State Consumer Disputes Redressal Commission
1. Indira Gandhi National Open ... vs 1. Sahil Kumar on 16 October, 2014
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, U.T., CHANDIGARH First Appeal No. : 329 of 2014 Date of Institution : 14.10.2014 Date of Decision : 16/10/2014 1. Indira Gandhi National Open University, Maidan Garhi, Near PVR Saket, New Delhi-110068, through its Registrar. Now IGNOU Regional Centre, SCO 208, Sector 14, Panchkula, through its Senior Regional Centre. 2. IGNOU Study Center DAV College, Sector 10, Chandigarh, through its Coordinator. Appellants/Opposite Parties No.2 and 3 V e r s u s 1. Sahil Kumar son of Shri Amar Chand, resident of House No.5125/2, Modern Housing Complex, Manimajra, Chandigarh. ....Respondent No.1/complainant 2. Guru Gram Institute of Aeronautical Engineering and Technology, 9/4, Main Pooli, Sohna Road, Village Pali, Faridabad, Haryana, through its Registrar/Director. .....Respondent No.2/Opposite Party No.1 Appeal under Section 15 of the Consumer Protection Act, 1986. BEFORE: JUSTICE SHAM SUNDER (RETD.), PRESIDENT. MR. DEV RAJ, MEMBER.
MRS. PADMA PANDEY, MEMBER Argued by: Sh. Raghubir Tejpal, Advocate for the applicants/ appellants.
PER JUSTICE SHAM SUNDER (RETD.), PRESIDENT This appeal is directed against the order dated 27.05.2014, rendered by the District Consumer Disputes Redressal Forum-II, U.T., Chandigarh (hereinafter to be called as the District Forum only), vide which, it accepted the complaint, filed by the complainant (now respondent No.1) and directed the Opposite Parties (now two of which are the applicants/appellants/Opposite Parties No.2 and 3) as under:-
In view of the above discussion, we are of the opinion that the present complaint deserves to be allowed and the same is accordingly allowed. The opposite parties are directed as under :-
i) To refund the entire sum of Rs.60,000/-
to the complainant alongwith interest @ 9% per annum from the date of this complaint till payment.
ii) To pay Rs.25,000/- as compensation for mental agony and harassment caused to the complainant;
iii) To pay Rs.7,000/- as litigation costs.
This order be complied with by the opposite parties, within 45 days from the date of receipt of its certified copy, failing which the amounts at Sr.No.(i)&(ii) above shall carry interest @18% per annum from the date of this order till actual payment besides payment of litigation costs.
2. The facts, in brief, are that the complainant took provisional admission in B.Tech, in Aerospace Engineering, in Opposite Party No.2 Institute, through Opposite Parties No.1 and 3, and, as such, paid an amount of Rs.60,000/-, through two demand drafts, as fees. Admission confirmation letter dated 11.06.2011, Annexure C-1, in this regard was issued by Opposite Party No.1, in favour of the complainant.
3. It was stated that on 26.08.2011, the complainant got admission, in another College, namely Ramgarhia, Phagwara, intimation whereof was given by him, to the Opposite Parties. It was also intimated by the complainant to the Opposite Parties, that since he had got admission in the said College, he would not attend the classes, in their Institute, in the Engineering Course, referred to above. It was further stated that the complainant requested Opposite Party No.1, vide letter dated 10.09.2011 Annexure C-2 and email dated 06.12.2011 Annexure C-3, to refund the fees, aforesaid, but it failed to do so. It was further stated that, legal notice dated 06.02.2012, was also served upon the Opposite Parties, to redress the grievance of the complainant, but to no avail. It was further stated that the aforesaid acts of the Opposite Parties, amounted to deficiency, in rendering service, as also indulgence into unfair trade practice. When the grievance of the complainant, was not redressed, left with no alternative, a complaint under Section 12 of the Consumer Protection Act, 1986 (hereinafter to be called as the Act only), was filed, directing the Opposite Parties, to refund the amount of Rs.60,000/-, alongwith interest @24% P.A.; pay compensation, to the tune of Rs.1 lac, for deficiency, in rendering service; and cost of litigation.
4. Despite deemed service, none put in appearance, on behalf of Opposite Parties No.1 and 2, as a result whereof, they were proceeded against exparte, by the District Forum, on 01.08.2012.
5. On 03.03.2014 and 18.03.2014, Sh. Ravinder Dogra, Co-ordinator of Opposite Party No.3, put in appearance, on its behalf, and the complaint case was adjourned to various dates, for filing reply and evidence. However, thereafter, neither the reply nor evidence was filed nor anybody put in appearance, on behalf of Opposite Party No.3, as a result whereof, it was proceeded against exparte, by the District Forum, on 02.05.2014.
