National Consumer Disputes Redressal
Ansal Housing And Construction Ltd. vs Rajendra Prasad Gupta, on 12 August, 2013
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO. 2294 OF 2013 Alongwith ( I.A.for C/Delay and Stay ) (From order dated 01.04.2013 in First Appeal No.117 of 2011of State Consumer Disputes Redressal Commission, Delhi) Ansal Housing and Construction Ltd. IS, UGF, Indraprakash Building, 21, Barakhamba Road, New Delhi-110001. .... Petitioner Versus Rajendra Prasad Gupta, R/o 46, Amrit Nagar, South Extension Part-I, New Delhi. ...Respondent BEFORE: HONBLE MR. JUSTICE V.B. GUPTA, PRESIDING MEMBER HONBLE MRS. REKHA GUPTA, MEMBER For the Petitioner : Mr.Aaditya Vijay Kumar, Advocate Pronounced on: 12th August, 2013 ORDER
PER MR. JUSTICE V.B. GUPTA, PRESIDING MEMBER Petitioner/O.P. aggrieved by order dated 1.4.2013 of the State Commission, Delhi (for short, State Commission) has filed the present revision petition under Section 21 of the Consumer Protection Act, 1986(for short, Act).
2. At the outset, it may be pointed out that petitioner for the reasons best known to it, has not placed on record copy of the complaint filed by the respondent/complainant before District Forum. On this short ground, present revision is liable to be dismissed. In Special Leave to Appeal (Civil) No. 22967of 2012,Ganpathi Parmeshwar Kashi and Anr. Vs. Bank of India & Anr, decided by Honble Supreme Court on 14.1.2013, the court observed;
i) the petitioners have deliberately omitted to place before the Court, copies of the complaint filed by them and the written statement filed by respondent No. 1. This has been done with a view to avoid scrutiny by the Court of the averments contained in the complaint.
3. Be that as it may, as apparent from the record, respondent had filed Complaint No.1106 of 2011, before District Forum-VI, I.P. Estate, New Delhi (for short, District Forum).Since, petitioner did not appear before the District Forum despite service of the notice on 23.5.2012, District Forum passed the following order;
23.05.12:Mr.Ankit Sinha, Counsel for complainant. Notice already served on OP. OP Called several times. OP proceeded ex-parte. Fix up for ex-parte evidence on 28.8.2012.
4. Against order dated 23.5.2012, petitioner filed (First Appeal No.117of 2013) before the State Commission. Alongwith it, an application seeking condonation of delay of 221 days was also filed.
5. State Commission, vide impugned order rejected the application for condonation of delay and dismissed the appeal being time barred.
6. Thus, aggrieved by the impugned order, petitioner has filed this revision.
7. We have heard the learned counsel for the petitioner and gone through the record.
8. It has been contended by learned counsel for the petitioner that no valid and effective notice has been served upon the petitioner. Notice for hearing for 19.3.2012 was received by the petitioner on 22.3.2012 which cannot be said to be valid and effective service. Since, no notice has been received from the District Forum, thus there were sufficient grounds for setting aside the ex-parte order passed by the District Forum. The application for condonation of delay was filed before the State Commission as a matter of abundant caution, as the ex-parte order came to be known only on 22.1.2013.
9. Main grounds on which condonation of delay was sought before the State Commission read as under;
3. That the appellant had no notice of the pendency of the present matter and that an order to proceed ex-parte against it had been made on 23.05.2012 and the knowledge of the pendency of the said matter was obtained by the appellant company only on 22.01.2013.
4. That on 22.01.2013, when a clerk of the appellant company who was newly assigned in 2013 to look after the matters of the appellant company in Learned District Consumer Disputes Redressal(New Delhi) ITO, New Delhi-01 was noting the dates of various matters of the appellant company before the Honble District Forum, from the court diary, he noticed that against the date of 30.01.2013 the present matter against the appellant is listed for final arguments. The same was accordingly communicated to the concerned officer of the legal department of the appellant company and inquiries made as to how the matter could have skipped the notice of the officers assigned for handling consumer cases in the said District Forum. It was then that the clerk who was handing the matters in District Forum till November, 2012 which he saw in the notice board when he went to the court premises and orally stated to the Honble District Forum that the appellant did not know of the pendency of the said matter and will file an application which oral prayer was not allowed. The said clerk left for his native place on the very same day due to some family problems and returned after a week and since he was assigned in another department of the appellant company in December, 2012 he forgot to bring the said event to the notice of the concerned officers of the appellant company earlier and the present appeal therefore could not be filed earlier.
5. That this being the situation an application for inspection of the file of the present matter was urgently made on 24.1.2013 and which inspection was allowed to be carried on 28.01.2013 since 25.01.2013 to 27.01.2013 were holidays. It was found that the present matter was indeed listed for final arguments on 30.1.2013 after an ex parte order against the appellant was passed on 23.05.2012 and pleadings and evidence complete in the matter. It was further found that the matter was listed on 19.03.2012 although the same was not shown in the cause list in the website of the Honble District Forum on the said date.
