State Consumer Disputes Redressal Commission
Delhi Devlopment Authorithy vs S.C.Dixit on 11 May, 2023
FA/62/2023 DOD:11.05.2023
DELHI DEVELOPMENT AUTHORITY VS. S.C. DIXIT
IN THE DELHI STATE CONSUMER DISPUTES REDRESSAL
COMMISSION
Date of Institution:17.02.2023
Date of hearing :27.02.2023
Date of Decision :11.05.2023
FIRST APPEAL NO. 62/2023
IN THE MATTER OF
DELHI DEVELOPMENT AUTHORITY
LIG HOUSING, DDA OFFICE,
INA, VIKAS SADAN,
NEW DELHI-110023
...APPLICANT/APPELLANT
VERSUS
MR. S.C. DIKSHIT
E-28, IARI, PUSA CAMPUS,
NEW DELHI-110012
....NON-APPLICANT/ RESPONDENT
CORAM:
HON'BLE JUSTICE SANGITA DHINGRA SEHGAL (PRESIDENT)
HON'BLE MS. PINKI, MEMBER (JUDICIAL)
HON'BLE MR. J.P. AGRAWAL, MEMBER (GENERAL)
Present: Mr. Manika Tripathy standing counsel for DDA along with
Mr. Shiva Khandelwal and Mr. Jatin Sharma, counsel for
the applicant/appellant.
PER: HON'BLE MS. PINKI, MEMBER (JUDICIAL)
1.The present appeal has been filed on 17.02.2023 challenging the impugned order dated 28.01.2022 vide which Complaint Case No.137/2014 was allowed in favour of the respondent/non- applicant, by the District Consumer Disputes Redressal Forum-II (South-I), Udyog Sadan, C-22 & 23, Institutional Area, (Behind Qutub Hotel), New Delhi-110016.
DISMISSED Page 1 of 10FA/62/2023 DOD:11.05.2023 DELHI DEVELOPMENT AUTHORITY VS. S.C. DIXIT
2. This order will dispose off an application bearing IA No.392/2023 seeking condonation of delay of 254 days in filing the appeal, filed alongwith the appeal.
3. The record has been carefully and thoroughly perused.
4. The application has been moved under Section 5 of the Limitation Act, 1963. However, it is being considered under Section 15 of the Consumer Protection Act, 1986 as it is arising out in Complaint Case No.137/2014.
5. Application for condonation of delay has been filed on the various grounds. Para No.2 reads as under:-
"2. That it is submitted that the delay of 254 days is neither willful nor deliberate and has occasioned due to the fact that department was not functioning at full capacity at the time the impugned order was passed and due to the said reason there was delay in taking necessary steps as it became very difficult to communicate with the panel lawyers. The Department decided that they will file the present petition by 30th May, 2022 as per extension provided by the Supreme Court of India in Suo Moto Writ Petition (Civil) 3/2020 and in furtherance to the same the Department entrusted the Appeal to another penal lawyer who later returned the file due to some personal difficulty. It is pertinent to mention that after the file was returned by the previous counsel to the Department, the file of the subject was lost in transit and the same was only found again on 30/01/2023. After the file was found and discovered again, the same was entrusted/ sent to another penal lawyer who needed some time to peruse through the relevant documents and draft the present appeal. It is pertinent to mention that the delay in filing the present appeal is only because the file was lost in transit and same was only discovered/ found on 30/01/2023."
6. To adjudicate this issue, we deem it appropriate to refer to Section 15 of the Consumer Protection Act, 1986 which provides as under:-
DISMISSED Page 2 of 10FA/62/2023 DOD:11.05.2023 DELHI DEVELOPMENT AUTHORITY VS. S.C. DIXIT "Any person aggrieved by an order made by the District Forum may prefer an appeal against such order to the State Commission within a period of thirty days from the date of the order in such form and manner as may be prescribed.
