State Consumer Disputes Redressal Commission
Paytm vs Puneet Kashyap And Others on 19 February, 2021
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB, CHANDIGARH.
Misc. Application No.79 of 2021
In/and
First Appeal No.9 of 2021
Date of institution : 14.01.2021
Date of Decision : 19.02.2021
Paytm.com (Head Office) B-121 Noida, Uttar Pradesh through its
Authorized Representative Mr. Lokesh Sugandh.
....Appellant/Opposite Party No.1
Versus
1. Puneet Kasyap S/o Rajesh Kumar, Resident of Gali No.3, Ankhi
Nagar, Phagwara, Distt. Kapurthala, Punjab
....Respondent No.1/Complainant
2. Electronics HUB (58804) Ist Floor, Plot No.8, Above Dawarkadas
Shyamkumar, Opp. HPCL Office, Sector G, Towncenter, Aurangabad,
State Maharashtra
3. Blue Dart Courier through Manager Sunil Kumar, NH 1, Jalandhar-
Amritsar Bypass, Near Indian Oil Depot, Jalandhar, Punjab 144006 and
Corporate office Sahar Airport Road, Near Hyatt Regency, Ashok Nagar,
Andheri East, Mumbai, Maharashtra 400099.
....Respondents No.2&3/Opposite parties No.2&3
Miscellaneous Application for condonation of
delay of 283 days in filing the appeal.
IN/AND
First Appeal against the order dated
05.03.2020 of the District Consumer Disputes
Redressal Forum (now Commission),
Kapurthala.
Quorum:-
Hon'ble Mr. Justice Paramjeet Singh Dhaliwal, President
Mr. Rajinder Kumar Goyal, Member
1) Whether Reporters of the Newspapers may be allowed to see the Judgment? Yes/No
2) To be referred to the Reporters or not? Yes/No
3) Whether judgment should be reported in the Digest? Yes/No First Appeal No.9 of 2021 2 Present:-
For the appellant : Sh.Puneet Kakkar, Advocate
JUSTICE PARAMJEET SINGH DHALIWAL, PRESIDENT
This appeal, alongwith Miscellaneous Application for
condoning the delay of 283 days in filing the appeal, has been filed against the order dated 05.03.2020 passed by District Consumer Disputes Redressal Forum (now 'Commission'), Kapurthala (in short, "District Commission"), vide which the complaint filed by the complainant under Section 12 of the Consumer Protection Act, 1986, was partly allowed against OPs No.1&2 only, who were jointly and severally liable and directed to refund the price amount of the mobile phone i.e. Rs.1,24,690/- to the complainant with interest @12% per annum from the date of delivery i.e. 8.2.2019 till realization and further to pay compensation to the complainant for causing mental tension and harassment to the tune of Rs.15,000/- and litigation expenses of Rs.7,000/-. They were directed to comply with the order within one month from the date of receipt of copy of the order.
2. It would be apposite to mention that hereinafter the parties will be referred, as have been arrayed before the District Commission. Facts of Complaint
3. Brief facts of the complaint are taken from impugned order are that OP No.1 is running online application software through which people purchase different goods/items as per their needs and make payment. OP No.2 is the original seller of electronic goods and OP No.3 is the courier company, who deliver goods to the customers. Complainant placed an order of one iphone Xs Max 256 Gold with Rs.1,24,690/- through OP No.1 vide order No.7259422848 on 4.2.2019 with his PayTm Id Puneet Sharma, [email protected], Mobile No.85578-68286 and the First Appeal No.9 of 2021 3 payment of Rs.1,24,690/- was duly processed/made by the complainant to OP No.1 through ICICI Bank Net Banking at the time of order and an amount of Rs.1,24,690/- was debited in his saving account. It is averred that on 8.2.2019, complainant got a phone call from the side of OP No.3 informing him that his parcel is ready for its delivery. The complainant confirmed the parcel and OP No.3's delivery boy delivered the parcel to the complainant. Thereafter, complainant started to open the said parcel and found that instead of ordered mobile phone iphone Xs Max 256 Gold, a mobile of Redmi 6A lying inside the parcel having very inferior value. Complainant was shocked by seeing the same because this was not the product which he had ordered, as such, he shoot the video, while opening that parcel. It is averred that he immediately contacted with OP No.1 on its Customer Care No.01133776677 and reported the whole incident of fraud with him. The representative of OP No.1 received the complaint and gave assurance to investigate this fraud. Thereafter, the complainant also contacted OP No.3 and called to Sunil Kumar, who is the manager/representative of OP No.3 at