Calcutta High Court (Appellete Side)
Gainwell Enterprises Pvt Ld & Anr vs Ashoke Kumar Agarwal & Ors on 21 February, 2014
Author: Harish Tandon
Bench: Harish Tandon
In The High Court At Calcutta
Civil Revisional Jurisdiction
Appellate side
Present :
The Hon'ble Justice Harish Tandon.
C.O. No. 231 of 2013
Gainwell Enterprises Pvt Ld & Anr.
-vs-
Ashoke Kumar Agarwal & Ors.
For the petitioners : Mr. Mainak Bose
: Mr. Amitabha Mitra
For Opposite Parties
No. 1 and 2 : Mr. Aniruddha Chatterjee
: Mr. Rahul Karmakar
: Ms. Debamitra Adhikari
: Ms. Siddiqua Parveen
: Ms. Priyanka Khanna
Judgment on : 21.02.2014
HARISH TANDON, J.:
Time and again, the Supreme Court in numerable judgments reminded that the Court's approach in dealing an application for condonation of delay should be liberal and the delay of longer period cannot be a ground for rejection thereof, if it is supported by sufficient cause. The sufficient cause is a paramount consideration as the delay of shorter period should not be condoned in absence thereof. The present case is one of such example where the State Consumer Disputes Redressal Commission have rejected an application for condonation of delay because of the longer period of delay without looking into the sufficiency of the cause shown by the petitioner.
A complaint case no. 132 of 2010 was filed by the opposite parties under Section 12 of the Consumer Protection Act, 1986 for an award/compensation of Rs. 18,80370/- against the petitioner. The complaint petition proceed on the basis that in pursuance of the advertisement published in a Hindi Daily Newspaper "Sanmarg" on 23rd November, 2008 for 19 days package tour to Alaska from Kolkata and back, organised by Club M Holidays which includes the Bhagwat Katha by Dr. Manoj Mohan Shastriji between the period from 18th May, 2009 to 5th June, 2009 in a Megha Cruise, the opposite party deposited a sum of Rs. 2 lacs with the Club M Holidays on 28.03.2009 and further paid a sum of Rs.2,50,000/- and Rs. 1 lac in cash on 27.04.2009 and 11.05.2009 respectively. The complainant attended the American Consulate General, Kolkata on 28th April, 2009 for the purpose of visa for the said tour.
Since the said package tour also includes the travel within the territory of Candavanion countries, the separate visa is also required for the said purposes. The petitioner was not informed as to the fate of the application for visa, on the other hand, he was compelled to pay a further of Rs. 2,50,000/- and Rs. 1 lacs on 27.04.2009 and 11.05.2009 respectively. Subsequently on inquiry, it was detected that the Canadian visa has been rejected as it was averred in the said application that the same is applied for temporary residence. Although the package tour includes the tickets from Calcutta but at the time of handing over the tickets, a few hours before the journey, it was found that it is ex-debti. The petitioner further alleges that they have been put to mental harassment as the said tour operator did not provide the facilities as per the etinary and the opposite parties have been subjected to various other expanses. The main allegation of the petitioner is that the purpose of the tour was totally frustrated as it was intended for a religious purposes which was never conducted by the tour operator. The petitioner claimed compensation for such negligence and/or deficiency in providing the services. The said complaint was decided ex parte on 28th May, 2011 which was assailed by the petitioner before the State Consumer Disputes Redressal Commission in F.A. No. 466 of 2011 along with an application for condonation of delay.
The petitioner seeks for condonation of delay of 62 days in filing an appeal and explained the causes for such delay in the said application. The petitioner imputed the knowledge of the said order dated 28th May, 2011 from a letter dated 29.08.2011 issued by the learned Advocate of the complainant/opposite party. It is further stated in the said application that the petitioner contacted different advocates for the purpose of taking steps in the matter but did not get the favourable response until 18.09.2011 when Mr. C. S. Mukherjee agree to take up the case of the petitioner provided the necessary papers and certified copies of the orders are obtained. Because of the intervening holiday which commenced from 1st October, 2011 and the time taken for obtaining the certified copy, the appeal was filed after a delay of 62 days.
