National Consumer Disputes Redressal
Central Bank Of India vs Shri Ayodhya Prasad Awasthi on 30 January, 2015
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO. 4485 OF 2013 (From the order dated 21.01.2013 in F.A. No.232/2007 of the U.P. State Consumer Disputes Redressal Commission, Lucknow) WITH IA/8178/2013 (FOR CONDONATION OF DELAY) CENTRAL BANK OF INDIA BRANCH MOTI NAGAR TEHSIL, DISTRICT UNNAO THROUGH ITS BRANCH MANAGER, U.P. .. PETITIONER Versus SHRI AYODHYA PRASAD AWASTHI S/O SRI BHAWAN DEEN, R/O RAIPUR, POST-RAIPUR, DISTRICT-UNNAO. ....... RESPONDENT BEFORE: HON'BLE MR.JUSTICE V.B. GUPTA, PRESIDING MEMBER HONBLE MR.SURESH CHANDRA, MEMBER For the Petitioner : Mr. Lav Kumar Agarwal and Ms. Sucheta Yadav, Advocates PRONOUNCED ON: 30th January, 2015 ORDER
SURESH CHANDRA, MEMBER This revision petition has been filed by the petitioner bank challenging order dated 21.01.2013 passed by the State Consumer Disputes Redressal Commission, U.P., Lucknow (for short, State Commission) in Appeal No. 232 of 2007 whereby the State Commission dismissed the appeal filed by the petitioner against the order dated 02.01.2007 passed by the District Consumer Redressal Forum, Unnao (for short, District Forum) in Complaint Case No.218 of 2005. Since there is a delay in filing this revision petition, petitioner has also filed I.A. No.8178 of 2013 for condonation of delay.
2. We have heard learned Shri Luv Kumar Agarwal, Advocate for the petitioner on application of the petitioner for condonation of delay in filing this revision petition. While the petitioner has not mentioned the period of delay in this application or the accompanying affidavit in support of the application, as per the note put up by the office, there is a delay of 202 days in filing the revision petition beyond the prescribed period of 90 days under the Consumer Protection Act, 1986.
Reasons given by the petitioner in support of its request for condonation are contained in paras 4 to 9 of the affidavit filed by Ms.Usha Singh, Chief Manager in the petitioner bank on behalf of the petitioner. These reasons are reproduced thus:-
4. That it is submitted herewith great respect that the delay cause in filing the instant petition has been occasioned for reasons because on 21.01.2013 the aforesaid appeal was listed before the Honble State Consumer Disputes Redressal Commission Lucknow U.P. in the cause list of Court No. ______ at S.L. No.___ but neither the appellant could not know nor his counsel could not know that the appeal was listed and was taken up on the date fix, and neither the notice regarding the hearing has been served upon the appellant nor the information to the counsel for the appellants, due to this reason the counsel for the appellants has not appeared before the Honble Commission on above date and the Honble Commission has dismissed the appeal in default in non prosecution of the appellant.
5. That the no information was given to the appellant, while passing the said judgment the Honble State Consumer Disputes Redressal Commission has failed to follow the rule 4 (10) of the U.P. Consumer rules, that as per rule 4(10) of the U.P. Consumer rules, the judgments of forms are to be provided to the parties free of cost on its own.
6. That the Honble State Consumer Disputes Redressal Commission should be provided the copy of said judgment to the appellant free of cost on its own. But in the instant matter the copy of the said order and judgment dated 21.01.2013 was obtained by the clerk of Shri Issar Hussain advocate by one Shri Vishun Kumar Prajapati.
7. That the even though the Honble Commission did not inquiry, whether Mr. Issar Hussain is the counsel for the Central Bank or not whether he has filed any Vakalatnama on behalf of the appellant bank.
8. That for first time bank come to know, when the recovery notice was issued by the Tehsildar Unnao against the bank, and first time bank came to know that appeal of the bank was dismissed default on 21.01.2013, so the bank has no option pay the recovery amount to the Tehsildar.
9. That thereafter on 09.09.2013 the court filed was inspected by the counsel Sri Kaushal Kishore and obtained the certified copy of judgment and all orders sheets.
3. It would be seen from the aforesaid submissions explaining the reasons for the delay that since the impugned order dated 21.01.2013 was passed by the State Commission in the absence of the petitioner or its representative, the petitioner could not come know about this order. It is further submitted that none had appeared on behalf of the petitioner on the date of the impugned order because the petitioner did not have notice of the appeal being taken up by the State Commission on 21.01.2013 and the final order being passed against it. It is stated that the petitioner came to know about the impugned order first time when the recovery notice was issued by the Tehsildar, Unnao against the bank. However, even though the petitioner bank satisfied the notice of recovery by paying the recovery amount to the Tehsildar, there is no mention of the date on which recovery notice was received by the bank and when it made the payment of recovery amount. It is further submitted that thereafter, on 09.09.2013, the counsel of the petitioner bank, Sh. Kaushal Kishore inspected the court file and obtained certified copy of judgment and all ordersheets. In the process, the delay was caused but it is contended by the petitioner that it was beyond the petitioners control and was neither deliberate nor intentional but occurred in the circumstances stated in the affidavit.
