State Consumer Disputes Redressal Commission
Dr. Pankaj Gupta vs Sh. Hemant Kumar on 22 July, 2024
FA/396/2024 DR. PANKAJ GUPTA VS. MR. HEMANT KUMAR DOD: 22.07.2024
IN THE DELHI STATE CONSUMER DISPUTES REDRESSAL
COMMISSION
Date of Institution:30.05.2024
Date of hearing : 15.07.2024
Date of Decision : 22.07.2024
FIRST APPEAL NO. 396/2024
IN THE MATTER OF
DR. PANKAJ GUPTA
S/O LATE MR. SHYAM BIHARI GUPTA
R/O HOUSE NO. 780, WARD NO.6
MEHRAULI, NEW DELHI-110030
ALSO AT
F-12, BLOCK-F, EAST OF KAILASH
NEW DELHI-110065
(Through Mr. K.S. Verma, Advocate
Mobile No. 9811560535 & 9873684987)
...APPLICANT/APPELLANT
VERSUS
MR. HEMANT KUMAR
S/O LATE MR. SARJEET SINGH
R/O VILLAGE MACHHGAR (83)
FARIDABAD, HARYANA-121004
....NON-APPLICANT/ RESPONDENT
CORAM:
HON'BLE JUSTICE SANGITA DHINGRA SEHGAL (PRESIDENT)
HON'BLE MS. PINKI, MEMBER (JUDICIAL)
Present: None for the parties.
PER: HON'BLE MS. PINKI, MEMBER (JUDICIAL)
1.The present appeal has been filed on 30.05.2024 challenging the impugned order dated 09.01.2024 passed in Complaint Case No.120/2021 by the District Consumer Disputes Redressal Commission-II (South-I), Udyog Sadan, C-22 & 23, Qutub DISMISSED Page 1 of 7 FA/396/2024 DR. PANKAJ GUPTA VS. MR. HEMANT KUMAR DOD: 22.07.2024 Institutional Area (Behind Qutub Hotel Mehrauli) New Delhi-110016 wherein the opposite party no.2/appellant was proceeded ex-parte.
2. This order will dispose off an application bearing IA No.1674/2024 seeking condonation of delay in filing the appeal, filed along with the appeal. Affidavit 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 69 TO THIS ACT". However, it is being considered under Section 41 of the Consumer Protection Act, 2019 as it is arising out of Complaint Case No.120/2021.
5. Application for condonation of delay has been filed on various grounds. Para No. 2 to 4 of the application read as under:
"2. That the applicant came to know about the impugned order of ex-parte dated 09-01-2024 passed by the Hon'ble District Consumer Forum, South-II, in the First WEEK of May, 2024.
3. That the applicant authorized his newly appointed counsel namely K.S. VERMA & ASSOCIATES who inspected the judicial case file and moved an application under order 9 rule 7 readwith section 151 of cpc for setting aside the ex-party order dated 09-01-2024 alongwith two other applications under order 1 rule 10 readwith section 151 of cpc for impleaded the Oriental Insurance Company for opposite party and third application under section 151 of cpc for providing the copy of amended consumer complaint plaint as well as amended memo of the parties.
4. That the present application within the period of limitation as the applicant came to know the fact of ex- party order dated 09-01- 2024, however the applicant submits that he has been taking the precautionary measure as to if any delay in filing of the present application for condonation of delay the same be condoned."DISMISSED Page 2 of 7
FA/396/2024 DR. PANKAJ GUPTA VS. MR. HEMANT KUMAR DOD: 22.07.2024
6. To adjudicate this issue, we deem it appropriate to refer to Section 41 of the Consumer Protection Act, 2019 which provides as under:-
41. "Any person aggrieved by an order made by the District Commission may prefer an appeal against such order to the State Commission on the grounds of facts or law within a period of forty-five 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 forty-five 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 Commission, shall be entertained by the State Commission unless the appellant has deposited fifty percent of that amount in the manner as may be prescribed:
Provided also that no appeal shall lie from any order passed under sub-section (1) of section 81 by the District Commission pursuant to a settlement by mediation under section 80."
