State Consumer Disputes Redressal Commission
Arvind Kumar vs M/S Arsh Enterprises on 10 July, 2023
STATE CONSUMER DISPUTES REDRESSAL COMMISSION UTTARAKHAND
DEHRADUN
FIRST APPEAL NO. 36 / 2019
Sh. Arvind Kumar S/o Sh. Roop Chand
R/o Mohalla Kadach, Jwalapur
Pargana Jwalapur, Tehsil and District Haridwar
...... Appellant / Applicant
Versus
M/s Arsh Enterprises
43, Gandhi Road, Dehradun
Post and District Dehradun
...... Respondent / Opposite Party
Sh. Pradeep Bartwal, Learned Counsel for the Appellant
Sh. Saurabh Rana, Learned Counsel for Respondent
Coram: Hon'ble Mr. Justice D.S. Tripathi, President
Mr. Udai Singh Tolia, Member-II
Dated: 10/07/2023
ORDER
(Per: Justice D.S. Tripathi, President):
This appeal has been preferred against the impugned order dated 17.07.2018 passed by the District Consumer Disputes Redressal Commission, Haridwar (in short "The District Commission") in execution application No. 39 of 2011; Sh. Arvind Kumar Vs. M/s Arsh Enterprises, by which the execution application filed by the appellant - applicant was disposed of in full satisfaction of the judgment and order dated 20.11.2010 passed by the District Commission in consumer complaint No. 87 of 2010; Sh. Arvind Kumar Vs. M/s Arsh Enterprises and others.
2. We have heard learned counsel for the parties on delay condonation application and perused the record.
23. According to office report dated 06.07.2023, the present appeal has been preferred by the appellant after a delay of 173 days'.
4. The delay condonation application has been moved by the appellant for condoning the delay in filing the appeal. The delay in filing the appeal has been explained by the appellant in the accompanying affidavit to the delay condonation application, wherein it has been averred that the intimation regarding impugned order dated 17.07.2018 was given to the appellant by his counsel on 15.09.2018, when the appellant visited his counsel at Court Compound, Haridwar. The counsel told the appellant that execution application has wrongly been disposed of by the District Commission, hence appeal is to be filed before Hon'ble State Commission, Dehradun against the impugned order. The counsel further told the appellant to meet him at Haridwar within a period of 15 days', by which time, he will get the appeal prepared, so that the appeal could be filed before Hon'ble State Commission, Dehradun within the stipulated period. On account of ill health, the appellant could not visit his counsel at Haridwar in time. Upon getting hale and hearty, the appellant met his counsel at Haridwar on 22.10.2018, whereupon his counsel got the appeal prepared and after obtaining the signatures of the appellant on the same, the counsel assured the appellant that he will file an appeal before Hon'ble State Commission, Dehradun in time.
5. It is further averred that in the month of December, 2018, the appellant contacted his counsel and inquired about the date fixed in the appeal, whereupon the counsel told the appellant that his appeal has not yet been decided by Hon'ble State Commission and handed over the memo of appeal to the appellant and asked the appellant to himself inquire about his appeal from Hon'ble State Commission. In the first week of January, 2019, on account of being out of city in 3 regard to marriage in his relations, the appellant could not come to Dehradun. On 12.01.2019, the appellant came to Dehradun and contacted his counsel and apprised him about the appeal, who told that as per record, no such appeal has been filed before Hon'ble State Commission, Dehradun, hence the appellant has to again get the appeal prepared and submit the same before Hon'ble State Commission. On 04.02.2019, the appellant came to Dehradun and contacted his counsel, who got the appeal prepared on 05.02.2019 and filed the same. The delay in filing the appeal is bonafide. There is no intentional delay in filing the appeal. In the affidavit, at some places "appeal" has been mentioned and at certain places "revision" has been mentioned.
6. The respondent has filed objections against the delay condonation application, duly supported by affidavit. In the objections, it is stated that the appellant is not entitled to any benefit of negligence on the part of his counsel. It was the duty of the appellant to have a watch on his case. No medical certificate has been filed by the appellant in support of his alleged illness and the appellant has also not disclosed as to from which disease / illness, he was suffering from. The appellant has not given any reason as to why he did not meet his counsel at Dehradun in the month of December, 2018. The delay condonation application has not been filed as per law and the same is liable to be dismissed.