Jalandhar, who also gave assurance to the complainant to look into this matter seriously. Thereafter, complainant called several times at the customer care number and talked with Executives and other related persons of OPs No.1&3 and also provided every document, which they asked but of no use. Complainant gave written complaints to OP No.1 through his email on 9.2.2019. OP No.1 again gave assurance for speedy resolution to this matter but despite several requests and providing requisite documents, OP did not act upon his request and also refused to make any investigation further. It is averred that ultimately they refused to refund the price of the mobile phone. Complainant faced physical and mental agony due to the act and conduct of the OPs and he was forced to file the consumer complaint with the First Appeal No.9 of 2021 4 prayer that OPs be directed to reimburse the price of mobile i.e. Rs.1,24,690/- or in the alternative deliver the iphone Xs Max 256 Gold and get back his product Redmi 6A. It was further prayed that OPs be directed to pay Rs.2,00,000/- as compensation for causing mental tension, agony and Rs. 10,000/- as litigation expenses.
4. Upon notice, OP No.2 failed to appear and was proceeded against exparte. Whereas OP No.1 filed its written reply taking preliminary objections that OP No.1 is a company incorporated under the provisions of the Companies Act 2013, and is the owner of the website www.paytmmall.com alongwith mobile application named "Paytm Mall & Bazaar" which is an online market place and provides only a platform for different sellers to sell their products and for different buyers to access and purchase amongst variety of goods offered by various sellers subject to the terms and conditions as enumerated on the website of OP No.1. OP No.1 acts only as an intermediary between seller and buyer and further submitted that Paytm E-commerce is not liable for any manufacturing defect, faulty product received, warranty claims, after sales service for any products purchased on the paytm platform, so there is no deficiency in service on the part of OP No.1. On merits, it is admitted that complainant placed an order for purchase of Apple iphone Xs Max 256 GB Gold and the same was delivered from OP No.2 but other allegations as made in the complaint are categorically denied and lastly submitted that the complaint of the complainant is without merits and the same may be dismissed.
5. OP No.3 filed its separate written reply by taking preliminary objections that OP-Blue Dart Express Limited is a listed company registered under the provision of Companies Act, 1956 and is engaged in courier business and is one of the most reputed courier companies in India. It is further pleaded that OP No.3 has entered into an agreement First Appeal No.9 of 2021 5 with Paytm Communication Limited to carry shipments of paytm/its vendors from the point of origin to the destination as specified. All shipments are picked up in intact/sealed condition and delivered to the consignee in same condition. As per the agreement executed with the Paytm, the liability of this OP, qua Paytm is limited to Rs.5,000/- per shipment or the invoice value declared or the cost of reconstruction, whichever is lower. It is further pleaded that complainant did not obtain any services of this OP at any point of time, so the complainant does not fall under the definition of 'Consumer' of this OP, as such, the present complaint is liable to be dismissed qua it. On merits, it is admitted that this OP picked up the sealed parcel from OP No.2 for its delivery to the complainant, which was delivered to the complainant on 8.2.2019 in sealed condition. It is further pleaded that this OP has no role in packing of the product rather this OP picks the sealed parcel from the consignor for its delivery to the consignee and as such, there is no deficiency in service on the part of this OP. It is submitted that the complaint of the complainant is without merits and same may be dismissed qua it.
Evidence of the parties and finding of the District Commission
6. Parties tendered their evidence in support of their contentions. The District Commission after hearing the learned counsel for the parties and going through the record, partly accepted the complaint against OPs No.1&2 in the terms stated above vide impugned order. Hence, this appeal by OP No.1, along with a Miscellaneous Application for condonation of delay of 283 days in filing the same.
