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State Consumer Disputes Redressal Commission

Chief Commercial Manager,North ... vs Sandeep Kumar Mishra & Anr on 3 October, 2024

FA/625/2024        CCM/NER RAILWAY VS. MR. SANDEEP KUMAR MISHRA & ANR.   DOD:03.10.2024


          IN THE DELHI STATE CONSUMER DISPUTES REDRESSAL
                             COMMISSION

                                               Date of Institution:19.09.2024
                                               Date of hearing : 25.09.2024
                                               Date of Decision : 03.10.2024

                        FIRST APPEAL NO. 625/2024

   IN THE MATTER OF

          CHIEF COMMERCIAL MANAGER
          NORTH EASTERN RAILWAY
          GORAKHPUR, UTTAR PRADESH-273012

                                     (Through Mr. Siddhartha Sinha, Advocate
                                                 Email: [email protected]
                                                      Mobile No.9717952311)
                                                   ...APPLICANT/APPELLANT

                                      VERSUS

        1.

MR. SANDEEP KUMAR MISHRA R/O 1141, DELHI ADMINISTRATION FLATS GULABI BAGH, NEW DELHI-110007

2. INDIAN RAILWAY CATERING AND TOURISM CORPORATION LTD. (IRCTC) REGISTERED/CORPORATE OFFICE 9TH FLOOR, BANK OF BARODA BUILDING 16, PARLIAMENT STREET, NEW DELHI-110001 ....NON-APPLICANT/ RESPONDENT CORAM:

HON'BLE JUSTICE SANGITA DHINGRA SEHGAL (PRESIDENT) HON'BLE MS. PINKI, MEMBER (JUDICIAL) Present: Mr. Nring Chamwibo Zeliang and Mr. Siddhartha Sinha, counsel for the appellant (Mobile No. 8730027929 & 9717952311).

PER: HON'BLE MS. PINKI, MEMBER (JUDICIAL)

1. The present appeal has been filed on 19.09.2024 challenging the impugned order dated 04.01.2024 passed in Complaint Case DISMISSED Page 1 of 16 FA/625/2024 CCM/NER RAILWAY VS. MR. SANDEEP KUMAR MISHRA & ANR. DOD:03.10.2024 No.887/2013 by the District Consumer Disputes Redressal Commission-VI (New Delhi District) M-Block, Vikas Bhawan, I.P. Estate, New Delhi-110002 wherein the complaint was allowed.

2. This order will dispose off an application bearing IA No.2643/2024 seeking condonation of delay in filing the appeal, filed along with the appeal. Affidavit of Mr. Amareshwar Nidhan Tripathi, Assistant Commercial Manager (Court) with the appellant has been filed along with this application.

3. Record has been carefully and thoroughly perused.

4. The application has been moved without mentioning any provision of law. However, it is being considered under Section 15 of the Consumer Protection Act, 1986 as it is arising out of Complaint Case No.887/2013.

5. A bare perusal of the application filed reflects that it has been moved without mentioning any provision of law. However, the entire proceedings of the present case took place according to the Old Act. Hence, before delving into the merits of the present application, it is imperative to ascertain whether the present application bearing IA No.2643/2024 filed along with the appeal on 19.09.2024 is maintainable under the New Act/Old Act.

6. The repeal of a law shall not affect the previous operation of any enactment i.e. the proceedings under Consumer Protection Act, 1986 shall continue for cases which had been filed prior to the implementation of Consumer Protection Act, 2019 on 20.07.2020.

The same can be gauged through the repeal and saving section (Section 107) of the Consumer Protection Act, 2019 which has been reproduced below:

"107. (1) The Consumer Protection Act, 1986 is hereby repealed.

(2) Notwithstanding such repeal, anything done or any action taken or purported to have been done or taken under DISMISSED Page 2 of 16 FA/625/2024 CCM/NER RAILWAY VS. MR. SANDEEP KUMAR MISHRA & ANR. DOD:03.10.2024 the Act hereby repealed shall, in so far as it is not inconsistent with the provisions of this Act, be deemed to have been done or taken under the corresponding provisions of this Act.

(3) The mention of particular matters in sub-section (2) shall not be held to prejudice or affect the general application of section 6 of the General Clauses Act, 1897 with regard to the effect of repeal."