7. From a bare perusal of the affidavit filed by the appellant in support of delay condonation application, it is quite evident that the main ground taken by the appellant for delay in filing the appeal is that of negligence on the part of the counsel so engaged by him for filing the appeal against the impugned order. It is now well settled that on account of negligence of the counsel, the party can not get any 4 benefit and any laches on the part of the counsel in prosecuting the matter, is to be treated as negligence / laches on the part of the concerned party itself. In the case of Swiss International Air Lines Ltd. Vs. Jitender Mohan Bhasin and others reported in III (2012) CPJ 583 (NC), there was delay of 244 days' in filing the revision petition. It was held by Hon'ble National Commission that the petitioner has failed to offer convincing rationale of reasons in support of his application. It was also held that the name of earlier counsel was not mentioned in the application and it was the duty cast on the petitioner itself to find out what has happened to his case and whether appeal has been filed or not. It was observed that there was gross negligence, deliberate inaction and lack of bonafides are imputable to the petitioner and the delay was not condoned. In the case of Vinod Kumar Patel Vs. Sambit Kumar Das reported in III (2012) CPJ 703 (NC), it has been held by Hon'ble National Commission that it is well settled that qui facit per alium facit per se. Negligence of a litigant's agent is negligence of the litigant himself and is not sufficient cause for condoning delay.
8. This apart, the averments made in the affidavit filed in support of delay condonation application, also show that the appellant has not been vigilant enough about his case. The execution application came to be disposed of by the District Commission per impugned order dated 17.07.2018 and there is nothing coming from the side of the appellant as to why he did not contact his counsel at Haridwar till 15.09.2018, i.e., for a period of two months' from the date of passing of impugned order. In addition to it, no medical certificate has been placed on record by the appellant in support of his alleged illness or to show that on account of alleged illness, he was, in any way, incapable of contacting his counsel at Haridwar for getting the appeal prepared. The duration of alleged illness has also not been disclosed. Not only 5 this, there is no explanation as to why the appellant did not visit his counsel at Dehradun in the month of December, 2018. Thus, there has been total carelessness on the part of the appellant too in prosecuting his case.
9. Hon'ble National Commission in the case of Jain International Sansthan Vs. Krish City, Bhiwadi and another reported in III (2016) CPJ 2 (NC), has declined to condone the delay of 168 days' in filing the revision petition and has held that no lucid excuse is forthcoming from the petitioner to justify the delay in filing the revision petition. It was held that the case is barred by time. In the said decision, reliance was placed upon the decision of Hon'ble Apex Court given in Special Leave to Appeal (Civil) No. 37183 of 2013; Sanjay Sidgonda Patil Vs. Branch Manager, National Insurance Company Limited and another, decided on 17.12.2013 reported in 2013 (SLT Soft) 6, wherein Hon'ble Apex Court has confirmed the order of Hon'ble National Commission and refused to condone the delay of 13 days'.
10. Learned counsel for respondent cited judgment and order dated 03.06.2023 passed by this Commission in First Appeal No. 78 of 2023; Universal Sompo General Insurance Company Limited Vs. Sh. Allah Rakha, wherein the same ground of negligence of counsel was taken for delay in filing the appeal. Placing reliance on the aforesaid decisions, the delay condonation application was dismissed. Consequently, the appeal also stood dismissed, being time barred.
11. For the reasons aforesaid, we are of the considered opinion that the appellant has not been able to satisfactorily explain an inordinate delay in filing the appeal and there is no plausible explanation put forward by the appellant for making a case in his favour, so as to 6 allow the delay condonation application and condone the delay in filing the appeal. Consequently, the application for condonation of delay warrants dismissal.
12. Application for condonation of delay is dismissed. As a consequence thereof, the appeal is dismissed as not maintainable, being barred by limitation. No order as to costs.
13. A copy of this Order be provided to all the parties free of cost as mandated by the Consumer Protection Act, 1986 / 2019. The Order be uploaded forthwith on the website of the Commission for the perusal of the parties.
(U.S. TOLIA) (JUSTICE D.S. TRIPATHI)
Member-II President
K