State Consumer Disputes Redressal Commission
Forbclub Company vs Tarsem Kumar on 3 May, 2024
STATE CONSUMER DISPUTES REDRESSAL COMMISSION
PUNJAB, DAKSHIN MARG, SECTOR 37-A, CHANDIGARH
First Appeal No.283 of 2023
Date of Institution : 30.04.2023
Reserved on : 23.04.2024
Date of Decision : 03.05.2024
Forbclub Company, Plot No.738, JLPL Industrial Estate, Sector 82,
Mohali, India 160055, through its Authorized Representative.
........Appellant/Opposite Party
Versus
Tarsem Kumar, House No.17, Pipal Wali Gali, near Shiv Mandir SJS
Avenue, Ajnala Road, Amritsar-143008 (09872852882)
.....Respondent/Opposite Party
Appeal under Section 41 of Consumer
Protection Act, 2019 to challenge the
order dated 03.10.2022 passed by the
District Consumer Disputes Redressal
Commission, Amritsar in C.C. No.161 of
2022.
Quorum:-
Hon'ble Mrs. Justice Daya Chaudhary, President
Ms. Simarjot Kaur, Member
Present:-
For the Appellant : None
For the Respondent : Mr. Tarsem Kumar, in person
1) Whether Reporters of the Newspapers
may be allowed to see the Judgment? Yes/No
2) To be referred to the Reporters or not? Yes/No
3) Whether judgment should be reported
in the Digest? Yes/No
JUSTICE DAYA CHAUDHARY, PRESIDENT:-
The Appellant/OP Forclub Company, through its
Authorized Representative has filed the present Appeal under 2 First Appeal No.283 of 2023 Section 41 of the Consumer Protection Act, 2019 (in short the 'Act') being aggrieved by the impugned order dated 03.10.2022 passed by the District Consumer Disputes Redressal Commission, Amritsar in C.C. No.161 of 2022 (in short the "District Commission") and also the order dated 20.05.2022 whereby the Appellant/OP was proceeded exparte.
2. Briefly, the facts of the case which are necessary for disposal of the present Appeal are that the Complainant Tarsem Kumar filed Complaint under Section 35 of the Act, 2019. The Complainant received a phone call on 29.01.2022 from the OP that he was selected for some gift vouchers. The Complainant had deposited an amount of Rs.15,000/-. However, on coming back to his residence, he decided not to have the membership. Thereafter, he made request to cancel the membership and to refund the amount. He had sent several mails and OP had agreed to return the amount within a short period. However, still the Complainant did not get the refund. Thereafter, the Complainant was having no option except to file the Complaint before the District Commission. Said Complaint was filed with the prayer for issuance of direction to refund an amount of Rs.15,000/- to the Complainant and also to pay compensation of Rs.30,000/- alongwith litigation expenses.
3. Notice in the Complaint was served upon the OP but none had appeared on behalf of the OP despite service and OP was proceeded exparte vide order dated 20.05.2022. 3 First Appeal No.283 of 2023
4. On consideration of averments as made in the Complaint and on hearing the oral arguments of the Complainant who appeared in person, the Complaint was allowed vide order dated 03.10.2022 by issuing directions to the OP to refund an amount of Rs.15,000/- as deposited by the Complainant alongwith interest @9% per annum from the date of filing of the Complaint till its realization. The OP was also held liable to pay compensation of Rs.5000/- and litigation expenses of Rs.3000/- to the Complainant. The compliance of the order was to be made within a period of 30 days from the date of receipt of copy of the order.
5. Being aggrieved by said order passed by the District Commission, the Appeal was filed by the OP.
M.A. No.547 of 2023
6. There was delay of 146 days in filing of the Appeal. M.A. No.547 of 2023 was filed for condonation of delay of 146 days in filing of the appeal.
7. In response to notice issued in the Application, Respondent Tarsem Kumar appeared in person and sought time to file reply to the application for condonation of delay. However none had appeared on behalf of the Appellant/OP on 12.12.2023, 19.02.2024, 19.03.2024 as well as on 23.04.2024. 4 First Appeal No.283 of 2023
8. Respondent Tarsem Kumar had appeared on all the said dates including the last date i.e. 23.04.2024. Respondent Tarsem Kumar has submitted that while allowing the Complaint a detailed order was passed whereby the Appellant/OP was directed to refund an amount of Rs.15,000/- as deposited by the Complainant alongwith interest @9% per annum from the date of filing of the Complaint till its realization and an amount of Rs.5000/- as compensation as well as litigation expenses of Rs.3000/- was awarded and compliance of the order was to be made within a period of 30 days. Instead of complying with the order passed by the District Commission, the Appellant/OP has filed the Appeal with delay of 146 days.
9. Admittedly neither the Appellant nor Counsel had appeared continuously on four dates i.e. 12.12.2023, 19.02.2024 and 19.03.2024 as well as on 23.04.2024. It was also mentioned in the earlier zimni order that in case the Appellant does not appear on the date of hearing of the case it would be presumed that he was not interested in the case but still the appellant has not come present himself or any Counsel representing him.
