State Consumer Disputes Redressal Commission
Jagdish Gajjar vs Sh. Dinesh Malhotra on 13 April, 2015
Daily Order STATE CONSUMER DISPUTES REDRESSAL COMMISSION, U.T., CHANDIGARH First Appeal No. : 82 of 2015 Date of Institution : 09.04.2015 Date of Decision : 13.04.2015 Sh. Jagdish Gajjar, 9 U.A. Jawahar Nagar, Delhi - 110007. ......Appellant/Complainant Versus Sh. Dinesh Malhotra, Advocate, High Court, 5662, Manimajra, Chandigarh. ....Respondent/Opposite Party. Appeal under Section 15 of the Consumer Protection Act, 1986. BEFORE: JUSTICE SHAM SUNDER (RETD.), PRESIDENT. SH. DEV RAJ, MEMBER.
SMT. PADMA PANDEY, MEMBER.
Argued by: Sh. Jagdish Gajjar, applicant/appellant in person.
PER DEV RAJ, MEMBER This appeal is directed against the order dated 08.08.2014 rendered by the District Consumer Disputes Redressal Forum-II, UT, Chandigarh (hereinafter to be called as the District Forum only) vide which, it dismissed the complaint filed by the complainant (now appellant) in limine.
2. The facts, in brief, are that the complainant met the Opposite Party on 28.2.2013 in Chandigarh High Court Complex and apprised him of the case filed by Anuj Mehta for quashing a Criminal Complaint pending in the Court of Judicial Magistrate Ist Class, Gurgaon, in the High Court. It was stated that all the necessary documents were provided to the Opposite Party, who was required to prepare the reply for which a professional fees was settled at Rs.20,000/-. It was further stated that an advance payment of Rs.5,000/- was given vide cheque of Yes Bank, which was cleared. It was further stated that thereafter the complainant met the Opposite Party on 8.3.2013 and provided more details, besides another cheque of Rs.5,000/- which was also cleared. It was further stated that the complainant was asked to attend the Court on 13.5.2013 and he alongwith the Opposite Party attended the Court of the Hon'ble Judge Naresh Kumar Sanghi, where the Opposite Party requested for a short date to file reply and the case was adjourned to 8.5.2013. It was further stated that on coming out of the Court, the Opposite Party again requested for payment, for which a blank cheque of Rs.5,000/- was given, as the Opposite Party wished to put it into his wife's account. It was further stated that the said cheque was cleared in the name of Archana Malhotra.
3. It was further stated that the complainant tried to approach the Opposite Party on 18.3.2013, 2.4.2013, 6.4.2013 and 19.4.2013, but he was not able to meet him. It was further stated that the complainant only met the Opposite Party on 1.5.2013, when he was informed that to oppose the bail application, he would charge Rs.7,000/- as fee. It was further stated that an amount of Rs.6,500/- was given to the Opposite Party. It was further stated that the complainant was informed on 8.5.2013 that the case had been adjourned to 15.5.2013 and thereafter to 20.5.2013 in the light of a possible compromise. It was further stated that the case was further adjourned to 19.7.2013. It was further stated that thereafter the complainant tried to contact the Opposite Party, a number of times, in June and July 2013, but he was only informed that the case had now been adjourned to 16.8.2013. It was further stated that, at this stage, the complainant felt that all was not good, so he approached his Counsel at Gurgaon, who advised him to inspect the Court file and get copies of the orders of the High Court and, in case, the reply had not been filed by the Opposite Party, to file the same himself.
4. It was further stated that the complainant visited Chandigarh and realized that the Opposite Party had not filed reply or opposed the bail. It was further stated that the complainant then attended the Court on 4.10.2013 and handed over the reply himself to the Court official. It was further stated that the Opposite Party had not pursued his case and was only taking adjournments on the pretext of exploring the possibility of compromise. It was further stated that no reply was filed and the interim bail was also not opposed. It was further stated that the aforesaid acts of the Opposite Party amounted to deficiency, in rendering service, as also indulgence into unfair trade practice.