7. We may also take the assistance of Section 6 (b) of the General Clauses Act, 1897 to further this view. Section 6 (b) of the General Clauses Act, 1897 has been reproduced below:

"6 Effect of repeal. : Where this Act, or any 1 [Central Act] or Regulation made after the commencement of this Act, repeals any enactment hitherto made or hereafter to be made, then, unless a different intention appears, the repeal shall not

(a) revive anything not in force or existing at the time at which the repeal takes effect; or

(b) affect the previous operation of any enactment so repealed or anything duly done or suffered thereunder"

8. Moreover, unless the legislature explicitly provides that the amendment is retrospective in nature, it will be considered prospective. The aforesaid view has been taken by the Apex Court in the case of CIT v. Vatika Township (P) Ltd. reported in (2015) 1 SCC 1 wherein the Court discussed the proviso to Section 113 of the Income Tax Act, 1961 and held that it was prospective and not retrospective. While deciding the case, the Constitution Bench laid down certain general principles which have been reproduced as under:

FA/625/2024 CCM/NER RAILWAY VS. MR. SANDEEP KUMAR MISHRA & ANR. DOD:03.10.2024 "28. Of the various rules guiding how a legislation has to be interpreted, one established rule is that unless a contrary intention appears, a legislation is presumed not to be intended to have a retrospective operation. The idea behind the rule is that a current law should govern current activities. Law passed today cannot apply to the events of the past. If we do something today, we do it keeping in view the law of today and in force and not tomorrow's backward adjustment of it. Our belief in the nature of the law is founded on the bedrock that every human being is entitled to arrange his affairs by relying on the existing law and should not find that his plans have been retrospectively upset. This principle of law is known as lex prospicit non respicit: law looks forward not backward. As was observed in Phillips v. Eyre [Phillips v.

Eyre, (1870) LR 6 QB 1] , a retrospective legislation is contrary to the general principle that legislation by which the conduct of mankind is to be regulated when introduced for the first time to deal with future acts ought not to change the character of past transactions carried on upon the faith of the then existing law.

29. The obvious basis of the principle against retrospectivity is the principle of "fairness", which must be the basis of every legal rule as was observed in L'OfficeCherifien des Phosphates v. Yamashita-Shinnihon Steamship Co. Ltd. [L'OfficeCherifien des Phosphates v. Yamashita-Shinnihon Steamship Co. Ltd., (1994) 1 AC 486 : (1994) 2 WLR 39 : (1994) 1 All ER 20 (HL)] Thus, legislations which modified accrued rights or which DISMISSED Page 4 of 16 FA/625/2024 CCM/NER RAILWAY VS. MR. SANDEEP KUMAR MISHRA & ANR. DOD:03.10.2024 impose obligations or impose new duties or attach a new disability have to be treated as prospective unless the legislative intent is clearly to give the enactment a retrospective effect; unless the legislation is for purpose of supplying an obvious omission in a former legislation or to explain a former legislation. We need not note the cornucopia of case law available on the subject because aforesaid legal position clearly emerges from the various decisions and this legal position was conceded by the counsel for the parties. In any case, we shall refer to few judgments containing this dicta, a little later."

(emphasis in original)

9. Similarly, the Apex Court in Hitendra Vishnu Thakur vs State of Maharashtra reported in 1994 (4) SCC 602, the court has culled out the ambit and scope of an amending Act and its retrospective operation and has held the following:

"26. The Designated Court has held that the amendment would operate retrospectively and would apply to the pending cases in which investigation was not complete on the date on which the Amendment Act came into force and the challan had not till then been filed in the court. From the law settled by this Court in various cases the illustrative though not exhaustive principles which emerge with regard to the ambit and scope of an Amending Act and its retrospective operation may be culled out as follows:

(i) A statute which affects substantive rights is presumed to be prospective in operation unless made retrospective, either expressly or by necessary intendment, whereas a statute which merely affects DISMISSED Page 5 of 16 FA/625/2024 CCM/NER RAILWAY VS. MR. SANDEEP KUMAR MISHRA & ANR. DOD:03.10.2024 procedure, unless such a construction is textually impossible, is presumed to be retrospective in its application, should not be given an extended meaning and should be strictly confined to its clearly defined limits.

