State Consumer Disputes Redressal Commission
Om Sainath Colonizer vs Partha Mandal on 21 September, 2023
FA/597/2019 OM SAINATH COLONIZER VS. PARTHA MANDAL DOD: 21.09.2023
IN THE DELHI STATE CONSUMER DISPUTES REDRESSAL
COMMISSION
Date of Institution:15.10.2019
Date of hearing : 11.07.2023
Date of Decision : 21.09.2023
FIRST APPEAL NO. 597/2019
IN THE MATTER OF
OM SAINATH COLONIZERS
THROUGH AUTHORIZED REPRESENTATIVE
MR. JAGJEET SINGH
R/O C-388, TOP FLOOR
DWARKA SECTOR-7, RAMPHAL CHOWK
OPPOSITE LODI SPORTS
NEW DELHI-110077
[THROUGH: MR. AJAY DABAS (MOB. 9910358308) & MS. PRIYANKA
DAGAR (MOB.9718248119), ADVOCATES]
...APPLICANT/APPELLANT
VERSUS
MR. PARTHA MANDAL
S/O L.N. MANDAL
R/O HOUSE NO.16
SECTOR NO.8, GOPALPUR
NEAR TIMARPUR, DELHI
....NON-APPLICANT/ RESPONDEN
CORAM:
HON'BLE JUSTICE SANGITA DHINGRA SEHGAL (PRESIDENT)
HON'BLE MS. PINKI, MEMBER (JUDICIAL)
Present: None for the appellant.
Respondent in person who himself is a practicing counsel
(Mobile No. 8800808491).
PER: HON'BLE MS. PINKI, MEMBER (JUDICIAL)
1.The present appeal has been filed on 15.10.2019 challenging the impugned order dated 07.03.2019 vide which Complaint Case No.602/2015 was allowed by the District Consumer Disputes Redressal Commission (South-West), Local Shopping Complex, Sheikh Sarai Phase-II, New Delhi-110017.
DISMISSED Page 1 of 7FA/597/2019 OM SAINATH COLONIZER VS. PARTHA MANDAL DOD: 21.09.2023
2. This order will dispose off an application bearing IA No. 1643/2023 seeking condonation of delay in filing the appeal, filed along with the appeal. Affidavit of Mr. Jagjeet Singh, authorized representative of the appellant has been filed along with this application.
3. Record has been carefully and thoroughly perused.
4. The application has been moved under Section 5 of Limitation Act read with Section 151 CPC. However, it is being considered under Section 15 of the Consumer Protection Act, 1986 as it is arising out of Complaint Case No.602/2015.
5. Application for condonation of delay has been filed on various grounds. Para No.3 to Para No.7 of the application read as under:
"3. That the Appellant was being represented by the Associate of the undersigned counsel Mr. Rajeev Sharma, however, in the meantime, he under confusion missed out on the hearing date and could not follow up the case. It is submitted that the Ld. Forum was pleased to pass the judgment on the basis of the averments made by the Respondent herein without even issuing a notice to the Appellant herein for the final hearing.
4. That further in the meantime the said counsel left the office of the undersigned counsel without giving proper status of the cases. The Appellant became aware of the said non-appearance upon receipt of the summons in the execution proceedings.
5. That further, the copy of the impugned judgment dated 29.05.2019 was received alongwith the execution petition in the court hearing itself which took place on 09.08.2019 and it got revealed to the utter shock and surprise of the Appellant that despite filing its reply, the Appellant due to inadvertent error on the part of the Associate, could not file its evidence.
6. That however, upon receipt of the judgment, the case was immediately sent to the legal team for the appropriate remedy and to take steps and during the said process, the file was received by the office of the undersigned counsel on 21.08.2019. The Appellant Firm, however, could not immediately confirm the facts of the present case as during the shifting of the office of the Firm from Sector-12A to Ramphal Chowk, Dwarka around the month of September-October 2018, the files of the Appellant besides several other group were temporarily stored in the record room and could not be found immediately.