6. The complainant led evidence, in support of his case.
7. After hearing the Counsel for the complainant and, on going through the evidence, and record of the case, the District Forum, accepted the complaint, in the manner, referred to, in the opening para of the instant order.
8. Feeling aggrieved, the instant appeal, has been filed by the appellants/Opposite Parties No.2 and 3.
9. Alongwith the appeal, an application under Section 5 of the Limitation Act, for condonation of delay of 103 days, as per the applicants/appellants (as per the office report 90 days), was filed by them, wherein, it was stated that the delay aforesaid occurred, on account of the reason that it (applicant No.1/Opposite Party No.2) did not receive the certified copy of the order impugned, and, as such, was not aware of the proceedings against it. It was further stated that applicant No.1/Opposite Party No.2, came to know of passing of the impugned order dated 27.05.2014, when certified copy of the same was received by appellant No.2/Opposite Party No.3, and it intimated it (appellant No.1/Opposite Party No.2), in the month of July, 2014. It was further stated that, by that time, the period for filing an appeal had already lapsed. It was further stated that, in the meanwhile, notice of Execution Application/Criminal Petition, filed by respondent No.1/complainant was also received by the applicants/ appellants. It was further stated that, on receipt of certified copy of the order impugned, by the applicants/appellants, the same was communicated to their Headquarters, for engagement of an Advocate, for challenging the order impugned, as also defending the Execution Application/Criminal Petition, aforesaid. It was further stated that since the case file was sent to the Head Office of the applicants/appellants, for seeking approval, for filing an appeal, where the same (case file), had to pass through many channels, it took some-time. It was further stated that, on account of this reason, there was delay, in filing the appeal. It was further stated that delay, in filing the appeal, was neither intentional, nor deliberate. Accordingly, the prayer, referred to above, was made.
10. We have heard the Counsel for the applicants/appellants, on the application, for condonation of delay, as also, in the main appeal, at the preliminary stage, and have gone through the record of the case, carefully.
11. The first question, that falls for consideration, is, as to whether, there is sufficient cause for condonation of delay of 103 days, as per the applicants/appellants (as per the office report 90 days), in filing the appeal, under Section 15 of the Act or not. It was held in Smt.Tara Wanti Vs State of Haryana through the Collector, Kurukshetra AIR 1995 Punjab & Haryana 32, a case decided by a Full Bench of the Punjab and Haryana High Court, that sufficient cause, within the meaning of Section 5 of the Limitation Act, must be a cause, which is beyond the control of the party, invoking the aid of the Section, and the test to be applied, would be to see, as to whether, it was a bona-fide cause, in as much as, nothing could be considered to be bonafide, which is not done, with due care and attention. In New Bank of India Vs. M/s Marvels (India): 93 (2001) DLT 558, Delhi High Court, it was held as under:-
No doubt the words sufficient cause should receive liberal construction so as to advance substantial justice. However, when it is found that the applicants were most negligent in defending the case and their non-action and want of bonafides are clearly imputable, the Court would not help such a party. After all sufficient cause is an elastic expression for which no hard and fast guide-lines can be given and Court has to decide on the facts of each case as to whether, the defendant who has suffered ex-parte decree has been able to satisfactorily show sufficient cause for non- appearance and in examining this aspect, cumulative effect of all the relevant factors is to be seen.
12. In Oriental Insurance Co. Ltd. vs. Kailash Devi & Ors. AIR 19107 Punjab and Haryana 45, it was held as under:-
There is no denying the fact that the expression sufficient cause should normally be construed liberally so as to advance substantial justice, but that would be in a case where no negligence or inaction or want of bonafides is imputable to the applicant. The discretion to condone the delay is to be exercised judicially i.e. one is not to be swayed by sympathy or benevolence.
13. In R.B. Ramalingam Vs. R.B. Bhuvaneswari, 2009 (2) Scale 108, the Supreme Court observed as under:-
We hold that in each and every case the Court has to examine whether delay in filing the Special Leave Petitions stands properly explained. This is the basic test which needs to be applied. The true guide is whether the petitioner has acted with reasonable diligence in the prosecution of his appeal/petition.
