State Consumer Disputes Redressal Commission
Municipal Corporation, Ludhiana vs Gurmeet Kaur on 12 September, 2011
2nd Bench
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB
SECTOR 37-A, DAKSHIN MARG, CHANDIGARH.
Misc. Appl. No.1449 of 2011
In/and
First Appeal No.740 of 2011.
Date of Institution: 04.05.2011.
Date of Decision: 12.09.2011.
Municipal Corporation, Ludhiana, through its Commissioner.
.....Appellant.
Versus
Gurmeet Kaur W/o Sh. Karnail Singh, Resident of H.No.303, Urban Estate,
Dugri, Ludhiana.
...Respondent.
Misc. Application for Condonation of Delay
of 136 days
In/And
First Appeal No.740 of 2011 against the
order dated 14.09.2010 of the District
Consumer Disputes Redressal Forum,
Ludhiana.
Before:-
Shri Inderjit Kaushik, Presiding Member.
Shri Piare Lal Garg, Member.
Present:-
For the applicant/appellant : Sh. Manoj Kumar, Advocate with Sh. Harish Bhagat, Law Assistant.
For the respondent : Sh. G.S. Sikka, Advocate.
INDERJIT KAUSHIK, PRESIDING MEMBER:-
Municipal Corporation, Ludhiana, applicant/appellant (in short, "the applicant") has filed this application U/s 5 of the Limitation Act, seeking condonation of delay of 136 days in filing the appeal.
2. It was submitted by the applicant that the present appeal is being filed against the order dated 14.09.2010 passed by the District Forum, Ludhiana. There is delay of 136 days in filing the present appeal which occurred due to the reason that the certified copy of the impugned order along with case file was misplaced by the dealing clerk and he could not First Appeal No.1449 of 2011 2 In/and F.A. No.740 of 2011 inform the authorities in this regard and the file was traced on 03.05.2011 and the appeal was immediately filed. The delay is neither intentional nor deliberate, but due to the reasons mentioned above and prayed that the delay may be condoned in the interest of justice.
3. In the reply filed on behalf of the respondent, preliminary objections were taken that actually the delay is of 219 days instead of 136 days and the application is not maintainable as the same has been filed on vague and false grounds and to mislead this Commission. If the concerned case file had been misplaced by the dealing clerk, then DDR/FIR should have been registered, but no DDR was lodged. The applicant has not come to the Commission with clean hands and suppressed the material facts.
4. The applicant is a statutory body, having independent Zones in Ludhiana and functioning of each Zone is handled independently. However, the legal wing is common which is being handled by legal advisor and the cases relating to the applicant are undertaken by the legal wing along with a battery of lawyers. Day to day proceedings/reasons are required to be given which has not been mentioned in the application. The copy of the order passed by the District Forum, Ludhiana was already with the Corporation and the same was seen/marked by the Executive Engineer, Zone-D on 19.11.2010/ 23.11.2010 which is self explanatory that the file was very much available with the applicant and the application deserves to be dismissed.
5. On merits, the averments of the application were denied and it was pleaded that actual facts have been pleaded in the preliminary objections and prayed that the application may be dismissed.
6. We have heard the learned counsel for the parties and have perused the record.
7. Learned counsel for the applicant has contended that the case file was lost by the dealing hand and it was traced on 03.05.2011 and thereafter, the appeal was immediately filed. The delay was due to this First Appeal No.1449 of 2011 3 In/and F.A. No.740 of 2011 reason and the same may be condoned and the matter may be decided on merits.
8. On the other hand, learned counsel for the respondent has vehemently argued that in fact, there is delay of 219 days if taken from the date of preparation of the copy i.e. 21.09.2010 and nothing has been mentioned in the application as to when the file was lost and how it was traced and immediately after tracing, how on the same day, the appeal could be filed? No evidence of any disciplinary action taken against the said dealing clerk has been produced and the delay has not been explained satisfactorily and the application may be dismissed.
