National Consumer Disputes Redressal
Anuj Bansal Son Of Sh. Rajesh Kumar vs M/S Bhardwaj Creations on 9 April, 2013
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION
NEW
DELHI
REVISION PETITION NO.
2345 OF 2012
(I.A. No. 1 of 2012 for
Stay)
(From order dated 14.05.2012 in Appeal No.273 of 2012
of the State Consumer Disputes
Redressal Commission, Haryana)
Anuj Bansal son of Sh. Rajesh
Kumar UP 58 Maurya Enclave, Pitampura, Delhi Petitioner
Versus
M/s Bhardwaj Creations, Bahadurgarh
through partner Jagdish son of Devi Ram
H. No. 706, Sector-6, Bahadurgarh District Jhajjar.
Also to
Ram Samujh son of Sh. Sangram
(Partner) M/s Bhardwaj Creations r/o E-16/418, Sector-8, Rohini, Delhi
Respondent
BEFORE:
HONBLE MR. JUSTICE V.B. GUPTA,
PRESIDING MEMBER
HONBLE
MRS. REKHA GUPTA, MEMBER
For the Petitioner : Mr. Sachin Jain, Advocate
For the Respondent : Mr. Sanjeev Nirwani, Advocate
Pronounced on: 9th April, 2013
ORDER
PER MR. JUSTICE V.B. GUPTA, PRESIDING MEMBER Being aggrieved by order dated 14.5.2012 passed by State Consumer Disputes Redressal Commission, Haryana, Panchkula (for short, State Commission) petitioner has filed this revision petition.
2. Brief facts are that respondent/complainant agreed to purchase a computerized machine for embroidery from the petitioner/opposite party on 9.2.2009 for a sum of Rs. 5,75,000/- and had paid earnest money of Rs.50,000/- on 9.2.2009 and Rs.Two lacs on 17/18.2.2009. It is alleged that machinery was to be delivered upto 25.2.2009. However, the machinery was not delivered by the petitioner, despite several visits of the respondent. It is also alleged that advance money of Rs.2,50,000/- has also not been refunded to the respondent. Further, respondent got issued a legal notice on 22.5.2009, but no reply has been given by the petitioner.Thus, it amounts to deficiency in service on the part of the petitioner. Accordingly, respondent sought refund of Rs.2,50,000/- along with interest, compensation and litigation expenses.
3. Petitioner was duly served but it did not appear, as such he was proceeded ex parte, vide order dated 7.10.2009 passed by District Consumer Disputes Redressal Forum, Jhajjar (for short, District Forum).
4. District Forum, vide order dated 29.1.2010, allowed the complaint and ordered that;
Respondents shall pay a sum of Rs.2,50,000/- (Rs. Two lacs fifty thousand) to the complainant alongwith interest at the rate of 09% per annum form the date of payment till its actual realization. The respondents shall also pay a sum of Rs.2,000/- (Rs. Two thousand) to the complainant as litigation expenses for the present unwanted and unwarranted litigation only due to the deficiency and negligence on the part of the respondents.
5. Being aggrieved by the order of District Forum, petitioned filed appeal along with application before the State Commission, seeking condonation of delay of 732 days in filing the appeal. State Commission, vide impugned order, dismissed the appeal being time barred.
6. Hence, this revision.
7. We have heard the learned counsel for the parties and gone through the record.
8. It is contended by learned counsel for the petitioner that no service was effected upon the petitioner, since respondent has deliberately mentioned the wrong names and address of the petitioner. Therefore, petitioner remained unaware about the order, till February, 2012 when one Anil Monga informed the petitioner about the order passed by the District Forum. Thus, no service was effected upon the petitioner. The District Forum wrongly proceeded ex parte against the petitioner. Under these circumstances, order passed by the District Forum as well as by the State Commission, are liable to be set aside.
9. On the other hand, It is contended by learned counsel for the respondent that petitioner deliberately did not appear before the District Forum, in spite service. As far as plea regarding mentioning of wrong address is concerned, the baillable warrants issued against the petitioner, were duly executed on the address given in the complaint itself. Thus, petitioner was duly served but he himself has chosen not to appear before the District Forum. Accordingly, there is no infirmity and illegality in the orders passed by the Fora below.
