 SCC 628 and it was held that Section 14 of the Limitation Act is wide enough to cover such cases where the defects are not merely jurisdictional strictly so called but others more or less neighbours to such deficiencies. Any circumstances, legal or factual, which inhibits entertainment or consideration by the Court of the dispute on the merits comes within the scope of the Section and a liberal touch must inform the interpretation of the Limitation Act which deprives the remedy of one who has right.
Further in the matter of Consolidated Engineering Enterprises (supra) it was observed thus: -
Section 14 of the Limitation Act deals with exclusion of time of proceeding bona fide in a court without jurisdiction. On analysis of the said section, it becomes evident that the following conditions must be satisfied before Section 14 can be pressed into service:
(1) Both the prior and subsequent proceedings are civil proceedings prosecuted by the same party;
(2) The prior proceeding had been prosecuted with due diligence and in good faith;
(3) The failure of the prior proceeding was due to defect of jurisdiction or other cause of like nature;
(4) The earlier proceeding and the latter proceeding must relate to the same matter in issue and;
(5) Both the proceedings are in a court.
The policy of the section is to afford protection to a litigant against the bar of limitation when he institutes a proceeding which by reason of some technical defect cannot be decided on merits and is dismissed. While considering the provisions of Section 14 of the Limitation Act, proper approach will have to be adopted and the provisions will have to be interpreted so as to advance the cause of justice rather than abort the proceedings. It will be well to bear in mind that an element of mistake is inherent in the invocation of Section 14. In fact, the section is intended to provide relief against the bar of limitation in cases of mistaken remedy or selection of a wrong forum. On reading Section 14 of the Act it becomes clear that the legislature has enacted the said section to exempt a certain period covered by a bona fide litigious activity. Upon the words used in the section, it is not possible to sustain the interpretation that the principle underlying the said section, namely, that the bar of limitation should not affect a person honestly doing his best to get his case tried on merits but failing because the court is unable to give him such a trial, would not be applicable to an application filed under Section 34 of the Act of 1996. The principle is clearly applicable not only to a case in which a litigant brings his application in the court, that is, a court having no jurisdiction to entertain it but also where he brings the suit or the application in the wrong court in consequence of bona fide mistake or (sic of) law or defect of procedure. Having regard to the intention of the legislature this Court is of the firm opinion that the equity underlying Section 14 should be applied to its fullest extent and time taken diligently pursuing a remedy, in a wrong court, should be excluded.
On perusal of the aforesaid judgments as also Section 14 of the Limitation Act which is reproduced in the above observations it is evident that benefit of Section 14 of the Limitation Act would be available to the petitioners only if they had pursued the remedy in the wrong forum with due diligence and in good faith. Thus the bona-fides of the petitioners seeking advantage of Section 14 of the Limitation Act is the key factor for deciding whether or not the benefit is to be extended.
In this context, it would be pertinent to refer to a decision of Honble Supreme Court in M/s Advance Scientific Equipment Ltd. & Anr. (supra) in which Court 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.
While dealing with the issue pertaining to condonation of delay the Supreme Court in the matter of Anshul Aggarwal vs. New Okhla Industrial Development Authority IV (2011) CPJ 65 (SC) has observed thus: -
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.
Decision of Anshul Aggarwal (supra) has been reiterated in Cicily Kallarackal Vs. Vehicle Factory, IV (2012) CPJ 1(SC) 1, wherein Honble Supreme Court observed:-
4 This Court in Anshulal Aggarwal v.
NOIDA, (2011) CPJ 63 (SC) has explained the scope of condonation of delay in a matter where the special Courts/Tribunals have been constituted in order to provide expeditious remedies to the person aggrieved and Consumer Protection Act, 1986 is one of them. Therefore, this Court held that while dealing with the application for condonation of delay in such cases the Court must keep in mind the special period of limitation prescribed under the statute (s).
