State Consumer Disputes Redressal Commission
State Bank Of India vs Amar Singh on 1 April, 2024
FA/176/2024 STATE BANK OF INDIA VS. MR. AMAR SINGH DOD: 01.04.2024
IN THE DELHI STATE CONSUMER DISPUTES REDRESSAL
COMMISSION
Date of Institution:07.03.2024
Date of hearing : 20.03.2024
Date of Decision : 01.04.2024
FIRST APPEAL NO. 176/2024
IN THE MATTER OF
STATE BANK OF INDIA
THROUGH ITS BRANCH MANAGER
HAVING ITS HEAD OFFICE/CENTRAL OFFICE/
CORPORATE AT
STATE BANK BHAVAN
MADAM CAMA ROAD
MUMBAI-440024
LOCAL HEAD OFFFICE AT
11, SANSAD MARG
NEW DELHI-110001
ALSO AT
HIMMATPURI, BLOCK-27
NEAR TRILOKPURI BUS STAND
DELHI-110091
...APPLICANT/APPELLANT
(Through Mr. Ranjay Kumar Sinha, Mr. Atul Nayak,
Ms. Kumari Vandana & Ms. Vaishali
Email [email protected] &
[email protected]
Mob. 9718814471 &
9811255673)
VERSUS
MR. AMAR SINGH
S/O MR. ATAR SINGH
R/O KHEDA CHAUGHANPUR
POST KULESRA
DISTRICT GAUTAM BUDH NAGAR
UTTAR PRADESH-201306
....NON-APPLICANT/ RESPONDENT
DISMISSED Page 1 of 14
FA/176/2024 STATE BANK OF INDIA VS. MR. AMAR SINGH DOD: 01.04.2024
CORAM:
HON'BLE JUSTICE SANGITA DHINGRA SEHGAL (PRESIDENT)
HON'BLE MS. PINKI, MEMBER (JUDICIAL)
Present: Ms. Vaishali (Mob. 9599398403), Counsel for the appellant.
None for the respondent.
PER: HON'BLE MS. PINKI, MEMBER (JUDICIAL)
1.The present appeal has been filed on 07.03.2024 challenging the impugned order dated 21.08.2023 passed in Complaint Case No.224/2019 by the District Consumer Disputes Redressal Commission- IX (East District), Convenient Shopping Centre, Saini Enclave, Delhi wherein the complaint was allowed.
2. This order will dispose off an application bearing IA No.747/2024 seeking condonation of delay in filing the appeal, filed along with the appeal. Affidavit of Mr. R.K. Sinha, counsel 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, 1963 read with Section 41 of Consumer Protection Act, 2019. However, it is being considered under Section 15 of the Consumer Protection Act, 1986 as it is arising out of Complaint Case No.224/2019.
5. The bare perusal of the application reflects that it has been preferred under Section 5 of Limitation Act, 1963 read with Section 41 of Consumer Protection Act, 2019. 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.747/2024 filed along with the appeal on 07.03.2024 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, DISMISSED Page 2 of 14 FA/176/2024 STATE BANK OF INDIA VS. MR. AMAR SINGH DOD: 01.04.2024 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 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"DISMISSED Page 3 of 14
FA/176/2024 STATE BANK OF INDIA VS. MR. AMAR SINGH DOD: 01.04.2024
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:
"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.DISMISSED Page 4 of 14
FA/176/2024 STATE BANK OF INDIA VS. MR. AMAR SINGH DOD: 01.04.2024
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 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 DISMISSED Page 5 of 14 FA/176/2024 STATE BANK OF INDIA VS. MR. AMAR SINGH DOD: 01.04.2024 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 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 DISMISSED Page 6 of 14 FA/176/2024 STATE BANK OF INDIA VS. MR. AMAR SINGH DOD: 01.04.2024 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. 2 and 3 of the application read as under:
"2. That the Appeal ought to have been filed within 45 days as per the provisions of Section 41 of the Consumer Protection Act, 2019. But as the Appellant was unaware of the said complaint case before receiving the order dated August 23, 2023, which was received by the Appellant Bank on October 17, 2023, and on that day the Appellant Bank came to know about the said matter, which had not been in the knowledge of the Appellant before that, Subsequently, the Appellant Bank approached his advocate, who advised him to get a certified copy of the case, which was received on November 22, 2023. Because, as per the provision requiring filing of an Appeal , no Appeal can be filed before the Hon'ble Commission without a certified copy of the order, the Appellant had to approach the certified center of the District Consumer Disputes Redressal Commission (East) Saini Enclave, Delhi, to obtain the order, which caused a delay in filing the present Appeal .
3. It is further submitted that the present appeal was earlier filed by the Appellant Counsel through e-filing mode on December 9, 2023, with Diary No. A23120005165, and an attempt was made to file the same by the Appellant Counsel at the filing counter of the Hon'ble Commission on 11 December 2023, but the Appellant's counsel had DD instead of FD; hence, the filing counter did not allow him to file it with DD. Thereafter, the Appellant counsel requested that the Appellant branch prepare an FD of Rs. 65,000/- (50% of the principal amount i.e. Rs. 1,30,000/-). However, the Appellant Bank branch had to wait for some time for clearance from the higher authority to file the DD in respect of the appeal, thereafter, the FD was prepared, and the lawyer again attempted to file it at the filing counter on January 12, 2024. But the filing counter again refused to accept the file as the FD was prepared with an amount of DISMISSED Page 7 of 14 FA/176/2024 STATE BANK OF INDIA VS. MR. AMAR SINGH DOD: 01.04.2024 Rs. 65,000/- instead of filing it along with interest and costs. However, the said mistake was on the part of the lawyer office as the lawyer staff had not considered the interest and costs along with the claim. Finally, the Appellant counsel requested the Appellant branch to prepare an FD of Rs. 94,120/- (50% of the principal amount, i.e., Rs. 1,30,000/- with 8% interest and costs of Rs. 10,000/-), because the Appellant branch has to take instructions and approval from the higher authority, and without approval, the higher authority cannot take any action, which cause further delay in filing the present appeal. Therefore, there is approx 3 months delay (without excluding holidays) in filing the present Appeal from the date of information of the Appellant Bank (when the order was given to the bank, i.e., October 17, 2023). The said delay is not due to any willful omission on Bank part and was done in the absence of knowledge of the said complaint matter and the legal formalities/procedure."