5. When the grievance of the complainant was not redressed, left with no alternative, a complaint under Section 12 of the Consumer Protection Act, 1986 (hereinafter to be called as the Act only), was filed, seeking directions to the Opposite Party, to refund Rs.20,000/- paid for contesting the criminal miscellaneous; Rs.6,500/- paid for opposing the bail application; pay Rs.15,000/- as travelling and hotel stay and compensation for mental agony and physical harassment.
6. The complainant led evidence, in support of his case.
7. After hearing the complainant in person, at the admission stage, and, on going through the evidence, and record of the case, the District Forum dismissed the complaint in limine, as stated above, in the opening para of the instant order.
8. Feeling aggrieved, the instant appeal, has been filed by the appellant/complainant.
9. Alongwith the appeal, an application for condonation of delay of 252 days as per the applicant/appellant (as per the office report 191 days) was filed by the applicant/appellant.
10. We have heard the applicant/appellant in person, on the application for condonation of delay as also in the main appeal, at the preliminary stage, and have gone through the evidence and record of the case, carefully.
11. The applicant/appellant in person submitted that he filed the complaint on 31.07.2014 before the District Forum, which was dismissed on 08.08.2014 without giving him a fair chance to explain his case. It was further submitted that the order passed by the District Forum was received by him in Delhi on 22.08.2014. It was further submitted that in the second week of November, he visited the District Forum Gurgaon to know about the reasons for dismissal and discussed the matter with the official to understand the complexity of the order. It was further submitted that he was advised to file an appeal and the official told that the same could be filed within thirty days time and since the prescribed period had already lapsed, he had to file an application for condonation of delay with reasons for delay alongwith documentary proof. It was further submitted that to know the format of appeal, he visited the State Consumer Disputes Redressal Commission, Delhi, and one of the officials helped him to provide the format, whereafter, the complainant drafted the appeal. It was further submitted that on 17.11.2014, he applied under RTI to the High Court, for copies of petition moved by the Opposite Party and also entry pass dated 8th May, which were provided to him on 16.01.2015. It was further submitted that on 15th January 2015, he felt pain in his chest and consulted the doctor, who advised ECD, Lipid Profile and Thyroid Profile tests. It was further submitted that on the basis of the test reports, the doctor advised him for total rest and regular consultation after every fifteen days. It was further submitted that after his last visit, the doctor advised him to take regular medicine for a period of at least for six months.
12. It was further submitted that on 02.03.2015, son of the complainant was admitted in hospital to undergo an operation of Glutcal Abacas and after discharge, he was advised to visit hospital every second day for dressing. It was further submitted that the applicant/appellant had no option except to attend to his son and help him to go to hospital for dressing till 24.03.2015. It was further submitted that due to the aforesaid reasons, the appeal could not be filed in due course of time. It was further submitted that the delay in filing the appeal was neither intentional nor wilful and the same be condoned.
13. After giving our thoughtful consideration, to the contentions, raised by the applicant/appellant/ complainant and the evidence, on record, we are of the considered opinion, that the application for condonation of delay as also the appeal, are liable to be dismissed, at the preliminary stage, for the reasons, to be recorded hereinafter.
14. The first question, which falls for consideration, is, as to whether, there is sufficient cause for condonation of delay of 252 days as per the applicant/appellant (as per the office report 191 days), in filing the appeal, under Section 15 of the Act. It was held in Smt. Tara Wanti Vs State of Haryana through the Collector, Kurukshetra AIR 1995 Punjab & Haryana 32, a case decided by a Full Bench of the Punjab & Haryana High Court, that sufficient cause, within the meaning of Section 5 of the Limitation Act, must be a cause, which is beyond the control of the party, invoking the aid of the Section, and the test to be applied, would be to see, as to whether, it was a bona-fide cause, in as much as, nothing could be considered to be bonafide, which is not done, with due care and attention. In New Bank of India Vs. M/s Marvels (India): 93 (2001) DLT 558, Delhi High Court held as under:-
"No doubt the words "sufficient cause" should receive liberal construction so as to advance substantial justice. However, when it is found that the applicants were most negligent in defending the case and their non-action and want of bonafides are clearly imputable, the Court would not help such a party. After all "sufficient cause" is an elastic expression for which no hard and fast guide-lines can be given and Court has to decide on the facts of each case as to whether the defendant who has suffered ex-parte decree has been able to satisfactorily show sufficient cause for non- appearance and in examining this aspect, cumulative effect of all the relevant factors is to be seen."
