State Consumer Disputes Redressal Commission
M/S Saroj Overseas Pvt. Ltd vs Kotak Mahindra General Insurance Co. ... on 30 January, 2024
FA/9/2024 KOTAK MAHINDRA GEN. INS. CO. LTD. VS. SAROJ OVERSEAS PVT. LTD. DOD:
IN THE DELHI STATE CONSUMER DISPUTES REDRESSAL
COMMISSION
Date of Institution:06.01.2024
Date of hearing : 24.01.2024
Date of Decision : 30.01.2024
FIRST APPEAL NO. 9/2024
IN THE MATTER OF
KOTAK MAHINDRA GENERAL INSURANACE CO. LTD.
THROUGH ITS DIVISIONAL MANAGER
H-78, 7TH FLOOR, 23, HIMALAYA HOUSE
K.G. MARG, NEW DELHI-110001
...APPLICANT/APPELLANT
VERSUS
M/S SAROJ OVERSEAS PVT. LTD.
SF-25, 2ND FLOOR, PEARL OMAXE
NETAJI SUBHASH PLACE
PITAMPURA, NEW DELHI-110034
....NON-APPLICANT/ RESPONDENT
CORAM:
HON'BLE JUSTICE SANGITA DHINGRA SEHGAL (PRESIDENT)
HON'BLE MS. PINKI, MEMBER (JUDICIAL)
Present: Mr. Anuj Chauhan (Email ID: [email protected] and
Mobile No. 9810731674), counsel for the appellant.
None for Respondnet.
PER: HON'BLE MS. PINKI, MEMBER (JUDICIAL)
1.The present appeal has been filed on 06.01.2024 challenging the impugned order dated 06.12.2022 passed in Complaint Case No.602/2021 by the District Consumer Disputes Redressal Commission-V (North-West), CSC-Block-C, Pocket-C, Shalimar Bagh, Delhi-11008 whereby the complaint was allowed.
DISMISSED Page 1 of 10FA/9/2024 KOTAK MAHINDRA GEN. INS. CO. LTD. VS. SAROJ OVERSEAS PVT. LTD. DOD:
2. This order will dispose off an application bearing IA No.63/2024 seeking condonation of delay in filing the appeal, filed along with the appeal. Affidavit of Mr. Milid V. Myakal, Authorized Representative of the appellant has been filed along with this application.
3. We have given considerable thought to the submissions put forth by counsel for the appellant. Record has been carefully and thoroughly perused.
4. The application has been moved under Section 5 of the Limitation Act, 1963. However, it is being considered under Section 41 of the Consumer Protection Act, 2019 as it is arising out of Complaint Case No.602/2021.
5. Application for condonation of delay has been filed on various grounds. Para No. 2 to 12 of the application read as under:
"2.That it is humbly submitted that the Appellant did not have any Knowledge qua the fact that the impugned judgment dated 06.12.2022 has been passed by the Ld. District Commission as the same was passed illegally and behind the back of the Appellant.
3.That it is further submitted here that the Appellant company never received the free copy as no first free copy of impugned judgment dated 27.07.2023 was ever sent to the Appellant Company by the registry of Ld. District Commissions despite it was categorically directed in the impugned judgment that free copies of the judgment shall be sent to both the parties. Thus it was never in the knowledge of the Appellant company nor its counsel that such illegal order has been passed by the Ld. District Commission.
4.That it was on 05.10.2023, when the Appellant came to know cution has been filed by the Respondent and the impugned order has been passed way back 06.12.2022.
5.That the Appellant immediately contacted its counsel and enquired about the matter with him, the counsel of the appellant applied for a complete certified copy of the DISMISSED Page 2 of 10 FA/9/2024 KOTAK MAHINDRA GEN. INS. CO. LTD. VS. SAROJ OVERSEAS PVT. LTD. DOD:
record. That on receipt of certified order copy, appellant had further applied for certified copy of daily order sheet.
6.That said certified copy of daily order sheet was received by virtue of mail on 09-10- 2023. After going through the necessary records, it was noted that there had been grave irregularities and manipulation in the court records. It was noted that the Evidence by of affidavit filed by the OP/Appellant was tampered as the attestation date from 15.12.2022 was changed to 05.12.2022 and the orders dates and confonet data was also tampered by the Id. District Commission in clear collusion and connivance with the Respondent so that the Respondent can get a biased order behind the back of the Appellant.