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7. That due to the said delay, the undersigned counsel received the file in the last week of September, 2019 and immediately thereafter prepared the present appeal, but due to the Durga Pooja, the undersigned was travelling to Guwahati for the festivities and the appeal has been filed after the expiry of the statutory period."
6. To adjudicate this issue, we deem it appropriate to refer to Section 15 of the Consumer Protection Act, 1986 which provides as under:-
"Any person aggrieved by an order made by the District Forum may prefer an appeal against such order to the State Commission within a period of thirty days from the date of the order in such form and manner as may be prescribed. Provided that the State Commission may entertain an appeal after the expiry of the said period of thirty days if it is satisfied that there was sufficient cause for not filing it within that period:
[Provided further that no appeal by a person, who is required to pay any amount in terms of an order of the District Forum, shall be entertained by the State Commission unless the appellant has deposited in the prescribed manner fifty per cent. of the amount or rupees twenty-five thousand, whichever is less]"
7. A perusal of the aforesaid statutory position reflects that the appeal against an order should be preferred within a period of thirty days from the date of impugned judgment. On perusal of record before us, it is clear that the impugned order was pronounced on 07.03.2019 and the present appeal was filed on 15.10.2019 i.e. after a delay of 192 days.
8. In order to condone the delay, the Appellant has to satisfy this Commission that there was sufficient cause for preferring the appeal after the stipulated period. The term 'sufficient cause' has been explained by the Apex Court in Basawaraj and Ors. vs. The Spl. Land Acquisition Officer reported in AIR 2014 SC 746. The relevant paras of the aforesaid judgment are reproduced as under:-
"9. Sufficient cause is the cause for which Defendant could not be blamed for his absence. The meaning of the word "sufficient" is "adequate" or "enough", inasmuch as may be necessary to answer the purpose intended.
DISMISSED Page 3 of 7FA/597/2019 OM SAINATH COLONIZER VS. PARTHA MANDAL DOD: 21.09.2023 Therefore, the word "sufficient" embraces no more than that which provides a platitude, which when the act done suffices to accomplish the purpose intended in the facts and circumstances existing in a case, duly examined from the view point of a reasonable standard of a cautious man. In this context, "sufficient cause" means that the party should not have acted in a negligent manner or there was a want of bona fide on its part in view of the facts and circumstances of a case or it cannot be alleged that the party has "not acted diligently" or "remained inactive". However, the facts and circumstances of each case must afford sufficient ground to enable the Court concerned to exercise discretion for the reason that whenever the Court exercises discretion, it has to be exercised judiciously. The applicant must satisfy the Court that he was prevented by any "sufficient cause"
from prosecuting his case, and unless a satisfactory explanation is furnished, the Court should not allow the application for condonation of delay. The court has to examine whether the mistake is bona fide or was merely a device to cover an ulterior purpose."
9. We also deem it appropriate to refer to Anil Kumar Sharma vs. United Indian Insurance Co. Ltd. and Ors. Reported in IV(2015)CPJ453(NC), wherein the Hon'ble NCDRC held as under:-
"12. .........we are not satisfied with the cause shown to justify the delay of 590/601 days. Day to day delay has not been explained. Hon'ble Supreme Court in a recent judgment of Anshul Aggarwal v. 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 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 the appeals and revisions, which are highly belated are entertained."