9. We have considered the submissions made by the learned counsel for the parties and have perused the record.
10. The perusal of the certified copy of the order attached along with the application/appeal shows that the copy was despatched on 16.11.2010 and as per the applicant, it was received on 19.11.2010 and the present appeal was filed on 04.05.2011. There is delay of 135 days in filing the present appeal if counted from 19.11.2010. The reason given for the delay is that the case file was lost by the dealing clerk and was traced on 03.05.2011 and very promptly on 04.05.2011, the present application along with the appeal was filed. The applicant has taken the matter of filing the appeal in a most casual and negligent manner. No affidavit of the dealing clerk is on record. No affidavit regarding any disciplinary action taken against him is on record and it seems that the applicant-Corporation presumes that the delay will be condoned automatically by this Commission without giving any satisfactory explanation. We are afraid that this casual approach and taking the things for granted is fatal for the case of the applicant and the applicant is required to improve its own functioning and to conduct the cases either pending or cases for filing the appeals seriously and not in a hush-hush manner. The law of limitation does not give extraordinary right to the applicant being Corporation, to deal as per whims and wishes of the officials of the First Appeal No.1449 of 2011 4 In/and F.A. No.740 of 2011 applicant. By this time, it is settled that the Courts/Tribunal should be liberal in condoning the delay and decide the cases on merits, but on the other hand, it is also clear that the delay must be satisfactorily explained and the Court/Tribunal should be satisfied that the delay has occurred due to the reasons beyond the control of a person/body. Hon'ble Supreme Court in case "Kamlesh Babu and Ors. Vs Lajpat Rai Sharma and Others", 2008(3) The Punjab Law Reporter-455, while interpreting and explaining the scope of Section 3(1) of the Limitation Act, observed as follows:-
"It is well settled that Section 3(1) of the Limitation Act casts a duty upon the court to dismiss a suit or an appeal or an application, if made after the prescribed period, although, limitation is not set up as a defence".
11. In case "State Bank of India Vs B.S. Agriculture Industries (I)", (2009) CTJ-481 (Supreme Court) (CP), the Hon'ble Supreme Court took the view that the provision of Section 24-A of the Act is of peremptory nature and observed in Para-8 as follows:-
"8. It would be seen from the aforesaid provision that it is peremptory in nature and requires consumer forum to see before it admits the complaint that it has been filed within two years from the date of accrual of cause of action. The consumer forum, however, for the reasons to be recorded in writing may condone the delay in filing the complaint if sufficient cause is shown. The expression, 'shall not admit a complaint' occurring in Section 24-A is sort of a legislative command to the consumer forum to examine on its own whether the complaint has been filed within limitation period prescribed thereunder. As a matter of law, the consumer forum must deal with the complaint on merits only if the complaint has been filed within two years from the date of accrual of cause of action and if beyond the said period, the sufficient cause has been shown and delay condoned for the reasons recorded in writing. In other words, it is the duty of the First Appeal No.1449 of 2011 5 In/and F.A. No.740 of 2011 consumer forum to take notice of Section 24-A and give effect to it. If the complaint is barred by time and yet, the consumer forum decides the complaint on merits, the forum would be committing an illegality and, therefore, the aggrieved party would be entitled to have such order set aside".
12. Hon'ble National Commission in case "Dakshin Haryana Bijli Vitran Nigam Limited Vs DAC Research and Health Specialities Pvt. Ltd.", 2009(1) Consumer Law Today-532, observed that law of limitation does not give any special exemption or indulgence for relaxation of time limit for a Government department and observed in Para-5 (relevant portion) as follows:-
"Law of limitation does not give any special exemption or indulgence in time limit for relaxation of time limits for a Government Department, especially, when a right has been created in favour of one of the parties".