M.A.No.79 of 2021 (Grounds for Condonation of Delay)
7. Brief facts, as averred in the application, are that the certified copy of the order has not been received by the applicant/appellant in their office as their office has been closed due to lockdown, due to the First Appeal No.9 of 2021 6 pandemic of Covid-19, which was imposed in the country. It is pleaded that the Hon'ble Supreme Court has extended the period of limitation till further orders as per their order dated 23.03.2020 passed in case "Suo Moto Writ (Civil) No.3 of 2020 in re: Cognizance for extension of limitation" and pleaded that pandemic still persists. It is averred that the delay of 283 days is not intentional rather occurred due to above reasons. It has been prayed that the application be accepted and the delay in filing the present appeal be condoned, in the interest of justice.
8. We have heard learned counsel for the applicant/appellant and have gone through the application/appeal file carefully. Contentions of the Applicant/Appellant
9. Learned counsel for the applicant/appellant vehemently contended that their office was closed on account of lockdown, due to the pandemic of Covid-19, which was imposed in the country and their staff was advised not to come to the office and do the work from home. It is pleaded that the Hon'ble Supreme Court has extended the period of limitation till further orders as per its order dated 23.03.2020 passed in case "Suo Moto Writ (Civil) No.3 of 2020 in re: Cognizance for extension of limitation" and contended that pandemic still persists. He prayed that the delay of 283 days may be condoned, which is not intentional rather occurred due to above reasons.
10. On the directions of this Commission, the appellant has filed another affidavit dated 15.02.2021 of Lokesh Sugandh, Authorized Representative of the applicant/appellant wherein he has stated that legal team of the appellant's company is working from home from 05.03.2020 till date as due to outbreak of Covid-19, there were some suspected cases reported within the applicant's organization and Company immediately report all its employee to work from home from 05.03.2020. First Appeal No.9 of 2021 7
11. We have given our thoughtful consideration to the contentions raised by the learned counsel for the applicant/appellant.
12. Admittedly, there is a delay of 283 days in filing the appeal. The contention of the learned counsel for the applicant/appellant is that it did not receive the certified copy of the order as due to lockdown in the country from 22.03.2020, postal/courier services have been disrupted and still their office is not fully operational. So there is no willful disobedience on its part. The contention of the applicant is that it has not received the certified copy of the impugned order due to pandemic of Covid-19 but this contention is not justified as from the perusal of the certified copy attached with the appeal file, it is clear that the said copy is a paid certified copy of the impugned order applied by Sh.Daljeet Singh, Advocate, which has been received on 05.01.2021 whereas as per the stamp, delivery status of free certified copy of the order is dated 11.03.2020 and no remarks has been given on this copy of the impugned order that the free certified copy of the order has been received back in the District Commission. Therefore, it is clear that the certified copy of the order has been received by the applicant/appellant on 11.03.2020. Therefore, straightway lapse shows on the part of the applicant/appellant in filing the appeal in time as the statutory requirement for filing the appeal, against the impugned order, is 30 days as per Consumer Protection Act, 1986 whereas the appeal has been filed in this Commission on 14.01.2021 that is after the lapse of almost 10 months. It is clear that the applicant/appellant has adopted a careless and casual approach in filing the application and appeal. The law is settled that the delay can be condoned when it has been properly explained, but the delay due to casual approach cannot be condoned, at the asking of the applicant, particularly when the delay is directly a result of negligence, default or inaction of that party. Special period of limitation has First Appeal No.9 of 2021 8 been prescribed under the Consumer Protection Act for filing the appeals and revisions in consumer matters so that the consumers may get immediate relief of their grievance and if this aspect is ignored then the main object of expeditious adjudication of the consumer disputes will get defeated. So the contention of the applicant/appellant that their Regional Office is still not fully operational is also not justified because from the perusal of the certified copy of the impugned order, it is clear that free certified of the order has been received by it on 11.03.2020 (by Hand), or in case delivered by post, presumed to be received within one week after the date of despatch from 11.03.2020. It is well known by the applicant/appellant that statutory time granted under the Consumer Protection Act, 1986 for filing the appeal against the impugned order is 30 days. Therefore, no justifiable reasoning is coming forth for such a long