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, it is clear that the impugned order was pronounced on 21.08.2023 DISMISSED Page 8 of 14 FA/176/2024 STATE BANK OF INDIA VS. MR. AMAR SINGH DOD: 01.04.2024 and the present appeal was filed on 07.03.2024 i.e. after a delay of 169 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 has not been explained. Hon'ble Supreme Court in a recent judgment of Anshul Aggarwal v. New Okhla DISMISSED Page 9 of 14 FA/176/2024 STATE BANK OF INDIA VS. MR. AMAR SINGH DOD: 01.04.2024 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.
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 DISMISSED Page 10 of 14 FA/176/2024 STATE BANK OF INDIA VS. MR. AMAR SINGH DOD: 01.04.2024 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 21.08.2023 and the period of limitation starts from the date of order which had expired on 20.09.2023. However, the reason stated for the delay that the appellant was unaware of their case before receiving the impugned order on 17.10.2023; thereafter the appellant approached their counsel who advised for certified copy; thereafter the appellant obtained certified copy on 22.11.2023; thereafter counsel for the appellant filed appeal through e-filing mode vide diary no. A23120005165 on 09.12.2023 and an attempt was also made to file the same at filing counter of this Commission which was refused to accept the same as counsel had demand draft in place of FDR; thereafter appellant branch prepare FDR of Rs.65,000/- (50% of the principal amount i.e. Rs.1,30,000/-) and the appellant had to wait for clearance from higher authority to file the demand draft; thereafter FDR was prepared and counsel again attempted to file the appeal along with FDR on 12.01.2024, however, filing counter of this Commission again refused to accept the same as FDR was prepared with an amount of Rs.65,000/- instead of filing it along with interest as costs and the said mistake was on the part of counsel office who had not considered the interest as well as costs along with the claim; thereafter the appellant prepare FDR of Rs.94,120/- and appellant has to take instructions and approval from higher authority, seem fictitious.
DISMISSED Page 11 of 14FA/176/2024 STATE BANK OF INDIA VS. MR. AMAR SINGH DOD: 01.04.2024
19. It is pertinent to mention that the appellant has wrongly mentioned in para 2 of the application the date of impugned order as 23.08.2023 in place of 21.08.2023.
20. Upon enquiry, it has been brought to notice that e-filling was made on 09.12.2023 vide diary no. A23120005165 which was subsequently revert on 21.12.2023 with the remarks that "condonation delay application not file and FDR is be filed place of DD". Thereafter, the appeal was again filed on 07.03.2024. Even if we deduct the period of 13 days from 09.12.2023 (i.e. the date when the appeal was filed through online) to 21.12.2023 (i.e. the date when the appeal was revert), still there is delay of 156 days in filing the appeal.
21. It is an admitted fact by the appellant in para 2 of the application that impugned order was received by the them on 17.10.2023 and on that day, the appellant came to know about the same. Subsequently, the appellant approached his counsel who advised him to get a certified copy which was received on 22.11.2023. On the other hand, as per copy of impugned order placed on record, the appellant has applied for certified copy on 06.11.2023 which was obtained on 22.11.2023.
22. A perusal of paid certified true copy of impugned order shows that appellant has applied for the same on 06.11.2023 and the same was ready to be handed over on 20.11.2023 and the same was obtained by the appellant on 22.11.2023. Even if we consider that the appellant has received the certified copy of the impugned order on 22.11.2023 (as per copy of impugned order) and we deduct the period of 13 days from 09.12.2023 (i.e. the date when the appeal was filed through online) to 21.12.2023 (i.e. the date when the appeal was revert), in this circumstance also, the appellant was expected to file the appeal within the limitation period i.e. by DISMISSED Page 12 of 14 FA/176/2024 STATE BANK OF INDIA VS. MR. AMAR SINGH DOD: 01.04.2024 04.01.2024. Still there is unexplained delay of 63 days in filing the appeal.
23. However, the appellant has preferred not to disclose as to when they approached to counsel who advised them for certified copy and as to why they took too much time to file application for certified copy on 06.11.2023 after it came to their knowledge about the impugned order on 17.10.2023.
24. 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.
25. Furthermore, even if we assumed that the said delay was on behalf of red tape in the bureaucratic machinery, the reasons submitted by the appellant cannot be justification for condoning such delay. Our view is further fortified by decision of the Apex Court in 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 13 of 14 FA/176/2024 STATE BANK OF INDIA VS. MR. AMAR SINGH DOD: 01.04.2024 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."
26. 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.
27. Therefore, the application (IA-747/2024) filed by the appellant seeking condonation of delay cannot be admitted and accordingly, the same is dismissed on the above grounds.
28. 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.
29. File be consigned to record room.
JUSTICE SANGITA DHINGRA SEHGAL (PRESIDENT) PINKI MEMBER (JUDICIAL) Pronounced on 01.04.2024.
sg DISMISSED Page 14 of 14