15. In Oriental Insurance Co. Ltd. vs. Kailash Devi & Ors. AIR 1994 Punjab and Haryana 45, it was held as under:-
"There is no denying the fact that the expression sufficient cause should normally be construed liberally so as to advance substantial justice, but that would be in a case where no negligence or inaction or want of bonafides is imputable to the applicant. The discretion to condone the delay is to be exercised judicially i.e. one of is not to be swayed by sympathy or benevolence."
16. In R.B. Ramalingam Vs. R.B. Bhuvaneswari, 2009 (2) Scale 108, the Supreme Court observed as under:-
"We hold that in each and every case the Court has to examine whether delay in filing the Special 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".
17. The Hon'ble Supreme Court in Ansul Aggarwal Vs. New Okhla Industrial Development Authority, 2012 (2) CPC 3 (SC) has laid down 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"
18. Recently, the National Consumer Disputes Redressal Commission, New Delhi in Regional Provident Commissioner, Guntur Vs. S. Siva Sankar Rao, Revision Petition No.1617 of 2014, decided on 01.05.2014, whereby five other similar Revision Petitions bearing No.1620 & 1645 and 1796 all of 2014, were decided, while dealing with the issue as regards condonation of delay of 61/78 days in filing the said Revision Petitions, placed reliance on Office of Chief Post Master General & Ors. Vs. Living Media India Ltd. & Anr., 2012 STPL (Web) 132 (SC), wherein the Hon'ble Apex Court held as under:-
"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."
19. The National Commission, in Para 8 of the order, held that "...in these cases, day to day delay was not explained. The cases are barred by limitation".
20. Further, in Paras 9 to 13, the National Commission held as under:-
9. This view neatly dovetails with the following authorities. In Anshul Aggarwal v. New Okhla Industrial Development Authority, IV (2011) CPJ 63 (SC), R. B. Ramlingam v. R. B. Bhavaneshwari, I (2009) CLT 188 (SC)= I (2009) SLT 701=2009 (2) Scale 108, Ram Lal and Others v. Rewa Coalfields Ltd., AIR 1962 Supreme Court 361, and Bikram Dass vs. Financial Commissioner and Ors. AIR 1977 SC 1221.
10. The latest view taken by the Supreme Court is in Civil Appeal No. 19896 of 2013 in the case "M/s Ambadi Enterprise Ltd. Vs. Smt. Rajalakshmi Subramanian", decided on 12th July 2013 wherein SLP was dismissed upholding the judgment of this Commission, where the delay of 78 days was not condoned.
11. Again the Apex Court while dismissing the Special Leave to Appeal (Civil) No. 33792 of 2013 in Chief Officer, Nagpur Housing & Area Development Board &Anr. V. Gopinath Kawadu Bhagat, decided on 19.11.2013, upholding the order of this Commission where 77 days delay was not condoned.
12. Above all, in Sanjay Sidgonda Patl Vs. National Insurance Co. Ltd. & Ors., decided by the Apex Court while dismissing the Special Leave to Appeal (Civil) No. 37183 of 2013, decided on 17.12.2013, upholding the order of this Commission wherein delay of 13 days was not condoned.
13. Consequently, we find that the case is barred by time. However, we refrain from giving the view on the merits of this case."