delay. With regard to the law cited by the learned counsel for the applicant/appellant, there is no dispute that the superior courts have passed orders or issued instructions from time to time with regard to extension of limitation period but it is clear in the order dated 06.05.2020 passed by the Hon'ble Supreme Court in case "Suo Moto Writ (Civil) No.3 of 2020 in re: Cognizance for extension of limitation" that 'in case limitation has expired after 15.03.2020 then period from 15.03.2020 till date on which lockdown is lifted in the jurisdictional area where the dispute lies or where the cause of action arises shall be extended for period of 15 days after lifting of lockdown' and in another order it is granted upto 45 days under Commercial Courts Act. From the abovesaid order, it is clear that where lockdown is lifted, 15 days period is granted for the purpose of limitation and if 67 days relaxation is granted to the applicant/appellant, still from the perusal of the file, it is clear that there is huge delay occurred in filing the present appeal and there is no justification coming forth for the First Appeal No.9 of 2021 9 delayed period after lifting of lockdown in the jurisdictional area of the applicant/appellant. As it is specifically held by the Superior Courts in number of authorities that when the delay is directly a result of negligence, default or inaction of one party, it is unreasonable to take away that right from other party on the mere asking of the applicant, when it is proved that the matter was being taken in most casual manner, without bothering for the law of limitation. The Consumer Protection Act was specifically enacted for the speedy justice and if the aspect of limitation is ignored then speedy justice cannot be granted to the parties.
13. Perusal of the application as well as file shows that there is no explanation, what to say of plausible explanation given by the applicant/appellant regarding the delay occurred in filing the appeal i.e. after 11.03.2020 (by Hand). So the reasoning given by the applicant/appellant does not justify the delay, specifically when the superior Courts passed the directions to explain the day-to-day delay.
14. It is held by the Hon'ble Supreme Court in "Anshul Aggarwal Vs. New Okhla Industrial Development Authority", 2011 (14) SCC 578 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 appeals and revisions 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.
15. Hon'ble Supreme Court in case "Kamlesh Babu and Ors. Vs Lajpat Rai Sharma and Others", 2008(3) The Punjab Law Reporter- 455, while interpreting and explaining the scope of Section 3(1) of the Limitation Act, observed as follows:-
"It is well settled that Section 3(1) of the Limitation Act casts a duty upon the court to dismiss a suit or an appeal or an application, if First Appeal No.9 of 2021 10 made after the prescribed period, although, limitation is not set up as a defence".
16. The Hon'ble Supreme Court in case "Lanka Venkateswarlu (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(relevant portion) 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".
17. Similarly, the Hon'ble Supreme Court in case "Oriental Arora Chemical Industries Limited Vs Gujarat Industrial Development Corporation", (2010) 5 SCC-459 observed as follows:-
"We have considered the respective submissions. The law of limitation is founded on public policy. The legislature does not prescribe limitation with the object of destroying the rights of the parties but to ensure that they do not resort to dilatory tactics and seek remedy without delay. The idea is that every legal remedy must be kept alive for a period fixed by the legislature. To put it differently, the law of limitation prescribes a period within which legal remedy can be availed for redress of the legal injury. At the same time, the courts are bestowed with the power to condone the delay, if sufficient cause is shown for not availing the remedy within the stipulated time".
18. Hon'ble Punjab & Haryana High Court in case reported as "Union of India & Ors. Vs Hari Singh", 2009(4) RCR (Civil)-654, declined to condone the delay for taking the matter in casual manner. In Para-7, it was observed as follows:-
"Even otherwise, no explanation is forthcoming from 15.09.2004 to 18.01.2005 for not filing the appeal. The pleadings in application itself show that the matter was being taken in most casual manner, without bothering for the law of limitation".First Appeal No.9 of 2021 11
19. The Hon'ble Supreme Court in case SLP (Civil) Diary No.(s)13348 of 2019 "The State of Bihar & Ors. Vs. Deo Kumar Singh & Ors.", decided on 09.05.2019 observed (relevant portion) as follows:-
".......We are of the view that a clear signal has to send to the Government Authorities that they cannot approach the Court as and when they please, on account of gross incompetence of their officers and that too without taking any action against the concerned officers. No detail of this delay of 728 days have been given as if there is an inherent right to seek condonation of delay by State Government. The law of limitation apparently does not apply to the State Government according to its conduct.