Provided that the State Commission may entertain an appeal after the expiry of the said period of thirty days if it is satisfied that there was sufficient cause for not filing it within that period:
[Provided further that no appeal by a person, who is required to pay any amount in terms of an order of the District Forum, shall be entertained by the State Commission unless the appellant has deposited in the prescribed manner fifty per cent. of the amount or rupees thirty-five thousand, whichever is less]"
7. A perusal of the aforesaid statutory position reflects that the appeal against an order should be preferred within a period of thirty days from the date of impugned judgment. On perusal of record before us, it is clear that the impugned order was pronounced on 28.01.2022 and the present appeal was filed on 17.02.2023 i.e. after a delay of 355 days.
8. In order to condone the delay, the Appellant has to satisfy this Commission that there was sufficient cause for preferring the appeal after the stipulated period. The term 'sufficient cause' has been explained by the Apex Court in Basawaraj and Ors. vs. The Spl. Land Acquisition Officer reported in AIR 2014 SC 746. The relevant paras of the aforesaid judgment are reproduced as under:-
"9. Sufficient cause is the cause for which Defendant could not be blamed for his absence. The meaning of the word "sufficient" is "adequate" or "enough", inasmuch as may be necessary to answer the purpose intended. Therefore, the word "sufficient" embraces no more than that which provides a platitude, which when the act done suffices to accomplish the purpose DISMISSED Page 3 of 10 FA/62/2023 DOD:11.05.2023 DELHI DEVELOPMENT AUTHORITY VS. S.C. DIXIT intended in the facts and circumstances existing in a case, duly examined from the view point of a reasonable standard of a cautious man. In this context, "sufficient cause" means that the party should not have acted in a negligent manner or there was a want of bona fide on its part in view of the facts and circumstances of a case or it cannot be alleged that the party has "not acted diligently" or "remained inactive".
However, the facts and circumstances of each case must afford sufficient ground to enable the Court concerned to exercise discretion for the reason that whenever the Court exercises discretion, it has to be exercised judiciously. The applicant must satisfy the Court that he was prevented by any "sufficient cause"
from prosecuting his case, and unless a satisfactory explanation is furnished, the Court should not allow the application for condonation of delay. The court has to examine whether the mistake is bona fide or was merely a device to cover an ulterior purpose."
9. We also deem it appropriate to refer to Anil Kumar Sharma vs. United Indian Insurance Co. Ltd. and Ors. Reported in IV(2015)CPJ453(NC), wherein the Hon'ble NCDRC held as under:-
"12. .........we are not satisfied with the cause shown to justify the delay of 590/601 days. Day to day delay has not been explained. Hon'ble Supreme Court in a recent judgment of Anshul Aggarwal v. New Okhla Industrial Development Authority, IV (2011) CPJ 63 (SC) has held that while deciding the application filed for condonation of delay, the Court has to keep in mind that 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 the appeals and revisions, which are highly belated are entertained."DISMISSED Page 4 of 10
FA/62/2023 DOD:11.05.2023 DELHI DEVELOPMENT AUTHORITY VS. S.C. DIXIT
10. We further deem it appropriate to refer to Lingeswaran Etc. Versus Thirunagalingam in Special Leave to Appeal (C) Nos.2054-2055/2022decided on 25.02.2022,wherein the Hon'ble Supreme Court held as under: -
"5. We are in complete agreement with the view taken by the High Court. Once it was found even by the learned trial Court that delay has not been properly explained and even there are no merits in the application for condonation of delay, thereafter, the matter should rest there and the condonation of delay application was required to be dismissed. The approach adopted by the learned trial Court that, even after finding that, in absence of any material evidence it cannot be said that the delay has been explained and that there are no merits in the application, still to condone the delay would be giving a premium to a person who fails to explain the delay and who is guilty of delay and laches. At this stage, the decision of this Court in the case of PopatBahiruGoverdhane v. Land Acquisition Officer, reported in (2013) 10 SCC 765 is required to be referred to. In the said decision, it is observed and held that the law of limitation may harshly affect a particular party but it has to be applied with all its rigour when the statute so prescribes. The Court has no power to extend the period of limitation on equitable grounds. The statutory provision may cause hardship or inconvenience to a particular party but the Court has no choice but to enforce it giving full effect to the same.