10. We further deem it appropriate to refer to Lingeswaran Etc. Versus Thirunagalingam in Special Leave to Appeal (C) Nos.2054- 2055/2022 decided on 25.02.2022, wherein the Hon'ble Supreme Court held as follows: -
DISMISSED Page 4 of 7FA/597/2019 OM SAINATH COLONIZER VS. PARTHA MANDAL DOD: 21.09.2023 "5. We are in complete agreement with the view taken by the High Court. Once it was found even by the learned trial Court that delay has not been properly explained and even there are no merits in the application for condonation of delay, thereafter, the matter should rest there and the condonation of delay application was required to be dismissed. The approach adopted by the learned trial Court that, even after finding that, in absence of any material evidence it cannot be said that the delay has been explained and that there are no merits in the application, still to condone the delay would be giving a premium to a person who fails to explain the delay and who is guilty of delay and laches. At this stage, the decision of this Court in the case of PopatBahiruGoverdhane v. Land Acquisition Officer, reported in (2013) 10 SCC 765 is required to be referred to.
In the said decision, it is observed and held that the law of limitation may harshly affect a particular party but it has to be applied with all its rigour when the statute so prescribes. The Court has no power to extend the period of limitation on equitable grounds. The statutory provision may cause hardship or inconvenience to a particular party but the Court has no choice but to enforce it giving full effect to the same.
11. From the aforesaid dicta of the Hon'ble Apex Court and the Hon'ble National Commission, it is clear that 'sufficient cause' means that the party should not have acted in a negligent manner or there was a want of bona fide on its part and the applicant must satisfy the Court that he was prevented by any "sufficient cause" from prosecuting his case, and unless a satisfactory explanation is furnished, the Court should not allow the application for condonation of delay.
12. Reverting to the material available before us, we find that the impugned order was passed on 07.03.2019 and the period of limitation starts from the date of order which had expired on 06.04.2019. However, the reasons stated for the delay that the appellant was being represented by the Associate of the present counsel who under confusion missed out on the hearing date and could not follow up the case; the said counsel left the office of the present counsel without giving proper status of the cases and the DISMISSED Page 5 of 7 FA/597/2019 OM SAINATH COLONIZER VS. PARTHA MANDAL DOD: 21.09.2023 appellant could not confirm the facts as during the shifting of the office of the firm around the month of September-October 2018; file of the appellant besides several group were temporarily stored in record room and could not be found immediately, seem fictitious.
13. Moreover, a perusal of record shows that copy of impugned order had been dispatched vide diary no. CDRF-VII/937 dated 29.05.2019. The appellant has wrongly mentioned, at serial no. 4 of the index of appeal, the date of impugned order 29.05.2015 in place of 07.03.2019 and has also wrongly mentioned date of impugned order 29.05.2019 in place of 07.03.2019 in para no.5 of the application. The appellant has also preferred not to mention the name of the associate of counsel by whom the appellant was being represented. Further, the appellant has preferred not to mention the time period during which present counsel for the appeal was travelling to Guwahati for the festivities.
14. The appellant has submitted in para 5 of the application that they had received copy of impugned order along with the execution petition on 09.08.2019. Even if we consider that the appellant has received the certified copy of the impugned order on 09.08.2019, in this circumstance, the appellant was expected to file the appeal within the limitation period i.e. by 08.09.2019. Still there is unexplained of delay of 37 days in filing the appeal.
15. In order to condone the delay, the appellant has to satisfy the Commission for delay of each day. However, the appellant has failed to show sufficient reason for delay of each day as required under the law. The applicant has abused the process of law and filed this appeal after immense delay without any reasonable ground.
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16. As per the averments made in the application as well as the record, we are of the considered view that no cogent reason has been explained by the appellant to show the delay in filing the appeal.
17. Having regard to the statutory position discussed in para supra and the facts of the case, the applicant/appellant has failed to show any sufficient cause for the delay in filing the present appeal. Therefore, the application filed by the appellant seeking condonation of delay cannot be admitted and accordingly, the same is dismissed on the above grounds.
18. Consequently, the present appeal filed beyond the statutory period also stands dismissed. However, in the facts of the case, there shall be no order as to cost.
19. File be consigned to record room.
JUSTICE SANGITA DHINGRA SEHGAL (PRESIDENT) PINKI MEMBER (JUDICIAL) Pronounced on 21.09.2023.
DISMISSED Page 7 of 7