The complainant/opposite party contested the said application on the pretext that the delay is more than what has been said in the said application. According to the complainant/opposite party, the period of limitation should reckon from the date of an order and not from the date of a knowledge of the said order. The objection further proceeds on the latches and lapses on the part of the petitioner in not taking any steps before the District Forum.
The State Commission dismissed the application for condonation of delay as there is no proper explanation for a delay of 249 days. The State Commission was further swayed by the fact that in spite of the service of notice issued by the District Forum, the petitioner did not appear and contest the case. It must bear in mind that the Court consideration in an application for condonation of delay should be restricted as to whether the sufficient and proper explanation is provided in the said application which occasioned the delay in initiating a proceeding beyond the statutory period and not on the merit of the appeal itself. A point of demurrer is taken by the complainant/opposite party as to the entertainability of an application under Article 227 of the Constitution because of the alternative efficacious remedy provided under the statute in the form of an appeal. According to the complainant/opposite party, the order impugned is capable of being challenged before the National Forum under Section 21 of the Consumer Protection Act, 1986. Before proceeding to deal with the above point of demurrer, it would be relevant to quote the provisions of Section 21 which reads thus:
"21. Jurisdiction of the National Commission- Subject to the other provisions of this Act, the National Commission shall have jurisdiction-
(a) to entertain-
(i) complaints where the value of the goods or services and compensation, if any, claimed exceeds [rupees one crore]; and
(ii) appeals against the orders of any State Commission; and
(b) to call for the records and pass appropriate orders in any consumer dispute which is pending before or has been decided by any State Commission where it appears to the National Commission that such State Commission has exercised a jurisdiction not vested in it by law, or has failed to exercise a jurisdiction so vested, or has acted in the exercise of its jurisdiction illegally or with material irregularity.
On meaningful reading of the aforesaid provisions, the National Commission is vested with the jurisdiction to entertain the complaints where the value of the goods of services and compensation exceeds Rs. 1 Crore and the appeals against the order of any State Commission. The National Commission is further vested with the power to call for the records and passed appropriate orders in a pending or disposed of proceeding before the State Commission if it appears that the State Commission has exercised jurisdiction not vested in it by law or failed to exercise jurisdiction so vested or have acted illegally or with material irregularity. Even if, it is conceived that the National Commission has jurisdiction and competence to decide and entertain, a proceeding initiated against the order of the State Commission, whether it necessarily implies the exclusion of the power of superintendence of the High Court under Article 227 of the Constitution of India. In Waryam Singh and another -vs- Amarnath and another reported in AIR 1954 SC 215, the Supreme Court traced the genesis of the power of superintendence of the High Court under Article 227 of the Constitution and held that it can be exercised both administratively and judicially. In Achutananda Baidya -vs- Prafullya Kumar Gayen & others reported in (1997) 5 SCC 76, the Supreme Court held that the High Court can interfere under Article 227 of the Constitution in case of erroneous assumption or acting beyond its jurisdiction, refusal to exercise jurisdiction, error of law apparent on record as distinguished from a mere mistake of law, arbitrary or capricious exercise of authority or discretion, a patent error in procedure arriving at a finding which is perverse or based on no material or resulting in manifest injustice.
