National Consumer Disputes Redressal
Huda vs Sunil Gupta on 17 September, 2012
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO. 2507 of 2012 (Against the order dated 17.02.12 in First Appeal No. 1339/03 of the State Consumer Disputes Redressal Commission, HARYANA, PANCHKULA ) HUDA Through its Estate Officer Panchkula HARYANA ..... Petitioner Vs. SUNIL GUPTA S/o Sh. Dharam Pal R/o H.No. 158, Grain Market Chandigarh ...Respondent BEFORE: HON'BLE MR. JUSTICE J.M. MALIK, PRESIDING MEMBER HONBLE MR. VINAY KUMAR, MEMBER For the Petitioner : MS. ANUBHA AGRAWAL, Advocate Pronounced on_17th September, 2012 ORDER
JUSTICE J.M. MALIK
1. There is a delay of 36 days in filing the present revision petition. Before the State Commission too, there was a delay 287 days in filing the appeal. The petitioner had moved an application for condonation of delay before the State Commission. The only ground set up by the petitioner was that the filing of appeal was delayed on account of departmental and procedural delay.
2. The learned State Commission placed reliance on authorities reported in Union of India Vs. Vijay Laxmi, reported in 2006 (1) CPC 61 (NC), State of Nagaland Vs. Lipokao & Ors., reported in 2005 (2) RCR (Crl.) 414 and D. Gopinathan Pillai Vs. State of Kerala & Anr., reported in (2007) 2 SCC, 322 and dismissed the appeal on the ground of delay as well as on merits.
3. Before us, the learned counsel has not convassed any new argument.
She also could not state as to why, thereafter, the revision petition was delayed by 36 days. She further explained that due to departmental and procedural delay, the above said delay took place.
4. It is surprising to note that no alarm bells had rung, even after the delay in filing the appeal before the State Commission and getting it dismissed on that very ground. We are not satisfied at all with the explanation advanced by the learned counsel for the petitioner. The case of the petitioner is to be dismissed on this score alone. The following authorities dovetail with this case.
5. In Anshul Aggarwal v. New Okhla Industrial Development Authority, IV (2011) CPJ 63 (SC), it has been held 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.
6. In R.B. Ramlingam v. R.B. Bhavaneshwari, I (2009) CLT 188 (SC)= I (2009) SLT 701=2009 (2) Scale 108, it has been observed that 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.
7. In Ram Lal and Others v. Rewa Coalfields Ltd., AIR 1962 Supreme Court 361, it has been observed that 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 Section 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 bonafides may fall for consideration; but the scope of the inquiry 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.
8. In Sow Kamalabai, W/o Narasaiyya Shrimal and Narsaiyya, S/o Sayanna Shrimal Vs. Ganpat Vithalroa Gavare, 2007 (1) Mh. LJ 807, it was held that the expression sufficient cause cannot be erased from Section 5 of the Limitation Act by adopting excessive liberal approach which would defeat the very purpose of Section 5 of Limitation Act. There must be some cause which can be termed as a sufficient one for the purpose of delay condonation. I do not find any such sufficient cause stated in the application and no such interference in the impugned order is called for.
9. Again in Housing Board, Haryana, Vs. Dr. S.L. Chaudhary, (1991) 1, CPJ 140 at pp 142, 144 (Haryana SCDRC, Chandigarh) it was observed that Section 5, Limitation Act and proviso to Section 15, Consumer Protection Act is in pari material. A bare look at Sec.5 of the Limitation Act, makes it plain that the material part of the language of the proviso to Section 15 of the Consumer Protection Act is in pari materia therewith. Therefore, it would seem settled beyond caisil; that it is incumbent on the appellant to explain each day of default beyond the terminus line of the prescribed period of limitation.