11. From the aforesaid dicta of the Hon'ble Apex Court and the Hon'ble National Commission, it is clear that 'sufficient cause' means that the party should not have acted in a negligent manner or there was a want of bona fide on its part and the applicant must satisfy the Court that he was prevented by any "sufficient cause" from prosecuting his case, and unless a satisfactory DISMISSED Page 5 of 10 FA/62/2023 DOD:11.05.2023 DELHI DEVELOPMENT AUTHORITY VS. S.C. DIXIT explanation is furnished, the Court should not allow the application for condonation of delay.
12. Reverting to the material available before us, we find that the impugned order was passed on 28.01.2022 and the period of limitation starts from the date of order which had expired on 27.02.2022. However, the appellant has failed to file the present appeal within stipulated period.
13. On perusal of record, Para No.2 (recorded above in Para No.5) of the application for condonation of delay is the explanation given by the Appellant for the delay caused in filing this appeal. It has been submitted in the application that the department decided to file the present appeal by 30.05.2022 as per extension provided by the Supreme Court of India in Suo Moto Writ Petition (Civil) No. 3/2020; matter was given to the panel lawyer but he had returned the file due to some personal difficulty; thereafter, the concerned file was lost in transit which was found again on 30.01.2023.
14. Affidavit filed alongwith the application under disposal is blank. Para No.1 of the affidavit reads as under:
"That I am the deponent and the __________ of the ________ and well conversant with the facts and circumstances of the present matter and competent to swear the present affidavit."
15. However, there are no cogent reasons given by the Appellant to explain as to why it did not take immediate steps even after receiving the certified copy of the impugned order. Further, no document has been furnished by the Appellant to prove the contention as averred in the application. The appellant has failed to explain as to why it took 385 (355+30) days to file the present appeal when the pronouncement of the said order was known to them on 28.01.2022 i.e. the date on which impugned order was DISMISSED Page 6 of 10 FA/62/2023 DOD:11.05.2023 DELHI DEVELOPMENT AUTHORITY VS. S.C. DIXIT passed by the learned District Commission. It was for the appellant to explain, if the file was lost, why they had not applied for the certified copy of the file. However, no specific dates have been mentioned in the application seeking condonation of delay filed by the applicant/appellant. The Appellant failed to explain the day-to-day delay caused after the pronouncement of the impugned judgment. /Therefore, it is abundantly clear from the above that the appellant was moving at his own pace unmindful that the appeal is to be filed within 30 days from the date of order.
16. It is further submitted by the counsel for the Appellant that the Appellant is a government organization and due to the impersonal machinery, the delay occurred in taking various approvals for filing the present appeal. To this argument of the Appellant, we deem it appropriate to refer to the case of Office of The Chief Post Master General and Ors. Vs. Living Media India Ltd. and Ors. Reported at AIR 2012 SC 1506, wherein the apex court has held as under:
"12. .......The claim on account of impersonal machinery and inherited bureaucratic methodology of making several notes cannot be accepted in view of the modern technologies being used and available. The law of limitation undoubtedly binds everybody including the Government.
13. In our view, it is the right time to inform all the government bodies, their agencies and instrumentalities that unless they have reasonable and acceptable explanation for the delay and there was bonafide effort, there is no need to accept the usual explanation that the file was kept pending for several months/years due to considerable degree of procedural red-tape in the process. The government departments are under a special obligation to ensure that they perform their duties with diligence and commitment. Condonation of delay is an exception and should not be used as an anticipated benefit for government departments. The law shelters DISMISSED Page 7 of 10 FA/62/2023 DOD:11.05.2023 DELHI DEVELOPMENT AUTHORITY VS. S.C. DIXIT everyone under the same light and should not be swirled for the benefit of a few."
17. Relying on the above settled law and considering the fact that there was no proper explanation offered by the appellant for the delay except mentioning of events, according to us, the Appellant has miserably failed to give any acceptable and cogent reasons sufficient to condone such delay. Accordingly, the application filed by the Appellant seeking condonation of delay is without any merit and needs to be dismissed.