10. On perusal of Application for condonation of delay, simply it has been mentioned that the Appellant came to know about the exparte order/final order when the summons were received in the Execution Application filed by the Respondent/Complainant. Further it has been mentioned that thereafter the Appellant came to know about the exparte order dated 20.05.2022 as well as exparte award 5 First Appeal No.283 of 2023 dated 03.10.2022. Further it has been mentioned that the Appellant appeared only on 27.03.2023 to respond the claim in the execution proceedings. It has been averred in the Application that delay in filing the appeal was neither intentional nor willful. In the Application, further it has been mentioned that the Applicant/Appellant would suffer irreparable loss in case the delay is not condoned. Further it has been mentioned that the Appellant had earlier filed an Appeal challenging the exparte order dated 03.10.2022 but it was withdrawn with liberty to file with better particulars. Thereafter, the present Appeal was filed.
11. On perusal of contents of the application for condonation of delay no reasons whatsoever have been mentioned to condone the delay. Simply it has been mentioned that on receiving summons in the execution application, the Appellant came to know about the exparte order 20.05.2022. Neither any reason for remaining absent has been mentioned nor any explanation was there. Simply one line averment is there that he came to know about the pendency of the case on receiving the bailable warrants that too on 26.03.2023. He received bailable warrants on 26.03.2023 and he appeared on 27.03.2023. Thereafter, on filing of Appeal before this Commission Counsel representing the Appellant/OP appeared only on three dates i.e. 04.05.2023, 10.05.2023 and 07.07.2023. Thereafter, learned counsel for the Appellant did not appear on 28.08.2023. He appeared on 02.11.2023 but thereafter he did not appear continuously on four 6 First Appeal No.283 of 2023 dates i.e. 12.12.2023, 19.02.2024 and 19.03.2024 as well as on 23.04.2024.
12. Arguments raised by the Respondent/Complainant were heard but since the Applicant/Appellant or his Counsel did not appear on the last four dates i.e. 12.12.2023, 19.02.2024 and 19.03.2024 as well as on 23.04.2024, it appears that he is not interested in pursuing the case.
13. The delay of 146 days in filing of the Appeal has not been properly explained. The Hon'ble Supreme Court in case "Anshul Aggarwal Vs. New Okhla Industrial Development Authority", 2011 (14) SCC 578 has held that while deciding the application for condonation of delay in the cases under the Consumer Protection Act, 1986, the Court has to keep in mind that specified period of limitation as prescribed under the Act while filing the Appeals and Revisions in Consumer matters and the object of expeditious adjudication of the consumer disputes would be defeated/frustrated, if the highly belated petitions are entertained.
14. The Hon'ble Supreme Court in case "Lanka Venkateswarlu (D) By LRs Vs. State of A.P. & Others", 2011 (2) RCR Civil-880 (SC), after considering the entire case law on the issue of delay, in Para-26(relevant portion) has observed as under:-
"Once a valuable right has accrued in favour of one party as a result of the failure of the other party to explain the delay by showing sufficient cause and its own conduct, it will be unreasonable to take away that right on the mere asking of the Applicant, particularly when the delay is directly a result 7 First Appeal No.283 of 2023 of negligence, default or inaction of that party. Justice must be done to both parties equally. Then alone the ends of justice can be achieved. If a party has been thoroughly negligent in implementing its rights and remedies, it will be equally unfair to deprive the other party of a valuable right that has accrued to it in law as a result of his acting vigilantly".
15. In view of above discussion and the reasons as well as the law as laid down by Hon'ble Supreme Court of India, it is apparent that delay of 146 days has not properly been explained. The Applicant/Appellant had slept over the matter as he was proceeded exparte on 20.05.2022 by the District Commission and thereafter the final order was passed on 03.10.2022. The reasons mentioned in the application are totally vague and are not based on any sufficient reason to condone the delay. Totally a casual approach has been adopted while filing the Appeal. The Appellant had remained totally inactive and unaware due to which the delay of 146 days had occurred.
16. We do not find any merit in the in the grounds for condonation of delay. Even neither Appellant nor Counsel appeared Accordingly, the Application for condonation of delay is dismissed being meritless.
Main Case
17. Since the reasons for condonation of delay are not convincing as the same has not been properly explained by considering the number of days, so there is no need to hear the main Appeal on merits as neither the delay has properly been explained 8 First Appeal No.283 of 2023 nor the reasons to condone the same are convincing. Moreover, neither the Appellant nor his Counsel had come present during last four dates i.e. 12.12.2023, 19.02.2024 and 19.03.2024 as well as on 23.04.2024. Meaning thereby the Appellant has nothing to rebut the final order passed by the District Commission. Since, the Application for condonation of delay has been dismissed by passing a detailed order, accordingly the Appeal is also dismissed being barred by limitation.
18. The Appellant had earlier deposited an amount of Rs.12,192/- at the time of filing of the Appeal No.265 of 2023 with this Commission, which was dismissed as withdrawn, vide order dated 20.04.2023. It was directed to adjust the statutory amount i.e. Rs.12,192/- so deposited with Appeal No.265 of 2023 with the subsequent Appeal. As per the said directions the amount of Rs.12,192/- was adjusted with the present Appeal i.e. the Appeal No.283 of 2023. Said amount, alongwith interest which has accrued thereon, if any, shall be remitted by the Registry to the District Commission forthwith. The Respondent/Complainant may approach the District Commission for the release of the same and the District Commission may pass an appropriate order in this regard in accordance with law.
19. Since the main case is decided, the pending applications, if any, are also disposed of.
9First Appeal No.283 of 2023
20. The Appeal could not be decided within the stipulated period due to heavy pendency of Court cases and due to pandemic of Covid-19.
(JUSTICE DAYA CHAUDHARY) PRESIDENT (SIMARJOT KAUR) MEMBER May 03, 2024 (MM)