7.That looking into the discrepancies of the impugned order, appellant had directed counsels of appellant to duly draft the appeal draft by virtue of mail dated 09-10-2023. That counsel of appellant had duly sent appeal draft through mail dated 11-10-2023 which was duly vetted, edited and subsequently duly signed and sealed copy of draft was sent to counsel of appellant with notarised dated of 16-10-2023.
8.That further since there was a significant manipulation of dates and tampering of court records, this was brought to the notice of higher management who took some time to review the details and also discussed this issue with other legal practitioners and took their views.
9.That accordingly, counsels of appellant had provided instructions to process statutory amount by virtue of mail dated 17-10-2023. That after receipt of mail from counsel, appellant had conducted internal discussions on the illegality and irregularity of the impugned order passed. That during the course of discussions, it was further analysed whether criminal actions shall be initiated against the complainant respondent under Section 466 of Indian Penal Code, 1860 which deals with Forgery of Court Record or of public register.DISMISSED Page 3 of 10
FA/9/2024 KOTAK MAHINDRA GEN. INS. CO. LTD. VS. SAROJ OVERSEAS PVT. LTD. DOD:
10.That on 07-11-2023 after due deliberations and considerations of all material aspects, it was decided to prefer appeal against the impugned order passed and accordingly appellant had initiated the processing of statutory amount.
11.That due to festive season, concern bank were closed on the behest of Diwali holiday and other local festivals and henceforth said statutory deposit FDR had been processed on 06-12-2023 and said FD invoice was generated on 15-12-2023.
12.That accordingly appellant had sent scan copy of FD invoice through mail dated 15-12-2023 to the counsels and hard copy of the document was sent through courier."
6. To adjudicate this issue, we deem it appropriate to refer to Section 41 of the Consumer Protection Act, 2019 which provides as under:-
41. "Any person aggrieved by an order made by the District Commission may prefer an appeal against such order to the State Commission on the grounds of facts or law within a period of forty-five days from 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 forty-five 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 Commission, shall be entertained by the State Commission unless the appellant has deposited fifty percent of that amount in the manner as may be prescribed:
Provided also that no appeal shall lie from any order passed under sub-section (1) of section 81 by the District Commission pursuant to a settlement by mediation under section 80."
7. A perusal of the aforesaid statutory position reflects that the appeal against an order should be preferred within a period of forty five DISMISSED Page 4 of 10 FA/9/2024 KOTAK MAHINDRA GEN. INS. CO. LTD. VS. SAROJ OVERSEAS PVT. LTD. DOD:
days from the date of impugned judgment. On perusal of record before us, it is clear that the impugned order was pronounced on 06.12.2022 and the present appeal was filed on 06.01.2024 i.e. after a delay of 351 days.
8. In order to condone the delay, the Appellant has to satisfy this Commission that there was sufficient cause for preferring the appeal 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."
9. We also deem it appropriate to refer to Anil Kumar Sharma vs. United Indian Insurance Co. Ltd. and Ors. Reported in IV(2015)CPJ453(NC), wherein the Hon'ble NCDRC held as under:-
"12. .........we are not satisfied with the cause shown to justify the delay of 590/601 days. Day to day delay has not DISMISSED Page 5 of 10 FA/9/2024 KOTAK MAHINDRA GEN. INS. CO. LTD. VS. SAROJ OVERSEAS PVT. LTD. DOD:
been explained. Hon'ble Supreme Court in a recent judgment of Anshul Aggarwal v. New Okhla Industrial Development Authority, IV (2011) CPJ 63 (SC) has held that while deciding the application filed for condonation of delay, the Court has to keep in mind that 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 the appeals and revisions, which are highly belated are entertained."
10. 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 PopatBahiruGoverdhane 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.
11. From the aforesaid dicta of the Hon'ble Apex Court and the Hon'ble National Commission, 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 the applicant must satisfy the DISMISSED Page 6 of 10 FA/9/2024 KOTAK MAHINDRA GEN. INS. CO. LTD. VS. SAROJ OVERSEAS PVT. LTD. DOD:
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.
