State Consumer Disputes Redressal Commission
Branch Manager , Durg Rajnandgaon ... vs Smt.Devki on 2 February, 2017
CHHATTISGARH STATE
CONSUMER DISPUTES REDRESSAL COMMISSION,
PANDRI, RAIPUR (C.G).
Appeal No.FA/2016/748
Instituted on : 02.12.2016
Branch Manager,
Durg Rajnandgaon Gramin Bank /
Chhattisgarh Rajya Gramin Bank,
Branch - Chilhati, Tehsil - Ambagarh Chowki,
District Rajnandgaon (C.G.) ... Appellant/Opposite party
Vs.
Smt. Devki, W/o Shri Bahadur Singh,
Aged about 42 years,
R/o : Village : Marartola, Post - Chilhati,
Tehsil Ambagarh Chowki,
District Rajnandgaon (C.G.). ... Respondent/Complainant
PPRESENT :
HON'BLE SHRI JUSTICE R.S. SHARMA, PRESIDENT
HON'BLE SHRI D.K. PODDAR, MEMBER
HON'BLE SHRI NARENDRA GUPTA, MEMBER
COUNSEL FOR THE PARTIES :
Shri Rajkumar Sharma, for the appellant.
ORDER
DATED : 02/02/2017 PER :- HON'BLE SHRI JUSTICE R.S. SHARMA, PRESIDENT. This appeal is directed against thfe order dated 12.04.2016, passed by District Consumer Disputes Redressal Forum, Rajnandgaon (C.G.) (henceforth "District Forum") in Complaint Case No.16/2014. By the impugned order the complaint of the respondent (complainant), has been allowed and the appellant (O.P.) has been directed to pay the amounts to the respondent (complainant) within a month, as mentioned in para 9 of the impugned order as well as order dated 05.11.2016. By // 2 // this order the application filed by the appellant (O.P.) under Order 9 Rule 13 CPC read with Section 13 (a) of the Consumer Protection Act, 1986, has been dismissed by the District Forum.
2. The appellant (O.P.) preferred this appeal against the impugned order dated 12.04.2016, passed by the District Forum and has also filed an application under Section 5 of the Limitation Act for condonation of delay in filing the appeal. The appeal is belated by 203 days in respect of original order. The appellant (O.P.) has also filed appeal against order dated 05.11.2016 passed by the District Forum dismissing the application filed under Order 9 Rule 13 CPC read with Section 13 (a) of the Consumer Protection Act, 1986.
3. The respondent (complainant) Smt. Devki had filed complaint under Section 12 of the Consumer Protection Act, 1986 before the District Forum which was registered as Complaint Case No.16/2014. Shri R.P. Sharma, counsel for the appellant (O.P.) appeared before the District Forum on behalf of the appellant (O.P.) on 03.05.2014, 26.05.2014, 04.06.2014, 24.06.2014, but thereafter none appeared on behalf of the appellant (O.P.). Then again on 18.06.2015, Shri R.P. Sharma, learned counsel appeared on behalf of the appellant (O.P.) and thereafter on 18.09.2015 and 19.10.2015, Shri Pravin Khare, appeared on behalf of the appellant (O.P.). On 02.02.2016, Shri R.P. Sharma appeared on behalf of the appellant (O.P.) On 08.03.2016 none appeared for the // 3 // appellant (O.P.). On 01.04.2016, the appellant (O.P.) was proceeded and the impugned order was passed on 12.04.2016.
4. The appellant (O.P.) filed an application under Order 9 Rule 13 CPC read with Section 13 (a) of the Consumer Protection Act, 1986 dated 20.05.2016 before the District Forum, which was dismissed vide order dated 05.11.2016.
5. Firstly we shall consider whether the appeal filed by the appellant (O.P.) against the order dated 12.04.2016, which is belated by 203 days is liable to be condoned ?
6. Shri Rajkumar Sharma, learned counsel for the appellant (O.P.) has argued that that the counsel for the appellant (O.P.) Shri Rajendra Prasad Sharma had expired during the pendency of the complaint and the said information was not received by the appellant (O.P.) Bank, therefore, the appellant (O.P.) did not aware regarding the impugned order. When information regarding the impugned order was received the appellant (O.P.), then the appellant (O.P.) filed an application under Order 9 Rule 13 CPC read with Section 13 (a) of the Consumer Protection Act, 1986 before the District Forum and the District Forum vide order dated 05.11.2016 has dismissed the above application. The impugned order dated 12.04.2016, passed by the District Forum, is erroneous and liable to be set aside. He placed reliance on Eicher Tractor Ltd. Vs. Late Chitranjan Prasad Singh & Ors. III (2003) CPJ 26 // 4 // (NC); Kanhaiyalal Sahu Vs. H.L. Sarva, 2014 (2) C.G.L.J. 17 (CCC) decided by this Commission; Shivam Motors Ltd. & Another Vs. Vashista Tiwari & Another, 2014 (2) C.G.L.J. 19 (CC) decided by this Commission, and Radhakrishnan Vs. Manikandanunni, II (2001) CPJ 167 decided by Kerala State Consumer Commission.
