State Consumer Disputes Redressal Commission
Mr. Ashok Kr. Parmar & Ors. vs M/S Spaze Towers Pvt. Ltd. on 4 July, 2024
IA-394/24 IN CC-98/22 04.07.2024 MR. ASHOK KUMAR PARMAR & ANR. VS. M/S SPAZE TOWERS PRIVATE LIMITED 04.07.2024 IA-394/24 IN CC-98/22 Vide this order we shall dispose of an application bearing IA No. 394/2024 for condonation of delay, filed on behalf of the Opposite Party seeking condonation of delay in filing the written statement.
The record has been carefully and thoroughly perused. The present complaint was filed on 22.06.2022, alleging deficiency of service and unfair trade practice on the part of Opposite Party. Thereafter, vide order dated 18.07.2022 passed by this Commission, notice was issued to the Opposite Party through registered post and speed post along with the copy of the complaint. As averred in Para No.4 of the application, the Opposite Party had applied for certified copy of the complaint on 21.01.2023 which was received by them on 30.01.2023. Written statement to the complaint along with application for condonation of delay in filing reply to the complaint has been filed by the Opposite Party on 25.02.2023 vide diary No. 3062. The application has been filed along with an affidavit of Mr. Dinesh Kumar Girdhar, Authorized Representative of Opposite Party.
The Opposite Party has filed the written statement on 25.02.2023 along with an application seeking condonation of delay on the ground mentioned in Para No. 3 and 4 of the application which read as under:-
"3. The copy of the Complaint was not serviced to the Opposite Party by the Complainants. The Opposite Party appeared physically on the last date of hearing i.e., 16.01.2023, wherein, the Opposite Party informed this Hon'ble Court about the non-service of the Complaint to the Opposite Party.
Dismissed PAGE 1 OF 7 IA-394/24 IN CC-98/22 04.07.2024
4. The Counsel for Opposite Party sent an email, dated 16.01.2023 requesting the Complainants to supply copy of the abovementioned Complaint but no response was received from the Counsel for Complainants. The copy of email, dated 16.01.2023 is annexed herewith this Application. Thereafter, the Opposite Party applied for the Certified Copy of the Complaint on 21.01.2023 and the same was duly received on 30.01.2023."
Reply to the said application has been filed by the Complainants vide diary no. 14123 dated 31.08.2023.
To adjudicate this issue, we deem it appropriate to refer to Section 38(2)(a)r/w Section 49(1) of the Consumer Protection Act, 2019 which provides as under:
"Section 38(2): Where the complaint relates to any goods, the District Commission shall,-
2(a) refer a copy of the admitted complaint, within twenty- one days from the date of its admission to the opposite party mentioned in the complaint directing him to give his version of the case within a period of thirty days or such extended period not exceeding fifteen days as may be granted by it;"
Section 49 (1): The provisions relating to complaints under sections 35, 36, 37, 38 and 39 shall, with such modifications as may be necessary, be applicable to the disposal of complaints by the State Commission." A perusal of the aforesaid statutory position reflects that the written version/written statement against the consumer complaint should be preferred within a period of thirty days or extended period of fifteen days as granted by it, from the date of receipt of the copy of the Complaint along with notice.
Further, it is well settled preposition of law 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 Dismissed PAGE 2 OF 7 IA-394/24 IN CC-98/22 04.07.2024 condone the delay if sufficient cause has been provided by the Opposite Party.
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."
From 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.
Dismissed PAGE 3 OF 7 IA-394/24 IN CC-98/22 04.07.2024
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 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, the written statement has been filed on 25.02.2023 vide diary no. 3062. Further the Opposite Party submitted that reply to the complaint could not be filed within the stipulated period on the following grounds:
1. No copy of the complaint was served to the Opposite Party by the Complainants.
2. On 16.01.2023, Mr. Lokesh Bhola and Ms. Rohini Das, counsel for the Opposite Party appeared before this Commission and informed about the non-service of the Complaint to the Opposite Party.
Dismissed PAGE 4 OF 7
IA-394/24 IN CC-98/22 04.07.2024
3. Counsel for the Opposite Party sent an email dated
16.01.2023 to the complainants requesting to supply copy of the complaint. However, no response was received from the Complainants.
4. Thereafter, the Opposite Party applied on 21.01.2023 for the certified copy of the complaint which was received by them on 30.01.2023.
It is note worthy that Opposite Party has preferred not to disclose the date of service. The complainants have denied in their reply, the averment made in para 3 of the application qua the alleged averment that copy of the complaint was not served to the Opposite Party.
The Complainants have mentioned in their reply that the Opposite party has been served with summon of this Commission in September 2022. However, the Opposite Party has remained silent to mention as to why they took so much time to take steps to get copy of the complaint.
It is pertinent to mention that the notice is always issued along with the copy of the complaint by this Commission. Order dated 18.07.2022 passed by this Commission also mentions that "A copy of complaint be also sent along with the notice". It is the applicant/Opposite Party to inform the Commission at the earliest, after service in their case. However, the applicant/Opposite Party has failed to raise/intimate/inform by any mode of communication to this Commission immediately after service. They have even preferred not to disclose the date of their service. Further, even order dated 16.01.2023 passed by this Commission do not mention about such submissions. Order 16.01.2023 passed by this Commission is reproduced as follows:
Dismissed PAGE 5 OF 7 IA-394/24 IN CC-98/22 04.07.2024
Further, the Opposite Party has averred in para 3 of the application that they had applied for certified copy of the complaint on 21.01.2023 and the same was received on 30.01.2023. However, no copy of such application in support of their averment has been filed.
Dismissed PAGE 6 OF 7 IA-394/24 IN CC-98/22 04.07.2024
Opposite Party was served in September, 2022 and applied for certified copy on 21.01.2023 i.e. after the expiry of statutory period.
Furthermore, the Opposite Party has failed to file any documentary proof or substantiated evidence in support of its submission. Therefore, in absence of any document or any other evidence, 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, according to us, the Opposite Party has miserably failed to give any acceptable and cogent/sufficient reason to condone the delay. Accordingly, IA-394/2024 filed by the Opposite Party seeking condonation of delay in filing the written statement/reply cannot be admitted and stands dismissed. Accordingly, the written statement filed by the Opposite Party cannot be taken on record.
Complainants are directed to file evidence by way of affidavit within four weeks from today positively and advance copy of the same be supplied to the Opposite Party.
Parties are also directed to file their short written arguments along with judgments, if any, being relied by them within four weeks positively and advance copies of the same be exchanged with each other.
List the matter on 11.09.2024 for final arguments and disposal.
(Pinki)
Member (Judicial)
(Justice Sangita Dhingra Sehgal)
President
Dismissed PAGE 7 OF 7