State Consumer Disputes Redressal Commission
Sameer Kathuria vs Ganesh Chandra Pant on 11 May, 2023
STATE CONSUMER DISPUTES REDRESSAL COMMISSION UTTARAKHAND
DEHRADUN
FIRST APPEAL NO. 42 / 2019
Sh. Sameer Kathuria S/o Sh. Sudhir Kumar
Proprietor, M/s Siddharth Refrigeration Industries
Arora Complex, Behind Gurudwara
Gole Market, Rudrapur
District Udhamsingh Nagar, Uttarakhand
...... Appellant / Opposite Party
Versus
Sh. Ganesh Dutt Pant through Sh. Ashok Pant
S/o Sh. Ganesh Dutt Pant, Love Bakers
Subhash Chowk, Ranikhet
District Almora, Uttarakhand
...... Respondent / Complainant
Sh. Pradeep Bartwal, Learned Counsel for the Appellant
None for Respondent
Coram: Hon'ble Mr. Justice D.S. Tripathi, President
Mr. Udai Singh Tolia, Member-II
Dated: 11/05/2023
ORDER
(Per: Justice D.S. Tripathi, President):
This appeal under Section 15 of the Consumer Protection Act, 1986 has been preferred against the impugned judgment and order dated 31.07.2018 passed by the District Consumer Disputes Redressal Commission, Almora (in short "The District Commission") in consumer complaint No. 52 of 2018; Sh. Ganesh Dutt Pant Vs. Sh. Sameer, Proprietor, M/s Siddharth Refrigeration Industries, by which the consumer complaint was ex-parte allowed, directing the appellant
- opposite party to refund the price of Double Dake Oven amounting to Rs. 83,200/- to the respondent - complainant together with interest @8% p.a. from 29.08.2017 till payment, besides to pay Rs. 15,000/- towards mental agony and Rs. 5,000/- towards litigation expenses.2
2. We have heard learned counsel for the appellant on delay condonation application and perused the record. None appeared on behalf of respondent, although Sh. Ghanshyam Joshi and Sh. Arvind Singh Rawat, Advocates had put in appearance on behalf of respondent on 03.07.2019. This apart, in compliance of order dated 27.03.2023, registered court notice was issued to respondent, which was duly delivered, but inspite of that, none appeared on behalf of respondent.
3. According to office report dated 10.05.2023, the present appeal has been preferred by the appellant after a delay of 168 days'.
4. The delay condonation application has been moved by the appellant for condoning the delay in filing the appeal. The delay in filing the appeal has been explained by the appellant in the accompanying affidavit to the delay condonation application, wherein it has been averred that Sh. Sudhir Kumar, father of the appellant, suffered paralysis attack on 29.04.2018, on account whereof, the appellant took his father to Balaji Research Institute, New Delhi on 02.05.2018 and remained busy till 02.06.2018 in the treatment of his father at the said institute. The summons / notice dated 10.05.2018 of the consumer complaint issued by the District Commission was received by factory employee of the appellant, who inadvertently did not inform the appellant about the said notice. If the appellant would have come to know about the summons issued by the District Commission, he would have appeared before the District Commission and engaged an Advocate for contesting the consumer complaint on his behalf. The appellant, for the first time, came to know about the impugned ex-parte judgment and order, on 02.11.2018, upon receipt of summons issued by the District Commission under Section 27 of the Consumer Protection Act, 1986 by the factory employee. Since 3 October, 2018, the appellant was in New Delhi in connection with his nephew's marriage. After going through the summons, the next date was noted as 04.01.2019. On 04.01.2019, due to heavy rainfall, the road between Rudrapur to Almora was completely closed, as such, the appellant could not appear before the District Commission. In the first week of February, 2019, the official of Tehsil, Rudrapur informed the appellant about a recovery warrant issued in execution application No. 36 of 2018, whereafter the appellant appeared before the District Commission on 07.02.2019 and came to know about the impugned judgment and order. The Advocate advised the appellant to file an appeal against the impugned judgment and order before this Commission. Thereafter, the Advocate received the certified copy of relevant documents from 08.02.2019 to 11.02.2019, which were received by the appellant at Rudrapur on 12.02.2019. On 13.02.2019, the appellant came to Dehradun and engaged an Advocate for filing the appeal. The said Advocate prepared the appeal and filed the same before this Commission on 14.02.2019. The delay in filing the appeal is bonafide.