14. In Balwant Singh Vs. Jagdish Singh and Ors, V (2010) SLT 790=III (2010) CLT 201 (SC), it was held as under:-
The party should show that besides acting bona fide, it had taken all possible steps within its power and control and had approached the Court without any unnecessary delay. The test is whether or not a cause is sufficient to see whether it could have been avoided by the party by the exercise of due care and attention. [Advanced Law Lexicon, P. Ramanatha Aiyar, 3rd Edition, 2005]
15. In Mahant Bikram Dass Chela Vs. Financial Commissioner and others, AIR 1977, S.C. 2221, it was held as under:-
Section 5 of the Limitation Act is a hard task-master and judicial interpretation has encased it within a narrow compass. A large measure of case-law has grown around Section 5, its highlights being that one ought not easily to take away a right which has accrued to a party by lapse of time and that therefore a litigation who is not vigilant about his rights must explain every days delay
16. In Ansul Aggarwal Vs. New Okhla Industrial Development Authority, 2012 (2) CPC 3 (SC) it was held as under:-
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. A bare reading of the first proviso, engrafted to Section 15 of the Act, makes it clear, that the material part of the language thereof, is pari-materia to Section 5 of the Limitation Act, 1963. It may be stated here that, it has been clearly admitted, in the application for condonation of delay, that certified copy of the order impugned dated 27.05.2014, was received in the office of applicant No.2/appellant No.2/Opposite Party No.3. The grounds taken by the applicants/appellants, in the application for condonation of delay, in filing the appeal is that the delay occurred, only on account of the reason, that on receipt of certified copy of the order impugned by applicant No.2/appellant No.2/Opposite Party No.3, it informed applicant No.1/appellant No.1/Opposite Party No.2 about the same, only in the month of July, 2014, by which time, the period of filing an appeal, had already expired, and, thereafter, since the case file had to be sent to their Head Office, for seeking approval, for filing an appeal, as also defending the Execution Application/ Criminal Petition, where the same (case file), had to pass through many channels, it took some more time. It may be stated here that, once certified copy of the impugned order, was received in the office of applicant No.2/appellant No.2/Opposite Party No.3, at Chandigarh, in time, it was the bounden duty of the concerned Officer/Official(s), to take decision, within maximum two to three days, and forward the relevant file/documents, to its Head Office, for granting permission/approval to file an appeal. However, there is nothing, on record, as to on which date, the file/documents and certified copy of the order impugned, were forwarded to the Head office of the applicants/appellants, seeking approval for filing an appeal. Why it took 103 days, as per the applicants/appellants (as per the office report 90 days), for obtaining approval of the concerned Authorities at their Head Office, for filing an appeal, is not known.
18. No doubt, it was also the case of applicant No.1/appellant No.1/Opposite Party No.2 that it had no knowledge of passing of the order impugned, against it, as certified copy of the same (order impugned) was never communicated to it, by the District Forum. This stand taken by applicant No.1/appellant No.1/Opposite Party No.2, also does not merit acceptance. The perusal of record of the District Forum reveals that certified copies of the order impugned were sent by it, to Opposite Parties No.2 and 3, through legal mode i.e. Registered A.D. covers, on 09.06.2014, which were legally presumed to have been received by them, in maximum four to five days, as neither the covers aforesaid, nor the ADs were received back undelivered. It is not the case of applicant No.1/appellant No.1/Opposite Party No.2, that certified copy of the order impugned, was not sent to its correct address.
19. No doubt, the application, is supported by the affidavit of Dr. D.B. Negi, Senior Regional Director of the applicants/appellants/Opposite Parties No.2 and 3, yet no sufficient cause, is made out, from the averments, contained therein, as also in the application, for condoning the delay. It appears that after receiving certified copies of the impugned order, the concerned Officials of Opposite Parties No.2 and 3/applicants/ appellants, slept over the matter, and, ultimately, woke up from their deep slumber, after about 103 days (as per the office report 90 days), when the instant appeal was filed. It could be said that the officials of the applicants/appellants were not diligent, in pursuing the matter. The prescribed period of limitation, as envisaged by Section 15 of the Act, for filing an appeal is 30 days, from the date of receipt of a certified copy of the order. The applicants/appellants did not act, with due diligence, resulting into delay of 103 days, (as per the office report 90 days), in filing the appeal, which is about three and a half times beyond the prescribed period of limitation. The cause set up by the applicants/appellants, in the application, for condonation of delay, could not be said to be plausible. The mere fact that the Officials of the applicants/appellants, acted in a leisure mood, without envisaging the consequences, which could ensue, on account of non-filing of an appeal, within the period prescribed, under Section 15 of the Act, does not mean that they (Opposite Parties No.2 and 3) could be shown undue indulgence. The delay, in filing the appeal was, thus, intentional, willful and deliberate. Since, no sufficient cause is constituted, from the averments, contained in the application, the delay of 103 days, (as per the office report 90 days), cannot be condoned. The principle of law, laid down, in the aforesaid cases, is fully applicable to the facts of the instant case. The application is, thus, liable to be dismissed.
