State Consumer Disputes Redressal Commission
Mr. Umesh Digamber Redkar, vs Mr. Remy Rodrigues @ on 8 October, 2014
BEFORE THE GOA STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PANAJI -GOA EA No.08/2014 Mr. Umesh Digamber Redkar, C/o. Nita Sarees, Nilkamal Arcade, Panaji, Goa. ... Complainant/D.H. v/s 1. Mr. Remy Rodrigues @ Remy Martin Rodrigues, Proprietor of M/s. Marston Builders, Shop No. 7 Bevinda Apartments, Pajifond, Margao, Goa. 2. Mrs. Sofia Rodrigues, R/o. Bevinda Apartments, First floor, Pajifond, Margao, Goa. ... OPs/J.Ds Complainant/DH is represented by Adv. Shri. N.G. Kamat. Coram: Shri. Justice N. A. Britto, President Shri. Jagdish Prabhudessai, Member Dated: 08/10/2014 ORDER
[Per Justice Shri. N. A. Britto, President] We have heard Shri. Kamat, the lr. advocate of the complainant, on application filed on 28/07/14, styled as an application under Section 25, for execution of decree dated 3/7/06.
2. By virtue of the said decree/final order in C.C. No. 32/02 the complainant was entitled to receive from the OP vacant possession of shop No. 8 duly completed in all respects alongwith occupancy certificate, sale deed, within a period of three weeks.
3. The application has been filed after more than 8 years when a consumer complaint itself is required to be filed within two years from the date of cause of action or else sufficient cause is required to be shown for not filing the complaint within the said period of two years.
4. The application has been filed in a manner a plaintiff or a decree-holder would have filed an application for execution of a decree before a Civil Court. The application does not seek to obtain a recovery certificate nor a punitive action to be taken against the OP. It is fairly well settled by now, that the C.P. Act provides two modes to enforce or to execute the final orders of the Fora.
One, by applying and obtaining a recovery certificate to recover the amount due as arrears of land revenue u/s 25(3) of the Act. The other, by applying that the party be punished for disobedience of the Order u/s 27(1) of the Act. Both the remedies are independent and can be pursued simultaneously.
5. Shri. Kamat, the lr. advocate of the complainant would submit that after the impugned final order dated 3/7/06 was passed, the complainant had served a legal notice dated 8/6/07 on the OP to comply with the order. However, no copy of such notice is placed on record. When asked as to why there is so much delay in filing the application, lr. advocate submits that there is no time limit prescribed by the C.P. Act, 1986, to file execution application, to execute the final orders, and, in support of this submission, Shri. Kamat has placed reliance on Prem Chandra Varshney vs. Murarilal Sharma and ors., 2008 (1) CPR 199 (NC) and on Shri. Dhanajay Nagesh Naik & ors. vs. Shri. Sudam Gopal Pednekar, 2012(2)CPR 264.
6. We are unimpressed with the submission made.
7. In Prem Chandra Varshney (supra) the National Commission has held as follows:
5. To be only noted that under Article 136 of the Limitation Act, 1963, the period of limitation prescribed for filing execution of any decree or order of any Civil Court is 12 years. Plain reading of said Regulation 14(1) (iv) would show that it would not apply to execution of proceedings. Consumer Protection Act, 1986 does not provide for any limitation period for filing execution application.
Though, said Article is not applicable to Consumer Fora still clue can be taken therefrom that period of limitation for filing execution application before Consumer Fora cannot be 30 days from the date of passing of order sought to be executed. Thus, the execution application(s) filed on 2.11.2005 were not barred by time.
8. In Dhanajay Nagesh Naik (supra) the National Commission has held as follows:
17. Moreover, filing of execution petition by respondent in year 2010, by no stretch of imagination can be said to be beyond period of limitation. Firstly, no period of limitation for filing execution has been provided in the Act, which is a code in itself. Secondly, as per petitioners own case, litigation between the parties has been going on since 1995 and only after the order of District Forum has become final, respondent could file the execution petition.
9. The case of Dhanajay N. Naik (supra) appears to be case where the final order/decree had attained finality in the year 2010. That is not the case herein.
10. Before we proceed further, we would like to take note of the observations of the National Commission in C.H. Vittal Reddy vs. the Manager, District Co-operative Central Bank Ltd., & Ors., I 2003 CPJ 175. Writing for a Bench of four learned members, Justice D.P. Wadhwa, observed:
Condonation of delay when it is the complaint has to be taken very seriously and that is why proviso to sub section (2) of Section 24A mandates recording of reasons. It must be understood that a suit filed in a Civil Court after the period of limitation prescribed under the Limitation Act has to be dismissed and there is no provision for condoning the delay on the ground of any sufficient cause being shown for not filing the suit within the period of limitation. This is the law which is in force since 1908 when the Limitation Act, 1908 came into force and same is the position of the Limitation Act, 1963. Sub section (2) of Section 24A is a departure to the well settled law that a suit beyond the period of limitation prescribed under the Limitation Act has to be dismissed. A Consumer Forum has, therefore, to guard itself against the misuse of sub-section (2) of Section 24A and should not be quick to condone the delay unless cogent and verifiable reasons exist to condone the delay. Moreover, delay cannot be condoned unless other party has been noticed and heard.
11. Regulation 14 of the Regulations, 2005 prescribes the period of limitation, and, clause (iv) of sub regulation (1) of the said Regulation 14 provides that:
The period of limitation for filing any application for which no period of limitation is specified in the Act, the Rules or these Regulations shall be 30 days from the date of cause of action or the date of knowledge.
