State Consumer Disputes Redressal Commission
Sunil Sharma vs Yashodha Motors on 11 November, 2013
FIRST ADDITONAL BENCH
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB
SECTOR 37-A, DAKSHIN MARG, CHANDIGARH.
Misc. Appl. No.2296 of 2012
In/and
First Appeal No.1500 of 2012.
Date of Institution: 06.11.2012.
Date of Decision: 11.11.2013.
Sunil Sharma S/o Sh. Bhim Sain Sharma, R/o House No.237, Sitar
Manzil, Sirhindi Bazar, Patiala.
.....Applicant/Appellant.
Versus
Yashodha Motors, near Budha Dal Complex, Lower Mall, Patiala.
...Respondent.
Application for condonation of delay of
about eight months (alleged)
In/And
First Appeal No.1500 of 2012 against the
order dated 09.03.2012 of the District
Consumer Disputes Redressal Forum,
Patiala.
Before:-
Shri Inderjit Kaushik, Presiding Judicial Member.
Shri Vinod Kumar Gupta, Member.
- -----------------------------
Present:- Sh. R.K. Shukla, Advocate, counsel for the appellant/applicant.
Sh. R.M. Sharma, Advocate, counsel for the respondent.
----------------------------------------- INDERJIT KAUSHIK, PRESIDING JUDICIAL MEMBER:-
Sh. Sunil Sharma, applicant/appellant (In short, "the applicant") has filed this application for condonation of delay of about eight months (alleged) days in filing the present appeal. Misc. Appl. No.2296 of 2012 2
In/and First Appeal No.1500 of 2012
2. It was submitted by the applicant that there is a delay of eight months in filing the appeal and the reason for delay is explained in the appeal and is not being repeated for the sake of brevity. The delay in filing the appeal is not intentional, but was caused due to the orders passed by the District Forum. It was prayed that the delay in filing the appeal may be condoned and the case may be heard on merits.
3. In the reply filed on behalf of the respondent, it was submitted that no reason has been assigned as to how extraordinary delay of eight months has occurred. Even no reason has been assigned in the application regarding the delay of more than 240 days and simply it has been stated that the reason of delay is explained in the appeal, though in the appeal there is no such explanation. The District Forum vide order dated 09.03.2012 has dismissed the complaint, giving reasons in Para-5 of the order. Immediately, no appeal was filed against the order dated 09.03.2012 intentionally and the delay of more than 240 days has been deliberately caused, as the complaint was dismissed on merits, giving cogent reasons. It was prayed that the application may be dismissed.
4. We have heard the learned counsel for the parties and have perused the record.
5. Both the parties have stated that there is delay of eight months in filing the appeal. The appeal has been filed against the order dated 09.03.2012 passed by the District Forum and as per the stamp affixed, copy of the order was supplied to the applicant on 12.04.2012. The limitation to file the appeal was upto 11.05.2012, but Misc. Appl. No.2296 of 2012 3 In/and First Appeal No.1500 of 2012 the same has been filed on 06.11.2012 and there is delay of 178 days in filing the present appeal.
6. The applicant has simply mentioned in the application that there is delay of about eight months in filing the appeal which was caused by the orders passed by the District Forum and the reason for delay is explained in the appeal.
7. The District Forum dismissed the complaint of the applicant in limine on 09.03.2012 and the complaint was on the same grounds, as it was filed earlier. The District Forum in Para-4 of the order, observed as follows:-
"In case the odo meter replaced by the op is not working properly, the remedy available with the complainant is not to file the complaint afresh, rather to file the application under section 27 of the Consumer Protection Act, 1986."
8. The applicant then filed the execution application and the District Forum dismissed the execution application u/s 27 of the Act, vide order dated 06.09.2012, observing that the applicant cannot be granted any relief u/s 27 of the Act against the respondent, who has already complied with the order dated 08.11.2011 and the application is disposed of. The present appeal was filed by the applicant against the order dated 09.03.2012 and not against the order dated 06.09.2012. The applicant has failed to explain the delay of 178 days and has alleged that the delay was caused due to the orders passed by the District Forum, but that is wrong and incorrect. The applicant seems to be adamant, just to harass the respondent and is filing the complaints, execution and even the appeal, just to unnecessarily drag Misc. Appl. No.2296 of 2012 4 In/and First Appeal No.1500 of 2012 the respondent, although the respondent has complied with the order of the District Forum, as is clear from the statement of the applicant himself recorded before the District Forum, which is duly signed by the applicant. He has received the compensation of Rs.5,000/- and as per that, the digital meter of the bike in question was replaced. It appears that the applicant, being an advocate, is misusing the process of law. We are not inclined to further pass any remarks on the act and conduct of the applicant, as the same can jeopardize his future career as an advocate, but the applicant must himself act and behave in the public, as an advocate which is normally expected by the public from an advocate, by adhering to all the ethics required to be followed by him.
9. There is huge delay of 178 days in filing the present appeal. The application is vague and no explanation has been given for condonation of delay. 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 made after the prescribed period, although, limitation is not set up as a defence".
10. The Hon'ble Supreme Court in another 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 follows:-
"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 Misc. Appl. No.2296 of 2012 5 In/and First Appeal No.1500 of 2012 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".
11. In a recent case "DLF Home Developers Limited & Ors. Vs Pradeep Kumar & Ors.", 2013 (3) CLT-404 (NC), the Hon'ble National Commission relying upon so many authorities, reproduced the judgment of the Hon'ble Apex Court in Para-17 and of the Hon'ble National Commission in Para-18 observed as follows:-
17. Apex Court in Anshul Aggarwal Vs New Okhla Industrial Development Authority", IV (2011) CPJ-63 (NC) has observed:
"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 the 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."
18. This Commission in Mahindra Holidays & Resorts India Ltd. Vs Vasankumar H. Khandelwal and Anr., Revision Petition ANo.1848 of 2012 decided on 21.05.2012 has held:
"that under the Consumer Protection Act, 1986, the District Forum is supposed to decide the complaint within a period of 90 days from the date of filing and in case of some expert evidence Misc. Appl. No.2296 of 2012 6 In/and First Appeal No.1500 of 2012 is required to be led, then within 150 days. The said Bench dismissed the revision petition on the ground that it was delayed by 104 days."
12. In view of the above discussion as well as the law laid down, the application filed by the applicant for condonation of delay of 178 days in filing the present appeal, being without any merit, is dismissed.
Main Case
13. As the application for condonation of delay has been dismissed, therefore, the appeal i.e. F.A. No.1500 of 2012 also stands dismissed. No order as to costs.
14. The arguments in the application were heard on 29.10.2013 and the order was reserved. Now the order be communicated to the parties.
(Inderjit Kaushik) Presiding Judicial Member (Vinod Kumar Gupta) Member November 11, 2013.
(Gurmeet S)