20. The next question, that arises, for consideration, is, as to whether, even if, sufficient cause is shown, it is obligatory, on the Commission, to condone the delay. The answer to this question, is in the negative. In Ram Lal and Ors. Vs. Rewa Coalfields Ltd., AIR 1962 Supreme Court 361, it was held as under:-
It is, however, necessary to emphasize that even after sufficient cause has been shown a party is not entitled to the condonation of delay in question as a matter of right. The proof of a sufficient cause is a discretionary jurisdiction vested in the Court by S.5. If sufficient cause is not proved nothing further has to be done; the application for condonation has to be dismissed on that ground alone. If sufficient cause is shown then the Court has to enquire whether in its discretion it should condone the delay. This aspect of the matter naturally introduces the consideration of all relevant facts and it is at this stage that diligence of the party or its bona fides may fall for consideration; but the scope of the enquiry while exercising the discretionary power after sufficient cause is shown would naturally be limited only to such facts as the Court may regard as relevant.
21. It is evident, from the principle of law, laid down in Ram Lal & Ors.s case (supra), that even if, sufficient cause is shown, then the Court has to enquire, whether, in its discretion, it should condone the delay. This aspect of the matter, requires the Commission, to take into consideration, all the relevant factors, and it is, at this stage, that diligence of the party(s) or its/their bonafides, may fall for consideration. In the instant case, as stated above, it was obligatory, on the part of the applicants/appellants, to take immediate steps to ensure that the appeal was filed within the prescribed period, as envisaged by Section 15 of the Act. However, the Officials of the applicants/appellants, just slept over the matter, and did not take the requisite steps to file the appeal, in time. It was, thus, a case of complete lack of bonafides and inaction, on the part of the applicants/appellants. The principle of law, laid down in Ram Lal & Others case(supra) is fully applicable to the instant case. This is, therefore, not a fit case, in which this Commission, should exercise its discretion, in favour of the applicants/appellants, in condoning the delay.
22. The next question, that arises for consideration, is, as to whether, this Commission can decide the appeal, on merits, especially, when it has come to the conclusion, that there is no sufficient cause, for condonation of delay of 103 days, as per the applicants/appellants (as per the office report 90 days), in filing the same (appeal). The answer to this question, is in the negative, as provided by the Apex Court in State Bank of India Vs B.S. Agricultural Industries (I) II (2009) CPJ 29 (SC). The question before the Apex Court, was with regard to the condonation of delay, in filing the complaint, in the first instance, beyond the period of two years, as envisaged by Section 24A of the Act. The Apex Court was pleased to observe as under ;
Section 24A of the Act, 1986 prescribes limitation period for admission of a complaint by the Consumer Fora thus:
24A. Limitation period(1) The District Forum, the State Commission or the National Commission shall not admit a complaint unless it is filed within two years from the date on which the cause of action has arisen.
(2) Notwithstanding anything contained in Sub-section (1), a complaint may be entertained after the period specified in Sub-section (1), if the complainant satisfies the District Forum, the State Commission or the National Commission, as the case may be, that he had sufficient cause for not filing the complaint within such period:
Provided that no such complaint shall be entertained unless the National Commission, the State Commission or the District Forum, as the case may be, records its reasons for condoning such delay.
It would be seen from the aforesaid provision that it is peremptory in nature and requires Consumer Forum to see before it admits the complaint that it has been filed within two years from the date of accrual of cause of action. The Consumer Forum, however, for the reasons to be recorded in writing may condone the delay in filing the complaint if sufficient cause is shown. The expression, shall not admit a complaint occurring in Section 24A is sort of a legislative command to the Consumer Forum to examine on its own whether the complaint has been filed within limitation period prescribed thereunder. As a matter of law, the Consumer Forum must deal with the complaint on merits only if the complaint has been filed within two years from the date of accrual of cause of action and if beyond the said period, the sufficient cause has been shown and delay condoned for the reasons recorded in writing. In other words, it is the duty of the Consumer Forum to take notice of Section 24A and give effect to it. If the complaint is barred by time and yet, the Consumer Forum decides the complaint on merits, the Forum would be committing an illegality and, therefore, the aggrieved party would be entitled to have such order set aside.
23. The principle of law, laid down, by the Apex Court in State Bank of Indias case (supra), is equally applicable to the filing of an appeal, under Section 15 of the Act. In case, this Commission, decides the appeal, on merits, after coming to the conclusion, that it is barred by time, it would amount to committing an illegality, in view of the principle of law, laid down in State Bank of Indias case (supra).
24. For the reasons, recorded above, the application for condonation of delay of 103 days, as per the applicants/appellants (as per the office report 90 days), being devoid of merit, must fail, and the same is dismissed. Consequently, the appeal under Section 15 of the Act, is also dismissed, being barred by time, at the preliminary stage, with no order as to costs.
25. Certified copies of this order, be sent to the parties, free of charge.
26. The file be consigned to Record Room, after completion.
Pronounced.
October 16, 2014 Sd/-
[JUSTICE SHAM SUNDER (RETD.)] PRESIDENT Sd/-
(DEV RAJ) MEMBER Sd/-
(PADMA PANDEY) MEMBER Rg