Sub Regulation (2) further provides that:
Subject to the provisions of the Act, the Consumer Forum may condone the delay in filing an application or a petition referred to in sub regulation (1) if valid and sufficient reasons to its satisfaction are given (emphasis supplied).
12. The National Commission is right, when it says in Premchandra Vashney (supra) that art 136 of the Limitation Act, 1963 which provides for a period of 12 years to file an execution application is not applicable to the consumer Fora. So what is the period for filing an execution application? Both the authorities are silent on this point. It may be noted here that in deciding Premchandra Varshney the words any application in Regulation 14(1)(iv) were not brought to the notice of the National Commission in as much as in deciding Dhanajay N. Naik, the very provisions of Regulation 14(1) (iv) were not brought to the notice of the National Commission. Therefore, both the decisions have got to be considered as per incuriam and departed form.
13. The C.P. Act is a Code in itself. Section 25 of the Act talks of enforcement of orders of the Fora and Section 27 talks of imposition of penalty. To repeat, Section 25(3) provides for enforcement of final orders and for obtaining a recovery certificate to recover the money due, as arrears of land revenue. Section 27(1) provides for imposition of punishment.
Section 25(3) provides for making an application to the concerned Forum when any amount is due, so as to obtain a certificate to the Collector to recover the same as arrears of land revenue. Can we say that there is no time limit to file such an application? (emphasis supplied). Likewise, an application will be required to be made to invoke Section 27(1) of the Act. The C.P. Act is meant to provide a simple, speedy, summary and inexpensive remedy to consumers to sort out their grievances by following the principles of natural justice. Civil procedure, as prescribed by the C.P. Code, 1908, as amended, can be applied to a limited extent, as provided for by Section 13(4) of the C.P. Act and Regulation 26 of the C.P. Regulations, 2005. By implication the provisions of Part II or for that matter the provisions of Order 21, CPC, which provide for a lengthy and elaborate procedure for execution of orders are kept out and need not even be referred to. Some of us, are too mesmerized by the civil procedure prescribed by the C.P.C. and often tend to import the said procedure and its terminology lock, stock and barrel, in proceedings under the C.P. Act.
14. The word any came up for interpretation before the Apex Court in Lucknow Development Authority vs. M.K. Gupta, 1994 III CPR 569. The Apex Court noted that the word any as per dictionary means one or same or all. As per Blacks Dictionary the word any has diversity of meanings and may be employed to indicate all or every as well as same or one and its meaning would depend upon the context and subject matter of the Statute. The Apex Court concluded that the word any in the context it has been used in clause (o) indicates that it has been used in wider sense extending from one to all. The same ratio has got to be applied to word any in Regulation 14(1) (iv) of the Regulations and therefore, the expression any application in Regulation 14(1)(iv) of the Regulations would include an application to be filed u/s 25(3) of the C.P. Act and such an application has got to be filed within a period of 30 days or sufficient cause shown to the satisfaction of the Forum, as to why it could not be filed within 30 days. The same principle would also apply to an application filed to take action for penalty to be imposed u/s 27(1) of the C.P. Act.
15. It is well settled principle of law which requires no support of an authority that when a Statute provides for a special period of limitation the same has got to be followed (If any authority is required, reference could be made to 1992 (2) GLT 286).
16. It may be noted, and that is history now, that many of the Fora under the C.P. Act were also ignoring Section 24A of the C.P. Act until the Hon. Apex Court stepped in and held in Haryana Urban Development Authority vs. BK Sood, 2006 CTJ 1, that Section 24 A was mandatory and was required to be followed. This decision was then followed in SBI vs. B.S. Agricultural Industries, 2009 CTJ 481, and again it has been followed in V.N. Shrikhande vs. Anita Sena Fernandes, 2011 CTJ 1 and it has been reiterated that if the complaint is barred by time, the consumer Forum is bound to dismiss the same unless the consumer makes out a case for condonation of delay.
The same principle needs to be applied for applications filed for enforcement of orders u/s 25(3) as well as u/s 27(1) in view of Regulation 14 of the Regulations. It may be noted, as observed in C.H. Vittal Reddy (supra) that the C.P. Act and the Regulations shorten, the ordinary periods of limitation whether for filing of a complaint or for that matter for enforcing the final orders and not only that also prescribes a period of 3/5 months or so for disposal of complaints. Speedy justice appears to be the main aim of the C.P. Act, and for that the consumers are also expected to move with speed. In Anshul Aggrawal, 2013(1) CCC 910 the Apex Court has held that even while deciding an application filed for condonation of delay, the Forum has to keep in mind that special period of limitation has been prescribed under C.P. Act for filing of appeals and revisions and the object of expeditious adjudication of consumer disputes will get defeated if the Fora is to entertain highly belated petitions filed against the orders of the Fora. Law, in any jurisdiction, including consumer jurisdiction, helps the diligent and not the indolent. The C.P. Act, has reduced the ordinary period of 3 years of filing suits to two years for filing consumer complaints with introduction of Section 24A w.e.f. 18/6/09. Likewise, the Regulations have reduced the period of filing all applications whether for enforcement of final orders or execution of final orders to 30 days.
The words any application in the Regulations are broad enough to include applications filed for enforcement or execution of final orders and such applications are to be filed within 30 days from the date of knowledge, or sufficient cause shown why they could not be filed during the said period.
17. On the failure of the complainant to file the application under consideration, within the period of 30 days as prescribed under the Regulations and/or on failure to show sufficient reasons why it could not be filed within the said period, we are left with no other option but to dismiss the same at the stage of admission, with no order as to costs.
[Shri. Jagdish G. Prabhudesai] [Justice Shri. N. A. Britto] Member President