10. State Commission, in its impugned order has observed;
As regards the ground taken in the first application it would transpire that totally vague and ambiguous assertion has been made. The only ground mentioned in the application is that appellants were never served in the compliant as the notice was issued in the name of the Anju Bansal instead of Anuj Bansal. But this plea of the appellant is not acceptable, because the address mentioned in the appeal is the same, on which notices of compliant was issued but none has appeared on behalf of the opposite parties, which led to the passing of ex parte judgment against the appellant. It is not disputed that in the execution petition, the notice of execution was also issued by the District Forum at the same address as of the complaint, then the service of the appellant in the complaint case cannot be disputed. Even otherwise it cannot be ignored that after the expiry of limitation period, a value right has been accrued in favour of the respondent/complainant, hence delay cannot be condoned on the insufficient grounds mentioned in the application. In fact no sufficient ground available to the appellant for the condonation of delay. The Honble Apex Court has also observed in case titled State of Nagaland Vs. Lipokao and Others reported in 2005(2) RCR (Criminal) 414 that Proof of sufficient cause is a condition precedent for exercise of discretion by the court in condoning the delay. Further in case titled D. Gopinathan Pillai Vs. State of Karala and another, reported in (2007) 2 SCC, 322, it has been held by the Honble Apex Court that when mandatory provision is not complied and the delay is not properly, satisfactorily and convincingly explained, the court cannot condone the delay on sympathetic ground only.Under the circumstances, the reasons given in the application were taken as inadequate and insufficient to condone the delay. The ratio of the above mentioned case fully applies to the facts and circumstances of the present case. Therefore, the ground stated in the application cannot constitute sufficient cause so as to condone the delay in filing the appeal as prayed for in the application from the side of the appellants. Therefore, the application for condonation of delay in filing the appeal is rejected.
11. Main plea of petitioner before us is, that he has not been served at all in the District Forum since his wrong address was mentioned in the complaint. This plea is not sustainable in view of the fact that bailable warrants issued against petitioner on the same address as mentioned in the complaint, had been duly executed. Had wrong address of petitioner has been mentioned in the complaint, the bailable warrants could not have been executed at the same very address.
12. Now coming about the knowledge of passing of the order by the District Forum, petitioner in its Grounds of Appeal as well as in application for condonation of delay filed before the State Commission, has nowhere stated on which date he got the knowledge of passing of the order by the District Forum. In the Grounds of Appeal, petitioner has taken the plea that;
He remained unaware about passing of the order till February, 2012, when respondent took coercive steps and a close aide of him namely Anil Monga suspiciously told the petitioner about the dire consequences.
13. No specific date about knowledge has been given nor affidavit of Anil Monga has been filed by the petitioner. We fail to understand as to why a close aide of the respondent will tell petitioner about the order passed by the District Forum. This plea of the petitioner appears to be a cock and bull story which has no legs to stand.
14. It is clear from the record, that petitioner has been very careless and negligent in contesting this litigation. Firstly, he was proceeded ex- parte before the District Forum. Secondly, appeal before the State Commission was filed 732 days after the expiry of period of limitation. The grounds taken for condonation of delay by no stretch of imagination can be said to be a sufficient cause.
15. It is well settled that sufficient cause for condoning the delay in each case is a question of fact.
16. Under the Consumer Protection Act, 1986(for short, Act) a special period of limitation has been provided to ensure expeditious disposal of cases. Complaint has to be disposed of within 90 days from the date of filing where no expert evidence is required to be taken and within 150 days where expert evidence is required to be taken. The inordinate delay of 732 days cannot be condoned without showing sufficient cause. We are not satisfied with the above explanations given by the petitioner.
17. Supreme Court in Anshul Aggarwal vs. New Okhla Industrial Development Authority IV (2011) CPJ 63 (SC) has held that while deciding the application filed for condonation of delay, the Court has to keep in mind that the special period of limitation has been prescribed under the Act for filing appeals and revisions in consumer matters and the object of expeditious adjudication of the consumer disputes will get defeated if the appeals and revisions which are highly belated are entertained. Relevant observations made by the Court are as under;
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 fora.
18. We find that State Commission came to the right conclusion in rejecting the application for condonation of delay of 732 days in filing of the appeal before it and consequently dismissing the appeal of petitioner being time barred. We, therefore find no infirmity or illegality in the impugned order. Accordingly, present petition having no merits, is hereby dismissed with cost of Rs.10,000/-(Rupees Ten Thousand only).
19. Petitioner is directed to deposit the cost of Rs.10,000/- (Rupees Ten Thousand Only) by way of demand draft in the name of Consumer Welfare Fund as per Rule 10A of Consumer Protection Rules, 1987, within four weeks from today. In case, he fails to deposit the cost within prescribed period, then he shall be liable to pay interest @ 9% p.a. till its realization.
20. List on 17.05.2013 for compliance.
..J (V.B. GUPTA) ( PRESIDING MEMBER) (REKHA GUPTA) MEMBER SSB