7. We have heard Shri Rajkumar Sharma, learned counsel appearing for the appellant (O.P.) on the application filed by the appellant (O.P.) under Section 5 of the Limitation Act, 1986 and have also perused the record of the District Forum.
8. In Basavraj & Anr. V. The Spl. Land Acquisition Officer, 2013 AIR SCW 6510, Hon'ble Supreme Court observed thus:-
"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. 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 // 5 // 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. (See: Manindra Land and Building Corporation Ltd. v. Bhootnath Banerjee &Ors., AIR 1964 SC 1336; Lala Matadin v. A.Narayanan, AIR 1970 SC 1953; Parimal v. Veena alias Bharti AIR 2011 SC 1150 : (2011 AIR SEW 1233); and Maniben Devraj Shah v. Municipal Corporation of Brihan Mumbai, AIR 2012 SC 1629 : (2012 AIR SCW 2412.)
12. It is a settled legal proposition that 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. "A result flowing from a statutory provision is never an evil. A Court has no power to ignore that provision to relieve what it considers a distress resulting from its operation." 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. The legal maxim "dura lex sed lex" which means "the law is hard but it is the law", stands attracted in such a situation. It has consistently been held that, "inconvenience is not" a decisive factor to be considered while interpreting a statute.
15. The law on the issue can be summarised to the effect that where a case has been presented in the court beyond limitation, the applicant has to explain the court as to what was the "sufficient cause" which means an adequate and enough reason which prevented him to approach the court within limitation. In case a party is found to be negligent, or for want of bona fide on his part in the facts and circumstances of the case, or found to have not acted diligently or remained inactive, there cannot be a justified ground to condone the delay. No court could be justified in condoning such an inordinate delay by imposing any condition whatsoever. The application is to be decided only within the parameters laid down by this court in regard to the condonation of delay. In case there was no sufficient cause to prevent a litigant to approach the court on time condoning the delay without any justification, putting any condition whatsoever, amounts to passing an order in violation of the statutory provisions and it tantamounts to showing utter disregard to the legislature."
// 6 //
9. The Hon'ble Supreme Court in Anshul Aggarwal v. New Okhla Industrial Development Authority, IV (2011) CPJ 63 (SC), has laid down that :
"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 Foras."
10. In Cordcon Builders Pvt. Ltd. & Anr. Vs. Valerian Anthony Diago & Anr. 2015 (2) CPR 517 (NC), Hon'ble National Commission has observed thus :-
"10. .......Thus, it becomes clear that almost after about 9 months he applied for certified copy of the impugned order inspite of having knowledge of the impugned order. Section 12 (2) of Limitation Act runs as under:
"(2) In computing the period of limitation for an appeal or an application for leave to appeal or for revision or for review of a judgment, the day on which judgment complained of was pronounced and the time requisite for obtaining a copy of the decree, sentence or order appealed from or sought to be revised or reviewed shall be excluded.
Thus, limitation runs from the date of pronouncement/knowledge and is such circumstances limitation for filing appeal started from 10.04.2012 and period taken in obtaining certified copy is to be excluded for the purpose of calculation of condonation of delay.
// 7 // Apparently , appellant applied for certified copy on 4.01.2013 and he received copy on the same day; hence, only one day for getting certified copy of the impugned order is to be excluded for computation of limitation for filing appeal.
11. Learned Counsel for the appellant submitted that period of limitation is to be calculated from the date of receiving free copy as provided under Regulation 21 of the C.P. Regulations, 2005. This argument is devoid of force because this provision only directs to the Consumer Fora to give parties free of cost copy of the order, but it nowhere specifies that limitation will run from the date of receipt of free copy. If a party does not receive free copy at all, it cannot be held that limitation will not run against him till he receives certified copy. Limitation will run from the date he obtains knowledge of the order passed by Consumer Fora and only period taken in obtaining certified copy will be excluded. Appellant should have applied for certified copy of order on 10.04.2012, when judgment was pronounced in his presence and as he did not apply for certified copy uptill 4.1.2013, period from 11.4.2012 to 3.1.2013 cannot be excluded from period of limitation provided for filing appeal."
11. In Lachoo @ Laxminarayan vs. Proprietory : Verma Watch House Shyam Talkies, 2015 (4) CPR 337 (NC), Hon'ble National Commission has observed that "On bare perusal of record of Forum & affidavit filed by complainant, appears that reason assigned by complainant regarding delay, not satisfactory and delay not explained properly."
