State Consumer Disputes Redressal Commission
Shri Hari Om Aggarwal vs M/S Hdb Financial Services Ltd. on 2 May, 2023
HARI OM AGGARWAL V. M/S. HDB FINANCIAL SERVICES LTD.
02.05.2023 IA-16/2023 IN CC-185/2021 Vide this order we shall dispose of an application bearing IA No.16/2023 filed by the OP seeking recall/setting aside of the order dated 13.07.2022 whereby the right of the OP to file reply to the complaint was closed.
The present complaint was filed on 12.10.2021, alleging deficiency of service and unfair trade practice on the part of Opposite Party. Thereafter, vide order dated 27.10.2021, notice was issued to the Opposite Party through registered post and speed post along with the copy of complaint. Subsequent thereto, the OP put in appearance on 13.07.2022, however, written statement was filed by the OP, therefore, right of the OP to file written statement was closed.
Thereafter, the OP filed the aforesaid application bearing IA No.16/2023 on 03.01.2023 praying for recalling of the order dated 13.07.2022 on the ground that the copy of the complaint was procured on 26.06.2022 and after taking considerable time to procure the input and documents, the draft reply was provided by the counsel to the OP and final reply was ready to be filed on 13.07.2022, however, due to some miscommunication the counsel appeared and sought time, which was granted by the State Commission to file the reply; and that the delay on behalf of the OP was inadvertent and the same was caused because of Page 1 of 7 series of event as stated in the application, which caused an inordinate delay in preparation and filing of reply within the prescribed time limit. Therefore, the non-filling of written statement within time was neither intentional nor deliberate.
Reply to the said application has been filed by the Complainant, inter-alia, contending that the OP was ignorant in pursuing the matter and false statement has been filed that the vakalatnama was filed on 26.06.2022 whereas it has been recorded in order dated 13.07.2022 that vakalatnama was filed on 28.06.2022 and the OP failed to file reply within the prescribed time despite having all the necessary material and time to file the same. Thus, present application is liable to be dismissed and the written statement, filed by the Opposite Party cannot be taken into consideration.
To adjudicate this issue, we deem it appropriate to refer to Regulation 14 of the Consumer Protection Regulation 2020, which provides as under:
14. Limitation-(1) Subject to the provisions of sections 40, 41, 50, 51, 60, 67 and 69, the period of limitation in the following matters shall be as follows:-
(i) Revision Petition shall be filed within ninety days from the date of receipt of certified copy of the order;
(ii) Application for setting aside the ex-parte order under section 61 or dismissal of the complaint in default shall be maintainable if filed within thirty days from the date of the order or date of receipt of the order, as the case may be;Page 2 of 7
(iii) An application for review under sections 40, 50 and 60 shall be filed to the District Commission, the State Commission and the National Commission, respectively, within thirty days from the date of the order;
(iv) The period of limitation for filing any application for which no period of limitation has been specified in the Act or the rules or in these regulations shall be thirty days from the date of the cause of action or the date of knowledge. (2) Subject to the provisions of the Act, the Consumer Commission may condone the delay in filing an application or a petition referred to in sub-
regulation (1) if valid and sufficient reasons to its satisfaction are given.
Perusal of the aforesaid statutory position reflects that the application for setting aside the ex-parte order shall be maintainable if filed within thirty days from the date of the order or date of receipt of the order, as the case may be. On perusal of record before us, it is clear that the impugned order was passed on 13.07.2022 and the present application was filed on 03.01.2023 with a delay of 123 days, without any application seeking condonation of delay in filing the application. Further, though the application is filed fore recalling of the order dated 13.07.2022, however, there is no such prayer in the application, rather, OP has prayed to take the reply on record filed with the application.
Further, it is well settled position that if the written statement filed beyond the period of 30 days but with the extended period of 15 days, it is upon the discretion of the adjudicating Court to condone the delay if sufficient cause has been provided by the Opposite Party. However, there Page 3 of 7 is no application such application filed by the OP seeking condonation of delay in filing the written statement.
In order to condone the delay, the Opposite Party has to satisfy this Commission that there was sufficient cause for filing the written statement 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 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."
Page 4 of 7From the aforesaid dicta of the Hon'ble Apex Court, 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 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.
We further deem it appropriate to refer to Lingeswaran Etc. Versus Thirunagalingam in Special Leave to Appeal (C) Nos. 2054- 2055/2022 decided 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 Popat Bahiru Goverdhane 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 Page 5 of 7 to a particular party but the Court has no choice but to enforce it giving full effect to the same.
Reverting to the material available on record, it is admitted fact that the impugned order was passed on 13.07.2022 and the present application has been filed on 03.01.2023 with a delay of 123 days, without any application seeking condonation of delay in filing the application. Further, though the application is filed fore recalling of the order dated 13.07.2022, however, there is no such prayer in the application, rather, OP has prayed to take the reply on record filed with the application.
In our considered view, since there is no application for condonation of delay, filed by the OP either seeking condonation of delay in filing the application or filing the written statement, the OP has miserably failed to prove bonafide on its part and in absence of any explanation for the delay, no presumption can be raised in this regard.
Relying on the above settled law and considering the fact that there was no proper explanation offered by the Opposite Party for the delay, either in filing the reply or written statement, according to us, the Opposite Party has miserably failed to give any acceptable and cogent sufficient reasons to condone such delay. Accordingly, the IA-16/2023 filed by the Opposite Party seeking recalling of the order dated 13.07.2022 stands dismissed and the written statement cannot be taken on record.
Since the Complainant has already filed Evidence by way of affidavit, both the parties shall file their short written arguments Page 6 of 7 alongwith judgments, if any, being relied by them within four weeks and advance copies of the same be exchanged with each other.
It is clarified that the parties shall complete their pleading(s) on their own responsibility and if the same is/are not filed within the stipulated time period, it will be assumed that the respective party is not interested in filing the relevant document(s)/pleading(s) and the right to file the same shall be deemed to be closed.
List the matter on 06.10.2023 for final arguments and disposal.
(Justice Sangita Dhingra Sehgal) President (J.P. Agrawal) Member Page 7 of 7