That such condonation of delay is no more admissible on the pretext of Government working lethargy is clear from the judgment of this court in The Chief Post Master General vs. Living Media India Ltd. [2012(3) SCC 563] We strongly deprecate the casual manner in which the Division Bench was approached and also this Court has been approached; the objective possibly being to get a certificate of dismissal from this Court. This is complete wastage of judicial time and the petitioners must pay for the same........."
20. The Hon'ble Supreme Court in a recent case SLP (Civil) Diary No.(s)9217 of 2020 "The State of Madhya Pradesh & Ors. Vs. Bherulal", decided on 15.10.2020 has observed as follows:-
"4. A reading of the aforesaid application shows that the reason for such an inordinate delay is stated to be only "due to unavailability of the documents and the process of arranging the documents". In paragraph 4 a reference has been made to "bureaucratic process works, it is inadvertent that delay occurs". 5. A preposterous proposition is sought to be propounded that if there is some merit in the case, the period of delay is to be given a go-by. If a case is good on merits, it will succeed in any case. It is really a bar of limitation which can even shut out good cases. This does not, of course, take away the jurisdiction of the Court in an appropriate case to condone the delay.
6. We are also of the view that the aforesaid approach is being adopted in what we have categorized earlier as "certificate cases".
The object appears to be to obtain a certificate of dismissal from the Supreme Court to put a quietus to the issue and thus, say that nothing could be done because the highest Court has dismissed the appeal. It is to complete this formality and save the skin of officers who may be at default that such a process is followed. We have on earlier occasions also strongly deprecated such a practice and process. There seems to be no improvement. The purpose of coming to this Court is not to obtain such certificates and if the Government suffers losses, it is time when the concerned officer responsible for the same bears the consequences. The irony is that in none of the cases any action is taken against the officers, who sit on the files and do nothing. It is presumed that this Court will condone the delay and even in making submissions, straight away First Appeal No.9 of 2021 12 counsels appear to address on merits without referring even to the aspect of limitation as happened in this case till we pointed out to the counsel that he must first address us on the question of limitation.
7. We are thus, constrained to send a signal and we propose to do in all matters today, where there are such inordinate delays that the Government or State authorities coming before us must pay for wastage of judicial time which has its own value. Such costs can be recovered from the officers responsible.
8. Looking to the period of delay and the casual manner in which the application has been worded, we consider appropriate to impose costs on the petitioner State of Rs.25,000/- (Rupees twenty five thousand) to be deposited with the Mediation and Conciliation Project Committee. The amount be deposited in four weeks. The amount be recovered from the officers responsible for the delay in filing the special leave petition and a certificate of recovery of the said amount be also filed in this Court within the said period of time.
9. The special leave petition is dismissed as time barred in terms aforesaid."
21. In view of above discussion and the law laid down, it is clear that the delay has to be explained properly and sufficient cause for causing delay must be disclosed and the delay caused on account of dilatory tactics, inaction and casual approach cannot be condoned. In the present case, as discussed above, no valid reasons or the explanations have been given for condonation of delay of 283 days, except the period of relaxation of 67 days as granted by the Hon'ble Supreme Court i.e. 283 - 67 = 216 days and each day's delay is required to be explained/justified. Thus, we do not find any ground to condone the huge delay of 216 days (283 days) in filing the appeal.
22. In view of the above discussion, the application for condonation of delay is dismissed, being without any merit. Main Case
23. As the application for condonation of delay has been dismissed, therefore, appeal also stands dismissed, being barred by time.
24. The applicant/appellant/OP No.1 has deposited a sum of Rs.25,000/- at the time of filing of the appeal. This amount, along with interest which has accrued thereon, if any, shall be remitted by the Registry to the District Commission forthwith. The complainant may First Appeal No.9 of 2021 13 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.
(JUSTICE PARAMJEET SINGH DHALIWAL) PRESIDENT (RAJINDER KUMAR GOYAL) MEMBER February 19, 2021.
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