State Consumer Disputes Redressal Commission
Union Bank Of India vs The Church Of The Brethren General Board ... on 11 August, 2023
Details DD MM YY
Date of disposal 11 08 2023
Date of filing 24 02 2023
Duration 18 05 --
BEFORE THE CONSUMER DISPUTES REDRESSAL COMMISSION
GUJARAT STATE AHMEDABAD.
COURT NO: 03
M.A. NO. 249 of 2023
Union Bank of India
Panchayat Bhavan,
Piraman Naka,
Station Road,
Ankleshwar - 393001, Bharuch. ...Applicant
(Original Opponent)
Vs.
The Church of the Brethren General Board in India
Having address at:
VT College Hostel Compound,
Ankleshwar - 393001, Bharuch. ...Respondent
(Original Complainant)
==============================================================
BEFORE: Mr. I. D. Patel, Judicial Member
Ms. A. C. Raval, Member APPEARANCE: Mr. Vivan shah L.A. for the applicants, None appeared for the respondent.
============================================================== ORDER BY MS. A. C. RAVAL, MEMBER
1. By filing the present application, the applicant has prayed for condonation of delay of 734 days caused in filing appeal against judgment and order dated 19.02.2021 rendered in Complaint No.163 of 2015 by the learned District Consumer Disputes Redressal Commission, Bharuch (hereinafter referred to as "learned District Commission").
Kushal MA/249/2023 Page 1 of 92. Heard learned advocate Mr. Vivan Shah for the applicant. Notice is served upon the Respondent. However, respondent has not remained present before the Commission in this proceedings.
Case and arguments of the applicant:
3. It is the case of the applicant that the learned District Commission pronounced the judgment and order in CC No.163 of 2015 on 19.02.2021. The applicant had engaged an advocate to appear and contest the subject matter, however, it appears that the impugned order was an ex-parte order passed without offering an opportunity of hearing to the applicant. It appears that the concerned advocate has not appeared and not filed any pleadings in the subject matter. It is only when the applicant - bank received a warrant dated 19.01.2023, that the applicant - bank got to know that the impugned order has been passed on 19.02.2021 and then the complainant has filed execution proceedings being EA No.4 of 2021. The applicant received a notice on 19.01.2023 issued by the learned District Consumer Disputes Redressal Commission, Bharuch for non-compliance of the impugned order and directed the applicant to remain present on 08.02.2023. It is only when the notice in execution proceedings was received by the applicant - bank, at that time the applicant - bank came to know that such proceedings have been initiated and the impugned order has been declared. Hence, the delay of 734 days caused in preferring the appeal against the order dated 19.02.2021 passed by the learned District Commission in CC No.163 of 2015. The advocate for the applicant relied upon the following judgments:
(i) Senior Bhosale Estate (HUF) Vs. Assistant Commissioner of Income Tax, reported in (2020) 16 SCC 613;Kushal MA/249/2023 Page 2 of 9
(ii) Communidade of Malcornem Vs. Budo Custa Molic & Anr., reported in 2015 (3) MHLJ 782; and
(iii) Raheem Shah & Anr. Vs. Govind Singh and Ors., reported in 2023 SCC Online SC 910.
The learned advocate for the applicant argued that it is a sufficient cause on affidavit by the applicant that they had no knowledge of passing of the order until they received the warrant in execution proceedings filed before the learned District Commission. It cannot be disbelieved and the delay may be condoned. It is further submitted that there is no willful negligence, carelessness or inaction on the part of the applicant. However, the delay has occurred on account of no knowledge of the order passed by the learned District Commission. The proceedings decided ex-parte before the learned District Commission. Hence, the delay of 734 days may be condoned by allowing the present application.
Merits of the case:
4. Heard the learned advocate Mr. Vivan Shah appearing for the applicant. Though the notice was served, nobody appeared for the other side. Perused the record of the case. It transpires from the record that the order in CC No.163 of 2015 was passed on 19.02.2021 and the complaint was partly allowed by the learned District Commission. The applicant was required to file the appeal within 45 days from the date of the order i.e. latest by 03.04.2021.
5. Section 15 of the Consumer Protection Act, 1986 reads as under:
"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 Kushal MA/249/2023 Page 3 of 9 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 percent of that amount or twenty-five thousand rupees, whichever is less"
6. Looking to the provisions of Section 15 of the Consumer Protection Act, 1986, the proviso to the aforesaid Section gives power to the State Commission to condone the delay, if it is satisfied that there was sufficient cause for not filing of Appeal within the time prescribed in the statute. Here the order is passed on 19.02.2021 by the learned District Commission, hence, the applicants ought to have filed the appeal on or before 03.04.2021. Merely relying upon the averments made in the application, mechanically the delay cannot be condoned. The period of limitation begins to run once the order is passed. No subsequent disability or inability to make an application stops the period. Section 9 of the Limitation Act reads as under:
"Where once time has begun to run, no subsequent disability or inability to institute a suit or make an application stops it: Provided that where letters of administration to the estate of a creditor have been Kushal MA/249/2023 Page 4 of 9 granted to his debtor, the running of the period of limitation for a suit to recover the debt shall be suspended while the administration continues."