5. From above, it is clear that the appellant has himself admitted that the notice dated 10.05.2018 of consumer complaint issued by the District Commission, was received by factory employee of the appellant, who did not inform the same to the appellant. Thus, there has been negligence on the part of employee of the appellant. It is now well settled that on account of negligence of the counsel, the party can not get any benefit and any laches on the part of the counsel in prosecuting the matter, is to be treated as negligence / laches on the part of the concerned party itself. The same principle can also be applied to the employee of the appellant and the appellant can not be allowed to take benefit of any wrong on the part of its employee. In the case of Swiss International Air Lines Ltd. Vs. Jitender Mohan 4 Bhasin and others reported in III (2012) CPJ 583 (NC), there was delay of 244 days' in filing the revision petition. It was held by Hon'ble National Commission that the petitioner has failed to offer convincing rationale of reasons in support of his application. It was also held that the name of earlier counsel was not mentioned in the application and it was the duty cast on the petitioner itself to find out what has happened to his case and whether appeal has been filed or not. It was observed that there was gross negligence, deliberate inaction and lack of bonafides are imputable to the petitioner and the delay was not condoned. In the case of Vinod Kumar Patel Vs. Sambit Kumar Das reported in III (2012) CPJ 703 (NC), it has been held by Hon'ble National Commission that it is well settled that qui facit per alium facit per se. Negligence of a litigant's agent is negligence of the litigant himself and is not sufficient cause for condoning delay.
6. Hon'ble National Commission in the case of HUDA Vs. Sunil Gupta reported in IV (2012) CPJ 360 (NC), has declined to condone the delay in filing the revision petition. In the said case, the delay of 36 days' in filing the revision petition was not condoned and it was held that the procedural delay is not the sufficient cause for condoning the delay.
7. Hon'ble National Commission in the case of Jain International Sansthan Vs. Krish City, Bhiwadi and another reported in III (2016) CPJ 2 (NC), has declined to condone the delay of 168 days' in filing the revision petition and has held that no lucid excuse is forthcoming from the petitioner to justify the delay in filing the revision petition. It was held that the case is barred by time. In the said decision, reliance was placed upon the decision of Hon'ble Apex Court given in Special Leave to Appeal (Civil) No. 37183 of 2013; Sanjay Sidgonda Patil Vs. Branch Manager, National 5 Insurance Company Limited and another, decided on 17.12.2013 reported in 2013 (SLT Soft) 6, wherein Hon'ble Apex Court has confirmed the order of Hon'ble National Commission and refused to condone the delay of 13 days'.
8. In addition to above, there is no medical prescription / paper on record to show that the appellant remained busy in the treatment of his father at New Delhi till 02.06.2018 and could not contest the consumer complaint. The appellant has also not been fair enough to disclose the name of the employee, who had received the notice issued by the District Commission in the consumer complaint.
9. For the reasons aforesaid, we are of the considered opinion that the appellant has not been able to satisfactorily explain an inordinate delay in filing the appeal and there is no plausible explanation put forward by the appellant for making a case in his favour, so as to allow the delay condonation application and condone the delay in filing the appeal. Consequently, the application for condonation of delay warrants dismissal.
10. Application for condonation of delay is dismissed. As a consequence thereof, the appeal is dismissed as not maintainable, being barred by limitation. No order as to costs.
11. A copy of this Order be provided to all the parties free of cost as mandated by the Consumer Protection Act, 1986 / 2019. The Order be uploaded forthwith on the website of the Commission for the perusal of the parties.
(U.S. TOLIA) (JUSTICE D.S. TRIPATHI)
Member-II President
K