It admits no quarrel that the power of superintendence should not be exercised by the High Court as an Appellate Court to correct a wrong or erroneous decision unless it is referable to a grave dereliction of duty and flagrant abuse of the power by the Subordinate Court or Tribunal resulting in grave injustice to the party [See Ouseph Mathai and Others
-vs- M Abdul Khadir reported in (2002) 1 SCC 319]. In a decision rendered by the Supreme Court in case of State of New Delhi -vs- Navjot Sadhu & ors. reported in (2003) 6 SCC 641, it is held:
28. Thus the law is that Article 227 of the Constitution of India gives the High Court the power of superintendence over all courts and tribunals throughout the territories in relation to which it exercises jurisdiction. This jurisdiction cannot be limited or fettered by any Act of the State Legislature. The supervisory jurisdiction extends to keeping the subordinate tribunals within the limits of their authority and to seeing that they obey the law. The powers under Article 227 are wide and can be used, to meet the ends of justice. They can be used to interfere even with an interlocutory order. However the power under Article 227 is a discretionary power and it is difficult to attribute to an order of the High Court, such a source of power, when the High Court itself does not in terms purport to exercise any such discretionary power. It is settled law that this power of judicial superintendence, under Article 227, must be exercised sparingly and only to keep subordinate courts and tribunals within the bounds of their authority and not to correct mere errors. Further, where the statute bans the exercise of revisional powers it would require very exceptional circumstances to warrant interference under Article 227 of the Constitution of India since the power of superintendence was not meant to circumvent statutory law. It is settled law that the jurisdiction under Article 227 could not be exercised "as the cloak of an appeal in disguise".
In Surya Dev Rai -vs- Ram Chander Rai and others reported in (2003) 6 SCC 675, the two judge bench of the Supreme Court held that the supervisory jurisdiction may be refused when an alternative efficacious remedy by way of an appeal or revision is available to the person aggrieved in these words:
"26. In order to safeguard against a mere appellate or revisional jurisdiction being exercised in the garb of exercise of supervisory jurisdiction under Article 227 of the Constitution, the courts have devised self-imposed rules of discipline on their power. Supervisory jurisdiction may be refused to be exercised when an alternative efficacious remedy by way of appeal or revision is available to the person aggrieved. The High Court may have regard to legislative policy formulated on experience and expressed by enactments where the legislature in exercise of its wisdom has deliberately chosen certain orders and proceedings to be kept away from exercise of appellate and revisional jurisdiction in the hope of accelerating the conclusion of the proceedings and avoiding delay and procrastination which is occasioned by subjecting every order at every stage of proceedings to judicial review by way of appeal or revision. So long as an error is capable of being corrected by a superior court in exercise of appellate or revisional jurisdiction, though available to be exercised only at the conclusion of the proceedings, it would be sound exercise of discretion on the part of the High Court to refuse to exercise the power of superintendence during the pendency of the proceedings. However, there may be cases where but for invoking the supervisory jurisdiction, the jurisdictional error committed by the inferior court or tribunal would be incapable of being remedied once the proceedings have concluded."
The power of superintendence as deducible from the above noted judgments is wide and discretionary in nature and to be exercised in advancement to secure the ends of justice and uproot injustice. There cannot be a straight jacket principle to exercise the power of superintendence by the High Court under Article 227 of the Constitution over the Subordinate Court or the Tribunal as it is meant for advancement to secure justice.
On the above broad principles as enunciated in the above reports, let me consider whether the judgment of the State Commission which has a trapping of a Court or Tribunal is amenable to be interfered with.
The ex parte order passed by the District Forum is challenged in a validly constituted appeal provided under the Consumer Protection Act, 1986 beyond the statutory period. The said appeal is accompanied with an application for condonation of delay and it admits no quarrel to the proposition that the State Commission is otherwise competent to condone the delay as source of power can be traced from Section 24A of the said Act. The provision contained under the said section requires the recording of the reasons for condoning the delay which obviously depends upon the sufficiency of the cause shown by the appellant. The sufficiency of the cause varies from case to case and cannot be brought within the defined periphery. The sufficiency of cause should be judged by adopting a justice oriented approach and not on sympathetic ground as held in case of Lanka Venkateswarlu -vs- State of Andhra Pradesh & ors. -vs- State of Andhra Pradesh reported in (2011) 4 SCC 363:
"19. We have considered the submissions made by the learned counsel. At the outset, it needs to be stated that generally speaking, the courts in this country, including this Court, adopt a liberal approach in considering the application for condonation of delay on the ground of sufficient cause under Section 5 of the Limitation Act. This principle is well settled and has been set out succinctly in Collector (L.A.) v. Katiji.