18. Appellant has also referred the order dated 10.01.2022 passed by Hon'ble Supreme Court in Suo Moto Writ petition (Civil) No. 3 of 2020 vide which the period of limitation was condoned from 15.03.2020 to 28.02.2022 and was further for another 90 days in the cases where the limitation has expired during the period between 15.03.2020 till 28.02.2022. The relevant para of the judgment reads as under:
5. Taking into consideration the arguments advance by learned counsel and the impact of the surge of the virus on public health and adversities faced by litigants in the prevailing conditions, we deem it appropriate to dispose of the MA No.21 of 2022 with the following directions:
I. The order dated 23.03.2020 is restored and in continuation of the subsequent orders dated 08.03.2021, 27.04.2021 and 23.09.2021, it is directed that the period from 15.03.2020 till 28.02.2022 shall stand excluded for the purposes of limitation as may be prescribed under any general or special laws in respect of all judicial or quasi-judicial proceedings.
II. Consequently, the balance period of limitation remaining as on 03.10.2021, if any, shall become available with effect from 01.03.2022.
III. In cases where the limitation would have expired during the period between 15.03.2020 till 28.02.2022, notwithstanding the actual balance period of limitation remaining, all persons shall have a limitation period of 90 days from 01.03.2022. In the event the actual balance period of limitation DISMISSED Page 8 of 10 FA/62/2023 DOD:11.05.2023 DELHI DEVELOPMENT AUTHORITY VS. S.C. DIXIT remaining, with effect from 01.03.2022 is greater than 90 days, the longer period shall apply.
IV. It is further clarified that the period from 15.03.2020 till 28.02.2022 shall also stand excluded in computing the periods prescribed under Section 23(4) and 29A of the Arbitration and Conciliation Act, 1996, Section 12A of the Commercial Courts Act, 2015 and provisos (b) and (c) of Section 138 of the Negotiable Instruments Act, 1881 and any other laws, which prescribe period(s) of limitation for instituting proceedings, outer limits (within which the court or tribunal can condone delay) and termination of proceedings.
In the present case, though the Appellant has referred the suo- moto order passed by the Hon'ble Supreme Court, however, it has failed to explain the delay in filing the appeal from 15.11.2019 (the period by which the appeal should have been filed) till 15.03.2020. It is the case of the Appellant that the Appellant on 16.10.2019, the counsel for Appellant reached late before the District Commission and by that time the matter was already taken up and was adjourned to 15.01.2020 and on 15.01.2020 he submitted before the Ld. District Commission that matter can be amicably settled and the matter was adjourned for 07.02.2020. On 07.02.2020, he again reached Ld. District Commission late and the matter was adjourned for 26.03.2020 and thereafter there was spread of COVID 19. It is unimaginable that counsel for the Appellant did not enquire about the order passed on 16.10.2019, whereas in other orders passed by the Ld. District Commission, it is mentioned that OP is ex-parte.Further, despite stating before District Commission, the Appellant did not contact the Respondent/Complainant for amicable settlement. Therefore, the averments of the Appellant that it was unaware of the order passed on 16.10.2019 cannot be relied upon and is merely an eyewash. The Appellant deliberately choose not to appear before the Ld. District Commission DISMISSED Page 9 of 10 FA/62/2023 DOD:11.05.2023 DELHI DEVELOPMENT AUTHORITY VS. S.C. DIXIT
19. From the aforesaid, it is clear that after being well aware of the proceedings, the Appellant acted in a negligent manner and has failed to explain the sufficient cause for condonation of delay. In view of the aforesaid, the Appellant is not entitled to avail the benefit of the order passed by the Hon'ble Supreme Court, as it is settled law that 'sufficient cause' means that the party should not have acted in a negligent manner and applicant must satisfy the Court that he was prevented by any "sufficient cause" from prosecuting his case, and unless a satisfactory explanation is furnished, the Court should not allow the application for condonation of delay.
20. Having regard to the statutory position discussed in para supra and the facts of the case, the applicant/appellant has failed to show any sufficient cause for the delay in filing the present appeal. Therefore, the application filed by the appellant seeking condonation of delay cannot be admitted and accordingly, the same is dismissed on the above grounds.
21. Consequently, the present appeal filed beyond the statutory period also stands dismissed. However, in the facts of the case, there shall be no order as to cost.
22. File be consigned to record room.
JUSTICE SANGITA DHINGRA SEHGAL (PRESIDENT) PINKI MEMBER (JUDICIAL) J.P. AGRAWAL (GENERAL) Pronounced on 11.05.2023.
DISMISSED Page 10 of 10