5. In the instant case, condoning such an inordinate delay without any sufficient cause would amount to substituting the period of limitation by this Court in place of the period prescribed by the Legislature for filing the special leave petition. Therefore, we do not see any cogent reason to condone the delay.
6. Hence, in the facts and circumstance of the case as explained hereinabove, we are not inclined to entertain these petitions. The same are dismissed on the ground of delay.
In the aforesaid judgment Honble Supreme Court has highlighted that while dealing with an application for condonation of delay the Court must bear in mind the object of expeditious disposal of consumer dispute which would get defeated if the Court was to entertain highly belated petitions.
If we go through the factual matrix of this case the petitioners admittedly failed to put in appearance before the District Forum and allowed the complaint to be proceeded ex-parte. Thereafter the petitioners instead of filing an appeal against the order of the District Forum filed a writ petition challenging the order of the District Forum. Not only this when the writ petition was dismissed by the High Court then also the petitioners instead of filing appeal filed a revision petition in the State Commission which was later on withdrawn and the appeal was filed. Thus conduct of the petitioners reflects on their mala-fide intention to delay the proceedings. Thus under the circumstances by no stretch of imagination the petitioners are entitled to benefit of Section 14 of Limitation Act.
Even if for the sake of argument benefit of Section 14 of Limitation Act is given to the petitioners and the period during which the petitioners were pursuing writ petition before the High Court is excluded, then also the appeal filed was highly belated. Admittedly writ petition was dismissed by the High Court on 12.8.2011 and the appeal was filed before the State Commission on 21.8.2012 i.e. after the expiry of one year from the dismissal of the writ petition by the High Court. Only explanation for this delay is that during the intervening period petitioners were negotiating amicable settlement with the father of the complainant which in our view is not acceptable. Thus even if the benefit of Section 14 of Limitation Act is given to the petitioners the appeal filed before the State Commission was hopelessly time barred and there was no justification for coondonation of delay in filing of appeal.
Learned counsel for the petitioners has further submitted that the finding of the State Commission to the effect that the petitioners were duly served with the notice in the light of Section 28-A (4) of the Consumer Protection Act, 1986 is erroneous and against the record. Expanding on the argument, learned counsel for the petitioners has taken us through the order of the District Forum wherein the District Forum has observed that notices sent to the opposite parties were returned unserved. So the notices by publication were ordered. It is contended that once the notices were received back undelivered presumption of service by Section 28-A (4) of the Consumer Protection Act, 1986 should not have been drawn. It is also argued that the service by publication is not a recognized mode of service under Section 28-A (4) of the Consumer Protection Act, 1986. As such the ex-parte order passed by the District Forum against the petitioners is not sustainable and if the delay in filing appeal before the State Commission is not condoned, the petitioners would suffer grave injustice.
The above contention of learned counsel for the petitioners is misconceived. From the order of the District Forum it is evident that effort was made to serve the petitioners with the notices of the complaint by ordinary process. Not only this undisputedly the notices were sent to the petitioners at the correct address which is given by the petitioners in their revision petition. Under these circumstances, we can safely infer that the notices sent by post to the petitioners were received back undelivered because of avoidance of the petitioners to receive the notices. When the notices were received back undelivered only option left with the District Forum was to resort to the substituted service by publication which was exercised. Thus, we do not find any fault with the District Forum having proceeded ex-parte against the petitioners after resorting to substituted service of the appeal by publication in newspapers.
In view of the discussion above, we do not find any fault in the order of the State Commission declining to condone the delay of 1088 days in filing of appeal, which may justify interference by this Commission in exercise of its revisional jurisdiction.
Revision petition is therefore dismissed with punitive cost of Rs.20,000/- to be deposited by the petitioners with the Consumer Legal Aid Fund maintained by the Union Ministry within four weeks.
List on 24th May, 2013 for compliance.
....
(AJIT BHARIHOKE, J.) PRESIDING MEMBER .
(SURESH CHANDRA) MEMBER Raj/