20. In N. Balakrishnan this Court again reiterated the principle that:
(SCC p. 127, para 11) "11. Rules of limitation are not meant to destroy the rights of parties. They are meant to see that [the] parties do not resort to dilatory tactics, but seek their remedy promptly."
21. In Sardar Amarjit Singh Kalra this Court again emphasised that provisions contained in Order 22 CPC were devised to ensure continuation and culmination in an effective adjudication and not to retard further progress of the proceedings. The provisions contained in Order 22 are not to be construed as a rigid matter of principle, but must ever be viewed as a flexible tool of convenience in the administration of justice. It was further observed that: (Sardar Amarjit Singh Kalra case, SCC p. 300, para 26) "26. Laws of procedure are meant to regulate effectively, assist and aid the object of doing substantial and real justice and not to foreclose even an adjudication on merits of substantial rights of citizen under personal, property and other laws."
22. In Mithailal Dalsangar Singh v. Annabai Devram Kini this Court again reiterated that: (SCC p. 696, para 8) "8. Inasmuch as the abatement results in denial of hearing on the merits of the case, the provision of [an] abatement has to be construed strictly. On the other hand, the prayer of setting aside an abatement and the dismissal consequent upon an abatement, [had] to be considered liberally."
It was further observed as follows: (Mithailal Dalsangar Singh case, SCC p. 696, para 9) "9. The courts have to adopt a justice oriented approach dictated by the uppermost consideration that ordinarily a litigant ought not to be denied an opportunity of having a lis determined on merits unless he has, by gross negligence, deliberate inaction or something akin to misconduct, disentitled himself from seeking the indulgence of the court."
23. The concepts of liberal approach and reasonableness in exercise of the discretion by the courts in condoning delay, have been again stated by this Court in Balwant Singh, as follows: (SCC p. 696, paras 25-26) "25. We may state that even if the term 'sufficient cause' has to receive liberal construction, it must squarely fall within the concept of reasonable time and proper conduct of the party concerned. The purpose of introducing liberal construction normally is to introduce the concept of 'reasonableness' as it is understood in its general connotation.
26. The law of limitation is a substantive law and has definite consequences on the right and obligation of a party to arise (sic a lis). These principles should be adhered to and applied appropriately depending on the facts and circumstances of a given case. 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."
Each case is to be decided on the facts pleaded therein and what colour to the expression (sufficient cause) should be attributed largely depends thereupon. In this regard reference can aptly be made to the judgment of the Supreme Court in case of Maniben Devraj Shah -vs- Municipal Corporation of Brihan Mumbai reported in (2012) 5 SCC 157 wherein it is held:
"15. The expression "sufficient cause" used in Section 5 of the Limitation Act, 1963 and other statutes is elastic enough to enable the courts to apply the law in a meaningful manner which serves the ends of justice. No hard-and-fast rule has been or can be laid down for deciding the applications for condonation of delay but over the years this Court has advocated that a liberal approach should be adopted in such matters so that substantive rights of the parties are not defeated merely because of delay.
17. In Collector (LA) v. Katiji this Court made a significant departure from the earlier judgments and observed: (SCC pp. 108-09, para 3) "3. The legislature has conferred the power to condone delay by enacting Section 5 of the Limitation Act of 1963 in order to enable the courts to do substantial justice to parties by disposing of matters on 'merits'. The expression 'sufficient cause' employed by the legislature is adequately elastic to enable the courts to apply the law in a meaningful manner which subserves the ends of justice--that being the life-purpose for the existence of the institution of courts. It is common knowledge that this Court has been making a justifiably liberal approach in matters instituted in this Court. But the message does not appear to have percolated down to all the other courts in the hierarchy. And such a liberal approach is adopted on principle as it is realised that:
(1) Ordinarily a litigant does not stand to benefit by lodging an appeal late.