12. In M/s. Samia International Builders (P.) Ltd. Vs. Neeta Rani, 2016 (1) CPR 19 (NC), Hon'ble National Commission has observed that // 8 // "Sufficient cause for condoning delay in each case question of fact. No leniency should be shown to such type of litigants, who in order to cover up their own fault and negligence, go on filing merit less petitions in different foras."
13. In Rituraj Construction Vs. Prakash Ramchandra Kale, I (2016) CPJ 272 (NC), Hon'ble National Commission has observed thus :-
"17. We fully agree with the reasonings given by the State Commission, that in the application no cause whatsoever has been shown as to why there was delay of 43 days in filing the appeal, except that 'due to some unavoidable circumstances there is delay of 43 days'. Now what is this, 'some unavoidable circumstances'' has not been explained at all. Be that as it may, the aforesaid reason by any stretch of imagination, cannon be said to be a sufficient cause. Moreover, a valuable right has accrued in favour of respondent, which cannot be brushed aside lightly."
14. In Sr. Superintendent of Post Offices & Anr. Vs. Modi (HUF), 2016 (2) CPR 577 (NC), Hon'ble National Commission, has observed that "Inordinate delay of 305 days in filing of Revision Petition cannot be condoned."
15. In Bappanand Narshimman Annu Vs. Hirmanidevi G.S. Gupta & Ors., 2016 (4) CPR 447 (NC), Hon'ble National Commission has observed thus :-
"8. Tested on the touchstone of the broad principles laid down in a catena of decisions of the Hon'ble Supreme Court, viz., 'sufficient cause' cannot be construed liberally if negligence, inaction or lack of bonafides are attributable to the party, praying for exercise of such // 9 // discretion in its favour, and that when a statute provides for a particular period of limitation, it has to be applied with all its rigors, as an unlimited limitation leads to a sense of uncertainty, we are of the view that the State Commission has not committed any jurisdictional error in coming to the conclusion that a case for condonation of the said delay was not made out."
16. We have perused the order sheets of the District Forum.
17. The respondent (complainant) has filed instant complaint on 02.04.2015 and notice was issued to the appellant (O.P.). Shri R.P. Sharma, learned counsel appeared before the District Forum on 03.05.2014 on behalf of the appellant (O.P.). Shri R.P. Sharma also appeared on behalf of the appellant (O.P.) on 26.05.2014, 04.06.2014, 24.06.2014, but none appeared on behalf of the appellant (O.P.) on 16.07.2014, 14.08,2014, 30.08.2014. 29.09.2014, 17.10.2014, 22.11.2014, 23.12.2014, 28.01.2015, 10.03.2015, 16.04.2015 and 18.05.2015. Thereafter Shri R.P. Sharma, again appeared on behalf of the appellant (O.P.) on 18.06.2015 before the District Forum. On 21.07.2015 and 18.08.2015 none appeared on behalf of the appellant (O.P.). Thereafter Shri Pravin Khare, appeared on behalf of the appellant (O.P.) on 18.09.2015 and 19.10.2015 and on 18.11.2015, 08.12.2015 and 07.01.2016 none appeared on behalf of the appellant (O.P.). Again Shri R.P. Sharma, appeared on 02.02.2016 on behalf of the appellant (O.P.), thereafter none appeared for the appellant (O.P.), hence the appellant (O.P.) proceeded ex-parte.
// 10 //
18. The appellant (O.P.) filed the appeal memo but no application has been filed for condonation of delay along with appeal memo. The appellant (O.P.) filed an application under Section 5 of the Limitation Act, for the first time on 30.01.2017. In the application filed by the appellant (O.P.) under Section 5 of the Limitation Act.
19. In Himachal Pradesh Housing And Urban Development Authority Vs. Tara Wati & Others, I (2017) CPJ 65 (NC), Hon'ble National Commission has observed that "application has been filed in a most routine and casual manner. They have not explained why they were not vigilant and careful in pursuing the matter with their Counsel and no sufficient cause has been shown. Delay not condoned." In the instant case also the application under Section 5 of the Limitation Act, has been filed by the appellant (O.P.) in a most routine and casual manner. No sufficient cause has been shown and even the fact regarding death of counsel for the appellant (O.P.) is mentioned.
20. Looking to record of the District Forum, it appears that the appellant (O.P.) was not vigilant to prosecute its case. The reasons mentioned in application filed under Section 5 of the Limitation Act, for condonation of delay in filing the appeal are not satisfactory and acceptable and the appeal is liable to be dismissed.