(ii) Law relating to forum and limitation is procedural in nature, whereas law relating to right of action and right of appeal even though remedial is substantive in nature.

(iii) Every litigant has a vested right in substantive law but no such right exists in procedural law.

(iv) A procedural statute should not generally speaking be applied retrospectively where the result would be to create new disabilities or obligations or to impose new duties in respect of transactions already accomplished.

(v) A statute which not only changes the procedure but also creates new rights and liabilities shall be construed to be prospective in operation, unless otherwise provided, either expressly or by necessary implication."

10. Taking into account the aforesaid discussion, we conclude that the Consumer Protection Act, 2019 is prospective in nature. Thus, the cases pending or adjudicated and rights/obligations created before the coming into effect of the Consumer Protection Act, 2019 will continue to be adjudicated under the Old Act i.e. Consumer Protection Act, 1986. Hence, the applicant cannot resort to the provisions as inculcated in the New Act so far as the present case is concerned this case will be governed by the provisions of the Old Act.

11. Application for condonation of delay has been filed on various grounds. Para No. 3 to 5 of the application read as under:

"3. That there is a delay in filing the present appeal. The reasons for delay are :

FA/625/2024 CCM/NER RAILWAY VS. MR. SANDEEP KUMAR MISHRA & ANR. DOD:03.10.2024 04.01.2024 Impugned judgment and order was passed by the Ld. District Consumer Disputes Redressal Commission-VI, I.P. Estate, New Delhi-110002. 02.02.2024 Certified Copy of the Impugned Judgement & Order dated 04.01.2024 passed by the Ld. District Commission was received in the office of Appellant through registered post from the Ld. District Commission.

15.02.2024 Legal Opinion was given by the Counsel appearing before the Ld. District Commission to challenge the impugned judgement and order dated 04.01.2024 before the Hon'ble State Commission.

15.02.2024 The proposal for filing First Appeal was sent to the Competent Authority for approval.

20.02.2024 Competent Authority approved the proposal for filing First Appeal before the Hon'ble State Commission. 22.02.2024 The details note was put up before Competent Authority for sanction of 50% of the decretal amount.

27.02.2024 Competent Authority sanctioned 50% of decretal amount for preparation of Demand Draft.

01.03.2024 The case file was sent to account department of preparation of Demand Draft. 13.03.2024 Appellant sent a proposal and a request was sent to Delhi High Court Litigation Unit for nomination of counsel to represent and defend the interest of Appellant.

FA/625/2024 CCM/NER RAILWAY VS. MR. SANDEEP KUMAR MISHRA & ANR. DOD:03.10.2024 31.03.2024 The matter was allotted to the Counsel for the Appellant Mr. Sidhhartha Sinha for drafting & filing the First Appeal before this Hon'ble State Commission.

01.04 2024 The relevant documents required for drafting and filing the First Appeal was sought from the Appellant by the Counsel.

02.04.2024 The Appellant sent some of the scanned documents for drafting for First Appeal 16.04.2024 Since the documents were not legible for drafting, the counsel for the Appellant sought fair legible copies of the relevant documents from the Appellant.

29.04.2024 The Appellant directed the Counsel to collect the physical copies of the documents from the Counsel who appeared before the Ld. District Forum. 02.05.2024 Account Department of this office return back the case file with some objections.

07.05.2024 The relevant documents were collected from the office of the Counsel who appeared before the Ld. District Forum.

10.05.2024 The Counsel for the Appellant drafted and sent the First Appeal to the Appellant for approval and appending signature.

21.05.2024 After correction of the objection raised by the account department, the case file was again sent to account department for preparation of Demand Draft.

10.06.2024 The case file received in the office of Appellant from Account Department after completion of Demand Draft.

FA/625/2024 CCM/NER RAILWAY VS. MR. SANDEEP KUMAR MISHRA & ANR. DOD:03.10.2024 12.06.2024 The First Appeal was vetted and put up for signature before the competent authority.

13.06.2024 Demand Draft of Rs.

18043.00 was received by the Appellant.