(2) Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this when delay is condoned the highest that can happen is that a cause would be decided on merits after hearing the parties.
(3) 'Every day's delay must be explained' does not mean that a pedantic approach should be made. Why not every hour's delay, every second's delay? The doctrine must be applied in a rational common sense pragmatic manner.
(4) When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a non-deliberate delay. (5) There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of mala fides. A litigant does not stand to benefit by resorting to delay. In fact he runs a serious risk.
(6) It must be grasped that judiciary is respected not on account of its power to legalise injustice on technical grounds but because it is capable of removing injustice and is expected to do so.
Making a justice-oriented approach from this perspective, there was sufficient cause for condoning the delay in the institution of the appeal. The fact that it was the 'State' which was seeking condonation and not a private party was altogether irrelevant. The doctrine of equality before law demands that all litigants, including the State as a litigant, are accorded the same treatment and the law is administered in an even-handed manner. There is no warrant for according a step- motherly treatment when the 'State' is the applicant praying for condonation of delay. In fact experience shows that on account of an impersonal machinery (no one in charge of the matter is directly hit or hurt by the judgment sought to be subjected to appeal) and the inherited bureaucratic methodology imbued with the note-making, file-pushing, and passing-on-the-buck ethos, delay on its part is less difficult to understand though more difficult to approve. In any event, the State which represents the collective cause of the community, does not deserve a litigant-non-grata status. The courts therefore have to be informed with the spirit and philosophy of the provision in the course of the interpretation of the expression 'sufficient cause'. So also the same approach has to be evidenced in its application to matters at hand with the end in view to do even-handed justice on merits in preference to the approach which scuttles a decision on merits."
24. What colour the expression "sufficient cause" would get in the factual matrix of a given case would largely depend on bona fide nature of the explanation. If the court finds that there has been no negligence on the part of the applicant and the cause shown for the delay does not lack bona fides, then it may condone the delay. If, on the other hand, the explanation given by the applicant is found to be concocted or he is thoroughly negligent in prosecuting his cause, then it would be a legitimate exercise of discretion not to condone the delay."
What could be culled out from aforesaid propositions that the length of delay is no ground for rejecting the application for condonation of delay but sufficiency of the cause. The delay of shorter period cannot be condoned in absence of sufficient causes whereas the delay of longer period can be condoned if the cause shown is sufficient, satisfactory or no latches or negligence can be attributed on the part of the litigant.
The application filed in the instant case cannot be said to have lack sufficient explanation. The State Commission as it appears from the said order is swayed by the fact that there is an enormous delay in filing an appeal without adverting to look at the explanation offered in the said application. No reasons are provided as to why the explanation made in the application for condonation of delay is not sufficient except the stray expression that the delay of 249 days are not properly explained. Though the petitioner have misconstrued the provisions contained under Section 12 of the Limitation Act which provides the mechanism for calculation of the period for such purposes but it cannot be said that the explanation offered in the said application was completely lacking for the period of delay which actually occurred. The order impugned lacks reasoning and is opposed to the fundamental duty cast upon the Court.
This Court, therefore, finds that the State Commission has failed to exercise the jurisdiction vested with him and have acted illegally and with material irregularity in passing the impugned order. This Court, therefore, set aside the impugned order and remitted the matter to the State Commission for reconsideration.
The State Commission is requested to consider the application for condonation of delay afresh and shall dispose of the same by providing the reasons within eight weeks from the date of the communication of this order.
The revisional application is thus disposed of.
However, there shall be no order as to costs.
Urgent photostat certified copy of this order, if applied for, be given to the parties on priority basis.
(Harish Tandon, J.)