21. Now we shall consider next contention of the appellant (O.P.) whether the District Forum has erroneously dismissed the application // 11 // filed by the appellant (O.P.) under Order 9 Rule 13 CPC read with Section 13 (a) of the Consumer Protection Act, 1986 ? 22 Shri Rajkumar Sharma, learned counsel appearing for the appellant (O.P.) has argued that the counsel for the appellant (O.P.) Shri Rajendra Prasad Sharma had expired during the pendency of the complaint and the said information was not received by the appellant (O.P.) Bank, therefore, the appellant (O.P.) did not aware regarding the impugned order. When information regarding the impugned order was received the appellant (O.P.), then the appellant (O.P.) filed an application under Order 9 Rule 13 CPC read with Section 13 (a) of the Consumer Protection Act, 1986 before the District Forum and the District Forum vide order dated 05.11.2016 has dismissed the above application. The above order passed by the District Forum, is erroneous and liable to be set aside.
23. In the Consumer Protection Act, 1986, the District Forums, have not vested with any power to review, recall their earlier orders and to restore the complaints.
24 In Rajeev Hitendra Pathak & Others v. Achyut Kashinth Karekar, IV (2011) CPJ 35 (SC) = 2011 (9) SCC 541, Hon'ble Supreme Court observed thus :
// 12 // "35. We have carefully scrutinized the provisions of the Consumer Protection Act, 1986. We have also carefully analyzed the submissions and the cases cited by the learned Counsel for the parties.
36. On carefully analysis of the provisions of the Act, it is abundantly clear that the Tribunals are creatures of the Statute and derive their power from the express provisions of the Statute. The District Forums and the State Commissions have not been given any power to set aside ex-parte orders and power of review and the powers which have not been expressly given by the Statute cannot be exercised.
39. In view of the legal position, in Civil Appeal No.4307 of 2007, the findings of the National Commission are set aside as far it has held that the State Commission can review its own orders. After the amendment in Section 22 and introduction of Section 22A in the Act in the year 2002 by which the power of review of recall has vested with the National Commission only. However, we agree with the findings of the National Commission holding that the Complaint No.473 of 1999 be restored to its original number for hearing in accordance with law."
25. In the case of Bastar Jila Upbhokta Sanrakshan Samiti & Anr. vs. General Manager, District Trade and Industries Centre, Jagdalpur, 2012 (3) CPR 273 (NC), Hon'ble National Commission has observed thus :-
"14. It is settled law (vide Rajeev Hitendra Pathak & Others v. Achyut Kashinath Karekar & Another), (2011) 9 SCC 541 that neither a State Commission nor a District Forum has, under the provisions of the Act, the power to review or recall/modify any order passed by it. Thus, the District Forum has rightly dismissed the application filed by the complainant seeking restoration of her complaint dismissed earlier // 13 // for non-prosecution. The State Commission has also correctly dismissed the appeal against that order."
26. In Manager, Hinduja Leyland Finance Ltd. Vs. Motilal Swain, 2014 (4) CPR 199 (NC), Hon'ble National Commission has observed thus :-
"5. After disposing Revision Petition, Learned State Commission had no authority to review its order in the light of judgment of Hon'ble Apex Court in Rajeev Hitendra Pathak VS. Achyut Kashinath Karekar 2012 (1) CPR 78 (SC)".
27. In Director Versentile Plantation Limited Vs. Sant Ram Agrahari and Anr. 2016 (3) CPR 253 (NC), Hon'ble National Commission has observed that "State Commission cannot review its order."
28. Looking to the above judgments of Hon'ble Supreme Court and Hon'ble National Commission, it is clear that the District Forum, does not enjoy any power of reviewing its earlier orders or recalling them. The District Forum has no jurisdiction to set aside the ex-parte order. Hence, the District Forum, has rightly rejected the application filed by the appellant (O.P.) under Order 9 Rule 13 CPC read with Section 13 (a) of the Consumer Protection Act, 1986 , therefore, the order dated 05.11.2016 passed by the District Forum, is just and proper and does not call for any interference by this Commission.
// 14 // 29 In the instant case it is observed that the District Forum, has no jurisdiction to set aside the ex-parte order. The appeal filed by the appellant (O.P.) is barred by 203 days. No sufficient explanation and reasons has been given by the appellant (O.P.). The facts of the citations relied by the appellant (O.P.) are quite distinguishable from the facts of the instant case and are not helpful to him.
30. Thus, the application filed by the appellant (O.P.) under Section 5 of the Limitation Act for condonation of delay in filing the appeal, is hereby rejected and the order dated 05.11.2016 passed by the District Forum dismissing the application filed by the appellant (O.P.) under Order 9 Rule 13 CPC read with Section 13 (a) of the Consumer Protection Act, 1986 is just and proper and does not suffer from any infirmity or illegality. Consequently, in both the counts the appeal stands dismissed.
(Justice R.S. Sharma) (D.K. Poddar) (Narendra Gupta)
President Member Member
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