13.06.2024 The First Appeal was signed by the competent authority. 18.06.2024 The approved draft of the First Appeal was received by the Counsel for the Appellant. 20.06.2024 The counsel got to know about the requirement of depositing Fix Deposit Receipt in favour of Hon'ble State Commission in place of Demand Draft 16.07.2024 The counsel informed the Appellant via email intimating the requirement of Fix Deposit Receipt in place of Demand Draft 23.07.2024 Approval obtained from the Competent Authority for cancellation of Demand Draft and issuance of Fix Deposit Receipt in favour of the Hon'ble State Commission. 25.07.2024 The Demand Draft was cancelled by the Bank 14.08.2024 Online process for party creation has been done.

20.08.2024 After getting approval from the Accounts department, pay order and the case file was physically forwarded to the Accounts Department.

22.08.2024 Accounts Department issued cheque for the Fix Deposit Receipt.

28.08.2024 A request was made to the Bank for Fix Deposit Receipt via cheque submission.

29.08.2024 Fix Deposit Receipt was issued by the Bank.

FA/625/2024 CCM/NER RAILWAY VS. MR. SANDEEP KUMAR MISHRA & ANR. DOD:03.10.2024 13.09.2024 Counsel for the Appellant received the Fix Deposit Receipt sent by the Appellant. 19.09.2024 The Fix Deposit Receipt along with the First Appeal was filed by the Counsel for the Appellant before the Hon'ble State Commission.

4. That the execution and performance of works and responsibilities in the Government Department are done by several hands and under involvement of so many staff and officers at different stages as part of procedural norms, conventions and rules which are absolutely unavoidable.

5. That, it is submitted that the delay in filing the Appeal is bonafide and purely unintentional. Due to the process of obtaining of procedural approvals along with the typing/translation of records, the delay has happened in the present case."

12. 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]"

13. 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, DISMISSED Page 10 of 16 FA/625/2024 CCM/NER RAILWAY VS. MR. SANDEEP KUMAR MISHRA & ANR. DOD:03.10.2024 it is clear that the impugned order was pronounced on 04.01.2024 and the present appeal was filed on 19.09.2024 i.e. after a delay of 229 days.

14. 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. 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."

15. 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 DISMISSED Page 11 of 16 FA/625/2024 CCM/NER RAILWAY VS. MR. SANDEEP KUMAR MISHRA & ANR. DOD:03.10.2024 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."

16. 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 under: -

"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.

FA/625/2024 CCM/NER RAILWAY VS. MR. SANDEEP KUMAR MISHRA & ANR. DOD:03.10.2024

17. 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.

18. Reverting to the material available before us, we find that the impugned order was passed on 04.01.2024 and the period of limitation starts from the date of order which had expired on 03.02.2024. However, the reasons stated for the delay are that upon receipt of the certified copy of the impugned order on 02.02.2024, legal opinion was given by counsel appearing before the District Commission and the proposal for filing the appeal was sent to the competent authority which gave approval on 20.02.2024; thereafter the detailed note was put up before competent authority for sanction of 50% of decretal amount for demand draft; thereafter on 01.03.2024, the case file was sent to the Accounts Department for preparation of demand draft; thereafter on 13.03.2024 a request was sent by the appellant to Delhi High Court Litigation Unit for nomination of counsel to represent and defend the interest of appellant; thereafter on 31.03.2024 the matter was allotted to Advocate Mr. Sidhhartha Sinha for drafting and filing the appeal who sought relevant documents on 01.04.2024 for drafting and filing the appeal which was sent to the allotted counsel on 02.04.2024; thereafter since the documents were not legible for drafting, counsel sought fair legible copies of the documents; thereafter on 29.04.2024 the appellant directed the counsel to obtain the hard copies of the documents from counsel who was presenting them before the DISMISSED Page 13 of 16 FA/625/2024 CCM/NER RAILWAY VS. MR. SANDEEP KUMAR MISHRA & ANR. DOD:03.10.2024 District Commission; thereafter on 02.05.2024 Accounts Department returned the case file with some objections; thereafter on 07.05.2024 the relevant documents were collected by counsel; thereafter on 10.05.2024 counsel drafted the appeal and sent the same to the appellant for approval and signature; on 21.05.2024 after correction of the objections, the case file was again sent to Accounts Department for preparation of demand draft; thereafter on 10.06.2024 the case file was received in the office of appellant from Accounts Department after completion of demand draft; thereafter on 12.06.2024 the appeal was vetted and put up for signature before the competent authority; thereafter on 13.06.2024 the demand draft of Rs.18,043/- was received by the appellant and the appeal was signed which was received by counsel on 18.06.2024; thereafter on 20.06.2024 counsel got to know about the FDR instead of demand draft; thereafter on 16.07.2024 counsel informed the appellant via email intimating about the FDR in place of demand draft; thereafter on 23.07.2024 approval obtained from the competent authority for cancellation of demand draft and issuance of FDR; thereafter on 25.07.2024 the demand draft was cancelled by the concerned bank; thereafter on 14.08.2024 online process for party creation has been done; thereafter on 20.08.2024 after getting approval from the Accounts Department, pay order as well as case file was physically forwarded to the Accounts Department; thereafter on 22.08.2024 Accounts Department issued cheque for FDR; thereafter on 28.08.2024 request was made to the Bank for FDR which was issued on 29.08.2024; thereafter on 13.09.2024 counsel received the FDR sent by the appellant; and thereafter on 19.09.2024 the present appeal was filed.

