National Consumer Disputes Redressal
M/S. Swiss International Airlines Ltd. vs Jitendar Mohan Bhasin & Ors. on 29 May, 2012
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO. 1819 OF 2012 (Against the order dated 05.03.2012 in Case No. FA/10/389 of the State Consumer Disputes Redressal Commission, DELHI ) M/s. Swiss International Air Lines Ltd. 12th Floor, Tower-B, Building No. 10 DLF Cyber City, Sector 25, Phase-II GURGAON 122 002 HARYANA ... Petitioner Versus 1.Jitender Mohan Bhasin 2. Vandana Bhasin 3. Aradhna Bhasin, Minor Through Father & Natural Guardian 4. Ashish Bhasin, Minor Through Father & Natural Guardian All Residents of Kothi No. 440 Sector-15 FARIDABAD HARYANA ... Respondents BEFORE: HON'BLE MR. JUSTICE J.M. MALIK, PRESIDING MEMBER HONBLE MR. SURESH CHANDRA, MEMBER For the Petitioner : Mr. Anurag Jain & Mr. Jaideep Sethi, Advocates Pronounced on : May, 2012 ORDER
JUSTICE J. M. MALIK, PRESIDING MEMBER The key question is whether the appeal filed before the State Commission was barred by time? The Appeal was filed 244 days after passing of the limitation period. The learned State Commission dismissed the application for condonation of delay as the Appellant could not show sufficient cause for condoning the said delay. Aggrieved by that order, the present revision petition has been filed.
2. The petitioner has explained the delay before the State Commission in its application titled as Application on behalf of the Appellant under Section 151 of CPC read with Section 5 of the Limitation Act, for condonation of delay in filing of Appeal. In the said application, the relevant Para Nos. 5 & 6, run as follows:-
5. That the delay in filing the present Appeal was that the earlier counsel for the appellant have assured that he will file the appeal with limitation but on one or the other pretext, it was not filed.
6. That since there was no progress about the appeal by the earlier counsel therefore the appellant has approached the present counsel to file appeal on their behalf.
No other ground finds place therein.
3. Learned counsel for the petitioner argued that their case on merits is very good, and an opportunity should be granted to the petitioner to put forward the case before the State Commission.
4. It is a matter of fact that the complainant has failed to offer convincing rationale of reasons in support of his application. First of all, it is surprising to note that the application does not mention the name of the earlier counsel. During the arguments, it was submitted that Sh.Om Prakash was the counsel and the petitioner has taken no action against him. There is nothing on record to show that any complaint before the Bar Council or any legal notice was served upon Sh.Om Prakash. Affidavit of Sh.Om Prakash also did not see the light of the day. The petitioner is supposed to explain the day-to-day delay but the needful was not done. Such like stories can be created at any time.
To our mind, in such like cases, false allegations are often made against the counsel so that the delay should be condoned. It is the duty cast on the petitioner itself to find out what has happened to his case and whether the appeal has been filed or not. He cannot put all the blame upon his counsel. The facts of this case rather reveal negligence, inaction and passivity on the part of the petitioner itself. The facts of this case speak for itself. This view is further emboldened by the following authorities.
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. In Banshi Vs. Lakshmi Narain 1993 (1) R.L.R. 68, it was held that reason for delay was sought to be explained on the ground that the counsel did not inform the appellant in time, was not accepted since it was primarily the duty of the party himself to have gone to lawyers office and enquired about the case, especially when the case was regarding deposit of arrears of rent. The statute also prescribes a time bound programme regarding the deposit to be made.
10. In Jaswant Singh Vs. Assistant Registrar, Co-operative Societies 2000 (3) Punj. L.R. 83, it was laid down that cause of delay was that the counsel of the appellant in the lower Court had told them that there was no need of their coming to Court and they would be informed of the result, as and when the decision comes, was held to be a story which cannot be believed.
11. In Bhandari Dass Vs. Sushila, 1997 (2) Raj LW 845, it was held that accusing the lawyer that he did not inform the client about the progress of the case nor has he did sent any letter, was disbelieved while rejecting an application to condone delay.
12. It is well settled that Qui facit per alium facit per se. Negligence of a litigants agent is negligence of the litigant himself and is not sufficient cause for condoning delay. See M/s. Chawala & Co. Vs. Felicity Rodrigues, 1971 ACJ 92.
13. In Delhi Development Authority Vs. Ramesh Kumar, 1996 (2) CCC 150 (Del), it was observed that when appellant found grossly negligent and administrative delays have not been properly explained, application for condonation liable to be dismissed.
14. In Victor Albuquerque Vs. Saraswat Co-operation Bank Ltd., AIR 1988-Bom 346, it was held that where the facts showing clear negligence of party during entire period of limitation and no sufficient cause sustained for delay in filing appeal, the delay cannot be condoned.
15. See the observations made by the Apex Court in State Bank of India Vs. B.S. Agricultural Industries (I), II (2009) CPJ 29 (SC)-II (2009) SLT793=2009 CTJ 481 [Supreme Court] (CP).
16. There is nothing to show that the petitioner is represented by an illiterate person. When the appeal was not listed or no information about it was received after 30 days, surely, alarm bells should have rung. The gross negligence, deliberate inaction and lack of bonafides is imputable to the petitioner.
17. In view of the foregoing discussion, the revision petition is dismissed, in limine.
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(J. M. MALIK, J) PRESIDING MEMBER .
(SURESH CHANDRA) MEMBER Dd/