4. Learned counsel has argued that the period of limitation for filing the revision petition would start from 09.09.2013 when the State Commissions file was inspected by the counsel of the petitioner. Regarding the date of receipt of the recovery certificate in pursuance of which the petitioner bank paid the recovery amount, learned counsel stated that it was not known to him since the same has not been provided in the affidavit. He further submitted that even though it is mentioned in the endorsement on the certified copy of the impugned order that the copy of the impugned order was provided to the appellant on 01.02.2013, it is to be noted that Mr. Issar Hussain, whose name is indicated as counsel for the appellant was not his counsel and this mistake was brought to the notice of the State Commission by the petitioner through an application for rectification filed before the State Commission for rectification of this mistake and the mistake was duly rectified by the State Commission vide its order dated 25.09.2013. He pointed out that the rectification order in red ink on page 81 of the State Commissions record establishes this fact. In view of this, learned counsel for the petitioner argued that since there was no representation on behalf of the appellant on the date of the impugned order and the name of the petitioners advocate was wrongly recorded, the free copy was admittedly handed over to wrong person and as such the question of knowledge of the petitioner about the impugned order could not arise on 01.02.2013 which is the date of delivery of the free copy of the impugned order. Another limb of argument of learned counsel was that even though it is mentioned in the affidavit accompanying the application that for the first time the petitioner came to know about the order against it by the State Commission when the recovery certificate was received from the Tehsildar and the recovery amount was paid, the date of the receipt of the recovery notice and the payment of the recovery amount cannot be regarded as date for the purpose of counting the period of limitation which should be counted from the date of inspection of the State Commissions file, i.e., 09.09.2013 for the purpose of filing this revision petition. Finally, learned counsel submitted that since it is a case of alleged fraud and forgery, the matter should not have been entertained by the consumer fora and as such the period of delay in filing this revision petition should be condoned on the ground of law and in the interest of justice.
6. We have considered the contentions raised by the learned counsel and perused the record with reference to the application of the petitioner for condonation of delay. We may note that as per its own admission, the petitioner came to know about the impugned order for the first time when the recovery notice was issued by the Tehsildar, Unnao against the bank. Even if the submissions of the petitioner and learned counsel regarding the absence of the petitioner before the State Commission made before us and on the date of the impugned order are accepted in toto, undoubtedly the petitioner became aware of the impugned order when it received the recovery notice from the local Tehsildar and made the payment of the recovery amount in question. The petitioner has concealed and made no mention about this date in para 8 of its affidavit and simply said that thereafter the court file was inspected by the counsel of the petitioner for obtaining the certified copy. We have no manner of doubt that the petitioner Bank became aware about the award against it when it received the recovery notice from the Tehsildar the date of which is known to the petitioner only who has chosen to conceal the same. Not only this, the petitioner Bank also made payment of the recovery amount in question. In such a situation, it is not understood as to how the learned counsel has contended that the period of limitation for filing the revision petition should start from the later date when the counsel of the petitioner inspected the State Commissions file for filing the revision petition. We, therefore, reject the contention of learned counsel. It is thus clear that the petitioner had knowledge about the award against him much earlier than 9.9.2013 and yet delayed the filing of the revision petition. In fact, no explanation has been given for the period from the date of receipt of recovery notice and the date of inspection of the State Commissions file, i.e., 9.9.2013. It also shows a very casual and careless approach on the part of the petitioner bank in dealing with this matter.
Normally one would expect that petitioner being a PSU bank would be careful in dealing with such a matter and act with due diligence and on priority to ensure that necessary action is taken on time to challenge the impugned order. Rather than doing this, even while explaining the delay in filing the revision petition it has held back material information while explaining the sufficient cause. Petitioner has thus not only failed to act with due diligence and caution in important matters but also not approached this Commission with clean hands. We may also note that the contention of the learned counsel regarding the rectification about the representation of the appellant on 25.09.2013 by the State Commission will not have any bearing on the present request for condonation because firstly the application for rectification itself was made on 16.09.2013 which means that it was filed when the petitioner had already come to know about the impugned order of 21.01.2013 and secondly, there is no challenge to the rectification order dated 25.09.2013 passed by the State Commission. In these circumstances, we are convinced that the petitioner has miserably failed to explain the delay satisfactorily so as to constitute sufficient cause before us to condone the delay.
7. It is well known that specific periods have been prescribed for filing of appeal and revision petition under the law to ensure that the fruits of the award or decree are not unduly delayed to the successful litigant. It is, therefore, absolutely necessary that cogent explanation is given in support of each request for condonation of delay. Even then, condonation cannot be taken for granted and each case has to be decided on its own merits keeping in view the peculiar facts and circumstances of the case. Delhi High Court in New Bank of India Vs. M/s Marvels (India), 93 (2001) DLT 558, has held;
No doubt the words sufficient cause should receive liberal construction so as to advance substantial justice. However, when it is found that the applicants were most negligent in defending the case and their non-action and want of bonafide are clearly imputable, the Court would not help such a party. After all sufficient cause is an elastic expression for which no hard and fast guide-lines can be given and Court has to decide on the facts of each case as to whether the defendant who has suffered ex-parte decree has been able to satisfactorily show sufficient cause for non-appearance and in examining this aspect cumulative effect of all the relevant factors is to be seen.
8. In Ram Lal and Ors. Vs. Rewa Coalfields Ltd., AIR 1962 Supreme Court 361, it has been observed;
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 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.
9. In R.B. Ramlingam Vs. R.B. Bhavaneshwari, 2009 (2) Scale 108, Apex Court has observed;
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.
10. Apex Court in Anshul Aggarwal vs. New Okhla Industrial Development Authority, IV (2011) CPJ 63 (SC) laid down that;
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.
11. As stated above, the present application for condonation of delay is absolutely vague and the same has been filed without proper justification to support it. Under these circumstances, we find that no sufficient case is made out for condonation of delay and hence the application stands dismissed. Consequently, the revision petition filed by the petitioners also stands dismissed on the ground of delay.
Sd/-....
(V.B. GUPTA, J.) PRESIDING MEMBER Sd/-.
(SURESH CHANDRA) MEMBER bs