10. In Balwant Singh Vs. Jagdish Singh & Ors., (Civil Appeal no. 1166 of 2006), decided by the Apex Court on 08.07.2010 it was held:
The party should show that besides acting bona fide, it had taken all possible steps within its power and control and had approached the Court without any unnecessary delay. The test is whether or not a cause is sufficient to see whether it could have been avoided by the party by the exercise of due care and attention. [Advanced Law Lexicon, P. Ramanatha Aiyar, 3rd Edition, 2005]
11. The Honble Supreme Court in case Bikram Dass Vs. Financial Commissioner and others AIR 1977 Supreme Court 1221 has held that:
Section 5 of the Limitation Act is a hard task-master and judicial interpretation has encased it within a narrow compass. A large measure of case-law has grown around S.5, its highlights being that one ought not easily to take away a right which has accrued to a party by lapse of time and that therefore a litigant who is not vigilant about his rights must explain every days delay.
12. In another authority reported in Office of the Chief Post Master General & Ors. Vs. Living Media India Ltd. & Anr. 2012 STPL(Web) 132 (SC), Honble Supreme Court was pleased to hold:
13. In our view, it is the right time to inform all the government bodies, their agencies and instrumentalities that unless they have reasonable and acceptable explanation for the delay and there was bonafide effort, there is no need to accept the usual explanation that the file was kept pending for several months/years due to considerable degree of procedural red-tape in the process. The government departments are under a special obligation to ensure that they perform their duties with diligence and commitment. Condonation of delay is an exception and should not be used as an anticipated benefit for government departments. The law shelters everyone under the same light and should not be swirled for the benefit of a few. Considering the fact that there was no proper explanation offered by the Department for the delay except mentioning of various dates, according to us, the Department has miserably failed to give any acceptable and cogent reasons sufficient to condone such a huge delay.
Accordingly, the appeals are liable to be dismissed on the ground of delay.
13. Now, let us turn to the merits of the case. Sunil Gupta, the complainant was allotted Booth No. 32 in Sector-10, Panchkula on 05.10.1987. He deposited the required 25% amount and immediately, approached the petitioner/OP for delivery of possession of the booth in question.
However, HUDA was unable to handover the possession of the same to the complainant as it was occupied by weavers.
The complainant made oral as well as written request to HUDA, time and again. But it did not produce the desired result.
14. On 27.02.89, HUDA asked him to take possession of the booth and get the Booth repaired from his own funds. He was assured that the expenses incurred by him on the said repairs would be reimbursed. The complainant took the possession of the Booth on 02.03.1989. The complainant spent a sum of Rs.30,000/- but instead of reimbursing the said amount, the HUDA/OP initiated resumption proceedings vide order dated 30.03.2001. The complainant submitted that he was ready and willing to make the outstanding amount to the HUDA/OP, but it did not accede to his request. Consequently, the complainant filed a complaint before the District Forum.
15. The case set up by the HUDA is that the complainant is a defaulter and did not pay the amount in time. It is averred that the complainant deposited a sum of Rs.27,450/- on 26.03.1990, after taking possession of the site, and thereafter, he did not pay the said amount.
He was given relaxation till 12.11.1992 but he failed to avail the said benefit. Consequently, the booth was resumed on 05.03.1993.
16. The learned District Forum came to the conclusion that the resumption order was never communicated to the complainant. It also transpired that some notices were issued but they did not give full details. The District Forum also displayed a surprise as to how an order passed on 05.03.1993 could be communicated to the complainant retrospectively, on 05.03.1969. The District Forum quashed the resumption order and the letter dated 05.03.2001 by placing reliance on Ruchira Ceremics Vs. HUDA, reported in 2001(1) PLJ 109, HUDA Vs. Virender Kumar, reported in 1999 (1) CPC 195 (NC) and HUDA Vs. Manju Jain Vs. HUDA, CWP No. 4405/98, decided by Punjab & Haryana High Court, on 02.06.1998.
Consequently, the complaint was allowed.
The complainant was directed to make the balance amount and the OPs were directed to receive the balance amount keeping in mind that only 10% simple contractual rate of interest is payable.
Complainant was also awarded cost of proceedings in the sum of Rs.1,000/-.
17. Even on merits, the petitioner has no case. For all these reasons, the revision petition is dismissed.
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(J.M. MALIK, J.) PRESIDING MEMBER ..
(VINAY KUMAR) MEMBER Md/6