12. Reverting to the material available before us, we find that the impugned order was passed on 06.12.2022 and the period of limitation starts from the date of order which had expired on 20.01.2023. However, the reason stated for the delay that the appellant never received the first free copy of impugned order as the same was not sent to the appellant by the District Commission despite it was categorically directed in the impugned order that the free copies of the judgment shall be sent to the parties; thereafter on 05.10.2023, when the appellant came to know that the execution has been filed by the respondent in the District Commission and the impugned order has been passed way back 06.12.2022; thereafter the appellant immediately contacted its counsel who applied for a complete certified copy of the record; upon receipt of certified order copy, the appellant further applied for certified copy of daily order sheet which was received by virtue of mail on 09.10.2023; after going through the necessary records, it was noted that there had been grave irregularities and manipulation in the court records; thereafter the appellant directed to its counsel to duly draft the appeal by virtue of mail dated 09.10.2023; thereafter counsel sent the draft through mail dated 11.10.2023 which was duly vetted, edited and subsequently duly signed and sealed copy of draft was sent to counsel of appellant with notarized dated of 16.10.2023; further since there was a significant manipulation of dates and tampering of court records, this was brought to the notice of higher management who took some time review the details and also discussed with other legal practitioners and took their views;
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during the course of discussion, it was analysed whether criminal actions shall be initiated against the respondent under Section 466 of Indian Penal Code, 1860; on 07.11.2023 after due deliberations and considerations of all material aspects, it was decided to prefer appeal and accordingly the appellant had initiated the processing of statutory amount; thereafter due to festive season, concern bank were closed on the behest of Diwali holiday and other local festivals and henceforth said statutory deposit FDR had been processed on 06.12.2023 and the said FD invoice was generated on 15.12.2023; thereafter the appellant had sent scan copy of FD invoice through mail dated 15.12.2023 to the counsels and hard copy of the document was sent through courier, seem fictitious.
13. A perusal of certified copy of impugned order as well as documents at page no. 33 to 133 shows that the certified copy of the same has been collected by the appellant on 04.10.2023. Even if we consider that the appellant has received the certified copy of the impugned order on 04.10.2023 (as per certified copy of impugned order), in this circumstance, the appellant was expected to file the appeal within the limitation period i.e. by 18.11.2023. Still there is delay of 49 days in filing the appeal.
14. The appellant has submitted in para 4 of the application that the appellant came to know about the impugned order on 05.10.2023. However, a perusal of certified copy of impugned order has been collected by the appellant on 04.10.2023. Further, even if we consider that the appellant has received the certified copy of the impugned order on 05.10.2023 (as averred in para no. 4 of the application), in these circumstances also, the appellant DISMISSED Page 8 of 10 FA/9/2024 KOTAK MAHINDRA GEN. INS. CO. LTD. VS. SAROJ OVERSEAS PVT. LTD. DOD:
was expected to file the appeal within the limitation period i.e. by 19.11.2023. Still there is delay of 48 days in filing the appeal.
15. It is pertinent to mention that the appellant has preferred not to mention the date when the appellant contacted its counsel and enquired about the matter and applied for getting certified copies.
Further, no documentary proof in support of its submissions as averred in para 6 to 12 of the application, has been filed by the appellant. Furthermore, the appellant has remained silent to furnish the name of the concerned bank which was closed on behest of Diwali holidays and other local festivals and to furnish the period of time during which the concerned bank was closed. It is pertinent to note that Diwali was celebrated on 12.11.2023 i.e. sunday.
16. In order to condone the delay, the appellant has to satisfy the Commission for delay of each day. However, the appellant has failed to show sufficient reason for delay of each day as required under the law. The applicants have abused the process of law and filed this appeal after immense delay without any reasonable ground.
17. As per the averments made in the application as well as the record, we are of the considered view that no cogent reason has been explained by the appellant to show the delay in filing the appeal.
18. Having regard to the statutory position discussed in para supra and the facts of the case, the applicant/appellant has failed to show any sufficient cause for the delay in filing the present appeal. Therefore, the application filed by the appellant seeking condonation of delay cannot be admitted and accordingly, the same is dismissed on the above grounds.
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19. Consequently, the present appeal filed beyond the statutory period also stands dismissed. However, in the facts of the case, there shall be no order as to cost.
20. File be consigned to record room.
JUSTICE SANGITA DHINGRA SEHGAL (PRESIDENT) PINKI MEMBER (JUDICIAL) Pronounced on 30.01.2024.
DISMISSED Page 10 of 10