7. The applicant has relied upon the judgment in the case of Senior Bhosale Estate (HUF) Vs. Assistant Commissioner of Income Tax, reported in (2020) 16 SCC 613, where, factually the appellants had asserted that they had no knowledge about passing of the order dated 29.12.2003, until they were confronted with the auction notices in June 2008 issued by the competent authority. Therefore, it was held that the appellants had no knowledge of the passing of the order until they received the auction notice. In another judgment relied upon by the applicant in the case of Raheem Shah & Anr. Vs. Govind Singh and Ors., reported in 2023 SCC Online SC 910, the delay is of 52 days and it was condoned and parties were relegated to the appellate court for hearing on merits. In another judgment relied upon by the applicant in the case of Communidade of Malcornem Vs. Budo Custa Molic & Anr., reported in 2015 (3) MHLJ 782, the same is regarding ex-parte order passed by the Goa Bench and the same is not binding to this Commission. Even otherwise, the facts of the cases referred by the appellant is totally different from the facts of the case on hand. Here, the bank had appeared through the advocate before the learned District Commission and after filling appearance, matter was neglated and remaind unattended. Though the notice was served, appearance was filed, the matter was not contested by the applicant - bank and has not inquired about the matter periodically. It can be termed as negligence on the part of the applicant - bank and upon filing the execution application, the applicant - bank tried to avoid the execution in the matter of 2015 in the year 2023.
Kushal MA/249/2023 Page 5 of 98. We have considered the judgment in the case of Anshul Aggarwal Vs. New Okhla Industrial Development Authority, reported in IV (2011) CPJ 63 (SC). Some of the observations in paragraph no.7 reads as under:
"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.
With the above observations, the application for condonation of delay is rejected and the special leave petition is dismissed as barred by time."
9. We have also considered the judgment in the case of New India Assurance Company Ltd. Vs. Aasha Devi & Anr., reported in IV (2020) CPJ 64 (NC), wherein, it has been observed as under:
"13. From the above application, it is clear that first the petitioner company got the copy of the impugned order on 08.03.2013, but they did not take any action on account of illness of the counsel. Secondly, they received the same order along with the order of the District Forum issued in the form of notice in the execution petition in November, 2015. Thus, it is clear that there was no action from March 2013 to November 2015 by the petitioner company though they had Kushal MA/249/2023 Page 6 of 9 received the copy of the impugned order. Condonation of delay can only be considered if there is bona fide and reasonable diligence in pursuing the petition as held by the Hon'ble Supreme Court in R.B. Ramlingam Vs. R.B. Bhavaneshwari, 2009 (2) Scale 108 as under:-
"We hold that in each and every case the Court has to examine whether delay in filing the special appeal leave petitions stands properly explained. This is the basic test which needs to be applied. The true guide is whether the petitioner has acted with reasonable diligence in the prosecution of his appeal/petition".
14. Moreover, the Hon'ble Supreme Court in Ram Lal and Ors. Vs. Rewa Coalfields Ltd., AIR 1962 Supreme Court 361, has observed that even if the delay may be justified and explained, it is not necessary for a court to condone the delay and this will depend on the examination of the facts of the case and the decision of the trial court. In fact, the judgment reads as under:-
"It is, however, necessary to emphasize that even after sufficient cause has been shown a party is not entitled to the condonation of delay in question as a matter of right. The proof of a sufficient cause is a discretionary jurisdiction vested in the Court by S.5. If sufficient cause is not proved nothing further has to be done; the application for condonation has to be dismissed on that ground alone. If sufficient cause is shown Kushal MA/249/2023 Page 7 of 9 then the Court has to enquire whether in its discretion it should condone the delay. This aspect of the matter naturally introduces the consideration of all relevant facts and it is at this stage that diligence of the party or its bona fides may fall for consideration; but the scope of the enquiry while exercising the discretionary power after sufficient cause is shown would naturally be limited only to such facts as the Court may regard as relevant."
17. Once the order of the Hon'ble Supreme Court has been passed in a similar case, no discretion remains with this Commission to take any other view in the matter. Thus, it is seen that in the facts, circumstances and merit of the case also, no case is made out for condoning such a huge delay of 995 days which is otherwise also not condonable in the light of the judgment of the Hon'ble Supreme Court in Anshul Aggarwal vs. New Okhla Industrial Development Authority, IV (2011) CPJ 63 (SC)."
10. We are not satisfied with the reasons given by the applicant - bank for condonation of delay. The condonation of delay is not the right of the applicant - bank, but it is a discretion of the court upon satisfaction on the ground of cause of action. Hence, we are of the view that the present application is required to be rejected in the interest of justice. Hence, we pass the following order.
Kushal MA/249/2023 Page 8 of 9ORDER
1. The M.A. (condonation of delay) No.249 of 2023 filed by the Union Bank of India is hereby rejected.
2. No order as to costs.
3. Registry is directed to verify the amount deposited by the applicants in M.A. No.249 of 2023 and if found deposited, refund the same with interest, if any, accrued on the deposit to the applicants by RTGS after following due procedure and verification. For this purpose, the applicants have to file an application with details to the account branch of this Commission.
4. Registry is hereby instructed to send a copy of this order in PDF format by E-mail to learned District Consumer Disputes Redressal Commission, Bharuch for taking necessary action.
Pronounced in the open Court today on 11th_August, 2023.
[A. C. Raval] [I. D. Patel]
Member Judicial Member
Kushal MA/249/2023 Page 9 of 9