7. A perusal of the aforesaid statutory position reflects that the appeal against an order should be preferred within a period of forty five days from the date of impugned order. On perusal of record before us, it is clear that the impugned order was pronounced on 09.01.2024 and the present appeal was filed on 30.05.2024 i.e. after a delay of 97 days.
8. 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 DISMISSED Page 3 of 7 FA/396/2024 DR. PANKAJ GUPTA VS. MR. HEMANT KUMAR DOD: 22.07.2024 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."
9. 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 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."
10. We further deem it appropriate to refer to Lingeswaran Etc. Versus Thirunagalingam in Special Leave to Appeal (C) Nos.2054- DISMISSED Page 4 of 7 FA/396/2024 DR. PANKAJ GUPTA VS. MR. HEMANT KUMAR DOD: 22.07.2024 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.
11. 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 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.
12. Reverting to the material available before us, we find that the impugned order was passed on 09.01.2024 and the period of limitation starts from the date of order which had expired on 23.02.2024. However, the reasons stated for the delay are that DISMISSED Page 5 of 7 FA/396/2024 DR. PANKAJ GUPTA VS. MR. HEMANT KUMAR DOD: 22.07.2024 the appellant came to know about the impugned order in the first week of May, 2024; the appellant appointed newly counsel namely K. S. Verma & Associates who inspected the file and moved an application under Order IX Rule 7 read with Section 151 of CPC for setting aside the impugned order along with two other applications under order 1 rule 10 read with Section 151 of CPC for impleaded the Oriental Insurance Company for opposite party and the third application under Section 151 of CPC for providing the copy of amended consumer complaint as well as amended memo of parties.
13. As per impugned order dated 09.01.2024, none has appeared for the appellant/opposite party no. 2 since December, 2022. The appellant has preferred not to mention the reason as to why he has not appeared before the District Commission after December, 2022. It is the duty of the appellant to be aware of his case(s) pending before any Court/Commission/Tribunal and to be vigilant as well as to keep track of his case(s). Impugned order dated 09.01.2024 reads as under:
"Counsel for complainant states that he seeks more time to file rejoinder to the reply to OP-1 to OP-8, except OP-6.
None has appeared on behalf of OP-1 and OP-2 since December, 2022. OP-1 and OP-2 are proceeded exparte.
List on 23.02.2024 for rejoinder to OP-1 to OP-8, except OP-6 and complainant's evidence."
14. The appellant has not mentioned the date as to when he appointed his newly counsel who inspected the judicial case file and as to when he moved an application under Order IX Rule 7 read with Section 151 of CPC for setting aside the impugned order dated along with two other applications i.e. under Order 1 Rule 10 read with Section DISMISSED Page 6 of 7 FA/396/2024 DR. PANKAJ GUPTA VS. MR. HEMANT KUMAR DOD: 22.07.2024 151 of CPC for impleaded the Oriental Insurance Company for opposite party and i.e. under Section 151 of CPC for providing the copy of amended consumer complaint as well as amended memo of party. Further, no copy of above mentioned applications has been filed by the appellant in support of his averments.
15. The applicant has abused the process of law and filed this appeal after delay without any reasonable ground.
16. As per the averments made in the application as well as the record, we are of the considered view that no cogent reason has been explained by the appellant to show the delay in filing the appeal.
17. Having regard to the statutory position discussed in para supra and the facts of the case, the applicant/appellant has failed to show any sufficient cause for the delay in filing the present appeal. Therefore, the application filed by the appellant seeking condonation of delay cannot be admitted and accordingly, the same is dismissed on the above grounds.
18. 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.
19. The Order be uploaded forthwith on the website of the Commission for the perusal of the parties as well as forwarded to the corresponding E-mail address available on the record.
20. File be consigned to record room.
JUSTICE SANGITA DHINGRA SEHGAL (PRESIDENT) PINKI MEMBER (JUDICIAL) Pronounced on 22.07.2024.
DISMISSED Page 7 of 7