21. Keeping in view the principle of law, laid down, in the aforesaid cases, it is to be seen, as to whether, the applicant/appellant, has been able to establish that it was, on account of the circumstances, beyond his control, that he could not file the appeal, in time. The appeal could be filed within 30 days, from the date of receipt of a certified copy of the order. The applicant/appellant has admitted the receipt of certified copy of the impugned order on 22.08.2014. It was stated that thereafter, the applicant/appellant visited the District Forum at Gurgaon and the State Commission at Delhi to enquire about the formalities/format for filing the appeal. Subsequently, on 14.01.2015, he got pain in his chest, for which he was advised medication and rest. The applicant/appellant has placed, on record, prescription slip of Patanjali Arogya Kendra, Delhi dated 14.02.2015 and his Test Report dated 16.02.2015. According to the applicant/appellant, his son underwent operation of Glutcal Abacas, for which he was admitted in the hospital from 02.03.2015 to 03.03.2015, for which the complainant has placed, on record, Discharge slip of Sharda Hospital, Greater Noida (U.P.). The applicant/complainant has not specifically mentioned the dates/time, on which he visited the District Forum, Gurgaon and SCDRC, Delhi. From the date of receipt of certified copy of the impugned order on 22.08.2014 up-till 14.01.2015 when the complainant felt pain in his chest, there was a delay of approximately about five months, which he has failed to explain. Even the son of the complainant remained admitted in the Hospital for only one day i.e. from 02.03.2015 to 03.03.2015, which cannot be accepted as a valid and justifiable ground for condonation of delay. If we accept the averment of the applicant/appellant, that he was advised medicines and rest, as alleged, even then the appeal could have been filed by sparing one or two days. The delay of 252 days as per the applicant/appellant/complainant (as per the office report 191 days), which was approximately more than 6 months of normal period of filing an appeal under Section 15 of the Act, was apparently on account of the complete inaction and lack of bonafides and diligence, attributable to the applicant/appellant/complainant. The cause set up by the applicant/appellant/complainant, in the application, for condonation of delay, could not be said to be such, as was beyond his control, which prevented him, from filing the appeal in time. The applicant/appellant/ complainant, therefore, failed to prove any sufficient cause, in filing the appeal after such a delay. Since no sufficient cause is constituted, from the averments, contained in the application, the delay of 252 days, as per the applicant/appellant/complainant (as per the office report 191 days) cannot be condoned. The application is, thus, liable to be dismissed.
For the reasons recorded above, the application for condonation of delay is dismissed being devoid of merit. Consequently, the appeal, being barred by limitation, is dismissed, at the preliminary stage, with no order as to costs.
23. Certified copies of this order, be sent to the parties, free of charge.
24. The file be consigned to Record Room, after completion.
Pronounced.
April 13 , 2015.
Sd/-
[JUSTICE SHAM SUNDER (RETD.)] PRESIDENT Sd/-
(DEV RAJ) MEMBER Sd/-
(PADMA PANDEY) MEMBER Ad STATE COMMISSION (First Appeal No.82 of 2015) (Sh. Jagdish Gajjar Vs. Sh. Dinesh Malhotra) Argued by: Sh. Jagdish Gajjar, applicant/appellant in person.
Dated the 13th day of April, 2015 ORDER On 10.04.2015, the applicant/appellant has moved an application, for placing on record, copy of the Criminal Miscellaneous (CRM) No.20683-684-685 of 2013 alongwith annexures attached to it, obtained from Hon'ble Punjab and Haryana High Court, Chandigarh, on the ground, that the same are essential for the just decision of appeal.
2. Arguments were heard, on the application at the preliminary stage.
3. It may be stated here, that the document and the annexures, sought to be placed, on record, by way of additional evidence, were very much, in the knowledge of the appellant/complainant, when he was leading evidence, in the District Forum. In case, at this stage, the application for placing, on record, the documents, aforesaid, by way of additional evidence, is allowed, that will delay the disposal of appeal, thereby defeating the very purpose of the provisions of Section 13 (3A), of the Consumer Protection Act, 1986, stipulating the specific time, for the disposal of Consumer Disputes. Thus, there is no justification, whatsoever, to allow the application, for placing, on record, the aforesaid documents, by way of additional evidence, at this stage. The application is accordingly dismissed.
Arguments on the application for condonation of delay as also in the main appeal, already heard.
Vide our detailed order of the even date, recorded separately, the application for condonation of delay has been dismissed being devoid of merit. Consequently, the appeal has been dismissed being barred by time, with no order as to costs.
Certified copies of the order be sent to the parties free of charge.
Sd/- Sd/- Sd/- (DEV RAJ) MEMBER (JUSTICE SHAM SUNDER (RETD.)) PRESIDENT (PADMA PANDEY) MEMBER Ad