6. That in this view of the matter is it humbly submitted that the appellant became aware of the pendency of the present proceedings only on 22.1.2013 and filed the present appeal immediately after inspection of the court file which was done on 28.01.2013. In this view of the matter the delay in filing the present appeal may kindly be condoned in the interest of justice.
10. In the application for condonation of delay, petitioner itself admits that knowledge of the pendency of the matter before the District Forum was obtained by the petitioner on 22.1.2013. In the same breath, petitioner in the application for condonation of delay has taken an altogether different stand stating that;
Clerk who was handling the matters in the District Forum till November, 2012 has stated that he saw the matter listed in the cause list on 30.11.2012.
11. It is further the case of petitioner that said Clerk left for his native place on the same very day and returned back after a week and since that clerk was assigned in other department of the petitioner-company, he forgot to bring the said event to the notice of the concerned officers of the petitioner-company earlier and the appeal, therefore, could not be filed earlier.
12. Another version with regard to the service of notice from the District Forum has been mentioned by the petitioner in the List of Dates and Events(page no.1 of the paper-book) and the same state as under;
The petitioner receives the notice returnable on 19.03.2012, three days later i.e. on 22.3.2012.
13. Thus, as per petitioners own case, petitioners clerk was aware about the pendency of the matter before the District Forum for 19.3.2012 and later on for 30.11.2012.
14. However, in the entire application for condonation of delay, name of that clerk has not been mentioned nor affidavit of that so called clerk has been filed.
15. The State Commission while dismissing the appeal in its impugned order observed;
9 In the case in hand the ground is that the work was assigned to the officers of the company, who skipped. Obviously,there is a sheer negligence and carelessness on the part of the company in dealing the cases.
Suffice to say, that the appellant is a company registered under the Indian Companies Act, 1956 and has large number of employees in the Law Department to deal with the legal cases.
Further, it is having full-fledged legal department under its command comprising large number of legal personal.
Inspite of having all the resources in its command, if a company registered under the Indian Companies act takes more than seven months in filing the appeal, then it can only be said that how inefficient, careless and negligent are the employees of the appellant. Despite having all the facilities and infrastructure under it,the appellant officials have acted in a very careless and negligent manner for the purpose of filing this appeal. We may further mention that the order sheet dated 23.5.2012 of the aforesaid case of the District Forum that a specific and categorical finding has been made by the District Forum that notice has already been served on the appellant, and despite several times none appeared. This very apparently shows the callous and lethargic act of the appellant. Under these circumstances,the application for condonation of delay is hereby rejected. In consequence, the appeal filed by the appellant dismissed as being barred by time thereof.
16. Apex Court in Anshul Aggarwal Vs. New Okhla Industrial Development Authority, IV (2011)CPJ 63 (SC) has observed ;
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.
17. This Commission in Mahindra Holidays & Resorts India Ltd. vs. Vasantkumar H. Khandelwal and Anr, Revision Petition No.1848 of 2012 decided on 21.5.2012 has held;
that under the Consumer Protection Act, 1986 the District Forum is supposed to decide the complaint within a period of 90 days from the date of filing and in case of some expert evidence is required to be led then within 150 days. The said Bench dismissed the revision petition on the ground that it was delayed by 104 days.
18. It is well settled that Qui facit per alium facit per se, Negligence of a litigants agent is negligence of the litigant himself and is not sufficient cause for condoning the delay. See M/s. Chawala & Co. vs. Felicity Rodrigues, 1971 ACK 92.
19. There is nothing on record to show that petitioners Company is being represented by illiterate persons. Therefore, it was expected from petitioner to have been vigilant and careful in pursuing the litigation which was pending before the fora below. Thus, gross negligence, deliberate inaction and lack of bonafide is imputable to the petitioner. In order to cover up its own negligence, the petitioner has shifted the entire burden upon a clerk, which cannot be justifiable under any circumstances.
20. Thus, in our view, the discretion exercised by the State Commission in declining the petitioners prayer for condonation of long delay of 221 days, does not suffer from any legal infirmity and the possibility of this Commission forming a different opinion in the matter of condonation of delay cannot justify interference with the impugned order under Section 21(b) of the Act.
21. The present revision petition having no merit and being without any legal basis, has been filed just to delay the disposal of the complaint filed by the respondent. Under these circumstances, the present revision is required to be dismissed with punitive cost. Accordingly, we dismiss the present revision petition in limine with cost of Rs.30,000/-(Rupees Thirty Thousand Only).
22. Out of this cost, Rs.20,000/-(Rupees Twenty Thousand Only) shall be paid to the respondent. Petitioner is directed to deposit the cost of Rs.20,000/- by way of demand draft in the name of respondent and balance amount of Rs.10,000/-(Rupees Ten Thousand Only) by way of demand draft in the name of Consumer Legal Aid Account of this Commission. Aforesaid costs be deposited within four weeks. In case, petitioner fails to deposit the aforesaid costs within the specified period, then it shall also be liable to pay interest @ 9% p.a. till realization.
23. Cost awarded in favour of the respondent shall be paid to him only after expiry of period of appeal or revision preferred, if any.
24. Pending application, if any, stand disposed of.
25. List on 13.09.2013 for compliance.
..J (V.B. GUPTA) PRESIDING MEMBER ..
(REKHA GUPTA) MEMBER SSB