FA/625/2024 CCM/NER RAILWAY VS. MR. SANDEEP KUMAR MISHRA & ANR. DOD:03.10.2024

19. The appellant has submitted in para 3 of the application that they have received the certified copy of the impugned order on 02.02.2024. Even if we consider that the appellant has received the certified copy of the impugned order on 02.02.2024, in this circumstance also, the appellant was expected to file the appeal within the limitation period i.e. by 04.03.2024 (as 03.03.2024 being Sunday). Still there is unexplained delay of 200 days in filing the appeal.

20. Regarding statutory deposit, it is the duty of the learned counsel to be aware of the filing of the FDR and the same is also mentioned on the website of the Confonet (https://confonet.nic.in). It is a lame excuse.

21. Additionally, the appellant's sole justification in the aforementioned application was that the delay in filing the Appeal is Procedural delay. To this argument of the appellant, we deem it appropriate to refer to the case of Office of the Chief Post Master General and Ors. Vs. Living Media India Ltd. and Ors. reported in AIR 2012 SC 1506, wherein the apex court has held as under:

"12. .......The claim on account of impersonal machinery and inherited bureaucratic methodology of making several notes cannot be accepted in view of the modern technologies being used and available. The law of limitation undoubtedly binds everybody including the Government.

13. In our view, it is the right time to inform all the government bodies, their agencies and instrumentalities that unless they have reasonable and acceptable explanation for the delay and there was bonafide effort, there is no need to accept the usual explanation that the file was kept pending for several months/years due to considerable degree of procedural red-tape in the process. The government departments are under a special obligation to ensure that they perform their DISMISSED Page 15 of 16 FA/625/2024 CCM/NER RAILWAY VS. MR. SANDEEP KUMAR MISHRA & ANR. DOD:03.10.2024 duties with diligence and commitment.

Condonation of delay is an exception and should not be used as an anticipated benefit for government departments. The law shelters everyone under the same light and should not be swirled for the benefit of a few."

22. Relying on the above settled law and considering the fact that there was no proper explanation offered by the appellant for the delay except inculpating the government lengthy approval procedures. According to us, the appellant has miserably failed to give any acceptable and cogent sufficient reasons to condone such delay. As a result, it is abundantly clear from the above that the appellant was moving at its own pace unmindful that the prescribed period to file an appeal is 30 days from the date of impugned judgment.

23. Therefore, the application (IA-2643/2024) filed by the appellant seeking condonation of delay in filing the appeal, cannot be admitted and accordingly, the same is dismissed for the above reasons.

24. 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.

25. The Order be uploaded forthwith on the website of the Commission for the perusal of the parties as well as forwarded to the corresponding E-mail address available on the record.

26. File be consigned to record room.

JUSTICE SANGITA DHINGRA SEHGAL (PRESIDENT) PINKI MEMBER (JUDICIAL) Pronounced on 03.10.2024.