13. The Hon'ble Supreme Court in case "Lanka Venkateswarlu (D) By Lrs. Vs State of A.P. & Others", 2011 (2) RCR Civil-880 (SC), after considering the entire case law on the point of delay, in Para-26(relevant portion) observed as under:-
"Once a valuable right has accrued in favour of one party as a result of the failure of the other party to explain the delay by showing sufficient cause and its own conduct, it will be unreasonable to take away that right on the mere asking of the applicant, particularly when the delay is directly a result of negligence, default or inaction of that party. Justice must be done to both parties equally. Then alone the ends of justice can be achieved. If a party has been thoroughly negligent in implementing its rights and remedies, it will be equally unfair to deprive the other party of a valuable right that has accrued to it in law as a result of his acting vigilantly".First Appeal No.1449 of 2011 6
In/and F.A. No.740 of 2011
14. The Hon'ble National Commission in case "HUDA Vs Supreme System", II (2011) CPJ-70(NC), observed as follows:-
"In the present case, the inordinate delay of 107 days cannot be condoned without showing sufficient cause. The only reason given in the application is that the delay in filing the revision petition was due to administrative reasons. Petitioner has not shown any cause much less a sufficient cause for condoning the delay".
15. The Hon'ble National Commission again in case "New India Assurance Company Limited Vs Sudhakar Suresh Kadam & Anr.", I (2011) CPJ-152(NC), in Para-1(relevant portion) observed as follows:-
"Be that as it may, the reasonings assigned for condonation of delay are the procedural delays that usually occur with governmental organizations for no one seriously pursuing the matter. The reasonings assigned can hardly be said to be reasonable, satisfactory or even proper excuse for delay. Law of limitation has to be applied with all its vigour provided by the Statute and no Court/adjudicating authority can extend the period of limitation, on equitable grounds. That apart, the expression "sufficient cause"
cannot be construed liberally. The revision petition in this backdrop, for inordinate belated filing of revision petition, merits dismissal on this score alone".
16. In a recent judgment, the Hon'ble National Commission in case "Delhi Development Authority Vs Surinder Kaur Kohli", III(2010) CPJ- 283(NC), relying upon the above authority of the Hon'ble Supreme Court i.e. State Bank of India Vs B.S. Agriculture Industries (I) (supra), observed in Para-8(relevant portion) as follows:-
"8. It is for the Administrative Head of the DDA (or, his delegate/s) to look into matters which pertain to its core functions, fix responsibility for undue delays, take punitive action in appropriate cases and, most important, introduce systemic changes to minimize, if First Appeal No.1449 of 2011 7 In/and F.A. No.740 of 2011 not eliminate altogether, such delays because these delays adversely affect the interests of thousands of citizens who come to the DDA for purposes relating to a basic human need like housing. These delays also breed corruption and bring disrepute to the Authority".
17. Again, the Hon'ble National Commission in case "HUDA Vs Krishana Devi", III (2010) CPJ-213 (NC), took the similar view and upheld the view taken by the State Commission, holding that the Department of Government cannot be shown any special indulgence in the matter of limitation and asked the authorities to book the officials responsible for delay in filing the appeal, causing great financial loss to the State Exchequer.
18. In view of above discussion and the law laid down, it is clear that the delay has to be explained and the excuse of procedural delays cannot be taken into consideration if the delay has not been properly explained. In the present case, as discussed above, no valid reasons or the explanations have been given for condonation of the delay of 135 days.
19. In view of the above discussion, the application filed by the applicant for condonation of delay of 135 days in filing the present appeal, being without any merit, is dismissed.
Main Case
20. As the application for condonation of delay has been dismissed, therefore, the appeal also stands dismissed. No order as to costs.
21. The appellant had deposited an amount of Rs.3500/- with this Commission at the time of filing of the appeal. This amount with interest accrued thereon, if any, be remitted by the registry to respondent /complainant by way of a crossed cheque/demand draft after the expiry of 45 days under intimation to the learned District Forum and to the appellant.
22. Remaining amount, as per order of the District Forum, shall be paid by the applicant/appellant to the respondent/complainant within 60 days from the receipt of copy of the order.
First Appeal No.1449 of 2011 8
In/and F.A. No.740 of 2011
23. The arguments in this appeal were heard on 08.09.2011 and the order was reserved. Now the order be communicated to the parties.
(Inderjit Kaushik) Presiding Member (Piare Lal Garg) Member September 12, 2011.
(Gurmeet S)